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Like a prayer
Both God and the Constitution will survive the silliness surrounding the latest court challenge to the Pledge of Allegiance

THE FEDERAL APPELLATE court decision that the phrase "under God" in the Pledge of Allegiance is unconstitutional brings to mind an observation made by a former law partner of mine, who has since gone on to higher callings: "The law is silly putty." Indeed, an equally cogent decision, relying on recent Supreme Court rulings, could have been written arguing that the Pledge is constitutional in its current form. But that’s not the issue here. As the brouhaha over the "under God" case shows, this isn’t a legal debate. It’s a political and cultural war.

For those who’ve been in a coma, here’s the background: on June 26, the United States Court of Appeals for the Ninth Circuit took very seriously the complaint of one Michael A. Newdow, a self-proclaimed atheist who had tired of seeing his daughter pledge her allegiance each morning to a nation "under God" during state-required "appropriate patriotic exercises" undertaken by her public elementary school in the Elk Grove Unified School District. It’s important to note the history of the phrase’s inclusion in the Pledge of Allegiance: it was inserted into the oath in 1954, as national hatred and fear of "atheistic world communism" flourished in the wake of the Korean War. In view of this sentiment, President Dwight Eisenhower and a readily compliant Congress took the not-terribly-unpopular step of enacting a statute adding the phrase "under God" to the previously secular pledge. Various legal attacks on the phrase had been made over the years, without notable success, until two of three judges on a panel of the relatively liberal Ninth Circuit ruled that a teacher’s leading the recital of the Pledge in a public elementary school violated the First Amendment’s ban on the "establishment" of religion. The panel argued that the practice thereby breached the "wall of separation" (a phrase originally coined by Thomas Jefferson) between church and state that had been decreed in a series of Supreme Court decisions during the last half of the 20th century.

The decision was somewhat dramatic given that the Ninth Circuit panel didn’t have to deal with whether the Newdow child could be required to say the Pledge. All parties agreed that since the landmark 1943 Supreme Court opinion in West Virginia State Board of Education v. Barnette, no public-school child could be forced actually to say the Pledge. Barnette involved a Jehovah’s Witness child who objected to pledging to the flag on the ground that it constituted a biblically proscribed form of idol worship and hence violated his religious beliefs; the Court’s opinion, penned by the great Justice Robert Jackson (who later became the chief American prosecutor at the Nuremberg War Crimes Tribunal) did not prevent the Pledge from being recited in class each morning. Rather, Jackson’s opinion simply exempted children who disagreed with the Pledge for any reason — religious, ideological, conscientious, or otherwise — from having to mouth the words. In a sentence that has become one of the most revered and quoted lines in all of constitutional law, Justice Jackson wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

So, what happened between 1943 and now to cause the Ninth Circuit panel, in an opinion written by Circuit judge Alfred T. Goodwin with the support of Circuit judge Stephen Reinhardt, to hold that it was not enough that young Newdow could not be forced to utter the pledge, but that the school system had to be enjoined even from having its teachers lead the class in saying the Pledge, with dissenters allowed to remain silent? The answer is that after Barnette, the Supreme Court declared public-school prayer unconstitutional in a series of cases in the early 1960s — on the ground that such prayer constituted state sponsorship and advancement of religion in violation of the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion"). The majority of the three-judge Ninth Circuit panel thought the recitation of the Pledge, with the offending Eisenhower-era two-word insert, brought the case squarely within the ambit of the school-prayer cases (which prohibited group recitation by all), rather than within the Barnette "no state orthodoxies" doctrine (which allowed group recitation, with dissenters permitted to remain silent).

In a related matter, for years the Supreme Court has been dealing with one challenge after another to the near-ubiquitous celebration of the Christmas holiday in the public schools. The court has handled these situations in a somewhat messy, doctrinally unsatisfying way, but also in a quite practical manner. It has attempted to divide various Christmas practices into those that are truly religious and those that can fairly be deemed more or less secular. Thus, the court in 1984 held a city-funded nativity scene permissible under the First Amendment in Lynch v. Donnelly, but ruled in 1989, in County of Allegheny v. American Civil Liberties Union, that a crèche adorned with "Gloria in Excelsis Deo" ("Glory to God in the Highest") amounted to prohibited state sponsorship of religion. A Christmas tree survived constitutional challenge during this period because it was deemed more a secular symbol of the winter holiday than a religious symbol related to the birth of Christ.

