One Nation, Under Controversy

Courts, Congress, Citizens Battle Over Reference To God In Pledge Of Allegiance

William Donohue was not in a good mood.

The acerbic leader of the New York-based Catholic League for Religious and Civil Rights had just learned that a federal appeals court in California had decided to leave in place an earlier opinion striking down the recitation of the Pledge of Allegiance in public schools – and he was furious.

Unleashing a torrent of blind, nearly hysterical rage, Donohue in a press statement compared the federal judges who said the Pledge violates church-state separation because of its reference to God to Iraqi tyrant Saddam Hussein and called for their prompt impeachment.

“Iraq’s problem is tyranny of the minority,” Donohue blustered in a Feb. 28 press statement. “Ironically, that’s our problem as well. But the Iraqi people at least stand to be liberated and have their tyrant deposed. We need to do the same with ours, albeit with different means: impeachment proceedings against … the federal judges who made this decision should commence as soon as possible.”

But Donohue did not stop there. He also urged public school teachers in the nine western states covered by the 9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington – to “break the law: they should instruct their students on the meaning of civil disobedience and then practice it.”

Donohue’s tirade was sparked by a decision issued in late February by the entire 9th U.S. Circuit Court of Appeals to affirm its ruling in Newdow v. U.S. Congress. Attorney General John Ashcroft and other officials had asked the full 9th Circuit to overturn an appellate panel’s ruling, which concluded that the Pledge’s “under God” language made reciting it in public schools unconstitutional. Although nine of the 9th Circuit’s judges voted to re-hear the Newdow ruling, the remainder of the 24-member circuit voted to stand by the decision.

Donohue wasn’t the only Religious Right leader worked up over the ruling. The appeals court placed its ruling on hold to allow time for an appeal to the Supreme Court, but that stay has only given opponents of the ruling more time to mount a loud, boorish campaign against federal judges and the constitutional principle of church-state separation.

The Mississippi-based American Family Association (AFA), led by Christian fundamentalist Don Wildmon, sent out an “Action Alert!” to supporters throughout the nation claiming it had garnered “more than 1,000,000 signatures” on a petition urging Congress to start the process of amending the Constitution to ensure God references in the Pledge and the nation’s motto – “In God We Trust” – are protected from legal challenges, such as the one in Newdow.

Dr. James Dobson, founder of the sprawling religious broadcasting empire, Focus on the Family, issued a statement deploring the Pledge ruling.

“This abominable ruling by an imperious court is a slap in the face to all Americans and people of faith,” Dobson said.

As it is for other Religious Right lobbyists, the 9th Circuit’s Pledge ruling proved to be fertile ground for fundraising. Only days after the court affirmed its ruling, the American Center for Law and Justice (ACLJ), televangelist Pat Robertson’s legal group, sent letters to its members asking for large contributions to help it combat the court’s “absurd ruling.” The letter, signed by ACLJ’s Chief Counsel Jay Sekulow, warned its members that the ruling threatens the “constitutional freedoms of our children” and then blamed the entire situation on public interest groups, such as Americans United.

“Americans United for Separation of Church and State and other organizations may not stop until the VERY MENTION OF GOD in public places becomes illegal!” declared ACLJ’s fundraising call.

Americans United did issue a press statement following the 9th Circuit ruling, albeit without any calls for muzzling public discussions of God. Barry W. Lynn, AU’s executive director, said the group’s main concern is ensuring that the government respects freedom of conscience.

“The government should not link religion and patriotism,” Lynn commented. “An individual can express love of country regardless of his or her religious or philosophical outlook.”

The pressure from the Religious Right has quickly struck a nerve with sympathetic lawmakers.

Both chambers of Congress have passed resolutions condemning Newdow and urging the Bush administration to fight the ruling. Top congressional leaders and right-wing pundits have called for limiting the kinds of issues federal courts can rule on, and several lawmakers have called for amending the Constitution.

