When State Sovereignty Defies Divine Sovereignty

PUBLISHER’S DISCLAIMER: In Titus 1:12–13, St. Paul quotes a heathen “prophet,” saying of the man’s statements, “This witness is true.” There was no endorsement, express or implied, inherent in Paul’s use of this source. By the exact same token, the Chalcedon Foundation’s publication of the material below does not constitute an endorsement of the theological positions the author has taken (as we regard some of his views as being beyond the pale of orthodoxy). Nonetheless, as specifically touching this author’s experience with the California State Bar Association, we must echo Paul’s conclusion that “this witness is true.” In that light, we believe this author’s journey into the heart of the state’s claim to sovereignty over God Himself can profitably be shared with our readership. The problems we face today were entrenched in our laws decades before the country’s moral decline was translated into the controversial court decisions that have been appearing recently. [MGS]

I studied law and passed the California Bar Exam, said to be the toughest bar exam in the world. I understand how to read laws, and I know how to write laws. I have a passionate interest in the legal system.

The Constitution requires legislators to take an oath of office. Every person who signed the U.S. Constitution believed that an “oath” was an act of worship, a promise made in the presence of God. At first, only Christians were allowed to take any oath. This meant only Christians could hold political office; atheists could not. Over time, some states allowed Jews and other theists to take the oath, and eventually even atheists were permitted in some states to raise their right hand toward heaven and take the oath of office in the presence of a God whose existence they denied.

Original Intent vs. Modern Intent

For the first hundred years after the Constitution was ratified, America was a Christian nation. The U.S. Supreme Court recognized this obvious fact in several decisions. America was also a capitalist nation, acknowledging the work of an “invisible hand” in a free market.

However, during thesecond hundred years after the Constitution was ratified, America became an atheistic and socialist or fascist nation. In 1961, the U.S. Supreme Court declared all state laws prohibiting atheists from taking an oath of office to be “unconstitutional.” Decades before that, the Court had ruled that a Christian—whose allegiance to God is greater than his allegiance to the government—cannot take an oath of office.

The Result

My allegiance to God is greater than my allegiance to the state. So after I passed the California Bar Exam, I asked the California State Bar if they intended to abide by the modern Supreme Court cases (instead of original intent), and of course, they did.

I then asked the State Bar to permit me to modify the oath of office required of attorneys so that it would state clearly that I am a Christian before I am an “officer of the court.” I asked to add the language required of all office holders in the Delaware Constitution of 1776. My request was denied. I appealed to the California State Supreme Court, and ultimately to the United States Supreme Court.¹ The highest court that published an opinion in my case was the Ninth Circuit Court of Appeals in San Francisco, the same court which infamously declared that students in public schools should not be permitted to utter the words “under God” in the Pledge of Allegiance. You can read the court’s opinion in the source cited in the endnote.²

All the details of my case, why I am not an attorney today, and why Christians are not allowed to take the oath to “support the Constitution” are spelled out below in more detail than your average constitutional law professor would want to know.

Why I Am Not a Lawyer

I’m not a lawyer, but it’s not for lack of trying. I went to USC pre-law; after law school I passed the California Bar Exam. I was completely qualified to become a lawyer.

But then I ran into the Ninth Circuit Court of Appeals. This was the Court that recently said the words “under God” in the Pledge of Allegiance are “unconstitutional.” This was only the latest in a long series of decisions that are hostile to religion. In 1998, I came before the Ninth Circuit Court with a brief written by three well-known professors of constitutional law and a former California State Supreme Court Justice. The court blocked my attempt to become an attorney by refusing to reverse the decision of a federal district court that declared that a 1945 decision of the U.S. Supreme Court barred me from practicing law. I believe America ought to be a nation “under God.” But we can’t have attorneys actually believing that, now can we?

The Slippery Slope of Bad Precedents

When it struck down “under God” in the Pledge of Allegiance, the Ninth Circuit Court claimed it was only following Supreme Court precedents.

Not true.

The Ninth Circuit could have said “under God” in the Flag Salute was constitutional, because thirty years ago it declared that “In God We Trust” and “So help me, God” were constitutional—on the grounds that they were merely “patriotic” slogans and really had nothing to do with God or religion (Aronow v. U.S., 432 F.2d 242, 1970).

