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Is "Under God" Going Under? The Fight Over
the Pledge of Allegiance | Valerie Schmalz | September 19, 2005
I pledge allegiance to the Flag of the United States of America, and
to the Republic for which it stands, one nation under God, indivisible,
with liberty and justice for all. - Pledge
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assembly, and to
petition the Government for a redress of grievances. - First
Amendment to the U.S. Constitution. Ratified Dec. 15, 1791.
If and when Judge John Roberts is confirmed as Chief Justice of the U.S.
Supreme Court, one of the cases that he will likely face early on will be
whether the phrase "under God" in the Pledge of Allegiance is
A California federal judge ruled September 14th, that the "under God"
in the Pledge of Allegiance was a violation of the First Amendments
"Establishment Clause"known more popularly as "separation
of church and state," although those words are not in the U.S. Constitution.
Atheist Michael Newdow successfully argued in federal district court that
the rights of children who are atheists are violated because their school
districts have voluntary recitation of the Pledge of Allegiance, which includes
the phrase "under God." Newdow is the attorney representing two
different families with children in three school districts.
The case will undoubtedly be appealed, but a variety of procedural matters
remain to be decided. Whether or not the school children in the three Sacramento
area school districts will be required to stop saying the Pledge of Allegiance
while the case is ongoing is also up in the air, and will depend on whether
the federal courts suspend enforcement pending the appeal, said Terence
Cassidy, lead counsel for the three school districts.
"These type of cases make Americans mad," said Lee Strang, assistant
professor of law at Ave Maria Law School, Ann Arbor, Michigan. "This
case comes at a time when we have the Judge Roberts nomination going
onit should wake Americans up to the fact that judicial appointments
Strang believes the Sacramento judges ruling and the ongoing Newdow
case will give President George W. Bush more support among Americans in
appointing conservative appointees and will make the Democrats less likely
to filibuster court appointees.
"This case or a case like it will wind up on the Supreme Court sooner
or later," Strang said.
In the previous decision by the San Francisco-based Ninth Circuit Court
of Appeals in 2003, the court ruled "that the Pledge of Allegiance
was unconstitutional because it coerced public school students to affirm
a belief in God," Strang said. The case, which was brought by Newdow,
was eventually dismissed by the U.S. Supreme Court on procedural grounds
in 2004 since Newdow did not have custody of his daughter and she was a
believing Christian who did not have a problem with the Pledge.
In reaction to the latest ruling, the U.S. Senate passed
a resolution by unanimous consent affirming the Pledge in its current
wording. Newspaper editorial boards weighing in on the issue around the
country mostly supported keeping the Pledge the way it is, including the
San Francisco Chronicle, which in its Sunday editorial said:
"The legal debate is as frivolous now as it was in 2004 and in earlier
manifestations. The generic under God, echoing the Gettysburg
Address, is an almost automatic turn of speech, in a vein running deep through
the nation's public rhetoric. Let it coexist with In God we trust
on our coinage."
The Boston Herald wrote: "Let's hope a new Roberts court will
reject Newdow's self-indulgent quest to twist the Constitution in an effort
to satisfy his personal goals." In the Wilmington, Delaware, News
Journal, reader Minna Walley wrote in the Letters section, "No
district judge or atheist has the right to speak for me. I am so tired of
people misusing politics to shape the world as they want it."
U.S. Attorney General Alberto Gonzales said the Justice Department will
defend the Pledges language.
"For more than two hundred years, many of our expressions of national identity
and patriotism have referenced God. The Supreme Court, which opens each
session by saying 'God save the United States and this honorable Court,'
has affirmed time and again that such official acknowledgments of our Nation's
religious heritage, foundation, and character are constitutional,"
Gonzales said in a statement. "The Department of Justice will continue
vigorously to defend the ability of American schoolchildren to pledge allegiance
to the flag."
"Is the government lending its power to one side here? Clearly the
answer is yes," Newdow said. "We have American citizens who deny
"I have a problem because we violate our Constitution in our Pledge
of Allegiance," Newdow told IgnatiusInsight.com. "I have no problem
with pledging allegiance."
