Date: Sat, 15 Nov 1997 19:26:03 0600
To: Rob Weinberg
From: Frank Grose
Subject: Re: Legal Opinions
Rob,
I am going to try to do a brief response to some of your counter points.
First, let me once again apologize for the frankness (no pun intended) of my comments. I'm sorry for getting personal, but I was really speaking of how I perceived the Opinions based on what I thought you were being asked to do in your job. I do believe you to be a man of integrity. And I believe that part of that is because of your heritage.
“First, you did an incomplete job.” The job wasn't incomplete. I began with the precedent applicable to the issue at hand. The law has been quite settled since 1962.
I find your last statement somewhat surprising! It may be settled in your mind simply because in 1962 and subsequent, the Court decided in your (collectively) favor. What about all the cases prior to that? No mention in your Opinions. Was it because there were no decisions, or was it that they didn't support the conclusion you wanted the AG to come to? This is the problem I have with the current legal argument. They exclude that which isn't favorable to them. Perhaps I misunderstood the issue you were asked to address, if so, another apology is in order and made.
"Congress shall make no law respecting an establishment of religion (meaning denomination) or prohibiting the free exercise thereof." Taken at face value (which I believe the founders labored to make the meaning clear), the contemporary arguments and court decisions are absurd.
Let me issue you a personal challenge. Go back and study the court decisions that are supportive of religious expression as though you were retained to defend it. If you have ever done this, it isn't evident. For a person in your position, I believe it to be essential so you get a balanced view. Let me help. The excerpts below are from the narrative of David Barton's video tape "America's Godly Heritage."
"The process of drafting the First Amendment made the intent to the Founders abundantly clear; for before they approved the final wording, the First Amendment went through nearly a dozen different iterations and extensive discussions.
"Those discussions -- recorded in the Congressional Records from June 7 through September 25 of 1789 -- make clear their intent for the First Amendment. By it, the Founders were saying: "We do not want in America what we had in Great Britain: we don't want one denomination running the nation. We will not all be Catholics, or Anglicans, or any other single denomination. We *do* want God's principles, but we *don't* want one denomination running the nation."
"This intent was well understood, as evidenced by court rulings *after* the First Amendment. For example, a 1799 court declared:
"By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed on the same equal footing." (Runkel v. Winemiller, Sup.Ct. Md. 1799)"Jefferson's letter (to the Danbury Baptists Association, 1802) had remained unused for years,... But now seventy five years later in the case Reynolds v. United States (1878), the plaintiffs resurrected Jefferson's letter, hoping to use it to their advantage.
"In that case, the Court printed a lengthy segment of Jefferson's letter and then use his letter on "separation of church and state" to again prove that it *was* permissible to maintain Christian values, principles, and practices in official policy. For the next 15 years during that legal controversy, the Supreme Court utilized Jefferson's letter to ensure that Christian principles *remained* a part of government.
"Following this controversy, Jefferson's letter again fell into disuse. It then remained silent for the next 70 years until 1947, when, in Everson v. Board of Education, the Court, for the first time, did *not* cite Jefferson's entire letter, but selected only eight words from it. The Court now announced:
"The First Amendment has erected 'a wall of separation between church and state.' That wall must be kept high and impregnable."
"This was a new philosophy for the Court. Why would the Court take Jefferson's letter completely out of context and cite only eight of its words? Dr. William James, the Father of Modern Psychology -- and a strong opponent of religious principles in government and education -- perhaps explained the Court's new strategy when he stated"
"There is nothing so absurd but if you repeat it often enough people will believe it."
"This statement so precisely describes the tact utilized by the Court in the years following its 1947 announcement. The Court began regularly to speak of a "separation of church and state." broadly explaining that "This is what the Founders wanted separation of church and state. This is their great intent." The Court failed to quote the Founders; it just generically asserted that this is what the Founders wanted.
"The courts continued on this track so steadily that, in 1958, in a case called Baer v. Kolmorgen, one of the judges was tired of hearing the phrase and wrote a dissent warning that if the court did not stop talking about the "separation of church and state," people were going to start thing it was part of the Constitution. That warning was in 1958!
"Nevertheless, the Court continued to talk about separation until June 25th, 1962, when, in the case Engel v. Vitale, the Court delivered its first ever ruling which completely separated Christian principles form education; the case struck down school prayer. Even in the "World Book Encyclopedia's 1963 Yearbook" noted that this case was the first time there had been a separation of church and state in education. In that 1962 case, the Court redefined the meaning and application of a single word: the word "church." For 170 years prior to that case, the word "church" -- as used in the phrase "separation of church and state" -- was defined to mean "a federally established denomination." However, in 1962 the Court explained that the word "church" would now mean "a religious activity in public." This was the turning point in the interpretation of the First Amendment.