This is just as bad, really, as saying that “In God We Trust” was unconstitutional. Either ruling would be a violation of the Original Intent of the Framers. As Notre Dame Professor of Law Charles E. Rice writes,

The Court requires government at all levels to maintain a neutrality between theism and non-theism which results, in practical effect, in a governmental preference of the religion of agnostic secularism. Justice Brennan argued, in his concurrence in the 1963 school prayer case, that the words “under God” could still be kept in the Pledge of Allegiance only because they “no longer have a religious purpose or meaning.” Instead, according to Brennan they “may merely recognize the historical fact that our Nation was believed to have been founded ‘under God.” [Abington School District v. Schempp, 374 U.S. 203, 304, (1963).] This false neutrality would logically prevent an assertion by any government official, whether President or school teacher, that the Declaration of Independence—the first of the Organic Laws of the United States printed at the head of the United States Code—is in fact true when it asserts that men are endowed “by their Creator” with certain unalienable rights and when it affirms “the Laws of Nature and of Nature’s God,” a “Supreme Judge of the world” and “Divine Providence.”³

Instead, the Court (maturing over the last thirty years in its hostility to religion) declared that the words “under God” really do have reference to theology, and are therefore unconstitutional. I believe all attorneys and politicians have a divine obligation to conduct their public affairs according to “the laws of Nature and of Nature’s God,” and that our nation is obligated to be a nation “under God.” Because of this, the legal system refused to allow me to become a member of the Bar.

Sauce for the Goose is Sauce for the Gander

In light of the above, I’m willing to bet that you wouldn’t be permitted to become an attorney either, even if you passed the Bar Exam and were otherwise completely qualified to receive your license—provided you have a conscience, and are willing to let the legal system know it. (And provided you get a fine, upstanding, patriotic judge acquainted with the cases below; a judge who resembles the accused in Hannah Arendt’s book on The Banality of Evil.)

In fact, if you have a conscience, you would not be allowed to serve on a jury, much less become an attorney. Here’s why:

I know a good man from Afghanistan. Thirty years ago he was imprisoned by the Communists. He was well known in Afghanistan, something of a hero. He’s a hero in my eyes. He now lives in the United States. I’ve had dinner at his home. He is a great American, and his family loves this country.

Suppose in 2016 the Department of Homeland Security determines that all Muslims are a threat to America’s national security, and they all have thirty days to leave the country, after which time true Americans must shoot any Muslim on sight. (If you think this is a ridiculous scenario, fine, but it will soon become a very vivid illustration. Hang with me for a minute.) I have been arrested and charged with treason for willful failure to shoot my Muslim friend. Both the law and the facts are clear: the law says I should have killed my Muslim friend, and the fact is I didn’t. (In fact, I wouldn’t have killed any Muslim even if he were my enemy.)

You are now being interviewed as a potential juror on my case. You know me to be a fine person, and you know my Muslim friend was no enemy of America. You think I’ve been charged with violating a very, very bad law. Not just an “unconstitutional” law, but an unethical law. An immoral law. You have a conscience, and your conscience will not allow you to do anything that would send me to prison or to the firing squad for failure to kill a good person. You know in your heart that as a juror you will not vote “guilty” regardless of the law or the facts in my case. Once in the jury room, you will also attempt to persuade the other jurors to vote “not guilty,” to send a message to the government that this is a very bad law. You hope that juries across America will nullify this bad law.

If you tell the judge that you intend to vote your conscience regardless of the law or the facts, you will not be allowed to serve on the jury. “You’re excused,” the court will tell you, and send you home.

And, “you’re excused” is what the California State Bar told me, along with every court all the way up to the U.S. Supreme Court.

Why?

Because in America today, anyone who places God (or his own conscience) above the decrees of the government cannot be an attorney (unless he keeps his mouth shut about his having a conscience). Anyone who would publicly announce with the Apostles, “We must obey God rather than man,” cannot become a lawyer, a draftsman for the county, a certified elevator inspector—even a naturalized American citizen, according to numerous court cases.

