Today the Ninth Circuit Court of Appeals in San Francisco ruled that the use of the prepositional phrase "under God" in the Pledge of Allegiance is constitutional.
According to a report in the Christian Science Monitor by Michael B. Farrell,
In two separate cases, Michael Newdow, who previously challenged the Pledge in a case that reached the US Supreme Court in 2004, attempted to further his long-running campaign to strip references to God from the public domain.By sheer coincidence, the ruling came on the 67th anniversary of the oral arguments before the U.S. Supreme Court in the case of West Virginia State Board of Education v. Barnette. In that case, the Court eventually ruled that state authorities could not compel students (or anyone else) to salute the flag or recite the Pledge of Allegiance.
In Mr. Newdow’s latest case against “under God” in the Pledge, the Ninth US Circuit Court of Appeals panel ruled, in a 2-to-1 decision, that the schoolroom routine for millions of children is not a violation of the Constitution, but a historical reflection of the Founding Fathers’ beliefs that “serves to unite our vast nation.”
“Not every mention of God or religion by our government or at the government’s direction is a violation of the Establishment Clause,” wrote Judge Carlos Bea for the majority in the opinion that was issued Thursday.
In his majority opinion in that case, Justice Robert Jackson noted
that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here, the power of compulsion [p634] is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.In a now-famous passage, Justice Jackson wrote at the conclusion of his opinion:
Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. [n14] If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence, validity of the asserted power to force an American citizen publicly to profess any statement of belief, or to engage in any ceremony of assent to one, presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.
Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views [p635] hold such a compulsory rite to infringe constitutional liberty of the individual. [n15] It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.
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. If there are any circumstances which permit an exception, they do not now occur to us.(Thanks to Professor John Q. Barrett of the St. John's University law school for the reminder that the oral arguments in the Barnette case took place on March 11, 1943. Barrett is the originator and editor of the Jackson List, an archive of material about Justice Robert H. Jackson.)
In addition to the coincidental anniversary, the 9th Circuit ruling comes on the heels of a minor controversy in Maryland, in which a schoolgirl was reprimanded by her teacher for refusing to stand during the Pledge, in clear violation of the child's constitutional rights.
The Washington Post reported on February 25 that the Montgomery County school system has apologized to the girl and her family, and that the teacher has been reprimanded, in turn:
In addition to an apology, the mother of the girl was told that the teacher, who has not been identified by either side, and school administrators plan to lead the girl's class in a discussion about the incident and their constitutional rights, [attorney Ajmel] Quereshi said.Eight years ago, when Michael Newdow's first lawsuit was decided by the Ninth Circuit (in his favor), I wrote an article about the Pledge of Allegiance that made other arguments about why Americans should be wary about reciting it so lackadaisically. It was twinned with an article by Richard J. Santos of the American Legion under the headline, "Court's Decision on Pledge Must Not Stand." The two articles appeared in The Metro Herald (Alexandria, Virginia) on July 5, 2002. Here is my article as it appeared that day:
"It's not an issue of just the pledge. It's a larger issue about their First Amendment rights," Quereshi said. "It's an important lesson that should stay with them."
The Supreme Court ruled in 1943 that students cannot be forced to salute the flag. Maryland law explicitly allows any student or teacher to be excused from participating in the pledge, according to the ACLU.
The Montgomery school system's student handbook contains a section about "Patriotic Exercises" that reads: "You cannot be required to say a pledge, sing an anthem, or take part in patriotic exercises. No one will be permitted to intentionally embarrass you if you choose not to participate."
RIGHT, FOR THE WRONG REASONSRichard SincereMetro Herald Charlottesville Bureau Chief
(Charlottesville, VA, June 27, 2002)—The American Heritage Dictionary defines “allegiance” as “the obligations of a vassal to a lord.” Similarly, Black’s Law Dictionary defines it “obligation of fidelity and obedience to government in consideration for protection that government gives.”
In a widely-noted ruling on June 26, the Ninth Circuit Court of Appeals ruled that the recitation of the Pledge of Allegiance in government schools is unconstitutional because the Pledge contains the words “under God.” The court said this violates the Establishment Clause of the First Amendment (“Congress shall make no law respecting the establishment of religion …”)
Writing for a three-judge panel of the court, Judge Alfred T. Goodwin argued: “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.”
Goodwin added: “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 orm of the pledge.”
Steve Schmidt, communications director for the National Republican Congressional Committee (NRCC), sent out a “talking points” memorandum that suggested to Republican activists that they should “call on every school board to ignore this decision.” David Keene, chairman of the American Conservative Union (ACU), “called for the impeachment of the two judges who came up with such a ridiculous opinion regarding the separation of church and state,” according to an ACU news release issued within hours of the court’s decision.
These conservatives might not be so eager to complain if they knew the history of the Pledge of Allegiance and its intended purpose. While most of us today view it as benign or sentimentally patriotic, a look at its origins illustrates the sinister -- one could say “un-American” -- features underlying the Pledge.
Writing in the May 2001 issue of the journal Ideas on Liberty, published by the Foundation for Economic Education -- one of the oldest pro-freedom think tanks in the United States -- author and activist Jim Peron reports that the author of the Pledge of Allegiance was Francis Bellamy, a Baptist minister and socialist agitator who was the cousin of Edward Bellamy, author of the socialist utopian novel, Looking Backward (1888).
Francis Bellamy composed the Pledge for a magazine called The Youth’s Companion, which first published it on September 8, 1892, and promoted it vigorously. As Peron relates the story, “Bellamy, like his cousin, wanted to use government schools to help promote a socialist agenda. He felt that one way of encouraging this agenda would be the teaching of state loyalty. To this end he wrote a pledge, which students across the country were asked to take. With a few minor changes this pledge is what is now called the Pledge of Allegiance.”
Peron goes on to note that “Bellamy attempted to accomplish several goals with his Pledge of Allegiance. He saw it as a means of inculcating support for a centralized national government over the federalist system of the Founding Fathers.” Moreover, Peron writes, Bellamy “originally toyed with the idea of making the Pledge more openly socialistic, but decided that if he did so it would never be accepted.”
Why not? Because the American republic was founded on constitutional principles that are antithetical to socialism and its parallel, feudalism, in which the citizen is a mere vassal to a superior lord. The Pledge of Allegiance stands on its head the American commitment to universal but individual rights of “life, liberty, and the pursuit of happiness” (as Thomas Jefferson put it in the Declaration of Independence). In its place it puts fealty to the will of the state and the subjugation of the individual to an amorphous “society.”
Whether reciting the Pledge of Allegiance in government schools is unconstitutional or not will be left to another court -- perhaps the U.S. Supreme Court. But Republicans and other conservatives should not be too quick to condemn the ruling without first thinking about the implications of the history and the text of the Pledge itself. If they do, they might realize that they are supporting something that undermines all they hold dear about America.
As a matter of fact, it may do well for all of us to reflect on the true meaning of the Pledge of Allegiance this Independence Day weekend. The unsettling conclusions we draw should lead to deeper wisdom and a better appreciation of individual liberty as promised by the Constitution.
Richard Sincere is president of the Arlington Research Group and author of two books on foreign policy, The Politics of Sentiment and Sowing the Seeds of Free Enterprise.
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