Part 32


July 17, 2020


It was in 1980 or 1981 that I first became acquainted with Jay Sekulow.  I had a brief guest appearance on the 700 Club on this occasion (I was heading up CBN's operations in Alaska at the time), and Jay was the primary guest.  When I heard him talk about Law and the Constitution, everything inside me just leaped.  Here was a man who had a real grasp of what our nation's founding fathers intended, a man who was more than just an astute attorney.  Jay had an anointing from the Holy Spirit to go with his legal brilliance.

If memory serves me correctly, it was in 1977 that Pat Robertson founded CBN University with a specific view towards raising up and educating a new generation of leaders -- not only for America, but for the world at large -- who would be educated with a thorough knowledge of governmental leadership, the U.S. Constitution, and the birthing of America under Christian principles.  Before long the name changed to Regent University and in 1980, Regent University School of Law began operations.  Jay Sekulow was tapped as a professor for this new school of law.

A new generation of lawyers began to emerge from Regent, and with this generation, an understanding that if Christians were going to regain the liberties being systematically stolen by atheists, leftists and liberals using their compatriot and sympathetic judges throughout our nation's court system, Christians were going to have defeat them on their own turf using the law and the still-intact Constitution.

In 1990, Pat Robertson founded the American Center for Law and Justice (ACLJ) putting Jay at the head of the organization as Chief Counsel.  The ACLJ came into being as a direct means of combating the ultra-liberal, leftist, and anti-God (with communist foundations) ACLU.

During the same time frame that the ACLJ was coming into its existence, Mathew Staver was organizing the Liberty Counsel with similar goals and objectives.  (I met Matt for the first time at a meeting in Washington, DC a few years ago.)  Besides founding the Liberty Counsel, Matt also serves as the Dean of Liberty University School of Law, and is on the board of Trustees at Jerry Falwell's Liberty University.

Then in 1994, Kevin J. "Seamus" Hasson founded the Becket Fund for Religious Liberty.  Hasson had served in the Reagan Administration in the Office of Legal Counsel, advising President Reagan on church-state relations.

Add to these organizations Donald Wildmon's American Family Counsel, Lou Sheldon's Traditional Values Coalition, Tony Perkins' Family Research Council, and Alan Sears' Alliance Defense Fund, and you have a formidable array of organizations, individuals, and resources allied in the fight to restore our nation's moral and spiritual foundations.

Thus, in 1993 we saw the tide begin to turn in the way that cases relating to the myth of "separation of church and state" were presented before the courts, and the way in which they were decided.  It was Jay Sekulow and the ACLJ who began the reversal.

New York state law permits school districts to allow their buildings to be used outside school hours for social, civic, and recreational but not for religious purposes. The Center Moriches district, interpreting these regulations, denied permission for a local church group to show a film on Christian family values in a school building after school hours. The church (Lamb's Chapel) and its pastor brought suit against the district in United States District Court, (the case was titled, Lamb's Chapel v. Center Moriches Union Free School Dist.) claiming their First Amendment right of free speech was being denied. The District Court agreed with the school district. The area was a limited public forum, the school district had not opened its facilities to organizations for similar religious purposes and therefore the denial was "viewpoint neutral." The US Court of Appeals affirmed the decision.

When the case reached the US Supreme Court on February 4, 1993, the Court reversed the decision by a 9-0 vote. They ruled that: 1)the district's denial of permission to show the film was a violation of the First Amendment speech clause given that,: a)the district permitted the use of school property for social or civic purposes; b)there was no suggestion that the film would not constitute such a use; c)permission had been denied solely because the film dealt with an otherwise permissible subject from a religious standpoint; 2)it would not be a violation of the First Amendment's establishment of religion clause to permit the church to show the film and; 3)the district's denial could not be justified on the grounds that: a) the churches use of school property would lead to threats of public unrest and even violence, or b) the purpose of the board's access rules was to promote the interests of the public in general rather than sectarian or other private interests. (508 U.S. 384 (1993).

Interestingly enough, it was John G. Roberts (now Chief Justice of the Supreme Court, thanks to President Bush) who co-authored an amicus ("friend of the court") brief which helped to hammer the final nail in the coffin of the Court of Appeals' decision, bringing the Supreme Court's reversal.

It was two years later on March 1, 1995, that Rosenberger v. Rector and Visitors of University of Virginia came before the Supreme Court.  In the opening presentation of the case, Justice Anthony Kennedy described the case like this:

"The University of Virginia, an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments, authorizes the payment of outside contractors for the printing costs of a variety of student publications. It withheld any authorization for payments on behalf of petitioners for the sole reason that their student paper "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." That the paper did promote or manifest views within the defined exclusion seems plain enough. The challenge is to the University's regulation and its denial of authorization, the case raising issues under the Speech and Establishment Clauses of the First Amendment."

Justice Kennedy continued his description of the argument presented before the Court thus:

"Petitioners' organization, Wide Awake Productions (WAP), qualified as a CIO (Contracted Independent Organization). Formed by petitioner Ronald Rosenberger and other undergraduates in 1990, WAP was established "to publish a magazine of philosophical and religious expression," "to facilitate discussion which fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints," and "to provide a unifying focus for Christians of multicultural backgrounds." App. 67. WAP publishes Wide Awake: A Christian Perspective at the University of Virginia. The paper's Christian viewpoint was evident from the first issue, in which its editors wrote that the journal "offers a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia." App. 45. The editors committed the paper to a two-fold mission: "to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means." Ibid. [***] Each page of Wide Awake, and the end of each article or review, is marked by a cross. The advertisements carried in Wide Awake also reveal the Christian perspective of the journal. For the most part, the advertisers are churches, centers for Christian study, or Christian bookstores. By June 1992, WAP had distributed about 5,000 copies of Wide Awake to University students, free of charge.

