Come Let Us Reason Together: December 2008

LXXII

Date: Wed, 19 Nov 1997 10:38:22 0600
From: Frank Grose
To: Rob Weinberg
Subject: Re: Web Link

Thanks for that kind of information. I take what you are giving me as unspun fact. In the case of Chamber, in light of the "rest of the story" (as Paul Harvey would say), I agree with the court action. Surprised?

Not being able to find the first two cases may only mean that they're not reported, as I said. But given Barton's tendency toward contextual literary license with the facts, holdings and rationales of other cases we *can* find and verify, the whole of his work becomes inherently suspect. It's the boy who cried wolf. I'll admit he is a captivating speaker. But those are the ones you got to watch closely.

People are people and they (we) all probably try to put out information in the best light we can that favors our particular agenda. It just means we have to be cautious in what we believe when said of others. I shall read and listen to Barton with yet another grain of salt. Hype from the left or the right is of little value, beyond stirring up emotions.

Regarding your comments on being referred to as "God's chosen" were helpful. I can understand that boasting of such could well lead to negative reaction by others. So could referring to Jews in a derogatory way using that phrase. I shall be more careful in my use of the term. However, if I need to use it with you in the future, it will be in context of the Scripture, and certainly will have no negativity attached to it. I regard it as biblical fact, and not that you, individually, have any special talents or abilities that result from that. I just take God's covenant with Abraham that "through you all the nations of the world will be blessed" at face value. History confirms that this promise was true.

Frank

Date: Wed Nov 19 14:20:21 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Web Link

At 10:38 AM 11/19/97 0600, you wrote:

In the case of Chamber, in light of the "rest of the story" (as Paul Harvey would say), I agree with the court action. Surprised?

Yup, I am surprised. And pleased. Although at least one lawyer in my office thinks the result is nutz. It's not a first amendment issue at all really, but as the court described could lead to jury passion and prejudice if they think there's a moral imperative to impose the death penalty as opposed to weighing the aggravating and mitigating factors according to the statute. I also tend to think it may be a little extreme (surprised?) because Hey! it's just closing argument and a curative instruction to the jury from the judge should've done it, in theory anyway. But when you're dealing with the death penalty, courts bend over backwards to be safe. It's important to recognize, FWIW, that the court only established that per se rule in death penalty cases. Prosecutors in those kinds of cases have all kinds of technical rules that can trip them up.

I regard it as biblical fact, and not that you, individually, have any special talents or abilities that result from that. I just take God's covenant with Abraham that "through you all the nations of the world will be blessed" at face value. History confirms that this promise was true.

Well, I'm not so sure I'd agree with that last assessment. But, who am I to argue? Or complain?

LXXI

Baptists urged to unite amid prayer debate
Group criticizes 'Baptist' editorial
By Yvonne White
Times Religion Editor

In the midst of a school prayer debate that illustrates differences of opinion among Alabama Baptists, their leader called Tuesday for unity and peace.
Dr. Leon Ballard, Alabama Baptist State Convention president, spoke of unity to the 1,505 delegates, or messengers, during the first session of the group's annual meeting at Whitesburg Baptist Church.
Shortly afterward, a group of Southern Baptist ministers and lay people affiliated with the Christian Family Association stood outside the church to criticize the editor of The Alabama Baptist, Dr. Bob Terry, for an editorial column last week opposing required prayer in public schools.
"Mr. Terry has done a terrible injustice to Southern Baptists and he should be ashamed," said Dean Young, executive director of the Christian Family Association, which is based in Gadsden.
"As a Southern Baptist for the last 18 years of my life, I am shocked and appalled at the article that was published in the Nov. 13 edition of The Alabama Baptist. This article was so ludicrous that I can easily say that the vast majority of Southern Baptists disagree with Mr. Terry's thoughts."
The disagreement stems from a ruling late last month by U.S. District Judge Ira DeMent. The federal judge expanded on his school prayer order of earlier this year, specifically limiting religious activity at school-sponsored events. DeMent's ruling has evoked a public outcry from many Christians.
One member of Young's group, Wayne Milam of East Gadsden Baptist Church, sponsored a resolution condemning DeMent's ruling. It was submitted to the resolutions committee, but at the close of business Tuesday, it had not made it out of committee....

The Huntsville Times, Wednesday November 19, 1997

Date: Wed Nov 19 09:34:49 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Web Link

I listened to the early part of Barton's tape this a.m. looking for the reference to the case you asked about. I think you were referring to what he said was "Jane Doe v. Santa Fe Independent School District" decided May 5, 1995 or 1996. That was the one where Barton says the judge threatened to have the U.S. Marshalls in attendance at the graduation ceremony if, during the student initiated prayer at graduation, any reference to Jesus was made. And threats of arrests of students for doing so..... I couldn't find it on Westlaw. I did a couple of broad searches, and evidently if it ever happened, it's not reported. [Editor's Note: Although the original district court opinion was unreported at the time of this exchange, the case later made its way to the Fifth Circuit Court of Appeals, and eventually to the United States Supreme Court. See Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).]

Another federal case Barton cites that I could not find was from the eastern district of California involving the use of crosses in public cemeteries. Something about it being in public view or something. In a broad based search of California cases, state and federal, I could only find six references to cases that used both the words "cemetery" and "cross." Nothing on point.

Barton cites a 1991 case from the Supreme Court of Pennsylvania, Commonwealth v. Karl Chambers, for the proposition that prosecutors may not cite the Bible in closing arguments. Here is what the court said about that, plus the dissent from the case on that issue:

" **643 Finally, Appellant argues that the prosecutor overstepped the permissible bounds of oratorical flair in his closing argument by referring to the Bible. The record *585 shows that the prosecutor stated, "Karl Chambers has taken a life." (R., p. 1201). "As the Bible says, 'and the murderer shall be put to death.' " (R., p. 1201). Defense counsel objected. The trial court immediately noted this objection and gave a curative instruction to the jury.

"The guidelines governing a review of a claim of allegedly improper and prejudicial remarks made by a prosecutor during a sentencing hearing are set forth in Commonwealth v. Zettlemoyer, 500 Pa. 16 at 53 54, 454 A.2d 937 at 956 57, wherein we explained:

The primary guideline in assessing a claim of error of this nature is to determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974); Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979). In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding, Code of Professional Responsibility, Canon 7, E.C. 7 19 7 39, and the prosecution, like the defense, must be accorded reasonable latitude in fairly representing its version of the case to the jury. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). Nevertheless, we do require that the contentions advance must be confined to the evidence and the legitimate inferences to be drawn therefrom. Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The verdict must flow from the respective evidence presented and not represent a response to inflammatory pleas for either leniency **644 or vengeance. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978).

"*586 [33] In the past we have narrowly tolerated references to the Bible and have characterized such references as on the limits of "oratorical flair" and have cautioned that such references are a dangerous practice which we strongly discourage. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990); Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). We now admonish all prosecutors that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action.

"Here, the prosecutor argued, "As the Bible says, 'and the murderer shall be put to death.' " This reference is substantially different than the references tolerated in Henry and Whitney where the prosecutor allegorically likened the Defendant to the Prince of Darkness mentioned in the Bible to establish that he was an evil person.

"More than allegorical reference, this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that "the murderer shall be put to death," the prosecutor interjected religious law as an additional factor for the jury's consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.

"Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth *587requires its imposition, not because of some other source of law.

"Because the prosecutor's argument in favor of the death penalty reached outside of the evidence of the case and the law of this Commonwealth, we are not convinced that the penalty was not the product of passion, prejudice or an arbitrary factor and, therefore, pursuant to our Death Penalty Statute, we must vacate the sentence of death and remand this matter for a new sentencing hearing. 42 Pa.C.S. º 9711(h)(4).

"Accordingly, the conviction of murder of the first degree and the conviction and sentence imposed for robbery are affirmed, the sentence of death is vacated and the matter is remanded to the Court of Common Pleas of York County for a new sentencing hearing.

"NIX, C.J., concurs in the result.
"McDERMOTT, J., files a concurring and dissenting opinion.

"McDERMOTT, Justice, concurring and dissenting.

"I join the majority's affirmance of the conviction, however, I must dissent from the overreaction of the majority to the prosecution's biblical reference. The standard in evaluating whether a prosecutor crossed the line in his closing argument is whether his comments would have "the effect of arousing the jury's emotion to such a degree that it becomes impossible for the jury to impose sentence based on consideration of the relevant evidence according to the standards of the statute." Commonwealth v. Travaglia, 502 Pa. 474, 502, 467 A.2d 288, 302 (1983). In this case the isolated comment of the prosecutor was the last sentence in a brief closing. This was not emotional oratory calling for divinely motivated retribution; rather it was a reference to one of the texts from which our social system has evolved. The majority opinion is an unmerited censure of citizens called to such vast responsibility. To believe them swayed from their solemn, sworn duty by a single reference to a *588 legal **645 irrelevance is a presciosity that undermines the very essence of trial by jury. "

In a later, more recent case, the Pa. Court said about Chambers, "In *Simmons* we allowed the death sentence to stand, but observed that if the prosecutor had made reference to what the defendant might do if released from jail, the remark would be reversible error. In *Chambers* we held that any reliance by the prosecution upon religious writings to support the imposition of the death penalty is reversible error. In both cases, the problem was that the prosecutor made reference to considerations outside the death penalty statute to argue for imposition of the death penalty."

