The Pledge of Allegiance, recited by my two kids everyday in school, reads: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.This is the current official version, but the phrase "under God" wasn't always there. It was added by Congress in 1954 in a Cold War-era gesture against the godless communism of the Soviet Union. Almost immediately after the amendment of the pledge, the constitutionality of the phrase was challenged but the amendment easily survived these challenges; it seemed no court would dare face head-on the powerful religious forces in America.
But that changed in 2002, when atheist Michael Newdow successfully challenged the constitutionality of the recitation of "under God" in public schools. He contended that mandating his child to mention God violates the principle of separation of church and state, and is thus prohibited by the Establishment Clause of the First Amendment.
When the California-based 9th Circuit ruled in 2002 in his favor, holding that the wording violated the Establishment Clause which prohibits the enactment of any law or official policy in support of a religion, a huge political firestorm erupted. Lawmakers in both houses of Congress took to the floor to condemn the legal ruling. Pundits and talk show hosts decried the brazen Ninth Circuit court for, God forbid [pun intended], supporting and advancing atheism in the US.
The controversy died in a whimper when when a U.S. Supreme Court review in 2004 ducked the constitutional question. The justices threw out Newdow's lawsuit against the Elk Grove Unified School District, which his daughter attended, on grounds that he lacked standing to sue because he didn't have primary custody of the girl.
Not a person to give up a worthy constitutional fight, Newdow, a physician with a law degree, brought an identical challenge against the Rio Linda Union School District practice of leading daily pledges, and won - on behalf of his client, an atheist whose daughter attends public school in the district - a favorable ruling from the District Court barring the recitation of the words "under God."
But today, the 9th Circuit, in a divided 2-1 ruling [193 pages], reversed the lower court's decision and upheld the constitutionality of the "under God" phrase.
First, the majority opinion noted that the question is not whether schools can force students to recite these words against their wishes. It was stipulated by all the parties that students who elect not to recite the pledge are free to do so. The Supreme Court ruled, decades ago, that forcing a student to recite the pledge would constitute a clear violation of a citizen's right to be free of state interference in his religious or atheistic beliefs. This is how the majority opinion phrased the legal question at the heart of this case:
Thus, this case presents a familiar dilemma in our pluralistic society—how to balance conflicting interests when one group wants to do something for patriotic reasons that another groups finds offensive to its religious (or atheistic) beliefs. In other words, does Roe have the right to prevent teachers from leading other students from reciting the Pledge of Allegiance—something we all agree is a patriotic exercise—because the mention of God in the Pledge offends her as an atheist?The majority's answer was a resounding "no." They held:
that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge - its wording as a whole, the preamble to the statute, and this nation's history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activity.Judge Stephen Reinhardt, a champion of civil liberties, dissented. In a rigorous and powerful 130-page opinion, he refuted each one of the majority's arguments. First, he accused the majority of deliberately misstating the issue that is before the Court, explaining that:
In 1954 Congress amended the Pledge by inserting into that patriotic and secular instrument the religious phrase “under God.” The issue here is whether the amendment to the Pledge — the insertion of the phrase “under God” — was enacted for a predominantly religious purpose, not whether the Pledge as a whole was enacted for such a purpose.Second, he wrote, the issue is not whether a young student can prevent other young students from reciting a pledge with a religious reference. Rather, he opined, the issue is whether the Constitution prohibits young Roe’s state-employed teachers from conducting the state-directed, daily recitation of the “under God” version of the Pledge in public schools. To be sure, prohibiting such recitations “deprives Christians [and other adherents to monotheistic religions] of the satisfaction of seeing the government adopt their religious message as [its] own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes."
Judge Reinhardt scrutinizes with a microscope the Congressional amendment that added the words "under God" and concludes:
To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,” 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919.The Lemon test (a.k.a. SEX test)
Judge Reinhardt goes on to apply the Supreme Court jurisprudence on the interpretation of Establishment Clause. He shows that state-directed, teacher-led recitation of the “under God” version of the Pledge clearly fails to meet the constitutional standards under the famous Lemon test.
The Lemon test, for those not well-versed in First Amendment cases, refers to the three-pronged test applied to determine whether a law - which entangles the state with religion - can pass constitutional muster. Articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), the 3 conditions that need to be met are:
1. The statute [or practice] must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and
3. Finally, the statute [or practice] must not foster an excessive entanglement with religion.
In short, the court needs to determine 3 factors: Secular, Effect, Xcessive (and, hence, the law school mnemonic - the SEX test). Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice.
In this case, because the addition of the words "under God" had a predominantly religious purpose, it necessarily violates the Establishment Clause. Indeed, Judge Reinhardt argues persuasively, under the 1954 amendment, there is no conceivable way that the plain text, let alone the history, of the Pledge as amended can be read in any way other than as an affirmation of what the author of the amendment referred to as “the definitive factor in the American way of life[:] . . . belief in God.” 100 Cong. Rec. 1700. One simply cannot in good faith daily affirm loyalty to a nation “under God” if one does not believe that God exists, questions whether there is a God, or believes in polytheism.
Reinhardt attacks the majority opinion, saying that the fundamental error the majority makes that permeates its entire analysis is that it fails to comprehend that the Lemon test must be applied to the 1954 amendment that adds “under God” to the Pledge and not to the Pledge in its entirety. The majority’s attempt to ignore the amendment and instead base its analysis on “the Pledge as a whole” is contrary to the legal principles. Moreover, Judge Reinhardt argues the majority is using a dishonest approach in order to achieve a preconceived outcome. In one of his blistering attacks on the majority, he writes:
Although the majority’s willful blindness toward the existence and text of the amendment to the Pledge may be a necessary precondition to its reaching its desired outcome in this case, its refusal to follow controlling Supreme Court precedent reflects remarkable disdain for the law.Newdow, as expected, vowed to continue on with the fight. He said he would petition for rehearing en banc (a rehearing by a full 11-judge panel of the 9th Circuit) and for Supreme Court review. But his chances are bleak. It is a hugely unpopular cause, and the forces aligned against him are just too powerful. He needs to pray for a miracle to get this decision reversed. Oh, wait a minute, he's an atheist, so that won't happen. . . Well, the atheists and agnostics in the US will need to find some extremely courageous judges willing to stand up to a barrage of bashing from the religious right. In the current atmosphere, it's a very unlikely scenario.