"Understand that what the Court had just announced: no longer would the First Amendment simply prohibit the establishment of a federal denomination, it now would prohibit religious activities in public settings. This current doctrine of separation is a brand new doctrine; it is *not* something from the Founding Fathers, and it is *not* in any founding document. Even outside observers recognize that this policy is a recent one. Ye, notice how much has been relinquished in recent years under this new doctrine.
"That 1962 case which first redefined the First Amendment and then removed school prayer was notable in a number of aspects. Recall that the 1892 Supreme Court case (Church of the Holy Trinity v. U.S.) offered 87 precedents to maintain the inclusion of Christian principles in our laws and institutions. This 1962 case which removed school prayer was just the opposite; it was the first case in Court history to use zero precedents -- the Court quoted "zero" previous legal cases. Without any historical or legal base, the Court simply made an announcement: "We'll not have prayers in schools anymore; that violates the Constitution." A brand new direction was taken in America."
In referring to the 1892 case, Barton writes:
"This Biblical heritage was so well understood during the early years of the nation and the writings of the numerous Founding Fathers were so well known -- that in later years the Supreme Court ruled according to the Founder's intention, keeping Biblical principles as the basis. For example, notice this ruling by the U.S. Supreme Court in 1892:
"Our laws and our institutions must necessarily be based upon and embody the teachings of the Redeemer of mankind. It is impossible that it should be otherwise. In this sense and to this extent, our civilizations and our institutions are emphatically Christian.""This case was not long (only 16 pages in the Court records), but the Court provided 87 different historical precedents to support its conclusions. The Court quoted the Founding Fathers, the acts of the Founding Fathers, the acts of the Congresses, the acts of the state governments, etc. At the end of 87 precedents the Court explained that it could continue to cite many additional precedents, but that certainly 87 was sufficient to conclude that our laws and our institutions must be based on and must include the teachings of Christ."
What followed the 1962 decision was a series of cases against Christianity. Abington v. Shempp and Murray v. Curlett removed Bible reading from schools. (BTW, prior to becoming President, Jefferson was president of the D.C. school board, and while in that capacity made the Bible and the Watts Hymnal official textbooks to be used in school.) Reed v. Van Hoven determined it was permissible for students to pray over their lunch at school so long as no one knew they were praying. DeKalb v. DeSpain declared a 4 line nursery rhyme used by a kindergarten class to be unconstitutional because if someone were to hear the rhyme, he might think it was talking about God. Stone v. Graham removed the Ten Commandments from schools. (Quoting from Barton again.) "... notice the Court's ruling under the redefined First Amendment:
"If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate, and obey, the Commandments....[This] is not...a permissible...objective."
"That's quite a statement! You can't let kids see the Ten Commandments, because if they do, they might obey them -- things like "don't steal," "don't kill" -- and that would be unconstitutional!
"When the Court declares something unconstitutional, it is inferring that our Founding Fathers -- the men who drafted the Constitution -- would have opposed it. However, notice what James Madison -- the "Chief Architect of the Constitution" -- said about the Ten Commandments:
"We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of each and all of us to govern ourselves... according to the Ten Commandments of God."
"It is ironic that which the "Chief Architect of the Constitution" considered to be the most crucial aspect of American constitutional government, the current Court has now declared to be unconstitutional!
"The entire controversy over God and religious activities and teachings in schools had bug with the twenty two word prayer in the Engle v. Vitale case. That twenty two word prayer -- the prayer that led to the removal of all prayers form America's schools -- simply said:
"Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers and our Country."
"That prayer which only acknowledged "God" and didn't even contain the word "Jesus" was a bland prayer. It was so bland that eight years later when a court was discussing that prayer, it described that prayer as "To Whom It May Concern" prayer. (State Board of Education v. Board of Education of Netcong, Sup.Ct.N.J.)
Well so much for my goal of a brief response. But I took the time to type all this in to show you why I felt you had done an incomplete job, and to question your statement that "The law has been quite settled since 1962."
If Barton's summary of history is correct, the issue was settled until 1962. Understanding and believing the above, perhaps, you can better understand the position I, Governor James, Judge Moore, and the "Christian right" take on prayer related issues. The 1962 ruling was simply wrong. And to assert the current trend is not anti-Christian considered fallacious. Now, I am not accusing you of intentionally being anti-Christian, but the effects of writings such as your Legal Opinions, are anti-Christian nonetheless. It is analogous to the link you make with your "one way leads to anti-Semitism" argument.