The Tip of the Iceberg

This situation is, in my opinion, merely the tip of the iceberg. On my website I provide links that spread out to over 300 webpages, including historical documents from early American history, court cases all the way up to the Supreme Court, and pleadings from my own case, the only case I ever litigated. Those materials show that we have lost a great deal of the virtue and greatness that was once America. (I hope you find those pages interesting, challenging—maybe even encouraging.)

Let’s walk through the fundamental problem for the sake of clarity.

In order to become an attorney in California, one is required by statute to take the following oath:

I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.

This seems fairly innocuous. It is well known that many who have taken this oath have never even read the Constitution. But a Christian (and by implication, anyone with a conscience) would actually be prohibited by state law from taking this oath. If you’re ready for the civics class you never had in government-run schools, keep reading. We will run through the legal sequence of events, and then survey their historic counterparts

Psalm 94:20: Framing Mischief Using Law

Years ago, a Christian named Clyde Summers wanted to become an attorney. The United States Supreme Court ruled⁴ that as a Christian he could not take the oath to “support the Constitution.” Why not? Because a Christian places God above the state. The Court held that a Christian would be lying if he said he supported the Constitution, because he really supports God above the Constitution. Any obedience he gives to the Constitution is only because God tells him to do so, and if God ever told the Christian not to obey Caesar, the Christian “must obey God rather than man.”

I tried to argue that this case was a bad decision, and that doubt had been cast on its validity in subsequent decisions, and that this case should not be followed, but a federal district court said the case was still good law, and that I should not be permitted to take the oath to “support the Constitution.”

That court was correct; the judge was fair. The more research I did, the more hopeless it appeared. This case may be obscure, but it is not an anomaly. It represents the tip of an iceberg of Supreme Court decisions that have quietly converted America from a nation “under God” to a government that thinks it IS god.

If my case sounds like the makings of a nutty conspiracy theory, I respect your good sense and patriotism. But the case law⁵ is against you, as it was against me.

To appreciate that case and the tectonic shift in values it represents, it is necessary to review the cases it cites, and trace those cases back to cases at the time the Constitution was ratified, and even further back.

How the State Dethroned God to Take His Place

In 1892, the U.S. Supreme Court declared that America was “a Christian nation.” The case was Holy Trinity Church vs. United States, and it involved a New York church that wanted to hire a pastor from England. Federal immigration authorities tried to stop the church under a statute prohibiting the importation of cheap manual labor. The U.S. Supreme Court said it was wrong to apply this statute to churches and pastors because “this is a Christian nation.” The Court described the Christian roots of America in the last half of its opinion.

Things have changed dramatically since 1892.

This case was overruled in 1931 (U.S. v. Macintosh).⁶ A pastor from Canada wanted to become an American citizen. The Holy Trinity case should have been applied here. Like the Apostles, this pastor was one of those “radical” “subversive” Christians who “must obey God rather than man.” The Supreme Court, in a truly hideous opinion, declared that allegiance to God took second place to allegiance to the state. The Court said the oath to “support the Constitution” (which the Canadian pastor was willing to take) required “unqualified allegiance to the nation and submission and obedience to the laws of the land” even if these laws directly contradicted the law of God.

This case represents the complete overthrow of everything America once stood for.

There’s more: By its very nature, an oath (such as the oath to “support the Constitution”) is religious: a solemn statement made to (and in the presence of) God. At least it used to be religious. Atheists who opposed hearing “so help me God” in public succeeded in having the oath legally redefined into an act of “ceremonial deism.” But back in 1844, the U.S. Supreme Court, in holding that the government must teach the Bible in government-operated schools, had declared that “deism” was a form of “infidelity.” The modern secular oath is therefore now a declaration that one is not faithful to God.

The State Blocks All Oaths but Those of its Own Making

As I said above, a Christian (and by implication, anyone with a conscience) is prohibited by law from taking the oath to “support the Constitution.” Discovering this, I also concluded that no Christian (or anyone with a conscience) should want to take this oath.

Given the fact that I was barred by the U.S. Supreme Court from taking an oath to “support the Constitution,” and given the fact that I refused to participate in an act of “ceremonial deism,” I asked for a modification of the oath required in California in my case only (not to be imposed on everyone) as follows (see the associated endnotes where my legal reasoning and specific historic precedents for each clause are marshalled):

I, Kevin Craig, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the Holy Scriptures of the Old and New Testaments to be given by divine inspiration.⁷
I solemnly swear:
that I am dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government,⁸
and am committed to dissuading others from resorting to force or violence,⁹
that I am not loyal to any foreign State,¹⁰
and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.¹¹

I was not permitted to take such an oath. This is why I am not an attorney. The state insists that the person taking the oath concede that the authority of the state trumps the authority of God, and that his allegiance to the state is absolutely unqualified. The state must be conceded, for all intents and purposes, to be God.

