The Importance of "Dicta"
The Power of Words to Create Public Policy

Abstract
OF THE ARTICLE THAT WILL SOON APPEAR HERE

Here's what it says:

• Secular Humanists argue that the "America's Christian History" part of the Holy Trinity decision is not "binding," but is merely "dicta."
• "Dicta" means statements by the court which are not essential to the decision, as when the judge injects his opinion about a matter not on trial
• The fact that America is a Christian nation is the basis for the Court's interpretation of the statute in question; it is not "dicta."
• The Court's famous remarks in Everson more closely resemble "dicta," as they were not the basis for the decision, yet they have had far more impact in spreading the myth of "separation."

Resources

Read what great legal minds have said about the opinion in Holy Trinity as they spoke on the occasion of the death of its author, Justice David Brewer.

Until you send us this article, readers of this page will have to be content with the following dialogue on American OnLine's "Separation of Church and State" Discussion Board.

In article <19990809134715.04972.00001630@ng-fu1.aol.com>, hypatiasm@aol.com (Hypatia SM) writes:

>
>MYTH: The Supreme Court has declared that the United States is a Christian
>nation.
>
>FACT: In the Supreme Court's 1892 Holy Trinity Church v. United States
>decision Justice David Brewer wrote that "this is a Christian nation."
>Brewer's statement occurred in dicta, a legal term meaning writing that
>reflects a judge's personal opinion, not an official court pronouncement that
>sets legally binding precedent.     

This is sloppy legal analysis.

First, the statement is not "dicta," and second, even if it were, it could still be a legally binding precedent.

"Dicta" is a personal comment by a judge in his opinion which is a digression from the matter before the court. The phrase refers to short statements which are "not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects."
Rohrbach v. Ins Co. 62 NY 47, 58 See Black's Law Dictionary.

The line about America being a Christian nation is the central support for the Court's holding, and is thus not "dicta." It is not a "short" digression; it occupies fully half of the Court's opinion.

Background: In the Holy Trinity case, Congress passed an anti-immigration statute. Certain vocations were explicitly exempted from the law ("among them professional actors, artists, lecturers, singers, and domestic servants" [143 U.S. 457, 459] ), but not preachers. The Church of the Holy Trinity hired an Englishman as their pastor, and the INS goons attempted to keep them from having a pastor based on this law. The Supreme Court held that because this is a Christian nation, the law could not be applied against Churches.

In PUBLIC CITIZEN v. DEPARTMENT OF JUSTICE, 491 U.S. 440 (1989), JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurring in the judgment, wrote:

The Church of the Holy Trinity entered into a contract with an alien residing in England to come to the United States to serve as the director and pastor of the church. Notwithstanding the fact that this agreement fell within the plain language of the statute, which was conceded to be the case, see ibid., the Court overrode the plain language, drawing instead on the background and purposes of the statute to conclude that Congress did not intend its broad prohibition to cover the importation of Christian ministers. The central support for the Court's ultimate conclusion that Congress did not intend the law to cover Christian ministers is its lengthy review of the "mass of organic utterances" establishing that "this is a Christian nation," and which were taken to prove that it could not "be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation." Id., at 471.

[491 U.S. 440, 474-75]

In "The Rights of Foreigners and Immigrants in Europe: Recent Trends," George Katrougalos, Ph.D., discusses the Holy Trinity case and says,

A federal law of this period declared it a crime to assist or encourage the importation or the migration of any alien into the country, with exceptions only for artists, actors, domestic servants and a few others, but not for pastors. The court overturned the law because "it went against the whole history and life of the country."

http://webjcli.ncl.ac.uk/articles5/katart5.html

This is not the language of "dicta." The entire case rests on this "dicta."

The so-called "dicta" in Holy Trinity is ignored not because it is "dicta," but because it shows that the myth of "separation of church and state" is a big lie.

"Dicta" has in fact been used as the precedent for the most important legal conclusions. I have shown this in the accompanying post on "Everson Dicta."

>Historians debate what Brewer meant by the statement,

Name one. Brewer is perfectly clear. Everyone understood what he meant, and only self-deceived atheists can doubt his meaning.

>some claiming that he
>only intended to acknowledge that Christianity has always been a dominant
>force in American life.

Justice Brewer pointed out that his claim reached into the "organic law" of the nation, and every State in the union, thus putting it on the firmest of legal authority. The claim that America is a Christian nation is in "the domain of official action and recognition," not mere "individual acceptance." Brewer, The United States: A Christian Nation (1905) (p 27 in 1996 reprint).

