Jul '02 [Home]

Legal Forum

. . Legislating God, with a Disclaimer
James I & Pope Paul V: 'Been There, Done That, in 1610'

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.
W Va. Bd of Ed v. Barnette (319 U.S. 624 (1943))

In Barnette, the Supreme Court held unconstitutional a school district's wartime policy of punishing students who refused to recite the Pledge of Allegiance, newly composed in 1942. Eisenhower heralded the 1954 addition of the words, "under God," saying,

From this day forward, the millions of our school children [unlike those scary atheist Communist kids, vide: 'infidels'] will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.

The bill's sponsors, aware that they may be running afoul of the First Amendment's Establishment Clause ("Congress shall make no law respecting the establishment of religion"), led with a pre-emptive disclaimer:

This is not an act establishing a religion.  .  .  .  A distinction must be made between the existence of a religion as an institution and a belief in the sovereignty of God. The phrase, "under God," recognizes only the guidance of God in our national affairs.
(H.R. Rep. No. 83-1693 at 3, emphasis supplied)

In Newdow v. U.S. Congress, (No. 00-16423), decided 2-1 on June 26, the Ninth Circuit held this distinction irrelevant, and found a prohibited government endorsement of religious beliefs, scorning the Seventh Circuit decision in Sherman v. Comm'ty Cons. School Distr. 21 (980 F. 2d 437 (1992)) for holding the "under God" phrase "devoid of any significant religious content." The Newdow dissenter argued, in essence: 'Hey, [God-fearing] majority rules!' and 'If you don't like my music, you must hate music altogether.' ("I recognize that some people may not feel good about hearing the phrases recited in their presence but, then, others might not feel good if they are omitted.")

To recite the Pledge is not to describe the U.S.; instead, it is to swear allegiance to the values for which the flag stands:  unity, indivisibility, liberty, justice, and—since 1954—monotheism.

Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase, "one nation under God," in the context of the Pledge is normative.

[The government] impermissibly takes a position with respect to the existence and identity of God. 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" or "under Vishnu" or "under Zeus" or a nation "under no god," because none of these professions can be neutral with respect to religion. The government must pursue a course of complete neutrality toward religion. (Wallace v. Jaffree, 472 U.S. 38 (1985), at 60)

The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers that they are outsiders, not full members of the political community, and an accompanying messgae to adherents that they are insiders, favored members of the political community (citing authority). The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.
(Newdow, maj. op. at 9124, 25)

Congress immediately resolved 99-0 to recite the Pledge for the press. Senator Byrd (D-WVa) vowed to "blackball" those "stupid" judges. Minority Leader Hassert called for "common sense" appointments. Chief Justice Rehnquist is sharpening his proven, chad-eyeing smarts. What result if their copies of John Donne's Pseudo Martyr (1610) were as well-worn as their leather-bound Federalist Papers?

While Newdow's dissenter projects great mourning over the outlawing of spontaneous public choirs of God Bless America (and the third and…er, umm…fourth verses of My Country 'Tis of Thee—complete list of banned gazebos tunes forthcoming), authors complain adamantly of droit moral-analog copyright violations by school board officials who edit their texts to delete or rewrite non-PC elements.

News article follow-up's inform that Dr. Newdow 'never married' his daughter's mother, who has instructed her counsel in the custody battle to oppose Newdow on the First Amendment issue if the U.S. Supreme Court grants certiorari to hear the case, and assured all who care that her daughter 'doesn't mind at all' saying the Pledge and attends church on a regular basis.

—MH (J.D., LL.M)