L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 181, July 8, 2002
WHAT FREEDOMS ARE LEFT?
Under My God!
Special to TLE
Rarely does a minor ruling of two federal judges raise such an immediate and tumultuous response. Every political candidate across the country issued resounding press releases within minutes of the Pledge Ruling and within the hour the entire U.S. Senate stood to declare their fortitude and recite the Pledge of Allegiance ... "under God." Very few, if any, had actually read the ruling of the 9th U.S. Circuit Court of Appeals. Many thought the pledge itself had been banned, responding with epithets and insults rather than reasoned disputes of the court's wisdom. (Download the opinion at [this link (.pdf format)]).
Being a parochial school student and a Boy Scout, I probably recited the Pledge of Allegiance 2,272 times before the age of eighteen. By that time, I was an atheist with serious doubts about whether this was really a nation "...with liberty and justice for all." My cynicism was probably not because I participated in this shallow ritual, but the exercise of it certainly didn't prevent me from thinking about the truth of the matter.
What is rather astonishing is the fact that the proponents of the pledge actually believe it will indoctrinate the speaker by repetition and fully intend that the ideas they cherish will be inculcated by rote into the minds of all future generations, with no pesky obligation to persuade them of the merits. Pavlov for the kids. Which was exactly the motive for writing the pledge in the first place.
In 1892, a Baptist Minister by the name of Francis Bellamy wrote the Pledge, with the objective of training citizens in the "common duties of citizenship that belong irrevocably to the State." It was first published in the socialist periodical "The Youth's Companion" and first recited at a National Public School Celebration sponsored by the National Education Association. Bellamy did not include the phrase "under God", which was added by an act of Congress in 1954 [Title 4 of U.S. Code, Section 4]. It was this Act which the Circuit Court found unconstitutional, not the pledge itself. On that issue, the Supreme Court had previously ruled - even before the phrase was added - that no person could be coerced into reciting a proclamation of ideals and objectives which amounted to a loyalty oath, clearly infringing freedom of speech.
The adoption of the words "under God" was promoted by war-hero President, Dwight D. Eisenhower, as an affirmation of opposition to the godless creed of the dreaded Communist Menace. A year later, ‘In God we Trust' was officially added to all U.S. currency, even though it had appeared on previous coins at the discretion of the designer. Although both Acts were clearly offered and explicitly promoted as expressions of religious belief, this was the McCarthy Era and the temper of the country was not amenable to any opposition on Constitutional grounds.
There is no doubt among supporters or opponents of the 9th Circuit ruling that the phrase is an expression of religious belief. Judge Alfred T. Goodwin noted that "A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, 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 these professions can be neutral with respect to religion."
Opponents of the ruling pleaded for the historic and profound influence of religious belief in the nation's founding and the critical affirmation that individual rights are, in the words of the Declaration of Independence, "endowed by our Creator" rather than bestowed on us by the state. The ruling against the phrase was, in their mind, a deliberate attempt to ban Almighty God from public institutions, a perverse and offensive sacrilege against His Bounty, and certainly an Un-American Act worthy of complete and immediate rebuke. In other words, of course it's a religious affirmation adopted by Congress. So what?
The First Amendment to the Constitution, the premier expression of our fundamental rights, which may not be infringed by government, makes it clear: "Congress SHALL MAKE NO LAW respecting an establishment of religion or prohibiting the free exercise thereof ..." It isn't written with the critical words capitalized, but those few words are commonly ignored in an effort to imagine some other intent than what is explicitly stated. The entire Bill of Rights is an explicit statement of what the government may not do, just in case the enumerated and limited government powers in the body of the Constitution [Article 1, Section 8] were somehow overlooked. Suggesting any other meaning requires a gross distortion of the words themselves.