In its recent decision, then, the Ninth Circuit panel took the strictest possible "separationist" position, seeing the amended Pledge as more akin to school prayer (outlawed in the 1960s cases) than to a patriotic ritual (deemed permissible on a voluntary basis by Barnette in 1943) or to a symbol more secular than religious (as was the Christmas tree in the 1980s case). Just how extreme were the separationist views of the Ninth Circuit panel judges? Consider this: in 1983, in Marsh v. Chambers, the Court ruled on a challenge to the Nebraska state legislature’s practice of opening each day with a prayer by a chaplain paid by the state. The court declared that the wall of separation remained intact — not because the practice was secular (the putty isn’t that silly), but rather because of "the unambiguous and unbroken history of more than 200 years" during which state and federal legislative sessions have been opened with a prayer, making it, by now, "part of the fabric of our society." Stated the Court: "To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country." The theme of "tolerable acknowledgment" was partially reflected in the opinion written by the dissenting member of the Newdow panel, Judge Ferdinand F. Fernandez. He suggested that the purpose of the Establishment Clause is "that the government will neither discriminate for nor discriminate against religion or religions." Therefore, he reasoned, having schoolchildren say the Pledge, with each child having the right to keep silent during all or part of the exercise, is rather harmless, and that any notion that the Pledge would "tend to bring about a theocracy" is "picayune." Translation: Newdow’s complaint and fears were much ado about nothing.

Of course, the case for opening a legislative session with a prayer is distinguishable from the case for saying the Pledge in school, in that the latter involves young, impressionable children. Still, one does have to question whether it was really necessary for the Ninth Circuit panel to provoke an altogether predictable public uproar, when the Pledge, even with "under God" inserted, could easily be deemed an essentially secular, patriotic exercise rather than a prayer in any meaningful sense of the word. Would it not have been adequate for Newdow’s daughter to stand silent during the recitation of the two words she and her father found offensive, just as in 1943 it was deemed adequate for Jehovah’s Witness children to remain silent during the Pledge (which did not, at that time, contain the words "under God") to what they considered a "graven image"? According to the Ninth Circuit panel, apparently not.

As a result of the Ninth Circuit’s decision, a coalition of cultural conservatives, religious zealots, and demonstrative patriots has been handed an opening to attack the First Amendment in order to make the nation safe for God. There has even been talk of amending the First Amendment to exempt the Pledge, and perhaps other public prayer, from the Establishment Clause that keeps religious practices separate from state-sanctioned public life. This could be a very dangerous proposition; once these folks get their hands on the First Amendment, God only knows what other changes they might try to make. Would, for example, the free-speech and free-press clauses also be tampered with? Probably.

This is the worst-case scenario, however. Indeed, the day after Judge Goodwin issued his opinion, he postponed the effective date of his edict until an 11-judge panel of the Ninth Circuit Court of Appeals could reconsider the case. If I were a betting man, I would wager that the larger panel will reverse the three-judge panel’s opinion and put God back into the Pledge, and the Pledge back into the schools. If the Ninth Circuit doesn’t do it, the Supreme Court almost certainly will. Judge Goodwin’s opinion may be legally supportable, but it is not the only reasonable result given the "silly putty" history of Establishment Clause interpretation. In practice, moreover, it is politically unacceptable for too many people, some of whom are doubtless sincerely well-intentioned, if somewhat heedless as to the rights and sensibilities of nonbelievers.

The First Amendment may be better off in the long run if the panel’s opinion is reversed. Surely the nation will not collapse if schoolchildren indulge in a voluntary patriotic recitation. (Furthermore, one does have to learn to live with a certain amount of personal offense in public life in a free society, and young Newdow surely would survive hearing her classmates make a casual obeisance to a God in whom she did not believe and whose name she was not forced to invoke.) But just as surely, there is something offensive about one of the first reactions by members of Congress to the panel’s opinion — a highly publicized, ostentatious group rendition of the Pledge on the Capitol steps. Our heroic legislators merely matched the Ninth Circuit panel’s political blindness with what the late Edmund Wilson might have termed "patriotic gore."

The First Amendment is likely to survive this episode. But it is remarkable — almost funny — to see just how foolishly so many have reacted to this decision, including a large number of editorialists and columnists who have had major fits of hysteria. One is reminded of the remark made by the late curmudgeon H.L. Mencken, in one of the few interviews he ever gave during his career. A reporter from his own newspaper, the Baltimore Sun, asked him why he chose to live in this country, given his views of the cultural depredations of its political class and what he had derisively termed "the booboisie." Why, Mencken was asked, did he continue to live in Baltimore rather than London? Mencken’s answer: "Why do people visit zoos?" In this comic yet sad flag-pledge episode, one does not exactly see our nation at its finest. Still, one gets the sense that both God and the Constitution will survive this silliness.

Harvey A. Silverglate, co-director of the Foundation for Individual Rights in Education, is also the co-author with Alan Charles Kors of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999) and a partner in the law firm of Silverglate & Good.

Issue Date: July 11 - 18, 2002
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