Prayer or Patriotism
Pledge of Allegiance is Constitutional Patriotism
Credit should be given to United States District Judge James C. Cacheris (Eastern District of Virginia, Alexandria Division) for his 2003 ruling that upheld the constitutionality of reciting the Pledge of Allegiance (including the words "under God") and also displaying posters imprinted with the National Motto "In God We Trust" in Virginia public schools, according to news reports. Contrary to the assertion that the Pledge was a "prayer", Judge Cacheris correctly ruled that the Pledge of Allegiance was constitutional because it furthered the idea of democracy, according to news reports. (Hence, the Pledge is constitutional patriotism: political speech.)
(Democracy is a key political philosophy forming the foundation for American patriotism--as opposed to the totalitarian view that there is no power higher than the State (the government system itself): a view which, according to its very definition, excludes the acknowledgment of a Supreme Being higher than man-made political power. (Note: That's why communism was atheistic: It couldn't risk acknowledging any power higher than the State.)
Unfortunately, the potential philosophical consequences leading down the path toward totalitarianism were overlooked by the United States Court of Appeals for the Ninth Circuit, which in 2003 ordered a denial of rehearing en banc of the case prohibiting the recitation of the Pledge of Allegiance in public school classrooms because of the words "under God" in the Pledge. The Ninth Circuit court implied, in effect, that the words "under God" converted the Pledge into a prayer.
Prayer or Patriotism: That is the question.
But, in the dissenting opinion by Circuit Judge O'Scannlain, with whom Circuit Judges Kleinfeld, Gould, Tallman, Rawlinson, and Clifton, joined, all of whom dissented from the denial of rehearing en banc, the Ninth Circuit court opinion's reasoning was incorrect as a matter of constitutional law:
Last June, a two-judge majority of a three-judge panel of this court ruled that the Pledge of Allegiance was unconstitutional simply because of the presence of two offending words: "under God." It was an exercise in judicial legerdemain which, not surprisingly, produced a public outcry across the nation.
[* * * * *]
While I cannot say that a randomly selected 11-judge panel would have ruled differently, I believe that neither the June 2002 version, Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) ("Newdow I"), nor today's slightly revised version, ____ F.3d ____ ("Newdow II") to essentially the same effect, is defensible. We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very wrong--wrong because reciting the Pledge of Allegiance is simply not "a religious act" as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense. [* * *] We should have given 11 judges a chance to determine whether the two-judge majority opinion truly reflects the law of the Ninth Circuit. [* * *] Reciting the Pledge of Allegiance cannot possibly be an "establishment of religion" under any reasonable interpretation of the Constitution. [* * *]
Newdow v. U.S. Congress, ____ F.3d at ___ (February 28, 2003) (O'Scannlain, C.J., et. al., dissenting) (footnotes omitted).
Excerpts from the remainder of this dissenting opinion (with some footnotes omitted) are as follows:
Perhaps in an effort to avoid ultimate Supreme Court review, Newdow II which replaces it, avoids expressly reaching the technical question of the constitutionality of the 1954 Act. Fundamentally, however, the amended decision is every bit as bold as its predecessor. It bans the voluntary recitation of the Pledge of Allegiance in the public schools of the nine western states thereby directly affecting over 9.6 millions students, [* * *] necessarily implies that both an Act of Congress (5) and a California law (6) are unconstitutional, clearly conflicts with the Seventh Circuit's decision in Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Township, 980 F.2d 437 (1992) [....]
[n. 5:] 4 U.S.C. [section] 4 ("The Pledge of Allegiance to the Flag: '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.'").
[n. 6:] Cal. Educ. Code [section] 52720. This section provides that "at the beginning of the first regularly scheduled class or activity period ... there shall be conducted appropriate patriotic exercises. The giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy the requirements of this section."
Newdow I, the subject of our en banc vote, no longer exists; it was withdrawn after the en banc call failed. The panel majority has evolved to this extent: in Newdow I the Pledge was unconstitutional for everybody; in Newdow II the Pledge is only unconstitutional for public school children and teachers. The remainder of this dissent is directed entirely to Newdow II, which, as shall be demonstrated, differs little from Newdow I in its central holding. With grim insistence, the majority in Newdow II continues to stand by its original error--that voluntary recitation of the Pledge of Allegiance in public school violates the Establishment Clause because, according to the two-judge panel majority, it is "a religious act." Newdow II, ____ F.3d at _____. Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear. If reciting the Pledge is truly "a religious act" in violation of the Establishment Clause, then so is the recitation of the Constitution (7) itself, the Declaration of Independence, (8) the Gettysburg Address, (9) the National Motto, (10) or the singing of the National Anthem. (11) Such an assertion would make hypocrites out of the Founders, and would have the effect of driving any and all references to our religious heritage out of our schools, and eventually out of our public life.