BTW, in the cases I send you, or as in the case above where I cut-n-pasted the passage from what I downloaded from Westlaw, the asterisks followed by numbers will refer to page numbers of the volumes of the books that the case is found in. The same Pennsylvania case will be found in two sets of books, Pennsylvania Reports and the Atlantic Reports, the latter has cases from surrounding states. Numbers preceded by one asterisk in the example above are references to page numbers in Vol. 528 Pa., numbers preceded by two asterisks there are references to Vol. 599 A.2d.

I'll not fault Barton too much for using these cases as illustrative to get the ball rolling for discussion of his thesis. As presented they have considerable emotional appeal, particularly to his intended audience. But reading the case above closely you realize that the actual holding and rationale of the case is a lot narrower than Barton implies to his listeners. Barton does acknowledge that it was the sentence that was reversed, not the conviction, but he does not acknowledge that what the Court was addressing was the prosecutor's appeal to extra statutory biblical law as the reason the death sentence was due to be reversed.

Have a good one. R

LXX

Date: Tue Nov 18 21:40:44 1997
To: Frank Grose
From: Rob Weinberg
Subject: Offended? Me?

At 05:38 PM 11/18/97 0600, you wrote:

“Would a cross, but not a crucifix, change your answer? I didn't know the latter was a symbol of Catholicism, or I'd have just said a cross.”

Please don't be offended, but such things as the crucifix vs. the empty cross is such basic knowledge to me, I find it amusing that you didn't know that.

Not offended. Remember it as a good example of the things you can't assume I know. And I'll bet I'm very typical of the majority of the ordinary population that way.

Yes, I would oppose a law requiring a picture of Jesus or a cross (either type) displayed in the classroom. (Now tell me a case where this is an issue.) ; )

There's no case that I'm aware of, but that was the "loaded" part of the question. I hope to build on it as we walk through the emotions and legalities of religion in government.

BTW, Barton's audio sites a case where a Judge ordered students not to pray, and threatened them if they violated his order. I don't recall the case name; its in the first 15 minutes of the tape, I think. That doesn't seem to fit well with your objection of "government officials Promoting religion."

I thought I was gonna' get off the hook having to listen to the tape. But I'll make a point to now and will get back to you with the case. Damn! It's at the office now (after being at home for weeks, I thought I'd slap it in the dictaphone and listen while I did other things). There's something fishy (hee, hee...) about that "case."

When you run across that one in the tape, make note and check out the case, and see what was at issue (Time permitting, of course). I have participated in enough legal procedures in various capacities (in the military) to know that cases are decided on "stated charges" and finer points of the law. I can accept that. On that basis, I would be more apt to accept the "correctness" of decisions such as Engel v. Vitale, etc. I'm not closed; I just haven't been shown.

Speaking of being shown, is Engel v. Vitale one of the cases you want me to get for you?

O.J. may have been acquitted of murder, not because he didn't do it (assuming for the sake of discussion, he did), but on incorrect call as to the exact nature of the charges, sloppy detective work, etc.)

The OJ case is a hard one to put in the framework of our discussion because the aberration that occurred in the criminal case was the result of jury passion, not judicial interpretation. They wanted to send a message to the L.A.P.D. about not tolerating racism from cops like Mark Furman, and that, IMHO, is the sole reason they acquitted.

The "dodge" was unintentional. Hope I answered above. I just thought you were going into the Alabama state flag and blacks issue, and I was trying to save you having to answer the question.

I'm not sure you "dodged" it either. My reference to dodging may have been that I confused which part I was thinking you were responding to.

Now, if I'd meant the flags and blacks issue, I'd have said the confederate battle flag, because our state flag is not upsetting to blacks, or at least that's never been the issue. There's no issue about a state law mandating the placement of the state and national flag in public places. People have no first amendment right to avoid being in the presence of either flag. (They may have a first amendment right to burn them, but that's another issue entirely under the free speech clause, not establishment clause.) Anyway, I didn't mean you to chase that rabbit.

Like I said earlier, the flag reference (which I almost didn't put in) was to juxtapose and make clear the visual image of the picture of Jesus (the religious icon) next to the quintessential symbols of government, the flag. Now, bear with me. The loaded question I asked you was about your "feelings," no legal mumbo jumbo. You said you would oppose the picture and/or the cross. Now picture this: In Roy Moore's courtroom, you have the Ten Commandments on one side of the bench behind him, and the Great Seal of Alabama on the other. The only other decorations in the courtroom are the Code of Alabama along one wall, and the flags. That's all, nothing else. Expert testimony in the case from religious scholars and leaders, and I think himself Moore acknowledges, that the version of the decalogue he has up there is a Christian version. An icon, a symbol of his particular faith as a Christian.

I may have given away the farm too soon. But I think you're intellectually honest enough to see my point here. And that is: when the government hangs religious icons on the wall, whether it's a picture of Jesus, a cross or the Ten Commandments, it may be endorsing or promoting one brand of religion over another. See the argument?

Originally, Judge Moore's hanging the Ten Commandments didn't bother me, in part because I didn't know there were differences between Jewish and Christian versions or between Christian versions. It also wasn't the original thrust of the ACLU's lawsuit. Prayer was always been the big issue with me. It wasn't until he stated expressly that his reason for hanging it was religious, not secular, that we're a Christian nation, etc., that I said what he was doing was wrong.

As an aside, the courts have held and Judge Price did too, that he didn't have to take the commandments down entirely, just put them in the context of a display that didn't not promote religion. Ask me about this if you need examples. Another important point that the public may not know: the ACLU's briefs are clear that if the commandments were hung in Judge Moore's chambers instead of behind the bench in tandem with the Great Seal, it would have been a very different case, and they'd not have pushed the point. Many people in state government, like my secretary, read the scriptures when they're not otherwise occupied with work. The ACLU and I have no problem with that, or students reading, studying or discussing the Bible when they're not otherwise required to be being attentive in school. It's only when religion is placed in tandem with the trappings of the power of government that the issue arises.

Can you give me a short response on what kind of restrictions (not prejudicial actions by citizens) were placed on them by the government with regard to the exercise or promotion of their religion? Were any in government service and encountered restrictions?

I misspoke up there when I said "and who are the ones trying to change things." Originally, I just meant "making an issue of anything like prayer." Off the top of my head, I'm unaware of Immigrants or any group making any big issue of the things we're talking about.

It does occur to me that a case was decided in 1993 by the U.S. Supreme Court called "Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah" involving the practice of ritual sacrifice of animals by the Santeria religion in Florida, that's fairly on point. I happened to have a copy at home for later reading. The Supreme Court said Hialeah couldn't prevent them from doing their animal sacrifices if the reason prompting the "health codes" was essentially a reaction to the religious expression, instead of a content neutral health regulation involving disposal of animal parts.

I'm not sure I'm answering your question, or that I follow what you're asking. There have been other cases involving specific practices, like Reynolds v. U.S. involving bigamy by Mormons. There have been conscientious objector cases involving the draft. There are tax cases involving churches who engage in political activity. Can you rephrase your question? I'm going all over the board here.

You fished a couple of times, but I didn't bite! ; )

Everything in its own good time. Lawyers are prone to question, question, question. In so doing they frequently direct the way the conversation is going. I was trying to listen, listen, listen, and let you share what you thought was important, and when you thought it was relevant.

P.S. Just to let you know I wasn't the one who originated the term you have admonished me for using, look what I found: Psalm 106:5 "That I may see the good of thy chosen, that I may rejoice in the gladness of thy nation, that I may glory with thine inheritance." This is not meant to pick at a healing sore, but how do Jews (that are sensitive about the term (and I figured they'd be proud to be referred to in this way before you told me better)) deal with this? This is strictly for my learning.

Yeah, I know you didn't invent it. To answer your question, I've been looking for the answer to that one myself, because I don't think it was anything I was specifically taught. Maybe it was, when I was a boy, but I don't remember. I didn't get much good response when I threw it out casually among some Jewish friends recently. So... since you ask... I'll look it up. And look what I found. There's a two volume book called "The Jewish Book of Why" by Alfred J. Kolatch that has an answer to that very question. Here's what it says:

"Why do some Jews believe that the idea of a Chosen People should be discarded?

