Religion and the Constitution

On the general subject of church and state, Justice Joseph Story wrote:

“… Article VI, paragraph 3 of the U.S. Constitution declares, that ‘no religious test shall ever be required as a qualification to any office or public trust under the United States.’ This clause is not introduced merely for the purpose of satisfying the scruples of many persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher objective: to cut off forever every pretense of any alliance between [a particular] church and state in the national government.

The real object of the 1st Amendment was, not to countenance, much less to advance Mahometanism [Islam], or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give, to a [particular] hierarchy, the exclusive patronage of the national government. It thus cut off the means of religious persecution, [the vice and pest of former ages,] and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age [as well as the subversion of the other rights addressed in the Amendment – particularly speech].

The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any which should be found to disgrace the pages of foreign annals. Apostasy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.”

This historic interpretation by a passionate and learned mind – by someone who actually lived through the Ratification debates – has long since been abandoned by a less-informed Court, beginning, at least, with Everson v. Board of Education [1947], in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ”…aid one religion” or ”…prefer one religion over another,” but, as well, those that “… aid all religions.” Clearly by this bizarre extension, the Court believed the Establishment Clause also forbids practices that injure one religion, or all religions – the clear intent of most atheist groups in their frequent lawsuits.

Joseph Story is most remembered for his opinions in Martin v. Hunter’s Lessee  and the Amistad case, and especially for his magisterial Commentaries on the Constitution of the United States, first published in 1833. Dominating the field in the 19th Century, this work is a cornerstone of early American jurisprudence. It is the second comprehensive treatise on the provisions of the U.S. Constitution and remains a critical source of historical information about the forming of the American republic and the early struggles to define its law.

Story opposed Jacksonian democracy, saying it was “oppression” of property rights by republican governments when popular majorities began (in the 1830s) to restrict and erode the property rights of the minority of rich men [still a staple of the Democrat Party]. R. Kent Newmeyer presents Story as a “Statesman of the Old Republic” who tried to be above democratic politics and to shape the law in accordance with the republicanism of Alexander Hamilton and John Marshall and the New England Whigs of the 1820s and ’30s, including Daniel Webster. Historians agree that Justice Joseph Story reshaped American law in a ‘conservative’ direction that protected property rights – as much or more than long-time Chief Justice John Marshall or anyone else.

In diametric opposition to Story and to other statements he had made, President Thomas Jefferson, as we have seen, used a curious phrase, for the first and only time, when he wrote a letter to a group of Baptists in Danbury, Connecticut in 1802, in which he declared that it was the purpose of the 1st Amendment to build ”…a wall of separation between Church and State.” 

In Reynolds v. United States, Chief Justice Waite for the Court, characterized the phrase as ”…almost an authoritative declaration of the scope and effect of the amendment.”

In its first encounters with religion-based challenges to State programs, the Court looked to Jefferson’s metaphor for substantial guidance. But a metaphor is not a Constitutional prescription and may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action.  

One value that the Court has formally endorsed in a number of decisions is that both clauses of the religion section serve to enforce governmental neutrality in deciding controversies arising out of religious disputes. The concept of neutrality itself is ”a coat of many colors,” and three standards that could be stated in objective fashion emerged as tests of Establishment Clause’ validity.

The first two standards were part of the same formulation. ”The test may be stated as follows: What are the purpose and the primary effect of the enactment? Is there advancement or inhibition of religion? If so, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say – in order to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” 

The third test is whether the governmental program results in ”an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.” In 1971 these three tests were combined and restated in Chief Justice Warren Burger’s opinion for the Court in Lemon v. Kurtzman, and are frequently referred to by reference to that case name.

Justice Sandra Day O’Connor has suggested that it is inappropriate to try to shoehorn all Establishment Clause cases into one test, and has called instead for recognition that different contexts may call for different approaches. For example, the Justice proposes that cases involving government ”speech” on religious topics be judged by an endorsement test that would invalidate government actions only if a reasonable observer would perceive the action as an endorsement or disapproval of religious belief.

“It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to address religious organizations and their independence from secular control or manipulation – in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” 

The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize 1st Amendment values. On the other hand, a court confronted with a church property dispute could apply ”neutral principles of law, developed for use in all property disputes,” when to do so would not require resolution of doctrinal issues.  

The 1st Amendment does not prevent the State court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter.

When interpreting the 1st Amendment, the Supreme Court has been extraordinarily circumspect in its decisions regarding the independence of – religion from politics – church from state – faith from power. Understanding that the belief of the Founders that their Creator informed their deliberations, the Court has continually and universally deferred to the idea that religion and politics are like oil and water – they cannot be made to mix and that like the oil, religion always rises to the top – to trump whatever political waters are riled by contemporary secular issues.