Even those who clearly understand individual rights seem happy to rewrite the pertinent phrases. The erudite Vin Suprynowicz, writing in The Libertarian Enterprise, grants that the phrase is "religious indoctrination", but imagines that the First Amendment merely prevents "any one faith being 'established' as the official religion of the state." Note that the word 'established' appears nowhere in the First Amendment. The verb is "make no law", not "establish no religion". Certainly, the Founders intended to preclude a state religion, but they went further, barring ANY LAW even respecting an establishment of religion. The proper meaning of that word, in modern usage, is "regarding" ... otherwise the phrase would condone a law dis-respecting religion. The word establishment" simply distinguishes a formal set of organized beliefs from the ethical sentiments that might motivate secular legislation.
The Founders and the documents of the time frequently expressed religious sentiments, but never endorsed a legal affirmation of faith. In fact, they specifically banned any "religious test" for office [Article VI] and - to the consternation of those who may think otherwise - did not include the phrase "so help me God" in the Presidential Oath of Office [Article II, Section 1]. The word "God" appears nowhere in the Constitution (beyond the colloquial "Year of our Lord", equivalent to "A.D." in current usage). Thomas Jefferson expressed it well to the Danbury Baptists: "That Religion is at all times and places a matter between God and individuals -- That no man ought to suffer in name, person, or effects on account of his religious Opinions - That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor."
The Declaration of Independence does invoke "the Laws of Nature and of Nature's God", the assertion that human rights are "endowed by their Creator", and a reliance on the protection of "divide Providence"; but recall that the Declaration is NOT A LAW; it is a rallying cry to overthrow the laws of a certain British despot. That the Founders held deist beliefs and invoked the blessings of God doesn't equate to the imposition or proclamation of any religious beliefs by legislative enactment. That was precluded by the clear, first, and foremost of the liberties recognized in the Bill of Rights. That protection was explicitly defined as the absence of any law regarding religion or restricting religious expression by free individuals.
A consistent champion of those individual rights, Representative Ron Paul of Texas, seems to recognize this ban on any federal legislation regarding religion, but seems intent on ignoring two other facts. The Fourteenth Amendment extended those protections of individual rights to the states. All the provisions of the First Amendment also preclude the states from any actions which endorse or forbid individual expressions of faith. The State of California (a party to the Newdow suit) effectively required the recitation of the "under God" pledge in all public schools. That is an endorsement of monotheism in a coercive environment imposed by mandatory attendance, supported by the in-loco- parentis authority of government teachers and required by a state instruction to all school boards. This coercive condition seems to be inconsequential to Rep. Paul, even if he correctly points out that individual, voluntary, public expressions of faith cannot be restricted (as long as that expression doesn't employ taxpayer funds or the resources held by government agencies). The Supreme Court has clearly affirmed this principle on multiple occasions over the past twenty years.
There is very little that's new in the most recent ruling. The Circuit Court applied all the judicial tests that have been propounded in multiple cases by the Supreme Court, correctly noting that the pledge phrase failed all of them. The "Lemon Test" requires that government acts serve a secular purpose: failed. The "Endorsement Test" requires neutrality with regard to religious faith: failed. The "Entanglement Test" precludes coercion with respect to matters of religious opinion: failed. Failure at any one of these tests is sufficient to preclude the challenged state action. All of them have been contested on multiple occasions and been upheld consistently by the Supreme Court. The most recent ruling forbade the use of government-endorsed (school-supported) demonstrations of religious belief at extra- curricular school events (football games).
Advocates point out that the Supreme Court has allowed Congress to have prayer before each of their daily sessions. The prayer is 1) voluntary, 2) before official business is convened, and 3) expends no public funds. The government salary for the official Chaplains hasn't been specifically challenged. The same conditions apply to the phrase "so help me God" in the oath of office. It isn't specified in any law, it is a personal addenda not required for office, and the utterance is not at taxpayer "expense" (though Ronald Reagan might explain that "I paid for this megaphone!"). And there's the rub.
