Vail Valley Voices: Constitution distorted |

Vail Valley Voices: Constitution distorted

Henry Bornstein
Vail, CO, Colorado

This is my response to Dick Gustafson’s commentary in the Vail Daily on July 16. As with substantially all of Gustafson’s submissions, they are little more than attacks on President Obama, Democrats, liberals and/or secularists and claims that Obama, etc., are violating some provision in the Constitution. The consistent problem is that Gustafson’s writings are distortions of the facts, history and the relevant law. They are one-sided, biased fabrications as he continuously uses facts and quotes out of context.

In Gustafson’s July 16 column, he makes the following claims: “Article 1 of the Bill of Rights is the right of freedom of religion and speech: “Congress shall make no law respecting the establishing of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the freedom of the press ….” (It is Amendment I, not Article I.)

“Our president and our attorney general have attempted to do just that. It surprised most people when they declared war on the freedom of religion. This ‘war’ is on the Catholic Church, thus forcing it to become a victim of tyranny. Even executive privilege can be a violation of Article 1.”

This latest commentary continues Gustafson’s unsupported and unsupportable attack on President Obama, etc. It states nothing of value. It certainly does not describe in any detail factually or legally what “war” Gustafson is talking about and how it violates our Constitution.

It is obvious that Gustafson has zero knowledge of the Constitution historically or legally. There are thousands of federal court cases interpreting and deciding constitutional issues. One can see that in Gustafson’s piece that the only claim made is that Obama and Holder have violated the First Amendment of the Constitution.

There are no specific examples containing a single fact or case that supports his claims of any violation, nor does he tell us what the alleged “violation” is. His claim of a “war on religion” is meaningless. If he wants to talk about “wars,” he should write about the Republican and organized religion’s war against women-contraception and their war against homosexuals.

Given Gustafson’s significant educational background, maybe we should accept his unsupported claims on face value as being accurate, to wit: Gustafson is a graduate of Columbia University and Harvard Law School, where he was the president of the Harvard Law Review. He worked as a civil rights attorney in Chicago and taught constitutional law at the University of Chicago Law School from 1992 to 2004. Oh, I am sorry, my mistake, this is the educational history of President Obama. I do not know if Gustafson ever graduated from any college, let alone is recognized as an expert on interpreting the Constitution and the case law surrounding same.

As I have written in the past in a response to one of Gustafson’s columns, he has no acceptance or understanding of the concept of the separation of church and state (a concept that he denies exists) nor of the fact that the Constitution is a secular document that makes absolutely no mention or reference to any specific religion or to God, the Creator, Jesus, Moses or Muhammad, etc. This was the intent of the drafters and is the content of our Constitution. This was not a mistake, which organized religion will not accept nor do people who think like Gustafson.

The basic premise is that: “Only if government stays out of religion and religion stays out of government can we truly have freedom of religion,” as intended.

In the entire Constitution there are only two references to religion, the First Amendment, as quoted above, and Article VI, Clause 3: “… and no religious test shall ever be required as a qualification to any office or public trust under the United States.”

In Reynolds v. U.S.; 98 U.S. 145 (1879): George Reynolds was a Mormon who was indicted under the charge of bigamy. His defense was that he was married under Mormon law and was exercising his right under the First Amendment to practice his religion. Gustafson no doubt would claim that he is right. The Federal Revised Statutes prohibited bigamy. After a trial, Reynolds was found guilty of bigamy and the U.S. Supreme Court unanimously affirmed the district court’s decision.

The Supreme Court held in part: “Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The First Amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition. The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.”

At page 163, Chief Justice Waite discusses a 1784 bill proposed to the Virginia Legislature to pay for teachers of the Christian religion.

The court stated: “This brought out a determined opposition. Amongst others, Mr. Madison prepared a ‘Memorial and Remonstrance,’ which was widely circulated and signed, and in which he demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government.”

On page 164, after quoting from Jefferson’s letter to the Danbury Baptist Church, Justice Waite states: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

Thus in 1879, the U.S. Supreme Court recognized Madison’s separation of religion and civil government and Jefferson’s “wall of separation” without reservation – the separation of church and state. Thus, the unanimous decision that civil law take precedence over religious law.

It may be that Gustafson is referring to the Affordable Care Act mandate (he does not say this, so we do not know what he is talking about) that requires religious organizations (such as hospitals, colleges and charities) to include access to birth control/contraception to its employees.

This mandate is not a violation of the First Amendment, as the recipients of this benefit are 100 percent free to use or not use this birth control-contraception. To deny these benefits to employees due to some manufactured religious belief wherein they force their religion on others is a violation of the First Amendment. Reread the Reynolds case above.

I have two charts from 2009 and 2010. The chart is entitled “Catholic Charities Personnel and Finances.” The total income for 2009 was $4,270,309,450. The chart states: “Government Revenue” 67 percent. This amounts to $2,861,107,332 that the government has given to Catholic charities. Only 3 percent comes from Diocesan Church support and 3 percent as in-kind contributions. The government has also given millions of dollars to Catholic hospitals and schools.

The total income for 2010 was $4,699,503,437. The chart states: “Government Revenue” 62 percent. This amounts to $2,895,092,131 that the government has given to Catholic charities. Only 3 percent comes from Diocesan Church support and 3 percent as in-kind contributions.

As Kennedy said in his speech to the Greater Houston Ministerial Association in 1960: “I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference.”

Kennedy was and is 100 percent correct. No religious organization should be given a dime of our taxes. This is a violation of the First Amendment. However, if they accept this money, they must follow the civil laws relating to the grant of this money.

This is another issue that I would be happy to engage Gustafson in should he actually offer credible arguments that can be supported by and from any recognized sources.

Henry Bornstein, of Edwards, is a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective.

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