"In the view of most Jews, the belief in Israel as God's Chosen People has contributed immeasurably to Jewish survival. It has enabled Jews to carry on in times of adversity. Some Jews, however, consider the Chosen People concept an expression of unwarranted pride and self importance, one that ought to be discarded. They argue that we really do not know what the Bible originally meant when it used the term *am segula*, 'Chosen People.'
"Opponents of the Chosen People idea also believe that retaining this concept is detrimental to Jewish interests because it leads to a false sense of superiority that invites contempt from non-Jews and denies the democratic idea of equality for all men, which Judaism espouses.
"Reconstructionists in particular, led by their founder, Professor Mordecai M. Kaplan (1881-1983), have long urged that Jews not continue to regard themselves as the Chosen People because of the ring of arrogance that the concept carries with it. Accordingly, this movement omits from traditional Tora blessing the words 'Who has chosen us above all peoples...' and substitutes "Who has *brought us closer to His service*.' In their view, this modification in the prayer expresses the idea of responsibility rather than superiority.
"Opponents of the Chosen People concept often point out that the idea has not been considered basic to Judaism by all authorities. Moses Maimondides' Thirteen Articles of Faith, for example, does not allude to the chosenness concept. Nevertheless, all Jewish religious denominations other than Reconstructionism continue to subscribe to the traditional view that Jews are the Chosen People."

Now, I don't know where I picked up the view I have, but obviously it coincides with the Reconstructionist view described above. (Don't ask me to explain what reconstructionist are. I'd have to look it up).

As to the Jewish view of why they think they ARE the chosen people, the book says there are actually differing views on what the term means. See, Deut. 7:6. The term *am segula* is found in Exodus 19:5 and Deut. 14:2. In the Talmud, on the other hand, Rabbi Yochanan (1st Cent. B.C.E.) teaches that it's not God who chose Israel, but the other way around. Relying on Deut 33:2 and Habakkuk 3:3 he says that God offered the Tora to every nation, each of whom refused except Israel who accepted. Thus, Israel chose God. There are other interpretations as well of the origin of the term. According to Kolatch, "[r]egardless of which of the above interpretations students of Jewish tradition have accepted over the centuries, few have expressed the opinion that the notion of chosenness implies that Jews are superior people or that special privileges have been conferred upon them. On the contrary, chosenness means that the people of Israel bear special responsibility to lead exemplary lives."

In the minority I may be among my own people, at least according to Kolatch on the subject, I am of the personal view that use of the term invites a false sense of superiority, is dangerous to equality, and invites contempt from non-Jews. People think I have an edge as it is. "Hey, he's a Jew. He's smart, right?" And when people think YOU think you're superior, they're all the more motivated to knock you down. That's where I'm coming from anyway. That's why it makes *me* very uncomfortable.

Take care. Rob

LXIX

Date: Tue Nov 18 15:07:44 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Night Off

At 01:19 PM 11/18/97 0600, you wrote:

I would be opposed to such a law for several reasons. (Even though I suspect that is a loaded question, I'm going to tell you just how I feel.) A law requiring a depiction of Jesus in every classroom would be promoting the Christian religion. A crucifix would be indicative of a Catholic influence (since the Christian cross is empty). I would be in favor of the national flag (and pledging allegiance to it) since such would tend to engender nationalistic pride. I don't have any strong feelings about the state flag(s), I suppose.

You're right. It was a loaded question. But it had nothing to do with flags. Flags in that context were merely symbols of government authority in juxtaposition to the crucifix and depiction.

Would a cross, but not a crucifix, change your answer? I didn't know the latter was a symbol of Catholicism, or I'd have just said a cross.

Do I understand you correctly to say that you would oppose a picture of Jesus and a cross or other symbol of Christianity as a required ornament in the classroom though?

You may well take issue with the next. Immigrants who came to America (after we were a nation), came knowing and accepting that the predominant religion was (broadly Christian), and that our government was founded upon biblical principals. I haven't check the casualty list, but I'd be surprised to find many Muslims and Buddhists among them, especially lists from our earlier...As long as they weren't promoting, I wouldn't object. Would it make a difference if I were non-Christian? I honestly don't think so. The atheist and agnostic are in a little different category since they have no professed religion, per se. Hopefully enough of whatever religion was being EXERCISED would cause them to get interested enough to consider their position. I guess, to me, any religion is better than no religion (in that most recognized real religions have some organized and respected set of rules for living) at all. Of course, I, like each individual, thinks his respective religion in "the right" religion. If I didn't think mine was better, I'd switch.

I think you dodged the question by switching issues on me and maybe rewriting the question after going on the flag tangent. If I understand you right, you're saying that we may have become multi-cultural in the last 150+ years, but if so, any immigrants that made it so, did so knowing the WASP land they were coming into and should adjust their expectations accordingly, and have no right to try and change it. I think you've got some fundamental logic errors in this approach, as in presumptions about what we were, what the first amendment said and says, and who are the ones trying to change things. You don't see immigrants making the big issue about it, it's the people who were born and bred here for generations that have done so. Like you, I don't have time to address this in more detail at the moment. My grandfather and grandmother on my mother's side were Russian immigrants. My father's grandparents on his mother's side were immigrants from Poland, and on his father’s side from Austria, I suspect. I can make a lot of arguments that immigrants came here with a view of the religious protections and freedoms that differ from those you assume today, although I'd admit that the view of the rights they expected during the 1900's through 1930's are different than those post-1960 or so.

My denomination, (I was wondering how long it would take you to get around to asking. ; ) I deliberately didn't tell you voluntarily.)? I am Assembly of God. You can rightfully call me fundamentalist and evangelistic.

Aha! ; ) Maybe it was I who didn't ask because I didn't want to make assumptions about you based on labels, so I withheld asking. But it's kinda' cool you didn't volunteer too, just to see how long it would take before I asked. You'll have to fill me in on how you differ from other Protestant denominations like the Baptists.

You pose some very interesting questions. I'm compelled by them, as well. But I need more time to consider (and research) my answer to the others. I'm hooked on this dialog also. Thanks for being there. : )

Selah! Take your time. Rob

LXVIII

Date: Tue, 18 Nov 1997 13:19:21 0600
From: Frank Grose
To: Rob Weinberg
Subject: Re: Night Off

Rob,

For now I only have time to acknowledge the receipt of a very welcomed message from you. There is much in it to which I'm eager to respond. Time will only permit a brief response to a couple of points.

Switching gears, it occurs to me just this a.m. what a serious disadvantage you've been at, not having read the cases "in the original" as it were. There's generally been a lot of hysteria and hyperbole about what the Supreme Court said and did in those cases from the 60's forward. I've been reacting to what you say with what I've read in the original as opposed to what you've been *taught*, as though we were on level playing field. In order for us to objectively discuss the issue, you really need to read "the source." People learn at their own pace (as I'm doing with the Bible), so you tell me what cases you're most interested in reading, and I'll get them to you.

Thank you for acknowledging the above. I recognize that you have advantages over me in many areas related to this discussion, your legal training and professional talents, access to court cases, and years of dealing with the finer (legal) points of the SOCS issue, to name only a few. I have relied on Barton and a few other sources (that seemed to be credible) for most of my information. (I do carefully evaluate the credibility of authors and look for source documentation in their work.) If going flying, I always conducted a preflight inspection of the aircraft, including even such simple things as opening the fuel tank caps and physically the fuel levels. I periodically test fired my weapons to ensure the weapon and the ammunition were genuine. I wanted to make sure my "tools" was up to the task. I regard information (and its sources) in much the same way, be it of a political, technical, or religious nature. The last thing I want to find out when I get in a firefight is that my ammo is blank.

Here's another thought I had this a.m. How would you *feel* about the legality of a state law requiring the posting of a crucifix and depiction of Jesus in every classroom above the blackboard on the wall behind where the teacher stands? Include in the law a requirement that the state and national flags should also be prominently displayed in each classroom at each corner of the room on that wall. Without regard to what the Supreme Court has said, *should* such a law be legal? Knowing there will be the occasional Jew, Buddhist, Muslim, atheist, agnostic in those rooms, does that make a difference to you? Would it make a difference if you were the Jew, Buddhist, Muslim, etc.?

