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The U.S. Pledge of Allegiance

Circuit court decision, reactions, etc.


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Appeal to a panel of the 9th U.S. Circuit Court of Appeals:

Michael A. Newdow, an Atheist from Sacramento, CA, was distressed because his daughter in second grade was required to recite the Pledge of Allegiance. She was thus forced to acknowledge the existence of God. He said: "I'm an American citizen. I don't like my rights infringed upon by my government." He wants to raise his daughter as an Atheist and feels that the government is interfering with his wishes. He called the Pledge a "religious idea that certain people don't agree with." Being both a lawyer and a physician, he initiated a lawsuit and argued this own case. It was dismissed by a federal judge in California. In 2002-JUN, a three-judge panel of the 9th U.S. Circuit Court of Appeals voted 2 to 1 in his favor. They declared the Pledge to be unconstitutional because it includes the words "under God." They ruled that the phrase implies a government endorsement of religion, in violation of the Establishment Clause of the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion..."

Judge Alfred T. Goodwin wrote for the majority: "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." He also wrote that an Atheist or a believer of certain non-Judeo-Christian beliefs could view the Pledge as an attempt to "enforce a 'religious orthodoxy' of monotheism." Judge Goodwin wrote that any student who objects is confronted with an "unacceptable choice between participating and protesting...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 form of the pledge."


Reactions to the decision:

Reaction from Fundamentalist Christian groups was swift. They interpreted the decision as an attack on religion, and did not acknowledge that the ruling was based on the principle of separation of church and state. Within hours of the court ruling:

  • Jay Sekulow, of the American Center for Law and Justice said: "This is one of the most absurd legal rulings of our time. To suggest that school children who want to recite the Pledge of Allegiance can no longer do so because it violates the Constitution represents faulty and flawed legal reasoning on the part of the appeals court...This is just another attempt to remove any mention of God from the public arena." 1
  • Jan LaRue, of Concerned Women for America said: "This is the same court that held that virtual child pornography � which is indistinguishable from real child pornography � is protected by the First Amendment; and now it strikes down the [current wording of the] Pledge of Allegiance and calls it unconstitutional. This is a joke!" 1

Also, within hours of the release of the ruling, there was considerable reaction from politicians:

  • The Senate unanimously (99 to 0) passed a resolution in support for the phrase "under God." They asked the appeals court panel to reverse its ruling.
  • White House spokesperson, Ari Fleisher, speaking for President Bush said "The president's reaction was that this ruling is ridiculous."
  • Senate Majority Leader Thomas Daschle (D) called it "just nuts."

During the days following the ruling, other individuals and groups expressed their opinion:

  • Ron Barrier, of American Atheists called the decision "a victory." He said: "I think for the first time the courts of the United States are starting or beginning to recognize the rights of nonbelievers as well as believers." 3
  • The House of Representatives passed a resolution on JUN-27 opposing the ruling. The vote was 416 to 3.
  • Dr. James Dobson, founder of the influential Fundamentalist Christian Group Focus on the Family. On his radio program on JUN-27, he said said that the decision "a shameless insult against America and all of her citizens...This abominable ruling by an imperious court is a slap in the face to all Americans and people of faith. How easily we forget that on the (evening) of September 11, a bipartisan group of 150 members of the House and Senate, led by Republican House Speaker Dennis Hastert and Democrat Senate Majority Leader Tom Daschle, gathered together on the Capitol steps and sang 'God Bless America.' While we stood frightened, grieved and resolute to fight the evil that struck our nation, we clung to our country's foundational principles and banded together for better or for worse. That this activist court saw fit to deny millions of school children the right to acknowledge God is unconscionable. It's time for citizens throughout the country to condemn the increasing tendency of the courts, legislatures and the media to secularize and demean our deeply held values. In one fell swoop, the 9th Circuit Court of Appeals has managed to make a mockery out of the judicial branch of government. And as an American, I am ashamed today." 3
  • Columnist Tony Norman wrote a column on JUN-28 for the Pittsburgh PA Post-Gazette. It was titled: "Is God so small he needs a Pledge for validation?" He commented on the members of Congress who gathered on the steps of the Capitol on JUN-27 and called "down the equivalent of fire from heaven on the jurists. Norman commented: "Determined to keep the puny god of American civil religion alive and kicking, regardless of the cost to constitutional integrity, the politicians weighed in with tough talk about every American child's right to spout the 'godly' party line by rote...What kind of vapid, nondenominational god are politicians so hell-bent on restoring to the Pledge of Allegiance? Would any self-respecting deity allow itself to be patronized by such opportunistic poseurs? What kind of god do these politicians imagine the American people want to pledge their allegiance to, anyway?" Norman saw an analogy in the Bible, in 1 Kings, Chapter 18. That passage described was a confrontation between 450 priests of Baal and prophet Elijah. When Baal did not respond to his priests' appeal, Elijah called down the power of Jehovah. The priests were later murdered in cold blood. Norman wrote: "I'm not suggesting that there should be any contemporary parallels, but it wouldn't hurt for our more shameless leaders to remember the former price of idolatry while rushing to restore "under God" to a pledge most of them don't take seriously anyway." 4
  • According to the Family Research Council, the National Education Association, and the National Association of Secondary School Principals have not made statements -- pro or con -- on the court's decision. The national PTA has released a statement stating that their group has "no position on the 'under God' language." 8

Dissents by judges:

Circuit Judge Ferdinand Fernandez was the lone dissenter among the three-judge panel of the Circuit Court of Appeals. He said that if his fellow judges' theory of the Constitution is accepted, "we will soon find ourselves prohibited from using our album of patriotic songs in many public settings."

The dissenting voice of Mr. Justice Stewart of the U.S. Supreme Court might be applicable here. He was the lone negative against the Engel v. Vitale decision of the U.S. Supreme Court in 1962 which banned  state-sponsored school prayer as a part of instruction in public schools. Since the phrase "under God" converts the Pledge of Allegiance into a religious prayer, his comments seem equally applicable here. He wrote:

  • "I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."
  • "...we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so."
  • He described a number of instances where religion and the existence of God have been recognized by the government:
    • Each day's session of the Supreme Court starts with the invocation: "God save the United States and this Honorable Court."
    • The National Anthem, "The Star Spangled Banner" contains the words "Praise the Pow'r that hath made and preserved us a nation."
    • The National Motto is "In God we Trust."
    • The Pledge of Allegiance to the Flag contains the words "one Nation under God, indivisible, with liberty and justice for all."
    • The Declaration of Independence includes the phrase: "with a firm reliance on the protection of divine Providence." 5

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Appeal to the full 9th U.S. Circuit Court of Appeals:

On 2002-JUN-27, Bush administration announced that they would request a hearing before all of the justices of the 9th U.S. Circuit Court of Appeals. Attorney General John Ashcroft said: "The Justice Department will defend the ability of our nation's children to pledge allegiance to the American flag, by requesting a hearing en banc by the full 9th Circuit." Ashcroft appears to have misunderstood the nature of the panel's decision. The ability of children to recite the Pledge was not prohibited:

  • The court ruling does not take effect until after the appealed is concluded.
  • Even then, children would still be allowed to recite the pre-1954 version of the Pledge.
  • Even then, the court ruling would only apply in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state. It would not affect the students of other states.

