I've just read three editorials on the subject and I think they're all pretty much on target. From the Times, Arizona Star, and Post.
All we need now is for the Prez to stand up and say it's all just ceremonial and we'll be good to go... <g>
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'One Nation Under God'
Half a century ago, at the height of anti-Communist fervor, Congress added the words "under God" to the Pledge of Allegiance. It was a petty attempt to link patriotism with religious piety, to distinguish us from the godless Soviets. But after millions of repetitions over the years, the phrase has become part of the backdrop of American life, just like the words "In God We Trust" on our coins and "God bless America" uttered by presidents at the end of important speeches.
Yesterday, the United States Court of Appeals for the Ninth Circuit in California ruled 2 to 1 that those words in the pledge violate the First Amendment, which says that "Congress shall make no law respecting an establishment of religion." The majority sided with Michael Newdow, who had complained that his daughter is injured when forced to listen to public school teachers lead students daily in a pledge that includes the assertion that there is a God.
This is a well-meaning ruling, but it lacks common sense. A generic two-word reference to God tucked inside a rote civic exercise is not a prayer. Mr. Newdow's daughter is not required to say either the words "under God" or even the pledge itself, as the Supreme Court made clear in a 1943 case involving Jehovah's Witnesses. In the pantheon of real First Amendment concerns, this one is off the radar screen.
The practical impact of the ruling is inviting a political backlash for a matter that does not rise to a constitutional violation. We wish the words had not been added back in 1954. But just the way removing a well-lodged foreign body from an organism may sometimes be more damaging than letting it stay put, removing those words would cause more harm than leaving them in. By late afternoon yesterday, virtually every politician in Washington was rallying loudly behind the pledge in its current form.
Most important, the ruling trivializes the critical constitutional issue of separation of church and state. There are important battles to be fought virtually every year over issues of prayer in school and use of government funds to support religious activities. Yesterday's decision is almost certain to be overturned on appeal. But the sort of rigid overreaction that characterized it will not make genuine defense of the First Amendment any easier.
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Tucson, Arizona Thursday, 27 June 2002
'Under God'
The decision by the federal 9th Circuit Court of Appeals that the Pledge of Allegiance is unconstitutional appears to pass the test of a careful reading of the law. Yet it fails what many see as an even more important test, the test of common sense.
It is difficult to read the court's decision and not be struck by the fact that the two judges issuing the ruling tried to sincerely, accurately and fairly decide a constitutional issue. This is not, as some fear, an attempt by godless judges to remove religion from American life.
However, at the same time, it appears the judges participated in a modern-day version of counting the number of angels on the head of a pin. Had the judges stepped back from their law books and legal precedents and looked at the society in which this case appeared, they would have recognized that including the phrase "under God" in the Pledge of Allegiance poses no danger to the First Amendment.
This does not mean the issue poses no danger to our society. It does. The real danger with this ruling is that it exacerbates the nation's culture wars. The U.S. Senate immediately and unanimously passed a resolution expressing its disapproval of the 9th Circuit's decision. Sen. Tom Daschle of South Dakota, and the Democratic majority leader, called the ruling "just nuts." He urged colleagues to convene at 9:30 this morning to recite the pledge. About 100 members of the House of Representatives, led by Speaker Dennis Hastert, recited the pledge on the Capitol steps yesterday afternoon. And some religious conservatives were nearly apoplectic in their first responses. All this harrumphing and posturing does no good for either side.
Judge Alfred T. Goodwin, writing for the three-judge panel, was eloquent in his defense of the ruling. To recite the pledge, he wrote, "is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and - since 1954 (when Congress added "under God" to the pledge) - monotheism."
Goodwin added: "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."
Whether you agree or not, these are not the rantings and ravings of an anti-religious fanatic.
Even so, Judge Ferdinand F. Fernandez is equally thoughtful and eloquent in his dissent, though his speculation that "we will soon find ourselves prohibited from using our album of patriotic songs in many public settings" seems over-wrought. "'God Bless America' and 'America the Beautiful' will be gone for sure," Fernandez wrote, "and while use of the first and second stanzas of the Star Spangled Banner will still be permissible, we will be precluded from straying into the third. And currency beware!"
Fernandez is more on the money as he steps back from the case. "Judges can accept those results if they limit themselves to elements and tests, while failing to look at the good sense and principles that animated those tests in the first place," he writes. "But they do so at the price of removing a vestige of the awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel for the good fortune of our country."
No question the Bush administration will appeal the ruling, and no question politicians will see in this flap an opportunity to prove their patriotism and the lack of patriotism of any opponent who might be so politically unwise as to praise the court's decision.
Unfortunately, much of this will be unhelpful, distracting the nation from more immediate issues.
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One Nation Under Blank
Thursday, June 27, 2002; Page A30
IN THE MANY battles over how high the church-state wall should be, there has always been a certain category of official invocations of God that has gone untouched. Legislative prayer has been upheld by the Supreme Court, for example. Court sessions begin by asking that "God save this honorable court." America's national motto says "In God We Trust." And the Pledge of Allegiance, since 1954, has described this country as "One nation under God, indivisible." At least it did until yesterday -- when a panel of the 9th U.S. Circuit Court of Appeals struck down the words "under God" as an establishment of religion in violation of the First Amendment.
If the court were writing a parody, rather than deciding an actual case, it could hardly have produced a more provocative holding than striking down the Pledge of Allegiance while this country is at war. We believe in strict separation between church and state, but the pledge is hardly a particular danger spot crying out for judicial policing. And having a court strike it down can only serve to generate unnecessary political battles and create a fundraising bonanza for the many groups who will rush to its defense. Oh, yes, it can also invite a reversal, and that could mean establishing a precedent that sanctions a broader range of official religious expression than the pledge itself.
All of this might be justified if there were any real question as to the constitutionality of the 1954 law that added God to the pledge. But while the Supreme Court has never specifically considered the question, the justices have left little doubt how they would do so. Even former justice William Brennan -- a fierce high-waller -- once wrote "I would suggest that such practices as the designation of 'In God We Trust' as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood . . . as a form a 'ceremonial deism' protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content." Other justices have likewise presumed the answer to the question, and no court of appeals should blithely generate a political firestorm -- one that was already beginning yesterday -- just to find out whether they meant what they said.
As Judge Ferdinand Fernandez pointed out in dissent, the establishment clause tolerates quite a few instances of "ceremonial deism": Is it okay to sing "God Bless America" or "America the Beautiful" at official events? Is American currency unconstitutional? The answer must be, as Judge Fernandez argues, that in certain expressions "it is obvious that [the] tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimis." Amen.
© 2002 The Washington Post Company |