I've not listened to Barton's tape, but I presume from what you say that it's similar to Gov. James 36 page missive to Judge DeMent that the establishment clause doesn't apply to the states through the 14th amendment, which I *have* read.
Since I have not read the document to which your refer, I cannot confirm or deny your presumption. However, presumptions are frequently not valid. Could it be that you haven't listened to the tape because you might hear something that don't quite fit comfortably in your frame of reference? I don't consider Barton a zealot, but one who provides factual historical information. If you find him to be otherwise, I'd like to know it. The purpose of the tape was to, hopefully, fill in some (apparent) gaps in your education and knowledge on this issue. I trust that (being a man of integrity) you will embody all knowledge on the subject and use it forthrightly in your official work.
But going back before 1962 was irrelevant for purposes of the memo, because I was asked to discuss what the law was, not second guess the doctrinal basis of 30 years of law.
What about the previous 170 years of law?
In your September 25, 1989 memo, you quoted the AG's questions. With regard to the first question, you deftly sidestepped the question. Given the 170 years of history (above), question 1 properly addressed may have affected the answer to question 3. This is a layman's opinion, of course (for what it's worth). Your answer to question 2 is in keeping with the current Court rulings (even though they are based on a fallacious foundation, e.g. Engle v. Vitale).
“If I'd been the AG, you'd have been fired.” And if you'd done that, you'd be in for even more trouble than you know(and not from me), for your ass would be in court from the ACLU in a heartbeat and you'd be paying their attorneys fees out the wazzoo,..
Even I know that! That is the way it is these days. Of course, I wasn't the AG, so I didn't have to grapple with that decision. It is easy to be Monday Morning Quarterback, and less risky too. ; )
I was not asked what arguments could be made to change 30 years of precedent.
Granted. But, for balance, you could have pointed out that history did exist prior to 1962.
They were not merely my personal opinions, and no disclaimer was required. They were and are the law of the land as interpreted for the last 30 years.
There goes the "last 30 years" thing again! Do your prize it so highly because finally, after 170 years, the Court has turned anti-Christian?
After submitting those documents, then-AG Don Siegelman dissatisfied with my analysis, went to another lawyer, a Yale graduate and Rhodes Scholar. Her opinion was that I'd said it all, and she had nothing to add. She's a US Magistrate now, BTW.
What can I say? Another inadequately informed person! BTW, she earned no points from me for being a Rhodes Scholar (but that is an entirely different subject that we should avoid until we get the world love fest behind us.) Relax, I'm only trying to inject a little humor in this dialog! ; )
You're confusing the idea that you *want* the law to be different with what it actually is, you *want* it to be different than I've described in the memos, based on the suggestions of people like Barton. But their ideas are not precedent, they do not reflect the law, and they will not reflect the law at any time in the near future absent a constitutional amendment.
Perhaps. Barton is not my only source, however. Regardless, I recognize the current law (baseless as it is). It is just that I don't agree with it because of the nature by which it was derived. Unfortunately, I don't think it will change in the near future. Challengeable? I believe so (provided that the Court were agenda free). But that is highly unlikely for the near future. I don't happen to believe a Constitutional amendment is necessary. A correct rendering of the First Amendment would suffice. But that not being likely, perhaps I should be discussion such with my Congressmen.
I will let pass your suggestion that my ethics are due to be questioned.
I regret making that comment. Sorry. It wasn't necessary. It all goes back to my "less than the whole story." If you have rationalized what you did in your mind, and think you did a fair job (based on far more knowledge of the environment, local and legal), perhaps I was off base.
Dispute my analysis if you want. Show how I'm leaving out cases that are relevant (i.e., binding today) or misquoting precedent if you can. You haven't done that....
I hope I have done just that by the lengthy quotes above.
I'll admit though that I couldn't pass up the opportunity though to write those memos.
Just as I thought! A made to order opportunity! Your dream come true! Hey, I guess I don't blame you for taking the opportunity.
There are enough lawyers out there that tell their clients what they want to hear, as opposed to what the law is. I'm not in that category, never will be.
Thank God. I wish there were more of that conviction in the law profession and in Congress and behind the benches of courtrooms across our land.
There you had the chief law officer of the state looking for an opportunity to do a little political grandstanding and court the "conservative" vote. Take it from me, I was there, and I know the players. You think Siegelman cares about prayer? All he cared about was telling the voters what they wanted to hear so they'd run him for governor.
At least we agree on Siegelman.
What I was after was keeping the state out of a lawsuit we were doomed to lose. You may disagree, but I think that's what good lawyers who are "ethical" are supposed to do.