Some people—even some attorneys—told me to “just go ahead and take the oath” and “get it over with.” But it would be a “false statement of fact or law” for me to say that I was permitted to take the required oath, as the judge in federal court rightly observed, citing the 1945 Summers case (325 U.S. 561). It struck me as ironic that my very first act as an attorney would be to violate the duties of an attorney by falsely declaring that I was permitted by courts to take the oath. This I was unwilling to do, as no Christian can affirm under oath that Caesar is Lord.

The Ten Commandments Case

The recent controversy over the Ten Commandments in Alabama is an easy parallel. “The question presented to this court” wrote the federal court which ordered the removal of the Ten Commandments, “is whether the Chief Justice of the Alabama Supreme Court violated the Establishment Clause when he placed a … granite monument—engraved with the Ten Commandments and other references to God—in the Alabama Judicial Building with the specific purpose and effect, as the court finds from the evidence, of acknowledging the Judeo-Christian God as the moral foundation of our laws.” If the Ten Commandments (and other legal documents on the monument) had been presented as irrelevant historical oddities in a dusty museum, the court would have considered them “constitutional.”

Many Ten Commandments monuments have been held “constitutional” precisely because they were held to be irrelevant. But Judge Moore contended the monument represented something very relevant: the authoritative Word of a living God who was sovereign over federal courts. Moore contended all courts and every branch of government at every level had a duty to acknowledge the sovereignty of the God of the Bible. The new god of the religion of secular humanism would not permit this. It demands the “unqualified allegiance” laid down in the 1931 Macintosh¹² case—and has never actually ceased from doing so.

Recent Supreme Court Rulings Ultimately Based on “Unqualified Allegiance”

The federal judge in Roy Moore’s case had earlier acknowledged that the First Commandment (not just the “second table” as some have claimed) had legal and political implications in American history:

The second tablet, of course, is entirely secular—from “Thou shalt not kill” to “Thou shalt not covet”—but the first tablet also has secular aspects. As the Chief Justice pointed out in his speech unveiling the monument, Samuel Adams gave a speech, the day before the signing of the Declaration of Independence, referring to the King as a false idol, alluding to the Commandment that “Thou shalt have no other Gods before me.”¹³

Shutting down the press, confiscating arms, quartering troops, searching without warrant, double jeopardy, denial of bail, denial of jury, cruel and unusual punishments, taxes on tea, taxation without representation: imagine that all of these abuses in the Bill of Rights and the many grievances listed in the Declaration of Independence been completely redressed by the British Crown and restitution made. The American Revolution might have been averted. But then imagine that the very next day, the King announced the colonial magistrates and pastors had to “marry” homosexuals. It would have been described as “blasphemy.” It would have been seen as an insane assertion of deity on the part of the king. The Revolution would have commenced with triple the intensity.

Anyone who was surprised by the recent Supreme Court decision overriding the democratic process in numerous states and imposing homosexual “marriage” on the states hasn’t been paying attention. Americans today are idolaters. They tolerate blasphemy. Americans 200 years ago would have more fiercely opposed the claim to redefine marriage than all the “taxation without representation” one could imagine.

The court claims to be God, and one of the key distinctives of being a god is the power to define reality. The usurpation of this divine prerogative has been legal reality in America since the 1931 Macintosh case: the American state has demanded “unqualified allegiance” over and above the true God for over eighty years. Upon that legal foundation rests the modern state’s claim to be humanity’s savior, reflecting the pretensions of imperial Rome in virtual lockstep, and motivating its radical
rearrangement of society to build the utopia it has charted for us.

Until we address the long-standing dislocated sovereignty at the root of today’s crises, our solutions to the problem will be superficial … and will fail. “The wicked frame mischief using law” (Psalm 94:20), but those deadly frames were erected in 1931 and 1945, not in 2015.