I would be opposed to such a law for several reasons. (Even though I suspect that is a loaded question, I'm going to tell you just how I feel.) A law requiring a depiction of Jesus in every classroom would be promoting the Christian religion. A crucifix would be indicative of a Catholic influence (since the Christian cross is empty). I would be in favor of the national flag (and pledging allegiance to it) since such would tend to engender nationalistic pride. I don't have any strong feelings about the state flag(s), I suppose. Never thought much about it, I guess. I would object to teachers not being allowed to display the state flag, however (because of what current meaning some may attach to some historical meaning of it). State flags with symbology of the Confederate era are the only example that come to mind. Clearly, in a pluralistic society as we have, our roots are diverse. Those with ancestors who were on the opposite side that flag represented at some point in history may find it objectionable, such as Chicanos in Texas. However, it IS the state flag, and resident of the state should recognize it for what is presently represents. The same could be said for the national flag (by Japanese, Germans, etc.). You may well take issue with the next. Immigrants who came to America (after we were a nation), came knowing and accepting that the predominant religion was (broadly Christian), and that our government was founded upon biblical principals. I haven't check the casualty list, but I'd be surprised to find many Muslims and Buddhists among them, especially lists from our earlier wars of independence. Therefore, speaking very broadly again, The United States was primarily a WASP nation. But with our generosity and good will toward people of other less fortunate countries, we opened our borders and put out the welcome mat. Now for these same people to want to change this nation (yes my nation), gets under my patriotic skin. Were I to immigrate to a Muslim country, I would expect to go in and try, legally or otherwise, to make it non Muslim. I was in Korea in the early 80's. They were even then preparing for the 88 Olympics. I saw many areas of forced "westernization" by the government. Sadly, it eroded some of the uniqueness and national beauty of the Korean culture as a result. Back to your classroom. Were I to be in an area of this country that was predominately Muslim or Buddhist, and went to a school where most of the teachers and students were of that belief, I honestly don't think I would be offended or even mind them exercising their religion. I would not be offended if individuals shared their beliefs with me, but for the school to promote that religion and try to convert me in the process, is where I would object. (I can easily distinguish between exercising and promoting, and that is the point that you and I can't seem to reach an understanding on.) As long as they weren't promoting, I wouldn't object. Would it make a difference if I were non-Christian? I honestly don't think so. The atheist and agnostic are in a little different category since they have no professed religion, per se. Hopefully enough of whatever religion was being EXERCISED would cause them to get interested enough to consider their position. I guess, to me, any religion is better than no religion (in that most recognized real religions have some organized and respected set of rules for living) at all. Of course, I, like each individual, thinks his respective religion in "the right" religion. If I didn't think mine was better, I'd switch.

Regards,

Frank

LXVII

Date: Tue Nov 18 09:15:55 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Night Off

Switching gears again, this time about the different version of the Ten Commandments. As you know, they are found in Exodus and Deuteronomy. Yesterday I went to the Bible Gateway site and pulled up the commandments and compared a few between versions, i.e., KJV and others. I also visited the Torah site you gave me, which is on my web page BTW, and printed those out. I'm no scholar on this subject, so the differences aren't jumping out at me as much as I've read elsewhere, but the major difference between versions most talked about is that some say "thou shalt not kill," and others say "thou shalt not murder." The Torah says the latter, your Bible I think says the former. It's an important distinction for many purposes, including the abortion/capital punishment debate. There are other distinctions between the Christian versions themselves as well as between them and the Torah, but I've not examined it close enough to see whether *within* any particular version there are differences between Exodus and Deuteronomy.

Oh, I just did another Bible Gateway search, just on Exodus 20:1-17, you can do an "all" versions search that will bring up a comparison line for line between the NIV, RSV, KJV, Darby, and YLT versions. Thus, if there are multiple versions that are subject to different interpretation in nuance between faiths, would you concede that putting one version up on the wall may be the promotion of a particular denomination?

Finally, while we're thinking about the Ten Commandments, have you considered the idea that of the ten, only four have ever been employed by the secular laws in this country, or at least since the Constitution? Murder, Adultery, Theft, and false testimony, commandments VI, VII, VIII and IX. The rest are strictly religious commandments with no inherent secular purpose: (I) no other gods, (II) no graven images, (III) not taking the name of God in vain, (IV) keeping the Sabbath, (V) honor thy father and mother, and (X) envy of (in the Torah) or coveting they neighbor's stuff. Laws regulating Sunday blue laws have only been upheld on the basis that they were equally applied to all, never for religious reasons; laws having to do with children have never been challenged that I'm aware of, but the purpose is clearly an exercise of the state's police powers to protect, so for that reason they've probably never been challenged on religious grounds. The question then becomes, for purposes of the argument that the Ten Commandments are the origin of America's laws, what are we supposed to do with the other six, or what purpose are we saying they serve when the government is posting them?

Time to get to work. Hope I didn't overload you. I meant to just say hello back.
-Rob

LXVI

Letters to the Editor

Judges Should Stop Picking on Students
This writer has been called stupid many times during his 61 years on the good planet. But one thing has been going on now for several years in the greatest county the world has ever known that I do not understand.
Not being too smart, I know you can pray in the woods, behind the barn or anywhere you want to. And I read in the papers and see in the other news media that Alabama is right in the national spotlight in that one judge has ordered Judge Moore to take the Ten Commandments off the wall in his (or our) courtroom. The judge who ordered that decision got a big award for doing that.
Now we have another judge in Alabama who has ruled (again) that school children cannot pray in public places, football games, etc. Maybe he thinks he may get an award.
I do not understand why the two judges in Alabama, the Supreme Court justices and the ACLU pick on the little schoolchildren and Judge Moore.
Max E. Bell
Flomaton
DeKalb County

Weak in History
Don't the people of DeKalb County known any history? Don't they know that the Supreme Court banned school prayer and Bible readings back in 1963, and that therefore they should have been stopped in 1964?
Don't they know that the court's decision forbids advocacy of religion in governmental entities such as public schools and courts in accordance with the doctrine of separation of church and state?
Don't they know that mass meetings can have no effect on Supreme Court decisions? Or that school prayer has never been a national thing, but only a Bible Belt affair?
Or that Mr. Chandler, by trying to stop the illegal activities in Valley Head schools, is following the long Baptist tradition of supporting separation of church and state? Looks as if they ought to change the name of Valley Head to Ignorance Holler.
Norman A. Brittin
Auburn

Prayer in Order For This State
Alabama is a state of proud tradition. We might call ourselves Alabama the Police State. After all, our history includes governors standing in defiance of federal law.
Gov. James furthers this stance by questioning the legitimate authority of the judicial branch. We are to believe that he knows best, including his views on the law, his religion and that the bill of Rights does not apply to Alabama.
We are to believe that anti-Semitism does not exist in Alabama and that qualified black nominees are similarly nonexistent.
Sheriff Franklin of Elmore County proposes involuntary drug testing of school children. Judge Moore insists you pray his way.
Indeed, prayer is in order. In a paraphrase of the popular song, "What you gonna do, good ole boy, when they come for you?"
Paul D. Bivins
Elmore

We Choose Unlikely Path to Peace

I read in the Advertiser recently that God is not welcome in our schools. And not just that, but we the taxpayers are paying to see that God is kept out.
Our tax dollars can't seem to keep children from harm's way in our schools, so by keeping God out of our children's lives we can hope to have peace? I don't think so.
B.L. Culpepper
Montgomery

The Montgomery Advertiser, Tuesday November 18, 1997

Bill proposes a moment of silence
A mandatory period of reflection no longer than a minute, would give time for silent prayers by students.
By PHILLIP RAWLS
Associated Press Writer
MONTGOMERY — State Rep. Perry Hooper Jr., who may run for lieutenant governor next year, proposed a bill Monday to require public schools to have a moment of quiet reflection each morning so students may pray silently.
Copied after a Georgia law that a federal judge upheld, Hooper's bill comes amid political and religious debate about U.S. District Judge Ira DeMent's ruling last month limiting religious activities in Alabama public schools. The Legislature opens its regular session Jan. 13.
Bob Russell, chairman of the Christian Coalition of Alabama, joined Hooper at a Capitol news conference to support the bill. Russell said students can pray silently now in school, but without a specified moment of silence "they are looked upon as doing something out of the ordinary if they bow their heads and pray."
Martin McCaffery, Alabama spokesman for the American Civil Liberties Union, said the issue is pointless, because teachers can already tell students to be quiet.
The bill provides: "At the opening of school every day in each public-school classroom, the teacher in charge shall conduct a brief period of quiet reflection for not more than 60 seconds with the participation of every pupil in the classroom. The moment of quiet reflection ... is not intended to be and shall not be conducted as a religious service or exercise, but shall be considered an opportunity for a moment of silent reflection on the anticipated activities of the day."
Hooper introduced a similar bill in the 1996 session, but he said he dropped it at the request of Gov. Fob James because Alabama's school-prayer litigation was pending in court....

The Mobile Register, Tuesday November 18, 1997

LXV

Date: Mon Nov 17 11:49:13 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Shalom

Shalom!

I was almost hoping you'd not reply too quickly, just because I have a lot of work to do this a.m., and I was afraid I'd not be able to avoid replying to yours. But I'm glad you did, and appreciate what you say here very much.