[n. 7:] U.S. Const. art. VII. ("Year of our Lord") (emphasis added).
[n. 8:] The Declaration of Independence contains multiple references to God. The founders claimed the right to "dissolve the political bands" based on "the Laws of Nature and of Nature's God." The most famous passage, of course, is that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights." Subsequently, the signatories "appeal[ ] to the Supreme Judge of the world to rectify their intentions."
[n. 9:] On November 19, 1863, President Lincoln declared "that this Nation, under God, shall have a new birth of freedom--and that Government of the people, by the people, for the people, shall not perish from the earth."
[n. 10:] See 36 U.S.C. [section] 302. ("'In God we trust' is the national motto.") (emphasis added).
[n. 11:] See 36 U.S.C. [section] 301(a) ("The composition consisting of the words and music known as the Star-Spangled Banner is the national anthem."). In fact, the Anthem is much more explicitly religious in content than the Pledge, and much more than a 'mere' profession of the composer's faith in a Supreme Being, as the majority would have it. See Newdow II, ____ F.3d at _____. Consider the following passage from the fourth stanza: "Blest with victory and peace, may the heaven-rescued land, Praise the Power that hath made and preserved us a nation. Then conquer we must, when our cause is just, And this be our motto: 'In God is our trust.'" (emphasis added).
II
The Newdow II majority's primary legal argument is that the Supreme Court's decision in Lee v. Weisman, 505 U.S. 577 (1992), a school prayer case, controls the outcome of this case. In fact, rather than merely following Lee and its predecessors, the two-judge panel majority makes a radical departure from Lee and the cases it purports to apply. To understand why this is so, an examination of the Supreme Court's school prayer decisions which culminate in Lee is in order.
A
1
The fountainhead of all school prayer cases is Engel v. Vitale, 370 U.S. 421 (1962). In Engel the Court considered a school policy whereby children were directed to say aloud a prayer composed by state officials. The Court found that this practice was inconsistent with the Establishment Clause, reasoning that "[the] program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious." Id. at 424-25. The Court concluded by stating that the state should leave prayer, "that purely religious function, to the people themselves." Id. at 435. In a footnote, it reasoned as follows:
There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.
Id. at 435 n. 21. The Court drew an explicit distinction between patriotic invocations of God on the one hand, and prayer, an "unquestioned religious exercise," on the other. Concurring, Justice Douglas wrote that the narrow question presented was whether the state "oversteps the bounds when it finances a religious exercise." Id. at 439 (Douglas, J., concurring). Justice Douglas noted that the Pledge of Allegiance, "like ... prayer, recognizes the existence of a Supreme Being." Id. at 440 n. 5. However, he noted that the House Report recommending the addition of the words "under God" to the Pledge stated that those words "in no way run contrary to the First Amendment but recognize 'only the guidance of God in our national affairs.'" Id. (quoting H.R. Rep. No. 1693, 83d Cong., 2d Sess., p. 3).
2
The following year, the Supreme Court decided Abington School Dist. v. Schempp, 374 U.S. 203 (1963). In that case, the Court considered the constitutionality of a Pennsylvania statute requiring that "[a]t least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day." Id. at 205. The practice in public schools was for a teacher or student volunteer to read the required Bible verses each morning. This in turn was followed by a recitation of the Lord's prayer. Finally, the class would recite the Pledge of Allegiance to the Flag. Id. at 207-08. The Court struck down the Bible reading and the practice of reciting the Lord's prayer as a state prescribed "religious ceremony," id. at 223, but said nothing about the practice of reciting the Pledge.
As in Engel, the Court took pains to point to the character of the exercises it found wanting. The Court reasoned that "reading ... the verses ... possesses a devotional and religious character and constitutes in effect a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord's prayer." Id. at 210. "The pervading religious character of the ceremony," wrote Justice Clark, "cannot be gainsaid," and led to the conclusion that the exercises violated the Establishment Clause. Id. at 224.