The panel rejected the request by a vote of 15 to 9. 10,11,15 The government's only option at this time appears to be either:

  • To accept the ruling, or
  • Appeal the decision to the U.S. Supreme Court. 6,7

In response to the court's decision, Attorney General Ashcroft said: "The Justice Department will 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....For centuries, our nation has referenced God as we have expressed out patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, 'God save this honorable Court'." 12

Ellen Johnson, President of American Atheists, said that Ashcroft was distorting the issues  and misleading the public. She said: "This case has nothing to do with the right of people to recite the Pledge of Allegiance...The decision by the Ninth Circuit panel focused on the inclusion of two words, 'under God,' that were not part of the original pledge. This is about government promoting religion, and demanding religious fealty as a litmus test for patriotism and loyalty.  That's wrong, and it should be declared unconstitutional." 12

Many patriotic and conservative Christian news sources have implied that the court has instituted a ban against students reciting the Pledge of Allegiance in public schools on and after 2003-MAR-10. For example, the American Family Association's WePledge.com web site talks about  "protecting the Pledge of Allegiance" and "prohibit judges from declaring them [The Pledge and the National Motto] illegal." 13 Also, the AgapePress.org wrote: "Unless Friday's ruling is stayed or postponed, millions of school students in the nine western states covered by that court will be forced to stop reciting the Pledge..." 14 These predictions are not true. School teachers in the nine states under the jurisdiction of the court are quite free to ask their students to recite the original, pre-1955 version, of the Pledge. This is identical to the version that has been in use until now, with the deletion of the words "under God." Also, students might consider including the "under God" phrase if they wish. If they do it in a non-disruptive way, some might argue that their decision would be a protected form of personal speech under the First Amendment.

AgapePress reported on 2003-MAR-3 that: "The American Family Association (AFA), sponsor of WePledge.com, reports more than 75,000 people signed the petition in the 72-hour period following Friday's announcement. According to a press release from Don Wildmon, AFA founder and chairman, more than one million individuals have now signed. He says the overall goal is ten million." 13,14


Federal bill signed into law:

A bill to reaffirm "In God We Trust" as the national motto, and the phrase "Under God" in the Pledge of Allegiance was passed with a 99% vote in the House, and unanimously in the Senate. Rep. Todd Akin, (R-MO) voted for the measure. Apparently he is unaware that the "Under God" phrase is a relatively recent addition to the Pledge. He said: "I think the Congress was expressing the fact that they support the recitation of the pledge as it has always been supported. I think they're further saying that there isn't any problem with the First Amendment." Historian David Barton, president of WallBuilders, said: "This bill has no effect on the 'Under God' controversies, because we have seen in a number of cases that when Congress does something, the Supreme Court almost feels compelled to tell them to back off and leave them alone." 9


Subsequent activity:

  • 2003-MAR-2: Cancel court jurisdiction: House Majority Leader Tom DeLay (R-TX) announced plans to remove the federal courts' jurisdiction to rule on the constitutionality of the words "under God" in the Pledge of Allegiance. He said: "Congress for so long has been lax in standing up for the Constitution. There are ways to express ourselves.  For instance, we could limit the jurisdiction of the judicial branch." He said that some experts interpret Article III, Section 2 of the U.S. Constitution as giving Congress the power to impeach judges that they disagree with. He said: "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." According to AANews, "Critics says that DeLay's attempts to intimidate  judges compromises the ability of courts to make decisions free of outside influence.  They also point out that the notion of judicial independence is a key component in the American legal system, and originated within English law during the Seventeenth Century as a way of challenging undisputed Crown authority." 16
  • 2003-MAR-20: House resolution: The House approved a non-binding resolution 400 to 7, with 15 members voting "present." All seven who opposed the resolution are Democrats. It states that the phrase "one nation under God" in the pledge reflects the religious faith central to the founding of the nation and that its recitation is a patriotic act, not a statement of religious faith. This implies that anyone who declines to recite the phrase, either because their religious faith does not include worship of a God, or because their political beliefs favor separation of church and state, cannot be a patriotic American. The resolution urged the Attorney General to appeal the 9th U.S. Circuit Court of Appeals to the Supreme Court. House Judiciary Committee Chairman James Sensenbrenner, (R-WI) said: "The 9th Circuit continues to get it wrong." He added that the court had refused to rehear the case at a time when the nation is preparing for "an impending war to defend the values upon which our great nation is founded." Other parts of the resolution stated that the president should only nominate federal court judges who interpret the Constitution "correctly." Rep. William Delahunt, (D-MA), who voted "present," said "It doesn't stop at expressing disapproval. It goes further in a way that I believe would set an unwise and dangerous precedent. [It sends a] "not-so-subtle message [to judges that] they had better tailor their constitutional views to those of the congressional majority if they wish to be confirmed." Rep. Jerrold Nadler, (D-NY), said the 9th Circuit decision was "exactly consistent" with the Supreme Court rulings over the last 40 years on school prayers. The court, he said, "has said that we cannot ask schoolchildren to recite a prayer or a belief in God in the classroom setting, even if we allow the dissenters to walk out of the room." 17

