A federal appeals court ruled yesterday that use of the phrase “under God” in the Pledge of Allegiance does not violate the separation of church and state.
The 2-1 ruling by the 9th U.S. Circuit Court of Appeals is the latest decision in a long-running legal campaign by Michael Newdow, a California atheist activist, to have “under God” declared unconstitutional.
Newdow scored an initial victory in 2002 when a separate panel of judges on the 9th Circuit ruled in his favor. That ruling was appealed to the Supreme Court, which vacated it, holding that Newdow lacked “standing” – the right to sue – on behalf of his daughter since he does not have full custody of her.
The reasoning behind yesterday’s ruling is wholly unpersuasive. The majority declared that the Pledge is a patriotic exercise and that the insertion of “under God” into it (an action undertaken by Congress in 1954) does not make the oath religious.
“We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge – its wording as a whole, the preamble to the statute, and this nation’s history – demonstrate that it is a predominantly patriotic exercise,” wrote the majority. “For these reasons, the phrase ‘one Nation under God’ does not turn this patriotic exercise into a religious activity.”
As originally written in 1892 by Francis Bellamy (who was, by the way, a Christian minister and a socialist), the flag pledge had no religious content. Congress’ intention in adding “under God” 62 years later was to endorse religion and make it clear that the United States is a religious country (unlike the officially atheistic Soviet Union we were facing during those Cold War years.)
Nevertheless, the court majority held that putting God in the Pledge doesn’t make it religious. This is willful ignorance. Of course the addition of a reference to God makes the oath religious. Non-religious people, as the price of expressing patriotism, are compelled to also make a religious affirmation. This violates the fundamental right of conscience.
Dissenting Judge Stephen Reinhardt, tracing the history of how “under God” ended up in the Pledge, exposed the obvious religious motivation. He noted that in the public school context especially, the state may not foist religion onto young children.
“Had my views prevailed here, our decision would not preclude daily recitation of the Pledge of Allegiance by public schoolchildren,” wrote Reinhardt. “To the contrary, public schoolchildren would be free to recite the Pledge as it stood for more than sixty years, a patriotic Pledge with which many of us grew up…. All that would be required would be the deletion of the two words added by an amendment designed to promote religion and to indoctrinate schoolchildren with a religious belief. As has long been agreed in this nation, the teaching of religious views is the function of the family and the Church, not the State and the public school system.”
While the lead opinion is not well reasoned, some observers think it was inevitable. Advocates of church-state separation have been divided over Newdow’s strategy. Newdow seemed to think he could prevail before the Supreme Court. But anyone can look at the composition of the conservative Roberts court and see that that is highly unlikely.
And what if the Supreme Court did concur and strike down “under God”? How would Congress react? In 2002, when Newdow won his first case, members of the House of Representatives and Senate in both parties practically tripped over themselves to condemn the ruling.
Had the ruling stood, some type of ill-considered constitutional amendment would have been inevitable. Could we have stopped it? Given that most state legislatures quickly passed resolutions attacking the “under God” ruling, I wouldn’t bet my rights on that.
The day may come when “under God” is removed from the Pledge – not by a court ruling but simply because our increasingly diverse society realizes it’s wrong to recklessly mix religion and patriotism. But that day is not coming any time soon.
Until then, a better strategy is to remember that no public school student can be forced to recite the Pledge. The Supreme Court made that clear in 1943, and nothing in yesterday’s ruling changes that.
We should make certain that parents, students, teachers and school officials understand that no pupil can be forced to recite the Pledge. (This does still happen. Recently, in the county where I live – which is not usually considered a bastion of conservatism – a teacher had a middle-school student escorted out of the room after she refused to stand for the Pledge.)
Yesterday’s ruling on the Pledge is disappointing – but not surprising. Let’s move on and focus on church-state cases we can actually win.
P.S. In a separate case also handed down yesterday, the 9th Circuit upheld the use of the phrase “In God We Trust” on U.S. currency. Previous court decisions have upheld the use of the phrase, and getting the religious affirmation off coins and currency was always a long shot. Again, this is probably not the best time to bring cases like this.