A nation at war, which continues to mourn its fallen heroes from 9-11, wrapping itself in the collective comfort of a renewed spirit of patriotism, was rudely awakened this morning to news that the Pledge of Allegiance is unconstitutional.
According to two members of a three judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco, the Pledge of Allegiance's reference to one nation, "under God" added by Act of Congress in 1954 amounts to a government endorsement of religion in violation of the Establishment Clause of the First Amendment.
"A profession that we are a nation 'under God' is identical...to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of those professions can be neutral with respect to religion," wrote Judge Alfred T. Goodwin for the majority.
The case was brought by Michael Newdow, an atheist, who opposed his daughter having to hear the Pledge recited in her elementary school class in Sacramento, California. Newdow, an emergency room doctor with a law degree, acted as his own lawyer in the case before the federal district court - which was thrown out and in his appeal before the 9th Circuit.
The ruling, which runs counter to an earlier 7th Circuit Court decision upholding voluntary recitation of the Pledge in public schools, is certain to be appealed to either the full 9th Circuit Court or the U.S. Supreme Court. If allowed to stand by order of the full 9th Circuit, the decision would strike down the 1954 Act adding the words "under God" to the Pledge and bar all schoolchildren in the nine western states covered by the 9th Circuit from reciting the Pledge in class. If upheld by the Supreme Court, its ban applies nationwide.
The Supreme Court has a mixed track record on Establishment Clause cases. The Court traditionally has allowed so-called "ceremonial deism" - references to a generic higher power with no real specific religious meaning, such as "God save the United States and this honorable Court," which begins every Supreme Court oral argument, or "In God We Trust," our national motto, which is on all U.S. currency. This week, the Court upheld (by a 5-4 decision) in Zelman v. Simmons-Harris, Cleveland's school voucher system which subsidizes students' tuition at religious schools.
However, the High Court has barred students from holding religious invocations at graduations or conducting officially organized prayers before sporting events. The Court has also forbidden the posting of the Ten Commandments in public places outside the context of an historical exhibit displaying other antiquities or historical documents.
The public and political firestorm in response to the 9th Circuit decision has been fierce. Within hours of the decision, a bi-partisan crowd of Congressmen and women gathered on the front steps of the Capitol to recite the Pledge and sing "God Bless America." Later, a unanimous Senate passed a resolution (S.RES. 292) expressing support for the reference to God in the Pledge. The White House has asked the Justice Department to explore intervening. Major newspaper editorials across the political spectrum - including the Washington Post and New York Times -- criticized the decision in this morning's editions. A public opinion poll by MSNBC shows 76 percent of respondents believe referencing God in the Pledge does not endorse a specific religion. As for Newdow, he has gleefully played for the media the hundreds of angry calls and death threats received on his answering machine.
The road that led us to this historic decision has been extremely long and littered with lower court decisions on both sides of the debate over the so-called "separation of church and state." To understand that debate and the road not yet traveled, it is necessary to revisit the Founders' intent in drafting the religious aspects of the First Amendment.
In 1791, the states approved the first 10 amendments to the Constitution, known collectively as the Bill of Rights. The First Amendment leads with: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (emphasis added).
Over time, those 16 words have been debated as intensely as any in the Constitution. They have been stretched and pulled and molded and shaped by people at all points of the political (and religious) spectrum, and have been interpreted differently by courts everywhere.
The Framers of the Constitution had seen firsthand in England and elsewhere the establishment of state religions and the suppression of competing beliefs. Many of those who fled to America, such as the Puritans, did so to escape religious persecution. They sought legal protection for all faiths and protection against an all-powerful church of the state supported by tax revenue.
However, before the American Revolution, five of the 13 states had government-sponsored churches supported by tax revenue, and most schools were church run. For many of the earliest settlers, the First Amendment came in answer to their prayers.
What is clear is that the men who framed and ratified the Constitution, as well as the Bill of Rights, sought to protect religious freedoms and to provide an active role for the government in promoting the "moral character" of the people.
George Washington, in his Farewell Address, said "Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."
James Madison, who wrote much of the Bill of Rights, said: "We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all of our political institutions ... upon the capacity of each and all of us to govern ourselves according to the Ten Commandments of God."
Throughout the earliest days of our history the courts upheld the role of God as an essential thread that binds together our nation's fabric. In 1892, the U.S. Supreme Court held "The happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality...." The Court also wrote: "It yet remains a problem to be solved in human affairs whether any free government can be permanent where the public worship of God, and the support of religion, constitutes no part of the policy or duty of the state in any assignable shape."
Erecting the Wall
It is important to note that the words "separation of church and state" do not appear anywhere in the U.S. Constitution. This, despite major media and advocates regularly trumpeting the constitutional separation of church and state.