I agree. Considering your rebuttal, you probably did the right thing.
It may be hard for you to separate the personality of the ACLU with their legal arguments, but it's not for me. When they're wrong, I say so, and have said so. When they're ever right, will you say so?
What I know is that the ACLU shops for judges who will give them the precedent setting decision they seek, and that is used to deprive Christians of their Constitutionally guaranteed right of religious expression from that time forward. The ACLU may have some redeeming value, but I have no use for the organization. ACLU is a four letter word to me! Where have they been on the Second Amendment fight? Silent, as far as I know.
It's just not as simple as saying I'm anti-Christian. You don't even speak for most Christians, but a small recently vocal minority of them. Did you see what the Baptists said in their publication this week? Do you consider them anti-Christian now?
You are right that I don't speak for most Christians, but not in the way you are probably thinking. Most Christians are not into the political and legal fray represented by what you call the "Christian right." A large percentage of them don't even bother to vote. As a group, it would probably be accurate to call us ignorant and apathetic. And that is precisely what has created the climate to permit anti-Christian laws and court decisions to flourish. We, as a group are not fighting back. Somehow, I just don't think that is what Jesus had in mind when he said, "Turn the other cheek."
Is anybody and everybody that disagrees with you on the subject of religion in government anti-Christian? What about all the other religions that believe in Christ but disagree with Judge Moore? You want to play martyr, that's your business, but I'm not buying it amigo.
Christians are a disjointed bunch! We've been accused of having firing squads in circles, and of shooting our own wounded. Regardless the resistance to the anti-Christian movement is a noble cause. Hey, your side is winning... for now.
Can you not agree to disagree on the question of religion in government and still admire and respect me?
As a matter of fact, I do respect and admire you. Despite our differences of opinions (personal opinions), I enjoy our relationship. Our dialogs are helpful and insightful (mutually, I hope). Beside, you just sound like a neat guy.
Or must you reject everything else I have to offer simply because we do not share the same God? I think that is what you are telling me, and I won't accept that. I'd have written you off a long time ago.
No. No. No. You aren't that bad! ; ) And we'll get to the God thing again sometime, I hope. And I do appreciate your putting up with me. We gotta get along, otherwise the book tour will be unpleasant. : )
I do not think the role of government is to invite divisiveness among the governed. The role of government is to engender respect for the rule of law, to reinforce the belief that we are a nation of laws and not of men.
Tell that to the 1962 Court. Could you respect the government of Hitler?
Or do you really believe the world would be a better place without me?
Of course not. Not as a person, nor as a Jew. Bite your tongue for even suggesting such a thing.
Regarding the Baptist question, not being a Baptist, I am not familiar with the actions of which you speak.
Because the basis of its protections to people like me to be protected from the strong arm of the majority.
Perhaps you have it a little backward. One or even nine judges are a minority, an oligarchy when it comes to making law (which they are not supposed to do). Their acts (baseless decisions) affect the majority. Where does restriction of freedom and malignment of a class turn to real persecution. As a Jew, you should be more appreciative of that than I am. In fact, it is somewhat surprising to me that you are not more sensitive the campaign against Christians than you are. You still may not accept it, but American Christians today are more supportive of Israel than anyone else.
That you don't accept it or agree with it doesn't mean I'm anti-Christian....
You make sweeping claims about "one way" as leading to anti-Semitism. I maintain that Christians (today) are not anti-Semitic. You are not convinced. You say you are not anti-Christian, yet your work and your person opinions seem to support the anti-Christian agenda. I am perfectly accepting of the Jewish faith, in fact, I applaud them on their dedication to what they believe. I may not agree with their doctrine, but I respect their beliefs and will support their right to exercise it. Same goes with other religions. Christians are not out to wipe out other religions, but we do like to share our faith with others. Their acceptance of our beliefs are strictly up to them on an individual basis. Understanding that prayer at a football game is not promoting religion or seeking converts (true whether you or the Supreme Court accepts it), we don't see the problem. Help me understand why that is a threat to you as a Jew, you as a citizen, or any other person. I will listen.
Why is it necessary to demonize me?
I am not demonizing you! I can disagree with your work and your opinions without demonizing you. I can separate the act from the person doing it.
The ballot box *is* your recourse. If the judges persist on taking views contrary to what you predicted they'd do when they were appointed (based on their political background as in the case of DeMent), then seek to have the law changed, at the ballot box, when they don't rule your way on statutes. Don't like the judge's interpretation of the constitution? Amend it, at the ballot box. 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? It reminds me of the country song that says, "What part of 'No' don't you understand?" 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." 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.
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.
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.
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