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The 24-hour-a-day, seven-day-a-week cable channels treated it like the death of a celebrity, a major natural disaster, or the verdict in the O. J. Simpson case. Even though it was only a 2-1 decision by a federal appeals court holding that a 1954 act of Congress that added the words "under God" to the Pledge of Allegiance was unconstitutional. This 29-page ruling provided fodder for nearly a week of seemingly continuous television coverage.
The decision reported by a panel of the ninth Circuit Court of Appeals on June 26 in Newdow v. U. S. Congress was written by semiretired Judge Alfred T. Goodwin, a Richard Nixon appointee, who while before the decision had seemed in good health, was immediately described by conservative pundits as "senile."
All Goodwin's decision said was that the l954 alteration of the Pledge originally written by educator and Baptist preacher Francis Bellamy in 1892 violated the First Amendment's establishment clause and rendered its recitation in public schools unconstitutional. The man who brought the case was Michael A. Newdow, an emergency room physician as well as a California attorney. Newdow has an 8-year-old daughter who he felt could become an outcast, or at least a second-class citizen in her second-grade classroom, if she did not recite the Pledge.
In many ways this was a quintessential example of what scholars call "strict construction," an effort to narrowly apply the original and obvious intent of the Constitution's drafters. It also represented a rigorous application of precedent to a current fact pattern, without regard to the judges' sense of the propriety of the earlier decisions. A central command of the First Amendment is that "Congress shall make no law respecting an establishment of religion."
In l954 Congress added "under God" to the original pledge. It thus converted a purely secular affirmation of patriotism into a pronouncement of a religious creed. It unambiguously asserted that God, not multiple gods, had an active interest in the affairs of the nation. This is, of course, a view held by the vast majority of Americans. However, it is hard to argue with a straight face that it is not a law about religion that officially announces a theology for the country. So understood, it is just what the framers had in mind in proscribing such actions.
The court's majority recognized immediately that there could be no "secular purpose" for its inclusion. Even the briefest review of the history of the addition shows that it was the product of hard lobbying by Christian advocacy groups, and served the additional purpose, noted by many congressional supporters, of sending a signal that the United States was readily distinguishable from nations adhering to "godless communism." This change happened in the heyday of the McCarthy era.
The decision also explains how it is a natural extension of the l962 Supreme Court ruling prohibiting government-promoted prayer in public schools. Judge Goodwin took on directly the notion that no schoolchildren were forced to say the Pledge. (As an aside, from l940 until l943 when it reversed itself, the Supreme Court had actually permitted public schools to require that all schoolchildren, including religious objectors, recite the "secular" version.)
Even without compelled recitation, the 1962 case established that schoolchildren could not be forced into the unpleasant choice of either standing next to those who were participating in a religious observance or leaving the classroom every day and facing the notoriety or worse that comes from such departures. Judge Goodwin wrote, "Even without a recitation requirement for each child, the mere fact that a pupil is required to listen every day to the statement . . . has a coercive effect."
The reaction from the political world was painfully predictable. Although public opinion polls showed that about 1 in 10 Americans supported the ruling, the Senate's swift rebuttal of opposition came in the form of a 99-0 vote of support for the "under God" version. Neither senators, nor their House colleagues (save three) even bothered to acknowledge an iota of support for the First Amendment interest here. Indeed, the day after the ruling, congresspersons arrived in hordes to be visible on C-SPAN as they recited the Pledge at the start of their session. Curiously, when the Pledge was routinely uttered the day before, the number of members present barely hit double digits.
Judge Ferdinand F. Fernandez was the dissenter at the Ninth Circuit, characterizing the "under God" phrase as, at most, a "picayune" threat to the First Amendment and claimed its tendency to "bring about a theocracy or suppress somebody's beliefs" was "so minuscule as to be de minimus."
Fernandez opined that he could accept its characterization as "ceremonial deism" (a phrase used by Supreme Court Justice William Brennan to describe the "In God We Trust" inscription on coins) but suggested even that conclusion gave the Pledge's religious phrase more weight than it deserved. Fernandez viewed the only injury or affront Newdow bemoaned was that people wouldn't "feel good" as the phrase was recited around them.
Fernandez's dismissal of the significance, as well as the construct of "ceremonial deism," demonstrates not only constitutional myopia, but also a regrettable misunderstanding of genuine religious conviction. For those to whom God matters most, the suggestion that the word "God" can ever be uttered in any way that does not implicate an act of significance is insulting and borders on blasphemy. Conversely, the invocation of God or gods to those who are wholehearted rationalists is an affront to the very fabric of meaning in their universe. The majority succeeded quite cleverly in debunking the Fernandez-Brennan thinking by noting that for establishment purposes, a profession that we are "under God" is, in their words, "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.' Would anyone seriously suggest that America's current Christian majority would not go apoplectic were anyone to suggest those alternatives? I suspect bouts of shortness of breath would occur if there were even a Pledge that acknowledged that we were a "nation under God or gods, if any, depending on the beliefs of each individual."
Of all the images that played endlessly on those cable networks, none was as disturbing as Newdow's answering machine tape which had recorded the words of an anonymous caller noting that although the caller wouldn't do it personally, Newdow would be killed. What comfort it must be to our enemies in the Middle East to know that some in the United States also agree that clashes with religious orthodoxy should lead to assassination.