The phrase "separation of church and state" came long after the Constitution was adopted. In 1802, President Thomas Jefferson received a letter from a group of Baptists in Danbury, Connecticut. They congratulated Jefferson on winning the presidency and urged him to promote religious freedom of outside-the-mainstream religious groups, which the Baptists were at the time. Jefferson, in an eloquent response, assured them that his government valued diverse religious expression and would never seek to interfere in their affairs or establish an official government religion with special privileges, one that would be superior to all other denominations. It was in the context of his brief, three paragraph letter, that Jefferson used the phrase: "wall of separation between church and state" as an allusion to a wall around a church to keep the government from interfering in the free exercise of religion.
As an interesting aside, Jefferson, himself, held some rather unorthodox views on the subject of religion. He cut and pasted together his own version of the Holy Bible eliminating miracles attributed to Jesus Christ, which he called "superstitions" and "fabrications." He also threw out the Old Testament and called the authors of the four Gospels "groveling authors" with "feeble minds." Although it was intended for his personal use, the Government Printing Office distributed so-called Jefferson Bibles for decades to new senators and representatives in Congress in the early 1900's.
Since our nation's earliest days, school children and teachers openly recited prayers in public schools; government workers and judges spoke openly about God in the course of their business and most newspapers contained Biblical references.
That all began to change in 1947, when the Supreme Court began systematically erecting a legal wall between church and state. In the landmark case of Everson v. Board of Education, concerning subsidized bus transportation for students attending parochial schools, Justice Hugo Black, who was, ironically, a Baptist, wrote: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."
The Court did something in that case rarely, if ever, done before - it issued a decision ignoring the Court's own legal precedent. It is also interesting to note that this Court did not have a single judge with any prior judicial experience, yet they were able to all but remove God from education through a series of landmark legal decisions.
The Everson decision became a declaration of the Court's new policy with regard to Establishment Clause jurisprudence. It opened the floodgates to litigation that continues to clog courtroom dockets today.
In the 1960's under Chief Justice Earl Warren, the Court continued to bolster the wall. In the 1962 case of Engel v. Vitale, the court ruled "it is unconstitutional to offer verbal prayers in a school, regardless of denominational neutrality and voluntary participation. Prayer in the public school system breaches the constitutional wall of separation between Church and State." Again, no legal precedent was offered. In Reed v. van Hoven, the Court went so far as to rule that it is unconstitutional for a student to pray aloud over his lunch during school hours. The Free Exercise clause was all but ignored by the Warren court.
In 1971, the U.S. Supreme Court in Lemon v. Kurtzman struck down Pennsylvania and Rhode Island state laws that set subsidies for the salaries of parochial school teachers. In that case, the Court established the three part "Lemon Test" to determine the permissibility of government activities involving religion. First, the state action must have a secular purpose. Second, the primary effect of the action must neither advance nor inhibit religion. And finally, there should be no "excessive entanglement" between church and state. If any school-based activity fails any aspect of the test, it is likely to be declared unconstitutional.
Understanding the Modern Debate
While the actions of the Supreme Court in the 50's and 60's truly set in motion the modern debate over the Establishment Clause and the separation of church and state, in 1992, despite a more conservative make-up of the Supreme Court, it ruled in a bitterly divided 5-4 decision in Lee v. Weisman that a rabbi could not deliver a prayer at a school commencement ceremony, even if it was nonsectarian in nature. The Lee case established a new precedent, in that the Court would not simply consider whether an action "establishes" a religion, but whether it forces people to involuntarily join in expressions of any religious belief, even if general in nature.
To project where the current Court might come down on the Pledge of Allegiance issue, one must understand the two sides on the Court with regard to the Establishment Clause. On one side is Chief Justice William Rehnquist, who is very outspoken on the subject:
"It would seem...that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations...The Establishment Clause did not require neutrality between religion and irreligion nor did it prohibit the federal government from providing non-discriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson...
"The 'wall of separation between church and State' is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."
On the other side is Justice John Paul Stevens who believes, "Government must pursue a course of complete neutrality toward religion."
Whether the Court will seek to reestablish the original intent of the Establishment Clause is anyone's guess. What is clear, based on the following examples, is that this is an issue that will be hard for the Court to avoid:
In a country where the President of the United States and many members of Congress end their speeches with "God Bless America" and call for a National Day of Prayer, where citizens can exercise their First Amendment rights to display in a public setting a picture of the Virgin Mary covered in elephant dung, it is inconceivable our schoolchildren may not voluntarily recite the Pledge of Allegiance in a classroom, or hear an official prayer before a football game.
The so-called "wall" separating church and state has been systematically erected through a series of legal and political actions with no basis in the First Principles of our Founding Fathers. With this latest decision out of the 9th Circuit, the U.S. Supreme Court may once again have the chance to preserve the oft-forgotten Free Exercise Clause and restore the true intent of the First Amendment to the U.S. Constitution.
June 27, 2002