The concurring opinions in Schempp were all to the same effect. Justice Douglas agreed with the majority's conclusion that the practices at issue violated the Establishment Clause because "the State is conducting a religious exercise." Id. at 229 (Douglas, J., concurring), In a lengthy concurrence, Justice Brennan wrote that "[t]he religious nature of the exercises here challenged seems plain." Id. at 266 (Brennan, J., concurring). After surveying the history of devotional exercises in American public schools, Justice Brennan stated that "the panorama of history permits no other conclusion than that daily prayers and Bible readings in the public schools have always been designed to be, and have been regarded as, essentially religious exercises." Id. at 277-78. For Justice Brennan, "religious exercises in the public schools present a unique problem" but "not every involvement of religion in public life violates the Establishment Clause." Id. at 294. He warned that "[a]ny attempt to impose rigid limits upon the mention of God ... in the classroom would be fraught with dangers." Id. at 301. Specifically, he wrote that "[t]he reference to divinity in the revised pledge of allegiance ... may merely recognize the historical fact that our Nation was believed to have been founded 'under God.' Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact." Id. at 304.
Justice Goldberg also wrote separately, stating that "the clearly religious practices presented in these cases are ... wholly compelling." Id. at 305 (Goldberg, J., concurring). He reasoned that "[t]he pervasive religiosity and direct governmental involvement inhering in the prescription of prayer and Bible reading in the public schools ... cannot realistically be termed simply accommodation." Id. at 307. Like Justice Brennan, Justice Goldberg cautioned that the decision "does not mean that all incidents of government which import of the religious are therefore and without more banned by the strictures of the Establishment Clause." Id. at 307-08. He then quoted in full the passage from Engel which drew a distinction between patriotic invocations of God, and unquestioned religious exercises that give rise to Establishment Clause violations. Id.
3
The next case in this line is Wallace v. Jaffree, 472 U.S. 38 (1985). That case considered the constitutionality of an Alabama statute authorizing a 1-minute period of silence in public schools "for meditation or voluntary prayer." Id. at 40. The Court found that "[t]he wholly religious character" of the challenged law was "plainly evident from its text." Id. at 58. The legislature's one and only purpose in enacting the law was "to return prayer to the public schools." Id. at 59-60. Justice Powell's separate concurrence was "prompted by Alabama's persistence in attempting to institute state-sponsored prayer in the public schools." Id. at 62 (Powell, J., concurring). Justice O'Connor wrote separately to suggest that moment-of-silence statutes were not "a religious exercise," and therefore were constitutional. Id. at 72 (O'Connor, J., concurring). Justice O'Connor wrote further that "the words 'under God' in the Pledge ... serve as an acknowledgment of religion with 'the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.'" Id. at 78 n. 5 (quoting Lynch v. Donnelly, 465 U.S. 668, 693 (O'Connor, J., concurring)) (alterations in original). In contrast, the Alabama statute at issue was very different from the Pledge--the state had "intentionally crossed the line [by] affirmatively endorsing the particular religious practice of prayer." Id. at 84.
4
Finally, there is the Supreme Court's decision in Lee v. Weisman. The issue presented was "whether including clerical members who offer prayers as part of the official school graduation ceremony" is consistent with the Establishment Clause. 505 U.S. at 580. The graduating students entered as a group in a processional, after which "the students stood for the Pledge of Allegiance and remained standing during the rabbi's prayers." Id. at 583. Justice Kennedy wrote that "the significance of the prayers lies ... at the heart of [the] case." Id. He framed the inquiry as follows:
These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.
Id. at 586.
The Court in Lee concluded that Engel and its progeny controlled the outcome, writing that "[c]onducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students." Id. at 587. As in Engel, Schempp, and Wallace, the crucial factor was the nature of the exercise in which the students were asked to participate. Time and again the Court went out of its way to stress the nature of the exercise, writing that prayer was "an overt religious exercise," id. at 588, and that "prayer exercises in public schools carry a particular risk of indirect coercion." Id. at 592. The practice was unconstitutional because "the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student." Id. at 598. Just like the decisions in Engel and Schempp, the Court in Lee took pains to stress the confines of its holding, concluding that "[w]e do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive," id. at 597, and that "[a] relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution." Id. at 598.
B
Two fundamental principles may therefore be derived from the school prayer cases culminating in Lee.