You will notice that I have presented no doubtful facts. Nothing has been stated which is debatable. The quotations from charters are in the archives of the several States; the laws are on the statute books; judicial opinions are taken from the official reports . . . . I could show how largely our laws and customs are based upon the laws of Moses and the teachings of Christ. . . . But I must not weary you. I could go on indefinitely, pointing out further illustrations both official and non-official, public and private. . . .

(Ibid, p. 29)

>Research by Americans United shows that five years
>after the Trinity ruling, Brewer himself seemed to step away from it in a
>case dealing with legalized prostitution in New Orleans.      

"Seemed" only to the wishful-thinking atheists who don't like his Holy Trinity opinion.

>The New Orleans dispute arose when a Methodist church sought an injunction to
>bar implementation of a city ordinance allowing prostitution in one zone in
>the city.     

The ordinance did not "allow" prostitution. Justice Brewer, speaking for the Court, said that

the ordinance does not attempt to give [women of lewd character] license to carry on their business any way they see fit, or, indeed, to carry it on at all, or to conduct themselves in such a manner as to disturb the public peace within the prescribed limits. Clauses 3 and 4 of the first section of the ordinance are clearly designed to restrain any public manifestation of the vocation which these persons pursue, and to keep so far as possible unseen from public gaze the character of their lives . . . .

The Court did not place its imprimatur on prostitution.

>The Methodists argued the measure would "destroy the morals, peace
>and good order of the neighborhood."
>
>Citing the Trinity decision, church officials insisted that the ordinance
>encouraged prostitution, an activity inconsistent with Christianity "which
>the Supreme Court of the United States says is the foundation of our
>government and the civilization which it has produced...."
>
>Writing for a unanimous court, Brewer completely ignored the church's
>religious argument and upheld the New Orleans law. Brewer's bypass suggests
>that he did not mean to assert in the Trinity case that the United States
>should enforce Christianity through its laws.   

This is ignorance of basic constitutional law. It misrepresents the decision of the Court.

In Holy Trinity, the statute was a federal immigration statute. The Court had jurisdiction to review that statute under the Constitution. At the time of L'Hote (the New Orleans case), the federal judiciary did not have jurisdiction to review state police power. AU just doesn't understand the concept of federalism. If the City of New Orleans made MURDER legal in a certain district of the city, the US Supreme Court would have no jurisdiction to overrule the local legislature. There is nothing in the case which would indicate that the L'Hote Court denied the holding in Holy Trinity (that the US is a Christian nation). The holding of the case is found on 597:

It is no part of the judicial function to determine the wisdom or folly of a regulation by the legislative body in respect to matters of a police nature.

I fear that AU wishes that the feds did have such omnipotent powers, but refused to exercise such powers because they were titillated at the prospect of spreading a little immorality throughout Louisiana.

Christians are not put in a preferred position by giving the Supreme Court unconstitutional powers over local governments.

>In any case, the Trinity decision is a legal anomaly that has been cited by
>the court only once since then.     

To no one's surprise, seeing how law in the 20th century has been hijacked by Secular Humanists.

>And obviously the opinion of one obscure
>Supreme Court justice does not amount to an official decree that the United
>States is a Christian nation.     

There are more errors in this statement than words.

• Justice Brewer was not "obscure," except in the mind of ignorant people.
• It was not just Justice Brewer's view; the opinion reflected the unanimous view of the Court; no Justice authored a concurring opinion.
• The Holy Trinity Court did not simply make a decree out of thin air; it surveyed the entire history of the country, and considered the organic law of every single state in the union, and their conclusion was inescapable.

>If a Christian republic had been the goal of
>the framers, that sentiment would have been included in the Constitution.      

This too is erroneous, and fails to appreciate the dynamics of federalism and ecclesiastical competition at the time the Constitution was framed. Every state constitution was Christian. They were jealous of their rights. Any mention of religion in the federal constitution would have been perceived as an establishment of one of the rival denominations, and could have jeopardized its ratification. It's too bad the clergy had to be so competitive that they could not agree on a simple statement of faith, but that is the reality, not a desire to create a God-less nation. The goal of Theocracy -- a nation "under God" -- was always the goal of America, and no court before 1947 ever declared otherwise.

Here is more evidence of the Christian character of the Court as well as evidence that no one in that more Christian era considered the Christian history in Holy Trinity to be mere "obiter dicta." It comes from the events surrounding Justice Brewer's death.

"A meeting of the Bar of the Supreme Court of the United States was held in the Court Room on Saturday, April 30, 1910." (218 U.S. vii)

Addresses were made by a distinguished panel, and a resolution was presented by the American Society of International Law, of which Justice Brewer was a leading member.

