Courier-Journal Blog: History and the Homeland case


Charles Haynes of the First Amendment Center

Charles Haynes, Senior Fellow of the First Amendment Center

Peter Smith, religious writer for the Louisville Courier-Journal, recently had an interesting entry in his online faith blog. Since this blog grows every day, his entry relating to the Kentucky Homeland Security case will soon disappear. I have copied and pasted the entire blog below. It includes a favorable analysis of our position by Charles Haynes, senior scholar at the  First Amendment Center.


History and the Homeland case

By Peter Smith

Both sides are citing the same founders of the American republic in the ongoing appeal of state laws requiring the Kentucky Office of Homeland Security to acknowledge “reliance on Almighty God” for the state’s protection.

See today’s story on the appeal of a Franklin Circuit Court ruling in 2009 that struck down the laws. It’s now before the Kentucky Court of Appeals, and it’s drawn in scores of state legislators as well as interest groups that have filed briefs in the case.

Supporters of the laws cite references to the divine in the Declaration of Independence and in the words and actions of founders such as George Washington and James Madison.

Opponents cite warnings by Madison, Thomas Jefferson and others against the entanglement of government and religion.

Attorney Edwin Kagin’s brief against the laws cited a 1797 treaty with the Muslim ruler of Tripoli — whose ships were raiding Americans’ ships — stating that the United States is not a Christian nation. (This clause seems to be based on an argument that sounds familiar today: that America wasn’t fighting Islam but rather piracy against U.S. ships.)

The text reads:

“As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

That treaty, Kagin said, was initiated under President George Washington and signed by his successor, John Adams, and approved by the Senate — making it national law. Then he argued that Thomas Jefferson’s support for a “wall of separation” between church and state and James Madison’s opposition to a mutually corrupting “alliance” between religion and government. Add them up, Kagin asserted, and the nation’s first four presidents opposed state religion.

On the other side, lawyers arguing for the law cite the Declaration of Independence’s invocations of “Nature’s God” and “divine Providence,” numerous prayers and invocations by Washington and other early presidents, and the long history of such things the “In God We Trust” motto and the use of legislative chaplains.

The brief filed on behalf of 96 Kentucky representatives quotes at length from an 1892 Supreme Court decision, “Church of the Holy Trinity v. United States.” The decision says in part:

“If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters, note the following: the form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ‘In the name of God, amen;’ the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. 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.”

Here are some comments from Charles Haynes, senior scholar at the First Amendment Center and a commentator on church-state law:

“The Supreme Court has often indicated that acknowledgement of God by government may in some instances be constitutional as examples of our history and tradition, a kind of ‘ceremonial deism’ that doesn’t rise to the level of establishment of religion. But the Court has also drawn the line at government endorsement of religion that go beyond historical acknowledgement. The law in question would appear to me, at least, to be an endorsement of religion that violates the Establishment clause of the First Amendment.

…Of course, religious ideas helped shape the founding of the United States. And, of course, most Americans were then and are today Christian. But the Framers were careful to found a secular state that protects religious liberty for people of all faiths and none. The Constitution nowhere mentions God or Christ, but it does mandate ‘no religious test’ for office in Article VI, thus ensuring that a ‘Christian nation’ could never be established. Did most of the Founders envision a society based on Christian ideals? Yes. But they also understood the radical implications of ‘no religious test’ — and were widely attacked for this provision. The ‘no establishment’ clause of the First Amendment further protects from any religion being established (on the federal level at first and then on all levels once the Supreme Court applied the FA to the states through the 14th Amendment)….

The Holy Trinity case involved the legality of a contract to hire a minister from England under an act of Congress limiting immigration. The statement about a ‘Christian nation’ is dicta; it is a gratuitous statement that is not essential to the Court’s holding. The Court had already decided the issue before remarking on the religious character of the country. Of course, the U.S. has some religious roots. And, of course, we have had a Protestant-dominated culture for much of our history (especially in the 19th century). But none of this supports the government privileging Christianity. Both sides can appeal to early historical documents for support, but well-established case law will guide how the courts decide this case. If the appeals court sees this requirement as going beyond mere acknowledgement of our historical roots and traditions, the court will uphold the lower court. If, on the other hand, the appeals court sees this a nothing more than a mention of deity by the state, then the court would reverse. Either way, the court will rely on Supreme Court precendents, not bogus attempts to re-write our history or the Constitution.”

Most of the briefs and related documents from all sides in the Homeland Security case can be found here at a blog managed by one of the plaintiffs.

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One Response to Courier-Journal Blog: History and the Homeland case

  1. Doug Indeap says:

    Haynes’s commentary is spot on.

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