If I were allowed to question Judge Fernandez now, I'd really like to know if it is possible for something that is "picayune" to lead to a furor unlike that generated by any decision by any court in recent memory. It's a shame that the rancor made it hard to focus attention on the real bottom line of this decision: Can liberty of conscience be held captive to the legislative enactments of a majority? 
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Barry W. Lynn is executive director of Americans United for Separation of Church and State, a Washington, D.C.-based watchdog group that monitors religious liberty concerns. Lynn is a longtime civil liberties attorney, as well as an ordained minister.
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We recited the words to the Pledge of Allegiance in grade school, hands over our hearts, eyes trained on the red, white, and blue. We were told to stand at attention, remembering all those who fought and died for our freedoms. As we grew older, we recited the words by rote.
However, a federal appeals court ruling has forced us to pay closer attention to the Pledge of Allegiance and the oath we're asking Americans—particularly school-aged Americans—to observe.
Published in 1892 as a patriotic salute for schoolchildren, the Pledge of Allegiance went through several slight revisions before Congress made it official in 1942. One year later, the U.S. Supreme Court made it a voluntary pledge for schoolchildren.
By 1954, when the words "under God" were tacked onto it, the country was in turmoil. It was the cold war era, and Senator Joseph McCarthy was stirring up a vehement anti-Communist sentiment in the country. Americans viewed the Soviet Union as a godless monster that had infiltrated our society.
The nation was in the midst of an identity crisis. We had just fought the war to end all wars with the hope that the world could live in peace. But now America was thrown immediately back into the ugly face of another world war threat. Who could save us? The answer from many was "God." Thus in the heat of the politics of the day, President Dwight D. Eisenhower, recognizing the nation's need for a Supreme Being to provide strength and comfort, remarked:
"In this way we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resource in peace and war."
But 50 years later our world is still in turmoil, with terrorism threatening our security and sense of well-being. Following the terrorist attack of September 11, the call for the belief and protection of a Supreme Being once again emerged as a part of the national ethos. However, in a society permeated with political correctness and saturated with the multiplicity of faiths, the effort to acknowledge a Supreme Being in an official capacity is an uphill struggle. And the Ninth Circuit Court of Appeals' 2-1 ruling that the Pledge of Allegiance is unconstitutional because it acknowledges that we are "one nation under God" is just the latest—but far from the last—challenge.
Even the news that the same judge who wrote the majority opinion soon placed the ruling on hold indefinitely cannot diminish the impact of the original decision. Surely such a ruling couldn't have come as a surprise to many people. After all, it has been a long time coming, one more step in a series of efforts to remove religion from public life.
We've traveled a long and winding road since the America of "God, apple pie, and the American dream." The U.S. Supreme Court removed prayer from public schools in the early sixties. Time magazine went so far as to declare on its cover that God was dead in 1966. Now Ten Commandments plaques are being torn down from courthouses across the country. And separationist groups continue to be on the warpath to cleanse our society of any mention of God.
Yet this particular Pledge of Allegiance case, arising out of one parent's belief that his child should not have to listen to her classmates voluntarily recite the Pledge, is about more than the mention of God in a patriotic ritual. It goes to the heart of the debate about our nation's spiritual heritage—and its future.
This country has been traveling a wandering path around the issue of religion for some time now. We're still a society desperately searching for an identity—at least a spiritual one—and, especially in the wake of the terrorist attacks, we're on the verge of a nervous breakdown. But the American people can provide the cure, if only they will decide once and for all what they want this country to be.
If we want to recognize that this is a country with a spiritual heritage, that our Founders built our nation—and our laws—on a religious foundation, then our institutions should reflect that.
The Declaration of Independence states in no uncertain terms that our rights come from God—that men are "endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." In a sense, the basic framework of our country has grown out of this concept of God-centered rights. But take God out of the equation, as so many have tried to do, and we are left with a nation whose freedoms stem from nothing more than the whims of those in power. This is something that the framers of our Constitution abhorred and something that, as history has shown us with empires that cleanse religion from their midst, is to be feared.
The Founders put their lives on the line for the freedoms enshrined in our Constitution because they believed they had an innate and God-given right to such freedoms as those of speech, religion, and assembly.
Yet the faith of our forebears is far different from the watered-down, politically correct rhetoric offered up as religion today or that brand of religious hucksterism broadcast on television. So this ruling should surprise no one. Perhaps the court was only stating a truth we have come to understand and refused to admit: that this is not one nation under one God, but one nation under many gods.
This decision challenges our national identity, our spiritual heritage, and the validation of our innate rights. But in today's diverse society, it is a legitimate challenge that must be debated and decided.
We know our past: it is the history of people escaping persecution, fleeing to a new land primarily in search of religious freedom.
We know our present: it is the unfolding story of a nation still coming to terms with who and what it is and who and what it stands for.
What we do not know, however, is our future. That remains to be decided.
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Constitutional attorney and author John W. Whitehead is founder and president of the Rutherford Institute.
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John W. Whitehead, founder and president of the Rutherford Foundation, writes from Charlottesville, Virginia.
test for sheldon
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