At 12:30 AM 11/17/97 0600, you wrote:

I do regret that I'd not found the time to listen to the tapes earlier. Still haven't, but it's not because I presuppose what they're going to say. Over the last number of days I've been visiting and revisiting the Separation of Church and State (SOCS) Web page, reading more. I found something interesting in that my "reply" to Barton's video transcript was pretty much off the cuff. I have access to Westlaw from home, so when there was a case reference, I could look it up or pull it down directly from Westlaw. Afterwards, I found a lot of discussion about Barton's articles and tapes. I wasn't looking for Barton on the SOCS page because I wasn't familiar with his name until after your transcript. Anyway, much of what I said about Barton is articulated much better on those pages.

It will take me some time to get through them, however. The last thing I want to do is use a mis-quote from someone to try to prove a point. I want facts, not spin, right or left.

Absolutely, and I'm so glad to hear you say that. I can see how you might assume that my "legal" responses are cloaked knee jerk liberal reactions. And that, given what I've already said, there'd be no way I'm going to give the writers on the "right" a fair shake to begin with. I've seen somewhere books by Robert Bork and William Bennett that may be the closest thing to scholarship and intellectual honesty that I can give a "fair shake" to, so I need to see if I can find them.

Being a friend to the liberal community, I've seen it in its extremes too. That does no one any good. In matters of scholarship, spin doctors are too easy to detect and discredit. That's the unfortunate thing about what I've seen so far. I'm seriously looking for competent legal analysis and serious historical scholarship. If I ever catch the "left" playing games, I'll be the first to call them out. In fact, that's why I can be helpful in the office on such issues despite my own personal or political views.

You mentioned that I was not answering your questions. The fact is, I only have a limited amount of time I can spend responding to emails. Please don't think I don't read them, however. I do, every one. And I don't try to place myself in your position. I do consider your questions the way you want me to. As I've said before, you do make me think. From my last couple of emails, I can understand why you think I'm closed minded. But I'm not.

Thanks you for sharing that. I never thought too much that you just gloss over what I've said. But I know it's difficult. And I know that if *I've* read something once and replied, I'm not likely to revisit it. I know you don't *want* to be close minded, and that's the first major step to not being so. It's a lifelong process. As liberal and open minded as I think I am, even I am prone to close up when I think I already have the answers, whether on questions of religion, race, politics, government, or sex. That's why I spend so much time listening to your POV and trying not to argue it down, but just explore it.

By design and sometimes unintentionally, I write on many levels, and to many different people in the audience. I may be writing to you, but I'm writing for myself and posterity as well. It helps clarify my own feelings as I put them into words, and helps me try and visit objectively how much analysis my feelings or thought can withstand.

If I can claim any attribute of "my people," and I claim few, it is the love and pursuit of scholarship. It is what attracted me most to my wife in the beginning. Although she didn't have a college degree at the time I met her, she was constantly reading, religion and history in particular. The kinds of books that look great on your shelves but no one really reads, she read. You name it, she devoured it.

I agree that a Christian public school teacher should not be teaching your children her religion on government time. I'm with you there, my friend. In fact, some Christians take their children out of public schools precisely to avoid having them indoctrinated with "government approved" religion. (Let's not debate that statement, please.)

Gee, I thought that's what the debate was about....

My comment regarding your heritage had nothing to do with your be one of "God's chosen," I was just simply trying to make the point that you and I were reared in different environments. Mine was a Christian home; yours was Jewish. Sometimes I get a little confused and uncertain how to consider you. It seems you point out your Jewishness, but when I refer to it, you dodge. I have no problem with you being Jewish.

I don't think I set out to make the point that I'm Jewish for its own sake. Usually it's just in response to a particular question about Judaism, or it's used as a specific example of how the debate can lead to divisiveness, or the harm. They're really only particular examples of generic harm I see, as when I refer to Pike County, or closer to home, when I talk about my and my sister's childhood or my nieces.

When I jump you for pointing it out, it's because, as well intentioned as you may think it is because you mean it positively, you seem to tend to confer attributes of the collective people on the individual when you say things like "your heritage" or "chosen people," or whatever. The fact that I was born Jewish in a predominately Christian society may influence a lot of my thought, but it's not necessarily anything that contributes to any inherent characteristic I display. Make any sense?

As I said very early, I was glad to have a Jewish friend from whom to learn. The fact that you are a lawyer, and the Assistant Attorney General make it even better. I don't consider you a minority. You are just as much American as I am. But then, sometimes you place yourself in a minority, and allude to the majority being a threat to you in some way. I am trying to understand.

Yes, I allude to it for purposes of example. Perhaps it's because you don't consider me a minority that you "gloss" over or minimize the alienation I try to describe. I don't go around making an enormous thing of it, indeed I don't think of it ordinarily that often. But it's there, and inescapable, and only by challenging prejudices, even positive ones, do I get others to think of me as an individual.

I am, I am. But I just can't come up with a scenario that seems to fit what you are talking about. I've considered the Pike County thing. It was unfortunate. But my gentile mind may not be catching some of the subtleties.

That's a major start. Keep working on the "Louis Farrakhan sweeps through blackbelt county" hypothetical I gave you early on. Or if you can find a better example, let me know. In order to make the hypothetical work, you have to divorce yourself from your current reality. Imagine how you would feel as a Christian in an all Muslim community, with and without the protections of the first amendment as interpreted in the last 30 years. If you had the choice to be free from government sponsored prayers to Allah and Mohamet, if you had the choice to be free to have your kids not have the Koran read to them every morning, what would you choose? Could you make the last 30 years of precedent work for you in any imagined scenario? The real test of your emerging legal abilities is how well you can play devil's advocate with yourself.

If you as a Jew have enemies out here, more than likely, they are my enemies as well. I have no use for the Skinheads or the KKK. Yes those are overt organizations, but I probably never see the less overt anti-Semitic gestures or attitudes that you see, simply because I am not Jewish. That is where I need you to help me see it.

Again, I don't make a thing so much about anti-Semitic, as much as I do simply seeing people making assumptions about me because of my race, things I would and wouldn't want to participate in. Remember the show "All in the Family"? Archie Bunker needed a lawyer once, and he went to the phone book, and picked out a law firm with a Jew, an Italian, an Irishman, and one or two others minorities. He ascribed positive things to each one as he explained his reasoning for choosing that particular firm and collection of individuals, but the presumptions and prejudices were still that...prejudices.

Today, we don't talk about the overt forms of racism that much, segregation, Jim Crow laws, cross burnings, etc. We look overseas for that, like South Africa, the Middle East, Serbia and Croatia. In America, when we see the KKK or nazis or skinheads doing their thing, we know they're extremists and do not represent more than a very, very, very, small segment of society. But they have to be watched. Having dealt with, for the most part, overt racism today we turn our attentions to the more subtle forms, we try to understand the root and cause of racism, because if left unchecked it will happen again and again and again. So when I talk about racism or prejudice, I'm usually talking about the subtle kinds.

On the issue of race, black vs. white, I really recommend "Makes Me Wanna' Holler," which I've mentioned before. It's an eye opener even for liberals like me. As white men, we tend to think that we've got these equal rights laws and affirmative action that have been in effect for a few decades, and that blacks, women and other minorities have what they're constitutionally and legally entitled to equal opportunity. Enough's enough already, right? "Quit'chyer bellyachin and get on with it," we tell them. It doesn't have to be an issue of blame or fault, but the reality is, that opportunity is still not equal in this country. It all boils down to people being afraid of people who are not like them. So doors still don't get opened on the basis of individual merit. When we see them coming, we close the doors. Whether we realize it or not, race remains a factor in our considerations in everything we do. It's a cancer, and just because we don't always see it, doesn't mean it's in remission. We have to constantly check ourselves for signs. It's very easy to ignore because we don't want to have to deal with it.

The same thing is true on the issue of religion. Left unchecked, one particular denomination will encroach on the freedoms of the others and assert "their way" as the way to get things done. If it were only a matter of political thought, that would be fine. But religious thought gets all bunched up in there as well, and left unchecked, the next thing you know the Muslims will be telling your kids they're going to hell for not praying to Allah five times a day.

America is a multi-cultural country, and we are a better country for it.

I'm very happy to hear you say that. It is the foundation of much of my political thought, always has been.

But sometimes it seems that all cultures are okay except the American culture, of which prayer in school is a facet. It is only in what seems to me to be an attempt to rid the American public scene from all vestiges of Christianity, that causes me to voice objection. And from where I am, how can I see it otherwise?