1
Formal religious observances are prohibited in public schools because of the danger that they may effect an establishment of religion. See Engel, 370 U.S. at 424-25 ("[D]aily classroom invocation of God's blessings ... is a religious activity."); Schempp, 374 U.S. at 210 (Bible reading followed by the Lord's prayer "possesses a devotional and religious character and constitutes in effect a religious observance."); Wallace, 472 U.S. at 58 (Prayer is of a "wholly religious character."); Lee, 505 U.S. at 586 (Prayer written by state officials constitutes a "formal religious exercise"). In each of these cases, the Court took pains to stress that not every reference to God in public schools was prohibited. See Engel, 370 U.S. at 435 n. 21 ("patriotic or ceremonial occasions" which contain "references to the Deity" bear "no true resemblance to the unquestioned religious exercise" of prayer); Schempp, 374 U.S. at 301 (Brennan, J., concurring) ("Any attempt to impose rigid limits upon the mention of God ... in the classroom would be fraught with dangers."); Wallace, 472 U.S. at 78 n. 5 (O'Connor, J., concurring) ("the words 'under God' in the Pledge" are not unconstitutional); Lee, 505 U.S. at 598 ("A relentless and all-pervasive attempt to exclude religion ... could itself become inconsistent with the Constitution.").
[* * * * *]
III
No court, state or federal, has ever held, even now, that the Supreme Court's school prayer cases apply outside a context of state-sanctioned formal religious observances. But Newdow II finesses all that, and the sleight of hand the majority uses becomes immediately apparent: obfuscate the nature of the exercise at issue and emphasize indirect coercion. The panel majority simply ignores, because they are inconvenient, the "dominant and controlling facts" in Lee and its predecessors: that Establishment Clause violations in public schools are triggered only when "State officials direct the performance of a formal religious exercise." 505 U.S. at 586 (emphasis added); see also Schempp, 374 U.S. at 210 ("devotional ... religious observance" prohibited); Wallace, 472 U.S. at 58 (activities of a "wholly religious character" prohibited).
A
To avoid a flagrant inconsistency with Lee, and with 40 years of Supreme Court precedent, the two-judge panel majority must first examine whether the act of pledging allegiance is "a religious act." As the Seventh Circuit in Sherman framed it, "Does 'under God' make the Pledge a prayer, whose recitation violates the establishment clause of the first amendment?" 980 F.2d at 445. That court answered the question in the negative; the Newdow II majority, in conclusory fashion, simply assumes the affirmative. ____ F.3d at ____ ("[W]e conclude that the school district policy impermissibly coerces a religious act." (emphasis added).
This assertion belies common sense. Most assuredly, to pledge allegiance to flag and country is a patriotic act. After the public and political reaction last summer, it is difficult to believe that anyone can continue to think otherwise. The fact the Pledge is infused with an undoubtedly religious reference does not change the nature of the act itself. The California statute under which the school district promulgated its policy is entitled "[d]aily performance of patriotic exercises in public schools." Cal. Educ. Code [section] 52720 (emphasis added). The Pledge is recited not just in schools but also at various official events and public ceremonies, including perhaps the most patriotic of occasions--naturalization ceremonies. Generally, the Pledge is recited while standing, facing a United States flag, with the right hand held over the heart, much like the National Anthem. See 4 U.S.C. [section] 4 (articulating proper procedure for reciting Pledge); 36 U.S.C. [section] 301 (during anthem "all present ... should stand at attention facing the flag with the right hand over the heart."). Whatever one thinks of the normative values underlying the Pledge, they are unquestionably patriotic in nature. Indeed, it is precisely because of the Pledge's explicitly patriotic nature that in 1943 the Supreme Court ruled that no one is required to Pledge allegiance against their will. West Virginia v. Barnette, 319 U.S. 624, 642 (1943).
In contrast, to pray is to speak directly to God, with bowed head, on bended knee, or some other reverent disposition. It is a solemn and humble approach to the divine in order to give thanks, to petition, to praise, to supplicate, or to ask for guidance.
[* * * * *]
Not only does the panel majority's conclusion that pledging allegiance is "a religious act" defy common sense, it contradicts our 200-year history and tradition of patriotic references to God. The Supreme Court has insisted that interpretations of the Establishment Clause must comport "with what history reveals was the contemporaneous understanding of its guarantees." Lynch, 465 U.S. at 673; see also Schempp, 374 U.S. at 294 ("[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.") (Brennan, J., concurring).