1. Los Angeles Daily Journal 107:82 (April 29, 1994) p. 20. See also 1994 Cal. LEXIS 2431 (Cal. Apr. 27, 1994) and Craig vs. State Bar of California 115 S.Ct. 421 (1994). Note that, technically, the merits of this case have never been reviewed. Courts have only refused to take the case. Note also that one of the attorneys on my brief before the 9th Circuit is now the Dean of the Law School at UC Irvine. I don’t say that because he was particularly fond of my position, but rather to demonstrate that the case was never “frivolous,” as some hasty analysts have erroneously concluded. Even the Daily Journal article conceded that the Court gave my case a great deal of thought.

2. https://law.resource.org/pub/us/case/reporter/F3/141/141.F3d.1353.96-55396.html

3. “The Constitution: Guarantor of Religion,” in Derailing the Constitution: The Undermining of American Federalism, ed. Edward B. McLean (Intercollegiate Studies Institute, 1997) pp. 155–156. (June 15, 2004 update: U.S. Supreme Court reverses 9th Circuit case. Father who brought lawsuit did not have legal custody of the daughter—who wanted to say the words “under God” in the Pledge of Allegiance anyway. The basic constitutional issue remains unsettled.)

4. In re Summers 325 U.S. 561; 65 S.Ct. 1307 (1945).

5. For reference, “case law” means previous court decisions, which function as law, just like the statutes of the legislature do.

6. U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931).

7. This phrase is taken from the old Delaware Constitution, Article 22 (adopted Sept. 20, 1776), 1 Del. Code Ann. 117 (Michie, 1975). The relevant portion reads: Every person who shall be chosen a member of either house, or appointed to any office or place of trust … shall … make and subscribe the following declaration, to wit: “I ________, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, Blessed for evermore; and I do acknowledge the holy scripture of the Old and New Testaments to be given by divine inspiration.”

8. This phrase is taken from the U.S. Supreme Court opinion in Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 at 166, 91 S.Ct. 720 at 728, 27 L.Ed.2d 749 (1971). I offered to use “gender-inclusive language” if the State Bar insisted.

9. This phrase meets some of the requirements stated by the Court in U.S. v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929).

10. This was obviously a major concern of the oath to “support the Constitution” throughout American history:

Pre-American Common Law: Imbrie v. Marsh, 3 N.J. 578 at ---, 71 A2d 352 at 357, 363, 18 ALR2d 241 at 247, 253 (1950)(rival sovereigns);

Revolutionary America [Article VI, Section 3]: Imbrie at A2d 364, ALR2d 255; (England);

Civil War Era: Cohen v. Wright, 22 CalRptr 297 at 299 (1863)(brief for appellant), 307, 310, 311, 330; Cummings v. Missouri, 71 U.S. 277 at 317, 327, 18 L.Ed 356 at 361, 364 (1867); Imbrie v. Marsh at A2d 365, ALR2d 256 (the Confederacy);

Cold War Era: Konigsberg (I) v. State Bar of California, 353 U.S. 252 at 298, 77 S.Ct. 722 at 745 (1957); cf. Barenblatt v. United States, 360 U.S. 109 at 130n31, 79 S.Ct. 1081 at 1095n.31 (1959); cf. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 at 5-9, 13-14, 51-55, 57, 81 S.Ct. 1357 at 1363, 1364, 1365, 1366, 1368, 1387, 1388, 1389, 1390 (1961); Elfbrandt v. Russell, 384 U.S. 11 at 21, 86 S.Ct. 1238 at 1243 (1966); cf.Wilkinson v. U.S. 365 U.S. 399 at 401, 404n5, 81 S.Ct 567 at 569, 571n5 (1961)(the Soviet Union);

Present: Imbrie at A2d 354, 355, 371, ALR2d 244, 245, 362; Speiser v. Randall, 357 U.S. 513 at 515-16, 78 S.Ct. 1332 at 1336 (1958).

11. This last phrase is found in the current oath required by statute of all California attorneys. The duties of an attorney are set forth in Calif. Business and Professions Code § 6068 and discussed here. One of these duties is:

(d) To employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

12. See endnote 6.

13. Glasroth v. Moore, 229 F. Supp.2d 1290 (M.D. Ala. 2002)