In early March, House Majority Leader Tom DeLay, R-Texas, told The Washington Times that the Constitution gives Congress the power to limit the reach of federal courts and that’s exactly what Congress should now do.

“I think that would be a very good idea to send a message to the judiciary they ought to keep their hands off the Pledge of Allegiance,” DeLay said.

A congressman from one of the 9th Circuit states, Idaho, proposed breaking up the appeals court. Rep. Mike Simpson (R-Idaho) introduced a bill days after the 9th Circuit upheld its Pledge ruling that would create a new circuit covering most of the west, but leaving California, Arizona and Nevada in the 9th.

“Once again, this decision clearly demonstrates the circuit is too large and no longer accurately represents the people in the intermountain West,” Simpson said in a press statement. Simpson quickly added, however, that he was confident the Pledge “decision will be reviewed and overturned by the Supreme Court.”

Other right-wing members of Congress are signaling a desire to amend the Constitution.

Rep. Frank Lucas (R-Okla.) issued a bill on the heels of the 9th Circuit ruling, which could alter the Constitution to keep religion in the Pledge. In a press statement announcing his bill, H.J. Res. 26, Lucas praised the Pledge as the “perfect 31-word explanation of who we are and what we believe as a nation.”

Another lawmaker, Rep. Ernest Istook (R-Okla.), a longtime crusader for organized prayer in the public schools, entered the fray with ideas even more egregious. Since the mid-90s, Istook has urged Congress to pass an amendment to the Constitution that would essentially eviscerate the First Amendment’s church-state separation provision by allowing organized prayer on all public property. In early March, Istook sent his colleagues a letter asking them not only to amend the Constitution to protect God’s place in the Pledge, but also to allow the posting of the Ten Commandments in all public buildings, including schools, and to permit school-sanctioned prayer. Istook’s bill would be called the “Pledge and Prayer Amendment.”

“I have the right to bring up my daughter without God being imposed into her life by her schoolteachers"
- Michael Newdow

“Only a constitutional amendment will stop the courts from supporting intolerant attacks on expressions of faith,” Istook’s letter proclaimed.

As Church & State went to press, no action had yet been taken on any of the lawmakers’ proposed actions.

The Bush administration has also joined in trashing the 9th Circuit’s Newdow decision, even though as Time noted in a Jan. 28 article that some lawyers and legal experts agreed with the court’s outcome, noting that a strict reading of the First Amendment leaves little, if any, room for officially sponsored religious utterances in what should be secular space. American University law professor Jamin Raskin told ABC News that he considered the 9th Circuit’s decision to be “firmly rooted in the logic of prior cases.” UCLA law professor Eugene Volokh, typically referred to as a conservative scholar in the media, added that he thought Newdow was “a plausible application of the court’s case law.”

President George W. Bush took time out of a press conference on global economics to call the decision “ridiculous,” and his Attorney General John Ashcroft said the government should do as much as possible to overturn Newdow.

In a Justice Department statement, Ashcroft announced the Department would “spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge.”

The ruling in Newdow, however, did not bar students from saying the “under God” Pledge during their free time or at student-initiated club meetings. What it did state was that government-made religious proclamations used in the public schools raise very different problems than with religious proclamations in other settings. In the Supreme Court’s 1992 ruling in Lee v. Weisman, the high court reaffirmed its “heightened concern with protecting freedom of conscience from subtle coercive pressures in the elementary and secondary schools.” In Lee, the high court majority found that organized prayers at public school graduations subverted the separation of church and state. Citing Lee, Judge Alfred T. Goodwin wrote in Newdow that the Supreme Court has “concluded that primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting.”

So who or what prompted the 9th Circuit’s ruling on the Pledge?

Michael Newdow, a physician in California who also holds a law degree from the University of Michigan, sued his daughter’s public school district where she was required to listen to her teacher lead her peers in reciting the Pledge every morning. Newdow, a lifelong atheist, argued before the 9th Circuit that the First Amendment bars such government-sponsored religious declarations. Not long after the 9th Circuit ruled in his favor, Newdow told CNN’s “Talkback Live,” “I have the right to bring up my daughter without God being imposed into her life by her schoolteachers…. I believe in the Constitution. The Constitution says that government isn’t supposed to be infusing religion into our society, and so I asked to have that upheld.”