In his tribute to Brewer, Hannis Taylor, a leading scholar in International Law (several of his books can be found at Amazon.com) who also argued a dozen cases before the U.S. Supreme Court, said this about J. Brewer:

By a romantic accident [Justice Brewer] was born of American missionary parents in Asia Minor, not so far from that Hellenized Roman province in which St. Paul was born, and in which he passed his boyhood. It is not irreverent to say that the great Apostle of the Gentiles, who was "brought up at the feet of Gamaliel" [Acts 22:3] and who transformed the mystery confided to a despised Jewish sect into a vast Christian theology, has never had a more worthy disciple. While an intellectual fervor very nearly akin to genius lighted the fires of his mind, a deep and tender religious feeling chastened his heart with a softer radiance. Out of the union of those rarely united streams grew the life of an almost perfect man, who was ever mindful of the exhortation of St. Paul to Timotheus: "Charge them to practice benevolence, to be rich in good works, to be bountiful and generous, storing up for themselves a good foundation for the time to come, that they may lay hold on eternal life." [1 Timothy 6:17-19] Fortunate, indeed, it is when the mind that expounds and applies positive law in the midst of vast and conflicting passions and interests is illuminated by the inner light of a noble high-mindedness which spurns all vanities, all prejudices, all revenges.

The judgments of Mr. Justice Brewer, delivered during the last twenty years, and distributed through eighty volumes of the Supreme Court's Reports, involve nearly every question of Federal law, as well as many within that twilight zone of law by analogy, commonly known as international law. If he could come back to us in order to designate those special parts of his work by which he would prefer to be judged, I cannot doubt that his finger would point at once to those dissertations in which he has so luminously applied the principles of Roman law to the solution of the momentous questions that have arisen in this country of might rivers and inland seas, out of what are generally known as riparian or water rights. Whenever the fickle Missouri or the capricious Mississippi becomes so restless in its bed as to eat away its banks on the one hand in order to add on the other, or in some torrential frenzy suddenly leaps from its old bed in order to seek a new one, the resulting changes in public and private rights thus wrought by accretion or avulsion can only be defined by reference to the principles of that code whose influence has been second only to that of the Christian religion. . . . Of that body of principles drawn from Roman sources, upon which public and private rights in this country so largely depend, Mr. Justice Brewer was a master. 54 L.Ed. 1235.

The committee "prepared and presented resolutions which were adopted, and The Attorney General was requested to present them to the court." On Tuesday, May 31, 1910, the Supreme Court of the U.S. met for "Proceedings on the Death of Mr. Justice Brewer" 218 U.S. vii.

The Attorney General presented the resolutions, and then delivered a eulogy which takes up six pages in the official reports. More than one full page of the six is given to J. Brewer's opinion in Holy Trinity. Here is the first page of The Attorney General's eulogy:

Justice Brewer's period of service in this court covered twenty years. These two decades brought before this court some of the most important and far-reaching questions which have ever been submitted for its decision, and in the solution of these great problems Justice Brewer took a leading part. In the reports of this period there are to be found 719 opinions written by Justice Brewer, in 157 of which he dissented from the conclusions of the majority of the court. The limitations of this occasion will permit only a brief reference to a few decisions which illustrate the characteristics of his mind and the lucidity of his exposition.

One of the earliest of his recorded opinions was that in the case of the Church of the Holy Trinity v. United States, 143 U.S. 457, where the court was called upon to decide whether or not the act prohibiting the importation of foreigners and aliens under contract to perform labor in the United States applied to an English Christian minister who had come to the United States pursuant to an agreement with a Protestant Episcopal Church in the city of New York. The opinion is of especial interest, not merely as a fine discriminating construction of the statute, and the application of the principle that laws must receive a sensible construction, and that where a literal construction leads to an absurd conclusion the letter of the law must give way to the presumed intention of the legislature; but because of the enunciation of the principle that "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people."

"If we examine the constitutions of the various States," said the learned justice, "we find in them a constant recognition of religious obligations. Every constitution of every one of the forty-four States contains language which either directly or by clear implication recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well-being of the community.

* * * *

"There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons; they are organic utterances; they speak the voice of the entire people.

* * * *

"These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?"

After considering but three other of Justice Brewer's opinions, The Attorney General concluded:

Justice Brewer was a son of a Christian missionary, and the son's life, like the father's was one of service. For six and forty years he served the people, hearing causes and judging "righteously between every man and his brother and the stranger that is with him." And in the discharge of this great office he did ever obey the injunction laid upon the judges of Israel by their great lawgiver:

"Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man, for judgment is God's." (1 Deut. 17).

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