"WAP had acquired CIO status soon after it was organized. This is an important consideration in this case, for had it been a "religious organization," WAP would not have been accorded CIO status. As defined by the Guidelines, a "religious organization" is "an organization whose purpose is to practice a devotion to an acknowledged ultimate reality or deity." App. to Pet. for Cert. 66a. At no stage in this controversy has the University contended that WAP is such an organization.

"Having no further recourse within the University structure, WAP, Wide Awake, and three of its editors and members filed suit in the United States District Court for the Western District of Virginia, challenging the SAF's action as violative of Rev. Stat. [sec.] 1979, 42 U.S.C. [sec.] 1983. They alleged that refusal to authorize payment of the printing costs of the publication, solely on the basis of its religious editorial viewpoint, violated their rights to freedom of speech and press, to the free exercise of religion, and to equal protection of the law. They relied also upon Article I of the Virginia Constitution and the Virginia Act for Religious Freedom, Va. Code Ann. [secs.] 57-1, 57-2 (1986 and Supp. 1994), but did not pursue those theories on appeal. The suit sought damages for the costs of printing the paper, injunctive and declaratory relief, and attorney's fees."

Justice Kennedy's refutation of the argument presented by the university's rector gets to the meat of the case, and makes clear why Jay Sekulow, Mathew Staver and other like-minded legal scholars have turned the argument away from "separation of church and state" to "freedom of speech."

In his summation of the court's decision, he writes, "Were the dissent's view to become law, it would require the University, in order to avoid a constitutional violation, to scrutinize the content of student speech, lest the expression in question--speech otherwise protected by the Constitution--contain too great a religious content. The dissent, in fact, anticipates such censorship as "crucial" in distinguishing between "works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve." Post, at 896.

“That eventuality raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. To impose that standard on student speech at a university is to imperil the very sources of free speech and expression. As we recognized in Widmar, official censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion-blind basis.

"The dissent fails to establish that the distinction [between 'religious' speech and speech 'about' religion] has intelligible content. There is no indication when 'singing hymns, reading scripture, and teaching biblical principles' cease to be 'singing, teaching, and reading'--all apparently forms of 'speech,' despite their religious subject matter--and become unprotected worship.' . . .

"Even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university--and ultimately the courts--to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970)." 454 U.S., at 269-270, n. 6."

On February 28, 2001, the Supreme Court had another case presented before it -- also based in the First Amendment's free speech protection rather than its freedom of religion protection.

When Rev. Stephen Fournier, who sponsored a Good News Club in the upstate New York village of Milford, sought to move his Christian youth group's meeting place to the one public school in town, he was not trying to make a federal case of his work or faith.  Rather, his decision was more a matter of car pool strategy — something every working parent understands. Rev. Fournier's own three children attended the school, and his wife volunteered there. In seeking to move the Club to the school, he merely sought to join the several other external youth clubs, such as 4-H and the Boy Scouts, which used the school facilities after classes were dismissed.

But when Fournier applied to use a room, the school district said absolutely not. The Club was too much like a mid-week Sunday School, was the claim. There were Bible stories, praise, and prayer involved. Children might get the idea that the school was supporting God.  "Evangelism as hard sell" was how Club opponents described meetings. Children, they said, were evangelized with passionate pleas for their very souls — albeit pleas that were sandwiched between scripture memory games and lots of sugary treats. It was vacation bible school, after school — and children might think it was part of school.

The Club's opponents overstated their case, to say the least. Can a fourth grade student distinguish between a 2:00 p.m. Social Studies class and a 3:00 p.m., afterschool Good News Club meeting? Of course. The children can and do distinguish.  The Fourniers then sued in federal court, arguing that the school district was engaging in "viewpoint discrimination."

Initially, they won: A preliminary injunction allowed the Club to hold weekly after-school meetings in school facilities for a year, while awaiting trial.  But trial never happened. Instead, in August 1998, the federal trial judge vacated the injunction and summarily ruled in favor the school district. The Club's subject matter was ruled "decidedly religious in nature, and not merely a discussion of secular matters from a religious perspective." As a result, the Club was kicked out of the building.

We'll take up the remainder of this case and conclude our series on Our Forefather’s Covenantsnext week.  I had thought to finish today, but after I saw all the material I had expected to cover, and put it down on paper, it was nine pages long.  That was simply too much for a single Coffee Break, so I've cut what was to be today's final discussion into two parts.  We'll wrap up in our next Coffee Break with a look at one of the most far-reaching (in American jurisprudence) Supreme Court cases dealing with America's Christian heritage.

We don't get what we deserve; we get only what we declare and operate in according to the laws of the Kingdom of God.

In case you are missing out on real fellowship in an environment of Ekklesia, our Sunday worship gatherings are available by conference call – usually at about 10:30AM Pacific.  That conference number is (712) 770-4160, and the access code is 308640#.  We are now making these gatherings available on video usingZOOM.  If you wish to participate by video on ZOOM, our login ID is 835-926-513.  If you miss the live voice-onlycall, you can dial (712) 770-4169, enter the same access code and listen in later.  The video call, of course, is not recorded – not yet, anyway.

Blessings on you!




Regner A. Capener

Temple, Texas 76502

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