The majority's unpersuasive and problematic disclaimers notwithstanding, Newdow II precipitates a "war with our national tradition," McCollum v. Bd. of Ed., 333 U.S. 203, 211 (1948), and as Judge Fernandez so eloquently points out in dissent, only the purest exercise in sophistry could save multiple references to our religious heritage in our national life from Newdow II's axe. Of course, the Constitution itself explicitly mentions God, as does the Declaration of Independence, the document which marked us as a separate people. The Gettysburg Address, inconveniently for the majority, contains the same precise phrase---"under God"---found to constitute an Establishment Clause violation in the Pledge. [* * *] After Newdow II, are we to suppose that, were a school to permit--not require--the recitation of the Constitution, the Declaration of Independence, or the Gettysburg Address in public schools, that too would violate the Constitution? Were the "founders of the United States ... unable to understand their own handiwork[?]" Sherman, 980 F.2d at 445. Indeed, the recitation of the Declaration of Independence would seem to be the better candidate for the chopping block than the Pledge, since the Pledge does not require anyone to acknowledge the personal relationship with God to which the Declaration speaks. [* * *] So too with our National Anthem and our National Motto.
Our national celebration of Thanksgiving dates back to President Washington, which Congress stated was "to be observed by acknowledgment with grateful hearts, the many and signal favours of Almighty God." Lynch, 465 U.S. at 675 n. 2. Congress made Thanksgiving a permanent holiday in 1941 (14), and Christmas has been a national holiday since 1894. (15) Are pere Newdow's constitutional rights violated when his daughter is told not to attend school on Thanksgiving? On Christmas day? Must school outings to federal courts be prohibited, lest the children be unduly influenced by the dreaded intonation "God save these United States and this honorable Court"? (16) A theory of the Establishment Clause that would have the effect of driving out of our public life the multiple references to the Divine that run through our laws, our rituals, and our ceremonies is no theory at all.
[n. 14:] See 5 U.S.C. [section] 6103(a).
[n. 15:] See id.
[n. 16:] Indeed, even our own court's formal announcement to open sessions contains the offending word: "Hear ye! hear ye! All persons having business with the honorable, the United States Court of Appeals for the Ninth Circuit will now draw near, give your attention and you will be heard, for this court is now in session. God save these United States and this honorable Court." (emphasis added).
B
As if all of this were not enough, the Supreme Court has gone out of its way to make it plain that the Pledge itself passes constitutional muster. In two of the school prayer cases, the Court noted without so much as a hint of disapproval the fact that the students, in addition to being subject to formal religious observances, also recited the Pledge of Allegiance. See Schempp, 374 U.S. at 207-08 (noting that the practice in public schools consisted of Bible reading and recitation of the Lord's prayer, followed by recitation of the Pledge); Lee, 505 U.S. at 583 (noting that "the students stood for the Pledge of Allegiance and remained standing during the rabbi's prayers.").
Several other Supreme Court cases contain explicit references to the constitutionality of the Pledge. See Engel, 370 U.S. at 440 n. 5 (Douglas, J., concurring) ("[The Pledge] in no way run[s] contrary to the First Amendment") (quoting H. R. Rep. No. 1693, 83d Cong., 2d Sess., p. 3); Schempp, 374 U.S. at 304 (Brennan, J., concurring) ("[R]eciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address."); Wallace, 472 U.S. at 78 n. 5 (O'Connor, J., concurring) ("[T]he words 'under God' in the Pledge ... serve as an acknowledgment of religion."); Co. of Allegheny v. ACLU, 492 U.S. 573, 602-03 (Blackmun, J., for the court) ("Our previous opinions have considered in dicta ... the pledge, characterizing [it] as consistent with the proposition that government may not communicate an endorsement of religious belief."); Lynch v. Donnelly, 465 U.S. 668, 676 (1984) (Burger, C.J., for the court) ("Other examples of reference to our religious heritage are found ... in the language "One nation under God,' as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children--and adults--every year.").
The panel majority's answer to these myriad statements from our high court is summarily to dismiss them as dicta. However, "dicta of the Supreme Court have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold. We should not blandly shrug them off because they were not a holding." Zal v. Steppe, 968 F.2d 924, 935 (9th Cir. 1992) (Noonan, J., concurring and dissenting in part); see also United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996) ("[W]e treat Supreme Court dicta with due deference."). (17)
[n. 17:] Other courts have, unremarkably enough, not been so flippant when it comes to considering consistent Supreme Court dicta on this issue. See Sherman, 980 F.2d at 448 ("[A]n inferior court had best respect what the majority says rather than read between the lines. If the Court proclaims that a practice is consistent with the establishment clause, we take its assurances seriously. If the Justices are just pulling our leg, let them say so."); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) ("[T]his court considers itself bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements."); ACLU v. Capitol Square Review, 243 F.3d 289, 301 n. 10 (6th Cir. 2001) ("We should ... be amazed if the Supreme Court were now to question the constitutionality of the [revised Pledge]"). Indeed, the unanimity on this point relative to Newdow II is striking.
