Part 33


July 24, 2020


Greetings and Salutations!  Ready for the day?  Good.  Then pour yourself a cup of that good dark brew and let's pick up where we left off last week where we were talking about the initial rulings in the Good News Club case.

At first, the Federal Judge hearing the case granted a preliminary injunction which 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.

On appeal, two judges of a three-judge panel of the United States Court of Appeals for the Second Circuit agreed with the trial judge. The panel ruled that because the subject matter of the Club was "quintessentially religious" and fell "outside the bounds of pure moral and character development," the Club could not be allowed to hold meetings in the government building. In short, there was just too much bible study and praise for the Second Circuit's liking.  The dissenting judge, to no avail, reminded his brethren that the Supreme Court's earlier ruling in Lamb's Chapel v. Center Moriches Union Free School Districtremained binding precedent, and thus demanded the appellate court rule for the Club. Judges, too, are bound by the law.

The dissenting judge was absolutely correct. The issue of how courts should address religious speech that takes place in a limited public forum had already been firmly and finally settled not only by the 1993 decision in Lamb's Chapel, but also by the 1995 ruling in Rosenberger v. Rector and Visitors of Univ. of Virginia.  Taken separately, or as a pair, the two rulings were — and are — crystal clear that that religious speech, even in a limited public forum, is fully protected by the Free Speech Clause of the First Amendment.

Nevertheless, not only the Second Circuit panel's majority, but also other lower federal judges across the nation chose to flout these two high court rulings. The Eighth and Tenth Circuits followed the high court's precedent. But the Second, Fifth, and Ninth Circuits either ignored it or found creative ways to distinguish it — twisting logic so as to authorize blatant discrimination against religious speech. That gave rise to the need for the Supreme Court to intervene, and lay down the law in Good News.

After reading the Good News Clubrecord, it is tempting to ask whether some lower court judges were purposely resisting the Rehnquist Court's approach — just as, in the past generation, some Southern federal judges once purposely delayed and circumvented the implementation of the high court's racial desegregation mandate in Brown v. Board of Education.

In Good News, the Supreme Court, in a 6-3 decision, reminded lower federal courts that they were not, in fact, God.  Clarence Thomas wrote a very direct opinion for the majority of six justices, which not only resolved the Circuit split but also sent a clear message.

Justice Thomas focused his analysis on the discrete question of whether the school district could engage in viewpoint discrimination, simply because the speech was religious. He quickly applied the Court's 1993 Lamb's Chapel precedent, and rebuked the Second Circuit for not doing the same: "We find it remarkable that the Court of Appeals majority did not cite Lamb's Chapel, despite its obvious relevance to the case….This oversight is particularly incredible because the majority's attention was directed to it at every turn."

Thomas could see no logical Free Speech Clause difference between the invocation of Christianity by the Club and"the invocation of teamwork, loyalty, or patriotism" by other after school groups.  Thus, he rejected the Second Circuit's determination that reliance on Christian principles uniquely "taints"moral and character discussions.

He also, and similarly, rejected the argument that the K-12 public school would be "endorsing religion" by subjecting its young children to coercive peer pressures: "We decline to employ Establishment Clause jurisprudence using a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive."

(Note: Let me express my appreciation to Victor Williams, a FindLaw guest columnist, for his wording and phraseology in some of the immediately foregoing paragraphs.)

Let me wrap up this Coffee Break, and this series with a quick look at a case which came before the Supreme Court in 1892.  This case, titled Holy Trinity Church v. U.S., actually began in 1887 when The Church of the Holy Trinity in New York employed the services of an English pastor, E. W. Warren, who left England to take the pastorate.  Federal immigration officials attempted to block the hiring of the pastor based on a federal statute which prohibited importing foreign laborers. The U.S. Supreme Court held that this statute could not be applied to pastors because this is a Christian nation.

In its ruling, the Court stated (and this gets pretty long, but is definitely worth the read), "But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.(accent added) This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation.  The commission to Christopher Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the grace of God, king and queen of Castile," etc., and recites that "it is hoped that by God's assistance some of the continents and islands in the [143 U.S. 457, 466] ocean will be discovered," etc.  The first colonial grant, that made to Sir Walter Raleigh in 1584, was from "Elizabeth, by the grace of God, of England, Fraunce and Ireland, queene, defender of the faith," etc.; and the grant authorizing him to enact statutes of the government of the proposed colony provided that "they be not against the true Christian faith nowe professed in the Church of England."  

"The first charter of Virginia, granted by King James I. in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: "We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darknessand miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to, their humble and well-intended Desires."

"Language of similar import may be found in the subsequent charters of that colony, from the same king, in 1609 and 1611; and the same is true of the various charters granted to the other colonies. In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant.  The celebrated compact made by the pilgrims in the Mayflower, 1620, recites: "Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid."

"The fundamental orders of Connecticut, under which a provisional government was instituted in 1638-39, commence with this declaration: "Forasmuch as it hath pleased the Allmighty God by the wise disposition of his diuynepruidence [143 U.S. 457, 467] so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford, and Wethersfield are now cohabiting and dwelling in and vppon the River of Conectecotte and the Lands thereunto adioyneing; And well knowing where a people are gathered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouerment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike State or Comonwelth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus wch we now prfesse, as also the disciplyne of the Churches, wchaccording to the truth of the said gospellis now practised amongst vs."

"In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: "Because no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith, and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings of People, I do hereby grant and declare,"etc.

"Coming nearer to the present time, the declaration of independence recognizes the presence of the Divine in human affairs in these words: 

  • "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."
  • "We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare," etc.;
  • "And forFortunes, and our sacred Honor."
  • "If we examine the constitutions of the various states, we find in them a constant recognition ofthe [143 U.S. 457, 468] support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our

religious obligations. Every constitution of every one of the 44 states(the number of states in the union in 1892 -- RAC) contains language which, either directly or by clear implication, recognizes a profound reverence forreligion, and an assumption that its influence in all human affairsis essential to the well-being of the community.

"This recognition may be in the preamble, such as is found in the constitution of Illinois, 1870: "We, the people of the state of Illinois, grateful to Almighty God for the civil, political, and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations," etc.

"It may be only in the familiar requisition that all officers shall take an oath closing with the declaration, "so help me God."

"It may be in clauses like that of the constitution of Indiana, 1816, art. 11, § 4: "The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed the most solemn appeal to God."

"Or in provisions such as are found in articles 36 and 37 of the declaration of rights of the constitution of Maryland, (1867:) "That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty: wherefore, no person ought, by any law, to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace, or safety of the state, or shall infringe the laws of morality, or injure others in their natural, civil, or religious rights; nor ought any person to be compelled to frequent or maintain or contribute, unless on contract, to maintain any place of worship or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness or juror on account of his religious belief: provided, he believes in the existence of God, and that, under His dispensation, such person will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come. That no religious test ought ever to be required as a qualification for any office of profit or trust in this state, other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution."

 "These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation."

(Note: The foregoing is just a portion – just over one-half – of the entire narrative of the Supreme Court's decision.)

So declared the Supreme Court of the United States in 1892.  Have we suffered from revisionist history?  You bet!  We are, and have always been, a Christian nation providing the freedom of others to worship -- or not worship -- as they see fit.

By the grace of God and the prayers and involvement of believers today, we will see this nation return to its Christian roots and negate the activism of unGodly courts and judges during the past 50 years.

This wraps up this series on Our Forefather’s Covenants.  Next week we will start afresh with a new series.

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

Email Contact: CapenerMinistries@protonmail.com


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