Court bars `under God' pledge

Christian Century, July 3, 2002 by John Dart

AN APPEALS court decision that the Pledge of Allegiance--with its phrase "under God"--is unconstitutional ignited an emotional firestorm that produced about as much heat as the mountain states' raging forest fires. The U.S. Ninth Circuit Court of Appeals in San Francisco ruled June 26 that Congress violated the First Amendment when it passed a law in 1954 adding to the pledge the words supporting monotheism. But the initial tides of reaction, including the likelihood of an appeal, may douse the flames.

The 2-1 federal court ruling, if it stands, would affect recitation of the pledge in public schools in nine western states. But the government could take the case to the U.S. Supreme Court. President Bush's first comment was that the ruling was "ridiculous," and Senate Majority Leader Tom Daschle (D., S.D.) called it "just nuts."

Judge Alfred T. Goodwin, a Republican appointee of President Nixon, wrote the decision. Judge Stephen R. Reinhardt, a liberal Democrat named by President Carter, concurred. The lawsuit was filed by a Sacramento-area atheist who was offended that his daughter's public school teacher led students in reciting the pledge.

Goodwin wrote that "the statement that the United States is one nation `under God' is an endorsement of religion. The reference to God in effect says that we are a nation `under Jesus,' a nation `under Vishnu,' a nation `under Zeus,' or a nation `under no god.'"

In his dissent, Judge Ferdinand F. Fernandez, an appointee of the first President Bush, said, "The danger that phrase presents to our First Amendment freedoms is picayune at most." Under his colleagues' view, Fernandez added, "we will soon find ourselves prohibited from using our album of patriotic songs in many public settings." The same logic would apply as well to "In God We Trust" on the nation's currency, he said.

However, the next day, Judge Goodwin ordered a stay on his own ruling to allow for appeals, which were promised that same day by the Justice Department and the California governor, among others. Also on June 27, the U.S. Senate approved a bill 90-0 reaffirming the flag pledge and the national motto of "In God We Trust." In the House, members of both parties sang "God Bless America" and passed a resolution, 416-3, protesting the Ninth Circuit ruling.

Threats of civil disobedience were voiced by some Religious Right figures, and James Dobson, founder-president of Focus on the Family, asked citizens to condemn secularizing tendencies of the courts, legislatures and the media.

Many newspaper editorials decried the appeals court ruling, including the Washington Post, the San Francisco Chronicle and the Los Angeles Times. The New York Times called the court decision "well-meaning" but lacking in "common sense" since the furor could trivialize the issue of church-state separation. And, as noted by the St. Louis Post-Dispatch, the ruling came from a court that "likes to poke its finger in the eye of a more conservative Supreme Court."

Indeed, no regional court has had its decisions reversed more frequently than the Ninth Circuit. In addition to making liberal rulings on the death penalty and doctor-assisted suicide, the appeals court recently said it was considering the constitutionality of a longstanding tax deduction for clergy housing. Though a law was rapidly enacted recently to protect that so-called parsonage allowance, some court observers have warned that the Ninth Circuit may yet keep the issue alive.

But the flag pledge ruling is not an extreme step in the context of church-state court rulings, said law professor Jesse Choper of the University of California at Berkeley. "To paint this as a wild-eyed opinion is wrong," Choper told the Los Angeles Times. "If you take what the Supreme Court has said on this subject, you could plausibly come to this conclusion."

In that vein, Barry Lynn, executive director of Americans United for Separation of Church and State, said the court decision shows respect for freedom of conscience. "Our government should never coerce schoolchildren--or anyone else--to make a profession of religious belief," he said. The original Pledge of Allegiance was secular, though written by a Baptist minister in 1892, said Lynn, who is a United Church of Christ minister. The appeals court ruling "simply says that schools should return to the original pledge," he said.