C
The Newdow II majority, then, finds itself caught between a rock and a hard place--the recitation of the Pledge is not a formal religious act, while patriotic invocations of God do not give rise to Establishment Clause violations. It nonetheless manages to skirt these obstacles to reach its indirect coercion analysis. Newdow II's conclusory foray into the social sciences is a case study, an advertisement, for why it is that the Supreme Court has anchored coercion analysis only to those situations where "formal religious exercises" take place in our public schools. The panel majority seeks to protect dissenters at the risk of courting some unpopularity, but this is not the test. "[O]ffense alone does not in every case show a violation .... and sometimes to endure social isolation or even anger may be the price of conscience or nonconformity." Lee, 505 U.S. at 597-98. The Newdow II majority's expansive application of the coercion test is ill-suited to a society as diverse as ours, since almost every cultural practice is bound to offend someone's sensibilities.
[* * *]
Newdow II's psychological ipse dixit is also delivered without reference or regard to our collective experience in the half-century since the passage of the offending statute. In that time, generations of Americans have grown up reciting the Pledge, religious tolerance and diversity has flourished in this country, and we have become a beacon for other nations in this regard. As Judge Fernandez observes, "it is difficult to detect any signs of incipient theocracy springing up since the Pledge was amended in 1954." Newdow II ____ F.3d at ____ n. 4 (Fernandez, J., dissenting).
IV
[* * * * *]
[...] the Supreme Court has displayed remarkable consistency-- patriotic invocations of God simply have no tendency to establish a state religion. Even Justice Brennan, that most stalwart of separationists, recognized that some official acknowledgment of God is appropriate "if the government is not to adopt a stilted indifference to the religious life of the people." Lynch, 465 U.S. at 714 (Brennan, J., dissenting). The decision reached in Newdow II does precisely that: it adopts a stilted indifference to our past and present realities as a predominantly religious people.
But Newdow II goes further, and confers a favored status on atheism in our public life. In a society with a pervasive public sector, our public schools are a most important means for transmitting ideas and values to future generations. The silence the majority commands is not neutral--it itself conveys a powerful message, and creates a distorted impression about the place of religion in our national life. [* * *] The absolute prohibition on any mention of God in our schools creates a bias against religion. The panel majority cannot credibly advance the notion that Newdow II is neutral with respect to belief versus non-belief; it affirmatively favors the latter to the former. One wonders, then, does atheism become the default religion protected by the Establishment Clause?
[* * * * *]
Thus spoke Circuit Judge O'Scannlain, joined by Circuit Judges Kleinfeld, Gould, Tallman, Rawlinson, and Clifton, in Newdow II (dissenting opinion) (February 28, 2003).
Acknowledgment Is Not Prayer
Perhaps some of the students who listen to the Pledge may disagree with any one of the political concepts in the Pledge of Allegiance--for instance, "to the Republic for which it [the Flag] stands", or "with liberty and justice for all", or that the United States is "one nation". Likewise, the words "under God" express a political and historical concept: Those twentieth-century words express the eighteenth-century founders' view--the view upon which the United States as a nation was historically founded: that the nation arose with the aid of God's sovereignty working through the historical process, and the founders acknowledged that. In that sense it is patriotic. And furthermore, it is our modern acknowledgment of God's sovereignty in the workings of history. In that way it furthers democracy: the idea that all men are endowed with inalienable rights by their Creator, among which are life and liberty, to paraphrase the Declaration of Independence. Liberty, then, is a gift from God. That's an acknowledgment of a power higher than the State and a key cornerstone of democracy as a political philosophy.
(For a discussion of the meaning of "under God" in the context of God's sovereignty, see the Belcher Foundation Christian Law Library article Good Cheer Signs for All Times.)