Despite all of the discussion above, the PLDC still tries to apply their convoluted logic to religious liberty by contending that sincerely held religious beliefs – the touchstone of religions throughout history – can be equated to prejudice and discrimination (see LBGTQ issues). In their collective and obviously unexamined mind, this outrageous concept – an attempt to apply constitutional constraints to religious liberty – defies logic because, by equating the two diametric opposites – prejudice and discrimination both imply an unwarranted belief while religious faith is not only warranted, it is commanded by America’s Judeo-Christian foundation – the PLDC concept would give constitutional protection to prejudice and discrimination – since religious liberty is already enshrined in the 1st Amendment!

Secular attacks on the inalienable right to religious liberty are commonplace in 21st Century America. Rather than discuss religious issues in a philosophical manner, the PLDC virtually always turns to their fellow-travelers in the courts for a legal resolution which, virtually always, violates the religious liberties of people of faith. The PLDC argument virtually always includes a reference to prejudice and/or discrimination – the incomprehensible analogy debunked above. But, as always, the PLDC is not deterred. Behold:

A Bible and Bible verse were removed from a POW/MIA display inside an Ohio Veteran’s Administration clinic after the notorious Military Religious Freedom Foundation (MRFF) complained. The religious artifacts were part of a “Missing Man Table” recently erected by volunteers at an outpatient clinic in Akron.

MRFF founder Mikey Weinstein alleged the inclusion of the Bible was a violation of the U.S. Constitution. He said he intervened at the request of nearly a dozen, mostly Christian, military veterans who utilize the clinic. However, clinic administrator Brian Reinhart said to his knowledge no one ever complained. In other words, Mr. Weinstein’s allegations are a bit dubious. Nevertheless, Reinhart relented and evicted God’s Word from the display.

 “I just wanted to let you know that the Bible has been removed from our POW table and the Bible verse has been removed from the framed scripture,” Reinhart wrote in an email to Weinstein. To say that Weinstein was giddy over the desecration of such a moving tribute would be an understatement.

“MRFF’s veteran client-soldiers and we at the MRFF as well, applaud this VA Clinic Administrator’s sage wisdom and courage in recognizing that the U.S. military is comprised of hundreds if not thousands of diverse faiths as well as no faiths,” he wrote in a statement. “We heartily commend his taking decisive and swift action to remedy the situation so that the MIA/POW table truly honors all.”

Of course, what Mikey knows, but cannot admit, is that the Missing Man Table has been created for the survivors – those left behind by the missing man – and it is the survivors who are the only voices that count in any debate over the Missing Man Table – not Mikey, not the lawyers, not the phantom complainers. Only the survivors!

Reinhart has said that he alone was responsible for ordering the Bible removed from the display. “In discussing it with the volunteers, we thought as though it was the best course of action since several veterans did express concerns regarding it,” he said in a telephone interview. Reinhart probably should’ve run Weinstein’s demand up the flag pole – because he may have committed an egregious error.

“MIA/POW tables have been part of military tradition for generations,” said Ron Crews, the executive director of the Chaplain Alliance for Religious Liberty. “They have always included certain elements including a Bible.” The official Navy blog clearly identifies the Bible as a significant part of the Missing Man Table & Honors Ceremony. “The Bible represents faith in a higher power and the pledge to our country, founded as one nation under God,” the Navy ceremony text reads.

The National League of Families of American Prisoners and Missing in Southeast Asia has similar wording in its ceremony. “The Bible represents the strength gained through faith to sustain us and those lost from our country, founded as one nation under God.” Crews lamented the decision to remove the Good Book.

“It is a sad day when the Veteran’s Administration caves to one narrow view of the proper way to honor the courage and sacrifice of those who have dedicated their lives in service of their country,” he said.  “Many have died to protect the right of Americans to have and read the Bible.  Surely we can honor their sacrifice by allowing a Bible at their table of remembrance.”

It’s not the first time the “politically correct” military has desecrated a Missing Man table. In 2014 a Bible was removed from a display at Patrick Air Force Base in Florida – to make the table more “inclusive.” And whenever you see the word “inclusive” it normally means Christians are about to get silenced.

So, who is Mikey Weinstein, the man President Obama’s Pentagon reportedly confirmed consulting before officially threatening to court-martial soldiers who talk about Jesus Christ?

According to the MRFF; “Mikey Weinstein is the undisputed leader of the national movement to restore the obliterated wall separating church and state in the most technologically lethal organization ever created by humankind: The United States armed forces. Described by the press in Harper’s magazine as “the constitutional conscience of the U.S. military, a man determined to force accountability, … Mikey’s family has a long and distinguished U.S. military history spanning three consecutive generations of military academy graduates and over 130 years of combined active duty military service in every major combat engagement our country has been in from World War I to the current Global War on Terror.