References:

  1. Pete Winn, "Court Declares Pledge Unconstitutional," Focus on the Family, 2002-JUN-26, at: http://www.family.org/cforum/feature/
  2. "Court rules Pledge of Allegiance unconstitutional," Associated Press, 2002-JUN-26.
  3. Bob Kellogg, "Response swift to pledge ruling," Focus on the Family, 2002-JUN-27, at: http://www.family.org/cforum/fnif/news/
  4. Tony Norman, "Is God so small he needs a Pledge for validation," 2002-JUN-28, Post-Gazette.com, Pittsburgh, PA.
  5. U.S. Supreme Court, "Engel et al. v. Vitale et al.," 1962-JUN-25, at: http://www.nationalcenter.org/cc7252.htm
  6. Fred Jackson and Jody Brown, "In Remembrance of School Prayer: ACLU Attributes Notion of Effective Prayer to 'Radical Religious Right'," ChristianWebSite.com, 2002-JUN-25, at: http://headlines.agapepress.org/users/botcw/botcw1.asp (This is only a temporary listing.)
  7. The Texas Justice Foundation is a conservative group which "provides free legal representation in landmark cases in protect individual rights, limit government to its appropriate role, and promote a better business climate for job growth in Texas." Their web site is at: http://www.txjf.org/index.html
  8. Ken Connor, "NEA, PTA 'Flagged Down' for Pledge Response," Washington Update, Family Research Council, 2002-JUL-1.
  9. Steve Jordahl, "President Signs Law Affirming God in the Pledge," Focus on the Family, CitizenLink, 2002-NOV-15.
  10. "Federal Appeals Court declines to reconsider 'God Pledge' decision," AANews, 2003-FEB-28, news release.
  11. "Court Refuses to Reconsider Pledge of Allegiance Decision," The Associated Press, 2003-FEB-28, at: http://www.beliefnet.com/frameset.asp?
  12. "Ashcroft vows Pledge appeal -- 'ceremonial deism' v.  separation," AANews, 2003-MAR-1.

  13. "Save the Pledge of Allegiance and our National Motto," American Family Association, at: http://www.wepledge.com/

  14. Fred Jackson and Jody Brown, "Pledge' Supporters Active Following Friday's Court Decision," 2003-MAR-3, at: http://headlines.agapepress.org/

  15. Jan LaRue, "Judicial Houdinis," Concerned Women for America, 2003-MAR-4, at: http://www.cwfa.org/

  16. "DeLay seeking constitutional amendment, curbs on judicial authority in effort to void Pledge of Allegiance ruling," AANews, 2003-MAR-9.

  17. Jim Abrams, "Pledge of Allegiance Ruling Condemned," 2003-MAR-20, Associated Press, at: http://apnews.excite.com/article/


How you got here:

 Home page > Christianity > Prayer > School prayer > The Pledge > here

or: Home page > Law menu > The Pledge > here


Copyright © 2002 & 2003 by Ontario Consultants on Religious Tolerance
Originally written: 2002-JUN-26
Latest update: 2003-SEP-29
Author: B.A. Robinson

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