The United States can stand for "liberty and justice for all" because it acknowledges that liberty and justice are natural rights, derived from a power higher than the mere will of men. The concept goes back to the English constitutional idea of "the rule of law, not of men"--with law deriving its power from a Power higher than the whims of mere human beings--that stood at the center of contests over liberty vs. autocracy ("the divine right of kings") in past British history. This "government of laws" principle was elucidated in the seventeenth century by Sir Edward Coke, a "founding father" of Anglo-American constitutionalism, which reached back to Magna Carta and included English common law. The "government of laws" principle was cited in Chief Justice John Marshall's famous United States Supreme Court decision Marbury v. Madison, 5 U.S. 137 (Cranch) (1803), which established the exercise of that Court's judicial review over Acts of Congress involving federal constitutional issues: "The government of the United States has been emphatically termed a government of laws, and not of men." Id. at 163 (emphasis added).
A "government of laws, and not of men"--the basic distinction between Anglo-American representative government vs. tyranny--was the very issue the framers of the United States Constitution had to deal with in forming a new nation. It was a major rationale for the initiation of the American Revolution itself. Without such an acknowledgment of God's sovereignty underlying American political philosophy, there would not be a United States of America--just a bunch of English colonies. (And, if the German government of the 1930's-1940's had its way and had conquered Britain and its Allies, Britain and America would be part of a totalitarian German empire based on just such a concept as "no power higher than the State as personified in the Leader" (who persecuted Christians, too--witness the story of Dietrich Bonhoeffer (1906-1945)).
Ideas do have consequences.
So, the words "under God" were added in 1954 in order to distinguish American political theory from a rival political theory: communism. Atheism was a part of communism's political premise that there is no power higher than the State--the foundation for the then-Soviet Union.
(For another discussion of consequences such as these, see: From Nationalism to Internationalism: European Union and the Trilateral Center.)
Another important point: the Pledge of Allegiance could not be "fixed" by simply removing the words "under God" from the Pledge. That would not simply return matters to the pre-1954 status quo. It is a different matter now: Once "under God" was added into the Pledge, the removal of these words signals a clear message: Government cannot acknowledge America's religious heritage. It is the context that determines the message here. As Judge O'Scannlain emphasized, removing these words signals hostility to government acknowledgment of God's sovereignty, not neutrality. (This is "atheism as the default religion" such as prevailed in the former Soviet Union.) And it's unnecessary hostility--because government acknowledgment of God's sovereignty is constitutional. (For an extended discussion of the constitutionality of government acknowledgment of religion, see American Civil Liberties Union of Kentucky v. Mercer County, Kentucky, 219 F.Supp.2d 777 (E.D. Ky. 2002)).
The fact that the American Republic was based on the idea that there is a higher law than man-made laws, that there is a higher power than the State itself, to whose laws we are responsible--as distinguished from communism and some other totalitarian political philosophies--makes the words "under God" appropriately political in the context of the overall political text of the Pledge of Allegiance to the United States. The Pledge is what distinguishes the United States' founding political theory from the founding political theory of totalitarian nations. A loss of "under God" in the pledge will not be losing God (one can't "lose" the God who actually exists simply by not mentioning Him, since He will exist regardless of whether any human acknowledges Him; see the Good Cheer Chronicles article The Cornerstone for discussion of this); rather, what will be lost will be the United States' political heritage. And when a democratic nation loses its political foundation in such a way that it adopts the rival political theory of "no power higher than the State", that nation tends to metamorphose into something else--such as a dictatorship.
That would be the real constitutional crisis.
God's Sovereignty: The Foundation of American Government
Lest anyone think that an American court would never imply that "there is no power higher than the State", people need to be informed about the following decision:
On November 18, 2002, the following words were rendered as part of a judicial opinion:
[...] the state may not acknowledge the sovereignty of the Judeo-Christian God and attribute to that God our religious freedom.
Glassroth v. Moore, 229 F.Supp.2d 1290, 1312 (M.D. Ala. 2002) (emphasis in original).
That opinion went on to say:
The court, however, rejects the Chief Justice [Moore]'s suggested legal understanding of the relationship between God and the state for a number of reasons. First and foremost, the Chief Justice's belief that American law embraces the sovereignty of God over the state has no support in the text of the First Amendment. The First Amendment simply states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Nowhere does the Constitution or the First Amendment recognize the sovereignty of any God, Judeo-Christian or not, or describe the relationship between God and the state. In fact, this country's founding documents support the idea that it is from the people, and not God, that the state draws its powers.
Id. at 1310-1311 (emphasis in original).