I think I said it best when I said don't be hitting your head against the wall and tell me you're being attacked. As a Christian you have every right as an individual or collective to exercise your religion that everyone else has. As an individual you can pray in the public square and you have as equal access to the use of public facilities as anyone else. Just pay the license fee or the parade fee or whatever. If you want to spray paint "Jesus saves" all over your house, you are free to do so, so long as you're not violating any other content neutral zoning restrictions. Purple Ribbons? No problem. "WWJD" bracelets? Fine. Leaflets, pamphlets, parades, radio, tv and newspaper addresses? Go for it. Want your kids to form a Bible study class after hours on school property, or meet at the pole. Sign me up to. All of that is just fine.

But interject any of that into a government sponsored event (like a public school football game) and that's where you run into trouble with the likes of me. It's too fine a line between "Almighty God..." and "...in Jesus' name we pray." It's crossed nine times out ten in public events I attend.

Regardless of the religious, predominately if not exclusively Christian, history of our nation, there's a fact that we need to recognize. And that's that our country is considerably more pluralistic and multi-cultural than it ever was, certainly than it was in the time of our founding fathers. So those arguments that we were a "Christian nation" are interesting from a historical perspective, but not particularly utilitarian today.

Other than disallowing the use of public/government facilities for religious purposes like prayer, you have to seriously ask yourself "how is Christianity being attacked?" The court cases, every blessed one of them, that we've been talking about all involve government action and involvement in religion. Subject to reasonable "time, place and manner" restrictions which are applicable across the board to all religions and non-religions (like zoning ordinances, or requiring you to pay the same permit fees as "druids for democracy" or the NAACP) your right as an individual to exercise or practice your religion has never been in jeopardy.

You may perceive an "attack" in the "liberal" news media, or in various political movements, or in art and literature, movies an TV. And I can't argue that is very likely true. It's the nature of our multi-cultural society, it's politics, it's free expression, it's...America. Indeed, it may be the very essence of religious pluralism in western civilization dating back before the time of Martin Luther. But you have the same rights to express yourself in all those forums.

The only thing I've ever talked about is whether the institutions of government can be the forum for the purposes of advancing religion, any religion, not just Christianity. It just happens that "Christians" are the ones who keep trying to use government to advance religion at the moment. But if you work on my blackbelt county example, you can see that it could be anyone, not just Christians. That's why there's nothing anti-Christian in the reasoning behind the ACLU lawsuits and why they're always baffled at that suggestion. So, it's very important to distinguish what you're talking about when you say Christianity is being attacked.

You've made references to "one way" in some of your messages. You probably know this already, but let me address the point for clarification. I believe the Bible is true, all of it. (I agree that the King James translators may not have chosen the closest English equivalent word here and there for Greek or Hebrew, but for the most part, the message has not been diluted or changed.) This is an essential element of my faith. In John 14:6, Jesus said, "I am the way, the truth, and the life: no man cometh unto the Father, but by me." Now if I believe the Bible, I must also believe that. And I do. That is why I am Christian. In Mark 16:15 Jesus also said, "Go ye into all the world, and preach the gospel to every creature." That gives Christians a mandate to share their faith with others. If "sharing" goes beyond that, it has exceeded the mandate.

I think I can generally agree with this. And I think you'll find the liberals respect and will fight quite vigorously for your right to share, so long as you don't use government resources to do so. I'm serious, check out what they have to say about it.

Acceptance of salvation through the atoning death of Jesus Christ on the cross and his subsequent resurrection is strictly a personal matter for you and all others to address in the privacy of your own will. Would I like to see you accept the Christian faith? Absolutely. Will I try to coerce you to accept it, absolutely not. I've often heard it said that when we get to Heaven, we'll be surprised, either by how many there are who got there or how few there are who will have made it. I choose not to gamble with the destination of my eternal soul. Having said that, it is my hope that you will try to understand the difference between exercise of religion and promoting it. If I tell you you are going to Hell if you don't accept my religion, I'm promoting it. If I bow my head and thank God in the name of Jesus for my food, whether in my home (which I do) or in a restaurant (which I do), by myself or in the company of others, I am exercising my religion.

A pretty good distinction. And it's where a lot of the confusion comes in, I think. "Christians" like Moore think and argue they're exercising their own personal right to religion and not promoting or endorsing it. Liberals like me think what you do in your own home or at a restaurant is fine as the exercise of individual religious rights, but when you employ the trappings of government to do so, it's not.

That is not intended to be a threat to anyone. When we have the opportunity to have a meal together (sooner than later, I hope), you should not feel negatively toward me in any way when I bow my head and pray over my food. I've done that longer than I can remember. And it is not "ceremonial." I pray.

We do not pray or say grace when we eat at my home. I have *always* made a point when we had guests who do, to tell them that while we don't, we'd be honored and blessed if they cared to say grace. It's something I picked up from my father when I was a kid. I don't know if he even remembers it. That is a standing practice in my home, as areligious as we may otherwise be. Obviously, I prefer it if it's not "in Jesus' name" that grace is said, but there is usually an "amen" from us even when it is.

I am also at somewhat of a disadvantage because I don't really know what you do believe. You have chosen to not share that with me beyond saying you are "spiritual." That's okay if you choose to keep it private, but it is hard for me to put in context some things that you say, and it is difficult for me to make a point on a commonly held belief.

I don't think I'm being particularly secretive. I'm not especially indoctrinated one way or another, even born as a Jew and being Bar Mitzvahed. So there's no over-arching "charter of Rob's beliefs" that we can point to for purposes of analyzing the similarities and differences. I hesitate to say I am a Deist, i.e., God created the world and left it to its own devices after that. But I also don't anthropomorphize the concept of God, meaning I don't ascribe human attributes to some heavenly (male) father figure who likes to dabble in the affairs of men. Obviously, I don't think Jesus is the messiah, but he was a great teacher who sought to show man the way to God in the truths of the day. For that reason, the Bible (OT/NT) is not something I can read as literally true, but can read for the underlying truths that are written in the metaphor and understanding of the day. Reading it in context, I can then apply those truths.

I'm unclear on what I believe about the western or Christian idea of a second coming (or in the case of Jews a first or messianic age), but there are also aspects of the ideas of the Apocalypse and Armageddon that creep into my thinking, perhaps if nothing else because man is so self destructive. I don't believe in fate so much or predestination, or that the events of man are predetermined, but I do believe in the eastern idea of Karma in the sense that there is a balance to the universe, that what goes around comes around, that all good things come to those who wait, that there is choice and free will, but if we disrupt the balance of the universe in the exercise of that choice there will be consequences. I believe in the golden rule, not just applied to men, but to the earth as well. I believe we are the caretakers of this planet, but that it is presumption to assume we are the center of God's universe.

Probably not too helpful, but that's about it really.

It is late, and I must get in bed. I don't foresee any more messages from me as stressing to you as my last few have been.

I won't say I'm stressed. I do look forward to your replies. The truth is, I'm hooked on this debate. We do have to keep reminding ourselves and refining what the rules of engagement are, and that's an evolving process as you've seen.

I'm going to pull down copies of all the cases I can find that discuss "wall of separation" and all the significant cases on the establishment clause I can. Then I'll email them to you, you can buy a couple of reams of paper and print them out and read them all for yourself. You'll be at the source, as it were. We'll be able to discuss the merits of who said what, when a lot better that way, because neither will be relying on what other people say the cases say they say. So, we may want to take a break and read and reflect on what people actually wrote before resuming the merits of the "original intent" and "activist courts" debates.

We do have differences in opinions, and we both recognize that neither of us are likely to roll over and agree with the other on certain fundamental issues, and beliefs. That is okay with me. But my efforts, crude and non legal as they may have been, were to try to present my views and understanding of reality, not to be critical of you, but to (in keeping with our objective of finding a solution) try to build a bridge of understanding.

There may have been a time when you didn't really think that was possible, in our early discussions. So I'm heartened to see you say that.

You've heard the story of the blind men describing the elephant. I am trying to understand what your "piece of the elephant" feels like; I hope you are doing the same with me. Do I really think you are anti-Christian? No, I don't. (But sometimes I do wonder if you aren't getting close.) However, taken collectively over the last 35 years, it is difficult to not view the action by the courts and the ACLU as not being anti-Christian. To me, it seems like far less of a stretch than saying "one way" is a threat to anyone. Hey, be patient with me. I'm just a "rocket scientist." ; )

Hee, hee... When this is said and done, I do believe you will understand that taking a stand against religion in government is not the same thing as being anti-Christian or anti-religion.

BTW, you once again did an excellent job responding to my message. You are through. I might even vote for you anyway. : )

Like I said earlier, that was a pretty quick off-the-cuff response, grabbing the cases to see what they said. But thanks. If you visit the SOCS page, know I did not have the benefit of reading what they said about Barton before replying. Whatever we may subjectively believe, questions of scholarship and legal analysis are entirely objective. And sloppy scholarship can adversely affect credibility. Lincoln said a lawyer's stock in trade is his education and reputation (something like that). Credibility in scholarship is therefore paramount for someone like me.

