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Vail Valley Voices: No legal support for ‘Christian nation’

Henry Bornstein
Vail, CO, Colorado

Editor’s note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, uses letters in response to previous commentaries as a foil to help explain the place of religion in the U.S. Constitution. This is part 3.

Like the U.S. Constitution, the New York Constitution’s words have meaning.

In the case of People v. Ruggles, (Supreme Court of New York, 1811), Judge Kent chose to blatantly ignore the clear meaning of Article 38 and impose his own religious belief upon the citizens of New York.



Kent did not care because immediately after quoting from Article 38, which on its face contradicts his conclusions and decision, he made the following statement: “This declaration (noble and magnanimous as it is, when duly understood) never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of the law. … To construe it as breaking down the common law barriers against licentious, wanton and impious attacks upon Christianity itself would be an enormous perversion of its meaning.”

Actually Kent was wrong. The New York Constitution meant exactly what it said.



Since there were no New York cases or statutes to support his biased position, he was going to make up his own law to reach his desired result. He drew from English common law and the English law of blasphemy to support his decision.

If Jack Taylor, of Eagle, bothered to read the entire decision, he should have seen this. Since there was no legal support (New York statutes or case law) for Kent’s decision and all of the commentary is nothing more than dicta, it is not precedential law. It is certainly irrelevant under current law and with respect the federal law and the U.S. Constitution at the time of the decision.

Mr. Taylor’s subjective and incorrect use of Reynolds v. US (1879) is even worse. In this case, Chief Justice Waite, in a unanimous decision clearly recognized and Mr. expressly referred to and accepted the principle of the separation of church and state as set forth by Jefferson and Madison. He also stated that this was a civil case (i.e., a violation of a federal statute).



The charge brought against Reynolds was for his act of bigamy in violation of a federal statute: Sect 5352 of the Revised Statutes. Reynolds’ defense was that under the First Amendment, his religious practices were protected by the First Amendment. “Upon this charge and the refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.”

Whether this is a Christian nation was not an issue in the case. It was not raised or discussed; it is irrelevant.

This is the only First Amendment and U.S. Constitution case cited by Taylor.

At page 165, J. Waite stated: “Marriage, while from its vary nature a sacred obligation, it is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.”

On page 166, he stated: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”

In simple terms, civil law reigns over religious law when they conflict and where they relate to “practices” which violate civil law.

Mr. Taylor made the following statements: “The court said, ‘The separation of church and state pertained to denominational differences, not to basic Christian principles.’ Therefore, and on that basis, the court ruled that the Mormon practice of polygamy and bigamy was a violation of the Constitution because it was a violation of basic Christian principles.”

On page 43 of David Barton’s book, Barton presents a distorted and fabricated explanation of Judge Waite’s decision and with respect to his reference to and use of Jefferson’s letter to the Baptist Church of Connecticut.

Mr. Taylor’s statements quoted above were incorrectly copied from Mr. Barton’s distortions.

Barton said (not the court): “In other words, the separation of church and state pertained to denominational differences, not to basic Christian principles. Therefore, and on that basis, the court ruled that the Mormon practice of polygamy and bigamy was a violation of the Constitution because it was a violation of basic Christian principles.”

Both Mr. Taylor and Mr. Barton are 100 percent wrong!

First, The Reynolds’s court never made the statement or the ruling as alleged by Mr. Taylor.

Apparently even Mr. Barton recognized that the court made no such ruling.

As stated above, the court ruled only that Mr. Reynolds violated the federal statute prohibiting bigamy and that the First Amendment did not apply to this case because this was a civil-criminal issue arising under a federal statute.

There was no such ruling that “the Mormon practice of polygamy and bigamy was a violation of the Constitution because it was a violation of basic Christian principles.”

I would not expect Mr. Taylor to know better because it appears that he never read any of the cases he cited and that his only source was Barton’s book, most of which seems to come from Chapter 4: “The Court’s Early Rulings — We Are A Christian Nation.”

But I would expect more from Barton. These are not just simple mistakes. There are too many of them.

They are intentional distortions of the of the facts, the cases, the actual statements and the history, which to me makes them lies.

Mr. Taylor’s opening quote in his second letter to the editor by President Wilson came from page 16 of Barton’s book.

It has no relevance to the issues presented in either of Mr. Taylor’s two letters.

Mr. Taylor borrows three more cases from Barton’s book: City of Charleston V Benjamin, S.C. (1846) (which is quoted from, but not cited); Runkel v. Winemiller, Md. (1799); and Vidal v Girard’s Executors, Pa. (1844). All three of these cases involved purported violations of state laws.

None involved the First Amendment or the U.S. Constitution.

The only reason that the U.S. Supreme Court heard the Vidal case was because Vidal was a French citizen and the federal rules governing the “diversity of citizenship” applied.

However, Pennsylvania common law was applied, not federal law.

The laws and religious practices of the individual states during this period of our history are meaningless with respect to issues involving the clear language of the U.S. Constitution.

Only Reynolds discussed or mentioned the First Amendment.

During these times, the states were in a sense “Christian” states. Just as today, Christians then were in the great majority.

Often state courts made decisions based on the thinking and behavior of the times.

Too often this thinking and behavior ignored existing law.

That is obviously why Barton selected the cases he uses to support his claims and attacks on anyone, any laws, cases or documents which are contrary to his thinking and proselytizing.

In terms of current law as applied to the states via the 14th Amendment, as well as the expressed language of the U.S. Constitution and amendments, these ancient cases may have some historical interest, but they are irrelevant, useless and dangerous.

The use of these cases intentionally ignores the current law, retards reason and thought and interferes with our learning, education and reason.


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