Mikey is a 1977 Honor Graduate of the United States Air Force Academy. Mikey has been married for over 38 years to his wife, Bonnie. He is the proud parent of two sons, one daughter and one granddaughter. His oldest son and daughter-in-law are 2004 Graduates, Mikey’s youngest son graduated in the Class of 2007, and his son-in-law is a 2010 graduate from the Air Force Academy.  Seven total members of Mikey’s family have attended the Academy. His father is a distinguished graduate of the United States Naval Academy. Mikey served for more than 10 years with the Judge Advocate General (“JAG”) Corps.

A registered Republican, he also spent over three years working in, and for, the West Wing of the Reagan Administration as legal counsel in the White House. In his final position there, Mikey was named the Committee Management Officer of the much-publicized Iran-Contra Investigation in his capacity as Assistant General Counsel of the White House Office of Administration, Executive Office of the President of the United States. Mikey has held numerous positions in corporate America as a senior executive businessman and attorney.

After stints at prominent law firms in both New York City and Washington D.C., Mikey served as the first General Counsel to Texas billionaire and two-time presidential candidate H. Ross Perot and Perot Systems Corporation. He left Mr. Perot’s employ in 2006 to focus his fulltime attention on the nonprofit charitable foundation he founded to directly battle the far-right militant radical evangelical religious fundamentalists: The Military Religious Freedom Foundation.”

 Let’s see what Mikey has to say for himself. (Every quote can be cited online.)

Mikey Weinstein has declared war on millions of Christians, saying on tape “We are at war with a sub-set of evangelical Christianity…how many? Roughly 12.6% of the American public or 38 million people.” 

He has reportedly sued Christians, or the Military to silence Christians 5 times, and failed in all 5 lawsuits, with none surviving to trial. Despite his failure, he feigns expertise on the Constitution, threatening to sue again. 

He reportedly told one interviewer: “The biggest crime I accuse the religious right of and it’s a blood libel, a crime against humanity is torturing that concept…My response is: F**k you. F**k you. How dare you?”

He routinely threatens violence, reportedly saying “When I see anti-Semitism, I don’t f**king care if I live or die, someone’s going to get a f**king beating.”

He reportedly demanded the Army court-martial its Chief of Chaplains for announcing an interfaith day of prayer: “The Military Religious Freedom Foundation [MRFF] sought Maj. Gen. Douglas Carver’s ouster on the day Carver designated for prayer and fasting for chaplains.

He reportedly hires eight different law firms and five PR agencies to wage his war against Christians. We are at war; I agree with my friend…We are at war.” He reportedly described his anti-Christian organization MRFF: “We are a weapon. We’re a militant organization. Our job is to kick ass, take names, lay down a withering field of fire, and leave sucking chest wounds on this unconstitutional heart of darkness, if you will, this imperious fascistic contagion of unconstitutional triumphalism.”

He targets evangelical Christian chaplains, reportedly saying: “Either you stay quiet and let the evangelical chaplains shape a generation of the most powerful instrument of death the world has ever known into an army for Jesus, or you speak up. I couldn’t stay quiet…today we face a new danger; the rise of the ‘fundamentalist Christian, parachurch, military corporate proselytizing complex.'”

He reportedly threatened violence to a former Navy Chaplain, saying “I would like to beat the s**t out of him in a boxing ring or in an alley behind a Safeway.” Mikey later sued (and failed) to stop the Chaplain from publicly praying the Psalms to God.

He is now being sued for defamation by that same chaplain, who is accepting donations to the “Sue Mikey Weinstein Fund.”

He reportedly denigrates Pentecostal Christians, saying “Our Pentagon has been turned into a ‘Pentacostalgon’, and our department of defense has been turned into an imperious, vicioustic[?], contagion of unconstitutional triumphalism by people that want to kill us, or have their version of Jesus kill us, if we don’t accept their Biblical worldview.”

He labels Bible-believing Christians as monsters, writing that “those evil, fundamentalist Christian creatures and their spiritual heirs have taken refuge behind flimsy, well-worn, gauze-like euphemistic facades such as ‘family values’ and ‘religious liberty.'”

Mikey Weinstein reportedly said: “General Petraeus has, by his own hand, become a quintessential poster child of this fundamentalist Christian religious predation, via his unadulterated and shocking public endorsement of a book touting both Christian supremacy and exceptionalism…Petraeus’s immediate dismissal and trial by General Courts-Martial under Article 134 is not merely warranted but demanded!”