BTW, weren't we about to attempt to work out mutually acceptable definition of "religion?"

Probably a good idea. Why not read those cases first, and see how the courts have interpreted the concept, and why. Then we can explore whether or why you disagree with what they've said.

Time to run. -Rob

LXIV

Date: Mon, 17 Nov 1997 00:30:23 0600
To: Rob Weinberg
From: Frank Grose
Subject: Shalom

Rob,

You truly are a patient, tolerant man! I read carefully through your response. It is now obvious to me that you have studied the First Amendment issue on a professional level. I have not. I don't mind admitting that. And I have relied a great deal on David Barton as a source, because it seemed to me that he'd done a good job at researching the early history. Thank you for forwarding the cases. It will take me some time to get through them, however. The last thing I want to do is use a mis quote from someone to try to prove a point. I want facts, not spin, right or left.

You mentioned that I was not answering your questions. The fact is, I only have a limited amount of time I can spend responding to emails. Please don't think I don’t read them, however. I do, every one. And I don't try to place myself in your position. I do consider your questions the way you want me to. As I've said before, you do make me think. From my last couple of emails, I can understand why you think I'm closed minded. But I'm not.

My comment regarding your heritage had nothing to do with your being one of "God's chosen," I was just simply trying to make the point that you and I were reared in different environments. Mine was a Christian home; yours was Jewish. Sometimes I get a little confused and uncertain how to consider you. It seems you point out your Jewishness, but when I refer to it, you dodge. I have no problem with you being Jewish. As I said very early, that was glad to have a Jewish friend from whom to learn. The fact that you are a lawyer, and the Assistant Attorney General make it even better. I don't consider you a minority. You are just as much American as I am. But then, sometimes you place yourself in a minority, and allude to the majority being a threat to you in some way. I am trying to understand. I am, I am. But I just can't come up with a scenario that seems to fit what you are talking about. I've considered the Pike County thing. It was unfortunate. But my gentile mind may not be catching some of the subtleties. If you as a Jew have enemies out here, more than likely, they are my enemies as well. I have no use for the Skinheads or the KKK. Yes those are overt organizations, but I probably never see the less overt anti-Semitic gestures or attitudes that you see, simply because I am not Jewish. That is where I need you to help me see it.

America is a multi cultural country, and we are a better country for it. But sometimes it seems that all cultures are okay except the American culture, of which prayer in school is a facet. It is only in what seems to me to be an attempt to rid the American public scene from all vestiges of Christianity, that causes me to voice objection. And from where I am, how can I see it otherwise?

Acceptance of salvation through the atoning death of Jesus Christ on the cross and his sbsequent resurrection is strictly a personal matter for you and all others to address in the privacy of your own will. Would I like to see you accept the Christian faith? Absolutely. Will I try to coerce you to accept it, absolutely not. I've often heard it said that when we get to Heaven, we'll be surprised, either by how many there are who got there or how few there are who will have made it. I choose not to gamble with the destination of my eternal soul. Having said that, it is my hope that you will try to understand the difference between exercise of religion and promoting it. If I tell you are going to Hell if you don't accept my religion, I'm promoting it. If I bow my head and thank God in the name of Jesus for my food, whether in my home (which I do) or in a restaurant (which I do), by myself or in the company of others, I am exercising my religion. That is not intended to be a threat to anyone. When we have the opportunity to have a meal together (sooner than later, I hope), you should not feel negatively toward me in any way when I bow my head and pray over my food. I've done that longer than I can remember. And it is not
"ceremonial." I pray.

It is late, and I must get in bed. I don't foresee any more messages from me as stressing to you as my last few have been. We do have differences in opinions, and we both recognize that neither of us are likely to roll over and agree with the other on certain fundamental issues, and beliefs. That is okay with me. But my efforts, crude and non legal as they may have been, were to try to present my views and understanding of reality, not to be critical of you, but to (in keeping with our objective of finding a solution) try to build a bridge of understanding. You've heard the story of the blind men describing the elephant. I am trying to understand what your "piece of the elephant" feels like; I hope you are doing the same with me. Do I really think you are anti-Christian? No, I don't. (But sometimes I do wonder if you aren't getting close.) However, taken collectively over the last 35 years, it is difficult to not view the action by the courts and the ACLU as not being anti-Christian. To me, it seems like far less of a stretch than saying "one way" is a threat to anyone. Hey, be patient with me. I'm just a "rocket scientist." ; )

BTW, you once again did an excellent job responding to my message. You are thorough. I might even vote for you anyway. : ) Lest we overdo it, I'll try to be less aggressive in the future. BTW, weren't we about to attempt to work out mutually acceptable definition of "religion?"

Good night,

Frank

LXIII

Date: Sun Nov 16 12:39:55 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: File

At 10:39 PM 11/15/97 0600, you wrote:

Hey, am I considered only "a constituent?" : ( I thought I was your friend and your teammate in the pursuit of truth, peace, and world bliss, and your right wing Christian patsy that gives you information on which to build your anti-Christian tactics. ; ) Besides all that, I'm contributing to your education and professional thoroughness. I am genuinely hurt!

; ) We wear many different hats. When we're talking about cases I’m involved in, I am more professionally removed than when we talk about other things. It's important that I maintain that professional objectivity in order that I can put my client's and the state's legal interests first, regardless of what I think about "the bad guys." Because of the role I play, I will still be somewhat more reserved, even though it appears I'm being quite open and disclosing my mental thought processes. Usually I don't do that until after the fact. I will say, however, that your suggestions have always been very good and I use them often.

On the "anti-Christian tactics" side, I don't think you're giving me anything I don't already know, but perhaps so. What I'm looking for is a way to communicate, in terms you appreciate, the convictions I have. You ask questions, I try to answer them (although I see lately a tendency to repeat the questions as though I've never tried to answer them). I ask questions, you.... aren't always so responsive. Because we've been able to keep the dialog open so long, we're still exploring where the openings are to effective communication. There are many barriers, indeed walls of separation, that I'm looking for ways we can get through to each other.

My first wife was a law student when we married. I'd just graduated. I had the absurd notion that as far as the differences between men and women went, we'd have an advantage in that we were both legally trained. Thus, so I thought, our arguments would be governed by informal rules of civil and procedure and evidence comparable to what lawyers use in court. Because we were trained to be objective and argue both sides of an issue, I thought we could be our own judge in matters of dispute. The next girlfriend I had was also a lawyer and, silly me, I thought the same thing was worth a try again. I can tell you, the first thing that goes out the window when you get in a relationship with another lawyer is the rules of civil procedure and evidence.

What I've learned since, if you can call my present marriage successful (and I do), is that men and women approach communication from very different angles. In order for me to hear what my wife is saying, I have to understand why she's trying to communicate in the first place, and then what her frame of reference is as she does so. Then, I understand where she's coming from. She in turn, if she understands where I'm trying to come from, won't be so quick to ascribe malevolent motives to what I'm saying, but can listen to the real me.

It's the same between us. There are certain presumptions we make about one another early on that we have to revisit and scrutinize. Do I think all Christians are whackos or anti-Semites? No. Do you think the ACLU is the devil incarnate? (Bad example.) But it illustrates some of the barriers we put before ourselves in trying to communicate. We both think we're trying to get closer to God, but our approaches are often antagonistic to the concept that the other will get there.

We will never agree on the meanings of the Bible. And I don't believe I'll ever be able to read it according to Acts, 17:11. That doesn't mean I can't try and understand where you're coming from as it influences your thought. It also doesn't mean that I reject its teachings outright. Considering your approach though, I do seriously question how well you can appreciate where I'm coming from in matters of spirituality and faith, and whether you'll ever be able to, but that's what keeps me coming back. Although the distinctions between us in certain matters of faith are critical, nonetheless there is much on which we can agree, at least in terms of general principles to live by.

We'll probably never agree on what the law should be on many subjects. That doesn't mean we can't agree on a common framework for *discussing* what the law is, how it got that way, and where it could and should go. That's the lesson of my wife/girlfriend story. We may not agree on whether the Bible was written by God, but we certainly can agree the law was written by men (can't we?). I will not agree that any laws that have governed us for the last two hundred years are divinely inspired. That does not mean I can not concede that many are consistent with divine law.

So, if we agree that the law is written by men we should be able to agree on how to approach discussion of the law. I have certain fundamental prerequisites to doing so. Cite and discuss cases in context that are relevant, acknowledge contrary authority and precedent, acknowledge when you are hypothesizing or speculating about history or original intent, do not make vague and general assertions about what was said when the source is readily available, don't get personal, and don't duck hard questions with appeals to "majority rules" or the Bible, or simply by ignoring them. Those are the rules I live by.