Where the Circuit Court diverged from established judicial rulings was on the issue of "standing". A plaintiff must show injury before a challenge to official acts can even be considered in a judicial proceeding. This was the substance of the only dissent in the ruling and is likely to give the full Court some grounds to overturn the decision. In essence, they -- or the Supreme Court -- could find that the plaintiff, Michael A. Newdow, was absolutely correct about the Constitutional infringement, but had failed to demonstrate "an injury sufficient to confer standing" in a court challenge. What the courts have suggested is that some violations of rights aren't important enough ("de minimus") to warrant a challenge of the offending law. This has been the bane of dozens of Constitutional challenges alleging improper government acts. The Supreme Court has already suggested that the motto "In God We Trust" results in a de minimus, or inconsequential, injury to those forced to use government currency. Media commentary on the ruling has focused on the "harmless civic recitation" (Newsday) or the "rote civic exercise" (New York Times), as nothing more than a "frill, space-filler" (Washington Post) of no consequence. However, nearly all the opponents take the contrary position, that the words are extremely important, even an essential component, of our system of government. Indeed, President Eisenhower, in signing the 1954 bill, proclaimed that the intention was to affirm "the transcendence of religious faith in America's heritage and future," by requiring schoolchildren to proclaim daily the "dedication of our nation and our people to the Almighty." American Conservative Union Chairman David Keene found it "absolutely amazing that anyone could interpret such general references to a supreme being as a government establishment of religion. It defies common sense." Common sense might suggest that you can't have it both ways. The phrase is either important, or it is not.
The Circuit opinion relied partially on dicta (commentary by a Justice that doesn't directly relate to the issue at hand) and partially on presumptions about the intent of previous rulings. Judge Goodwin (a Republican appointed by President Nixon) cited a concurring opinion of Justice Sandra Day O'Connor (a Republican appointed by Ronald Reagan) in the Santa Fe case that the "objective student's perception" of the circumstances is that "the prayer is, in actually, encouraged by the school," and therefore constitutes an effective "state endorsement" of religion. In the words of the opinion, "Although students cannot be forced to participate in recitation of the pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the pledge."
The Circuit opinion is also open to criticism for having "presumed" that the Supreme Court in Wallace must have granted standing to the plaintiff schoolchildren's parents in deciding that case. In the current case, the child is not the plaintiff, but rather the child's father (minors have no "standing" in federal court beyond the representation of their guardians). The full court or the Supreme Court may find that the dicta and presumption are incorrect. However, the main finding in both Wallace and Santa Fe clearly supported a parent's right to "challenge a practice that interferes with his right to direct the religious education of his daughter." So, the issue is not a violation of the child's rights, per se, but rather an infringement of the parent's right to exclusive and free direction of the child's ethical instruction (whether Christian, Buddhist or atheist).
The irony in this case is that those who most stridently defend "family values" and parental instruction in "religious virtue" must argue against a ruling based on those same principles. The only consistent position they can offer is that Christian Virtue -- or at least monotheism "under God" -- must be found legally superior to any other. But, that's exactly what the First Amendment forbids. Recall that the Circuit Court ruling also found that the phrase "under NO god" would be an unconstitutional infringement via the "Endorsement Test".
However, the most important failing of those who oppose the Circuit Court ruling is that they have overlooked the primary message of the pledge, affirming a nation "... with liberty and justice for all," including atheists. Any religious assertion imposed by the state is a violation of individual rights. Of supreme importance to the religious person is the proposition that faith is an individual, voluntary acceptance of the value of religious teaching. There are very few "establishments of religion" that grant merit to a coerced conversion or mandatory acceptance of purely spiritual beliefs. Religious institutions ought to be standing with the plaintiff in this case, against the power of the state to dictate religious orthodoxy. They ought to be standing with the Founders, who proclaimed the "Glory of the Almighty" in personal affirmations, but never imagined that the state would be used as a club to impose their beliefs on others.
This ruling should stand and be supported by the Supreme Court and every religious person who values freedom, limited government and individual liberty.