The Pledge originated in 1892 when Francis Bellamy, an author, Baptist minister and socialist, composed it with no reference to God as a ritual for Christopher Columbus celebrations. It was not until 62 years later that “under God” was added to the Pledge by a Congress consumed with Cold War fears of a rising Communist threat. By adding a nod to God in the Pledge, lawmakers differentiated America from what they described as “godless communists.” When President Dwight D. Eisenhower signed the act, which placed “under God” within the Pledge, he announced that, “From this day forward, the millions of our school children 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 9th Circuit ruling in Newdow, it should be noted, would not bar the pre-Eisenhower Pledge from being recited by public school students.

The dissenting judges in Newdow argued that the Pledge’s reference to God is part of a beloved American tradition that in no way could be understood as a government endorsement of religion. Citing passing, but not binding, comments gleaned from numerous federal court rulings, including some from the Supreme Court, Judge Diarmuid O’Scannlain declared that not all government references to God, such as “In God We Trust” on American currency, violate the separation of church and state.

"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."
- Judge Alfred T. Goodwin

The majority of the 9th Circuit disagreed. Instead, Judge Goodwin, writing for the court majority, concluded the Pledge’s reference to God was more than “ceremonial deism,” a term used by the late Justice William Brennan to describe mild forms of official religious pronouncements.

Judge Goodwin, a Nixon appointee and Presbyterian elder, concluded that the public schools could not legally get by with asking students to profess allegiance to a religious concept.

“To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and – since 1954 monotheism,” Goodwin wrote. “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 that the public school practice of “teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates.”

The Supreme Court reviews very few cases. But many pundits, lawmakers and law professors expect the high court to review the Newdow case. The justices have not ruled on the specific issue raised and another federal circuit has issued a ruling that appears to conflict with the 9th Circuit’s. On Nov. 20, 1992, the 7th U.S. Circuit Court of Appeals, which covers Wisconsin, Illinois and Indiana, held that “schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate.”

Judge Goodwin argued in Newdow, however, that the 7th Circuit’s decision in Sherman v. Community Consolidated School District 21, was convoluted and erroneous. Goodwin noted that although the 7th Circuit conceded that students, who are required by law to attend school, faced potential coercion to participate in reciting the Pledge. Additionally, the judges in the Sherman case wrote that if they were properly understanding Supreme Court precedent, which says public school students cannot be forced to recite the Pledge, and that public school teachers may not lead students in prayer, “then the Pledge of Allegiance becomes unconstitutional under all circumstances, just as no school may read from a holy scripture at the start of class.”

The Sherman court also noted “some juicy tidbits” of history surrounding the Illinois law that mandated public schools to lead students in recitation of the Pledge. Among some of the legislative comments surrounding the bill’s passage in 1979 was a comment from a state senator that “we ought to abolish the Supreme Court and have a dictatorship like Russia because in Russia at least they say a pledge of allegiance to their own flag.”

More recently, a federal court within the jurisdiction of the 4th U.S. Circuit Court of Appeals upheld Virginia laws requiring public schools to lead students in the Pledge and to place “In God We Trust” posters in all their buildings. The ruling was issued by U.S. District Judge James C. Cacheris in late February and rested on his belief that the Pledge, despite its reference to a divinity, was not religious.

Cacheris wrote that the Virginia law mandating recitation of the Pledge is “secular because it aims to foster democracy, which is both necessary to the survival of the concept and entirely independent of religion.”

Michael Newdow has vowed to personally argue his case before the Supreme Court, if it indeed grants a review. In a recent commentary published in the Los Angeles Times, Newdow wrote that he lodged the lawsuit against the Pledge because it was his understanding that the Constitution provided religious liberty to all Americans, not just those who proclaim to live “under God.”