David Koepsell, executive director of the Council for Secular Humanism,
shares Newdows atheistic philosophy and filed a friend of the court
brief in his previous case but is not involved in this one.
"The Constitution nowhere references the Deity as the source of that
law," Koepsell said. Supporters of the "under God" phrase
point to contemporary documents and a climate of belief in Godas well
as the fact the Founders aim was to avoid establishment of a national
religion as many had suffered in Europe. But, Koepsell said, the Constitution
itself is a secular document and its language does not support that point.
"The Declaration of Independence is not part of our organic law. The
Constitution is. The people give the government its powerthats
why we have a Bill of Rights," Koepsell said.
"It is contrary to the Constitution for the government to establish
religion over non-religion whether or not it offends anyone. The fact is
there are minority religions in this country who do not ascribe to a monotheistic
ideathere are Hindus, animists" as well as atheists, Koepsell
said from his office in western New York.
Whether central California school children will stop saying the pledge depends
on whether U.S. District Court Judge Lawrence Karlton and the U.S. Ninth
Circuit Court of Appeals hold enforcement pending appeals.
In issuing his opinion denying the school districts request for dismissal
of Newdows lawsuit, Karlton said he would sign a restraining order
preventing recitation of the pledge in Elk Grove Unified, Rio Linda, and
Elverta school districts. Newdow must now file for a restraining order and
he was not clear about when he would file that request, but said he expected
to take action within weeks. In the previous case brought by Newdow the
courts held enforcement pending appeal, Cassidy said.
In addition to the Justice Departments appeal, The Becket Fund for
Religious Liberty said it will appeal. The district court granted the status
of intervenors, or defendants, to the Funds clients. The Becket Fund
represents ten California public school students and their parents, who
want to protect their right to recite the full Pledge voluntarily, as well
as the 1.7 million members of the Knights of Columbus.
The Knights were the prime mover in convincing Congress and President Eisenhower
to add "under God" to the pledge in 1954 to affirm the United
States differences with the Communist Soviet Union, said Patrick Korten,
spokesman for the Knights of Columbus. The Pledge was first recited in 1892
and its language has been amended three times since then, most recently
to add "under God."
"It is significant that the words under God were added
in 1954 at the height of the Cold War because it was a way of stating dramatically
the difference between the United States of America and the Soviet Union.
Because in the Soviet Union the notion was that people had no rights that
the government did not give them," Korten said.
"Including the words under God in the Pledge is simply
another way of restating a foundational statement in the Declaration of
Independence which is that we are endowed by our Creator with certain
unalienable rights," Korten said. "What we are saying when
we recite the Pledge with the words under God in it is that
in America we believe that our rights come from Godthey are before
the state. They exist prior to the state. The state does not hand out rights."
Attorney for the central California schools Cassidy noted that three Supreme
Court justices, including Sandra Day OConnor, issued opinions in the
previous Newdow case upholding the pledge. In addition, other U.S. appeals
courtsthe Fourth and Seventh circuit courtshave upheld the language
of the Pledge, said Jared Leland of the Becket Fund. The Fourth Circuit
court found the Pledge was "a patriotic activity" rather than
a religious one.
"I think on behalf the school districts and school children and administrators
and teachers and principals, I think it is important that this issue be
decided for once and for all," Cassidy told Insight. "I truly
believe there ought to be one Pledge of Allegiance for all that can be recited
by school children and adults equally. I think the addition of the words
under God is an accurate reflection of our religious heritage
and tradition. And that it is not meant to, in any manner, establish a religion
within the meaning of the Establishment Clause."
Valerie Schmalz is a writer for IgnatiusInsight. She worked as a
reporter and editor for The Associated Press, and in print and broadcast
media for ten years. She holds a BA in Government from University of San
Francisco and a Master of Science from the School of Foreign Service at
Georgetown University. She is the former director of Birthright of San Francisco.
Valerie and her wonderful husband have four children.
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