Because you're not trained in the law, I've cut you a lot of slack in this department, while trying to educate you on the "rules" of discussion. I don't pull rank on you, neither do I erect unnecessary barriers to your participation in a legal discussion just because I'm a lawyer. It may be difficult, but then we never said it was supposed to be easy.

As to contributing to my education and professional thoroughness, hmmmmm..... I think a better approach would be for you to ask questions when I make a point that seems incongruous to what you've heard elsewhere. You contribute to my ability to communicate by questioning something you don't understand in relation to what you've been told. In that way you assist me in being more professionally thorough, because obviously if I'm not getting through to you, I'm not communicating well. But it's very presumptuous to offer me things like Barton and say you're making a contribution to my education, when I've already analyzed those arguments in considerably more depth. Question me and call me out all you want if it's because I'm saying something you don't understand. But I wouldn't presume so much on the "contributing to my education" idea. You are the expert on how you feel and why you believe as you do. You should defer to me on matters of legal education, at least until I've got you up to speed.

Vote for you??? Well, you're not running now, and we Christians have faith. If God could part the Red Sea for your forebears, there is a chance he can bring a intolerant, left wing, anti-Christian lawyer more toward the middle of the road. In which case, I'd be happy to vote for my friend. (Surely you wouldn't expect me to vote for someone I perceived as a threat to the freedom I hold dear.)

I wonder if you'll ever be convinced that being anti-religion-in-government is not the same thing as being anti-Christian. Now, not voting for me because I'm left wing, is something I can respect. Suggesting I'm intolerant though, compared to the views of the "right" on political issues, is clearly to me a case of the pot calling the kettle black. My view is that government should be as inclusive of cultural diversity as humanly possible, and that as a people we should rejoice in our cultural diversity, because to me, God made us all different for a reason. Now, you may say the Bible instructs otherwise. To me, whether biblically inspired or not, *that* is a very narrow minded and intolerant approach to the facts of life. But that is the problem with our faiths. And that difference in political philosophy if grounded in our different faiths, is to me, why religion in government is inherently unworkable and dangerous because of its tendency toward divisiveness.

More on your response to my opinion of your Opinions coming.

Uh, oh.....

LXII

Date: Sun Nov 16 11:59:09 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Legal Opinions (part ii)

At 07:26 PM 11/15/97 0600, you wrote:

“Welcome to America.”

Hey, I love America. Wouldn't have served in combat if I didn't. I'm not crazy about some of the folks running it these days, but our form of Government is a good one. Regarding amending the Constitution. Could you draft an amendment that says what the First Amendment says (without all the liberal misinterpretations including by the Court) that is not subject to being twisted and convoluted by the Court? How much plainer does it have to be said?

I suspect you'd be happy if there simply was no establishment clause. Congress toys with amendments to the first amendment all the time. They're doing it now. Why aren't amendments being proposed? Because Congress knows, I'm speculating, that such an amendment that would overturn 30 years of precedent would likely never be ratified, at least not in the near future. So they keep offering *statutes* that they know the courts will overturn. Frankly, that's irresponsible. By sponsoring a statute, they think the public will be satisfied that they're doing their job, when in fact they're wasting time. If they were serious, someone would be trying to drive a proposed amendment through. But they're not. They're posturing, using your faith to get themselves re-elected. How can you deliver religion into the hands of men like that?

It reminds me of the country song that says, "What part of 'No' don't you understand?"

This is my argument exactly! The "right" keeps trying to push the envelope, and when they're told "no," they say it's anti-Christian hostility.

There's an incredible amount of stuff on the Separation of Church and State web page. Take some time off and read that stuff. Start with "A Note to Our Critics" or whatever it's called. Try and understand what they are trying to convey. It (or I) may very well be called anti-religion in government, but it is (and I am) not anti-Christian. But read the stuff on the page. Try and undertand why the courts decided the cases as they did, what their reasoning and analysis was, without the moral pejorative label that you ascribe to those who disagree with you on the result we should apply.

Perhaps it should have said, "Congress shall make no law, and the Courts shall make no ruling, respecting the establishment of religion or prohibiting the free exercise there of, any time, any place, or by any person, regardless of his position in or out of government."

I'm unsure what you mean by this. Are you proposing it as a limitation on the powers of the courts? Or are you saying that's what the courts have been saying? If the former, then your job is easy. Start a movement to abolish the establishment clause from the constitution outright. If the latter, then where your logic breaks down is the phrase "in or out of government." None of the cases on the issue affect what people do in their private lives, only what they do in their government roles. That's the big lie, that's why it's not an attack on your personal religious views or Christianity generally. That is a point I have been making repeatedly. The establishment clause is a limitation on government entanglement with religion (any denomination). You have never answered the question "what gives you the legal right to dip into my pocket to pay for you to teach my children your religion?" I'll teach my own children, thank you very much. The business of government is paving roads, enforcing criminal laws, defending us from foreign attacks, that sort of thing. By its very nature it's unqualified to be in the religion business. That is the point of the Murray/Schempp case.

That is what they meant, except the Courts were not allowed to get away with "making" law in those days. Were such anticipated, there'd been a specific prohibition against it. Perhaps that is an amendment that should be pushed today. No, impeachment provisions are already defined; they just need to be exercised.

Unquestionably during the Warren and Burger Courts years there was a lot of judicial activism. Without it, we'd still have Jim Crow laws and legal segregation and gerrymandering, we'd have criminal laws that authorized torture and interrogations, deprivation of the right to counsel, searches and seizures without probable cause. Questions from those days are being revisited today, including some of the underlying assumptions made about the "penumbra" of rights that "protect" the right to abortion. You'll find that many of the justices on the court are revisiting issues the results of which, for example, minority communities are calling hostile to blacks, hispanics, women, etc.

But misconstruing the law or getting it wrong is not grounds for impeachment of the judge. Federal judges have life tenure and their salaries cannot be lowered precisely to keep them above the political fray. If they're wrong and you don't like the results of their rulings, the answer isn't to make it personal and attack the judge, but to change or clarify the law. Any other approach is an invitation to lawlessness.

“Not offended. Bear in mind that the memos were sent to give you a discourse on the state of the law at the time they were written. Some background on the legal arguments. Try not personalize my legal opinions if you can. It gets in the way of actually grappling with the legal hurdles that are in front of you on the issues. The best thing about the www.Christiananswers.net site you sent me is their "unconfirmed quotes" page, because it's honest and acknowledges that the rhetoric that's been thrown around about founding fathers' original intent is subject to academic challenge. Work on being more like that.”

You mean look at what folks really said?!? Good idea! May I offer that same advice back to you? You may not even be aware of how you absolutely reject any arguments from the right, regardless of how true they are. You might try being a little more objective in your evaluation of them. For starters try what I gave you up front. From you comments on David Barton, it is easy to discern how you regard him, although you haven't given him an opportunity to speak to you. That is called prejudice by some. Open up a little. Don't be paranoid.

I don't really have an opinion on Barton. He's certainly entitled to his. I shy away from some of that stuff because it's too simplistic. I have to go read the cases he alludes to, and then I find myself in the position of having to confront the contextual inaccuracies and misquotes. And that gets old. Other web pages have done that better, and thoroughly, and the only site that shows some intellectual honesty is Wallbuilders.com. "Your side" needs more sites like that. I repeat, so far, Barton's stuff you quote is fine for what it says, as the "right's" theory of history. But there's more in depth stuff from a legal analysis in the pleadings and briefs filed on Roy Moore's behalf in the Alabama Supreme Court. So Barton isn't making any arguments I haven't grappled with myself already at a higher (or deeper) legal analytical level.

I have spent some time the last few days searching the web for official position papers from "the right" to see what they've actually said, as opposed to what's been reported they said from the "left." The Secular Web site has links to major religious right organizations that I've been visiting looking for links to add to the "other side" part of my web page. But there's nothing substantive that I've found, other than Wallbuilders and the American Center for Law and Justice. If you know of other sites that address the issues in a substantive way, let me know and I'll add them. I won't say that the legal hurdles are insurmountable, just that those who would seek to tear down the wall of separation just aren't up to the challenge yet, from what I've seen.

BTW, you said the Torah version of the Ten Commandments were different from those in my Bible. I have not heard that before. Please tell me what the difference is.

It's written in some of the briefs in the Moore case. Remind me Monday and I'll see if I can find them. One example is: thou shalt not kill versus thou shalt not murder. I'm told there are actually a couple of inconsistencies between versions of the decalogue within the Bible itself, regardless of whose version you're reading.

Seriously. Spend some time on the Separation of Church and State web page. All of the points that you've made and the concerns you have are addressed extensively there. There's simply too much finger pointing and demagoguery about what the real issues are in this debate.

So. How we doin? -Rob

Come Let Us Reason Together

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