He reportedly called Sarah Palin a “virulently homophobic, virulently misogynistic, virulently anti-Semitic and Islamophobic… pre-millennial, dispensational, reconstructionist, dominionist, evangelical, fundamentalist Christian.”

He reportedly believes Bible-believing Christians are like the Taliban, saying “Basically what we’re facing are Fundamentalist, Dominionist Christians that are preying — P-R-A-Y and P-R-E-Y — on non-Fundamentalist Christians including in many respects other evangelical Christians that are just not fundamentalist Christians, telling them that, ‘you may think you were Christian enough for us but you’re not. And as a result, you will burn eternally in the fires of Hell along with the Jews.'”

He reportedly makes anti-Semitic comments against Jews: “They’re bad. That includes our folks, the Orthodox, the others…The JWV has no spine. I’ve been completely depressed. They haven’t reached out at all, they seem to have absolutely no balls whatsoever. Somehow I think they and the ADL, Abe Foxman, have confused circumcision with castration. I don’t see any balls at all from any of them, so my response is ‘go back to collecting your dues.'”

He reportedly blames evangelical Christians for the Holocaust, saying “I’m not just talking about the Holocaust or the Inquisition or the four Crusades, I’m not just talking about the Black Plague; it’s the transition from Plan A to Plan B. In Plan A, evangelical Christians with a smile on their face will ask you to please, please, please accept their biblical worldview of Jesus. The problem with that is, inevitably, Plan A morphs into Plan B. They stop asking so nicely, and then you have the Holocaust, the pogroms, the Inquisition…”

He reportedly believes religious people may not wear a military uniform: “Whatever religious belief you have Judaism, Christian, agnostic, et cetera wear whatever clothes you want, you just can’t wear Uncle Sam’s clothes. What is so hard to understand about this?”

He reportedly was asked if he wants to ban people from saying “God bless you” when someone sneezes, and replied: “If standing up for the Constitution makes you a godless secular leftist or an arch secularist, well, like I’ve said before, gee, you say that like it’s a bad thing.” 

He labels evangelical Christians as terrorists, reportedly saying “We are facing a national security threat in this country that is every bit as significant in magnitude, width and breadth internally as that presented externally by the now-resurgent Taliban and al-Qaeda…We are facing an absolute fundamentalist Christianisation — a Talibanisation — of the US Marine Corps, Army, Navy, and Air Force.”

He believes that Christian groups like the American Family Association (AFA), the Family Research Council (FRC), and the Chaplains Alliance for Religious Liberty (CARL) are correctly characterized as “hate groups” by the Southern Poverty Law Center.

He reportedly threatened Christian soldiers who talk about Jesus with nuclear missiles, saying “we’re very close to going back in again with nuclear-tipped missiles to lay down that withering field of fire and leave sucking chest wounds to protect the right of members of our US Military from not being forced to accept a particular religious faith over all others.” 

He reportedly labels many popular Christian fellowship groups the “draconian spectre of command influence to push this weaponized Gospel of Jesus Christ. It’s very digital, one and zero. Either you accept our view, or either we or our version of Jesus will have to kill you, and our version of Jesus will light you up on fire for Eternity, so you’re really gonna be dead.”

He hates Christians who support Jews in Israel, reportedly saying: “They love us to death. Literally that. They’ve got to place us in Israel. They’ve got to make sure there’s Israeli hegemony over as much as of the Middle East as possible. They have so much to do… ‘We love you Jews. We love you Jews.’ (claps hands) ‘Places everyone, all the Jews go to Israel. We gotta strengthen Israel.’… Supportive of Israel and Judaism for their own twisted agenda, eh? That’s f**ked up, bigtime!”

He reportedly believes “evangelicals are trying to turn his beloved military into a ‘frickin’ faith-based initiative.’ These people should be court-martialed.”

He reportedly believes a Jewish chaplain should be court-martialed. Concerning a Messianic Jewish chaplain who may have intercepted materials intended for an Orthodox Soldier while deployed to Iraq, Mikey reportedly said “that chaplain should be immediately court martialed. He should be f**king court martialed. I’m speaking as a JAG… Charges should be referred against him immediately for a general court martial.”

He routinely compares evangelical Christians to terrorists, reportedly saying “It’s a fundamentalist Christian-Constitution fight…This represents a perfect, quintessential example of the fact that our United States military has become infused, essentially, with the Christian mirror image of the type of Islam that is pushed by al-Qaida and the Taliban.”

Have you ever heard of a more bigoted, biased, hateful, crude, anti-Jesuite loudmouth? Registered or not, he is no Republican. He is the poster boy for the PLDC. A self-loathing bully hiding behind the skirts of Lady Justice. I wonder what secrets are hiding in his closet.

Next time: Islam in contemporary America.

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