However, such a view totally overlooks the background political theories that made up the philosophical atmosphere at the time of the United States Constitution's creation. That Constitution was not created in a philosophical vacuum. Even the most elementary reading of the writing of the Founders indicates that their entire political and legal philosophy was premised, was based upon, the idea that God is sovereign over the state. To ignore their statements, to ignore totally the philosophical background of the American Founding documents, is to wrench those texts out of their context and thus distort their meaning by imposing something like a "rule of silence": i.e., if the text doesn't explicitly state the philosophical theory upon which it is premised, then it must not have one.
However, to the contrary, the Founders believed that the way God was sovereign was that He delivered to the people the opportunity to choose their own government. In other words, God's power is expressed through secondary, human agents. But ultimately, those people expected their government to be accountable to the higher natural law--a law that was above the collective power of the State. Such was the view expressed in Abraham Williams' election sermon of 1762, for example. Such also was the view expressed by Dr. Benjamin Colman in Government the Pillar of the Earth (1730) and Samuel Willard, The Character of a Good Ruler (1694).
A more accurate view of the Founding Era was expressed in a 1963 case involving whether or not students must stand for the singing of the National Anthem:
Turning now to the merits, I like to recall that the founding fathers inscribed upon the Great Seal of the United States the Latin phrase novus ordo seclorum -- "a new order of the ages". This proud boast proclaimed their pride and their faith in the new nation they had founded here--a nation where everyone from the highest official to the most humble citizen must act under and in accordance with the law.
The keystone of this "new order" has always been freedom of expression--the widest practicable individual freedom to believe, to speak, to act.
Our forebears realized that ideas for preservation and improvement of a free society must come, not from the government, but from the people, [....]
[* * * * *]
This principle of freedom of belief and expression was so esteemed by the founding fathers that it was embodied in the First Amendment to the Constitution of the United States with the unqualified declaration that: "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; [....]
[* * * * *]
But we so prize freedom of expression--deem it so essential to the maintenance of "a government of laws and not of men"--that the bounds of restraint upon First Amendment rights which will be tolerated as reasonable are narrow in the extreme.
[* * * * *]
[...] the plaintiffs first argue that the National Anthem contains words of prayer, adoration and reverence for the Deity, and that a State's prescription of participation therein amounts to a prohibited "establishment of religion". This contention must be rejected. The singing of the National Anthem is not a religious but a patriotic ceremony, intended to inspire devotion to and love of country. Any religious references therein are incidental and expressive only of the faith which as a matter of historical fact has inspired the growth of the nation. [* * *] The Star Spangled Banner may be freely sung in the public schools, without fear of having the ceremony characterized as an "establishment of religion" which violates the First Amendment.
Sheldon v. Fannin, 221 F.Supp. 766, 772-774 (D. Ariz. 1963) (Mathes, District Judge) (citations omitted) (emphasis added).
"A government of laws and not of men" was an English legal principle with which the American Founding Fathers would have been very familiar. It was another way of saying that there is a power higher than the State, and that government is based on that higher natural law--not merely on the codes devised by human preferences. Rulers themselves are bound to follow that Higher Law--even if their own inclinations run to the contrary. Rulers cannot change or ignore the laws of the government to suit their own personal whims--for legal and constitutional rights are derived from the consent of the governed and are ultimately derived from God's Higher Law, which is to be expressed by means of the consent of the governed. So, God's Law limits a ruler as to what he can and cannot do.
"A government of laws and not of men": That's the basic legal principle upon which the Declaration of Independence and the United States Constitution were based. (That's the concept underlying the phrase "inalienable rights": the rights are "inalienable"--can't be taken away from people--because they are "endowed [given] by [the] Creator". To miss this is to miss the entire meaning of the Declaration of Independence and the U.S. Constitution, the First Amendment included.
It's a principle that is too often forgotten these days. (I.e., How can one know what the United States government was based on if one doesn't know the meaning of "unalienable rights" and why those rights are "inalienable"--i.e., that the phrase "inalienable rights" is connected to the phrase "endowed by their Creator" for a reason: the Creator is the source of those rights, and that's why they're inalienable.)
It was also the principle upheld by Chief Justice Moore, who described the principle in this way (beginning with a quote by Justice William O. Douglas):
Speech by Justice Moore at [Ten Commandments] monument's
unveiling ceremony
[* * * * *]
"The institutions of our society are founded on the belief that there is an authority higher than the authority of the State, that there is a moral law which the State is powerless to alter, and that the individual possesses rights conferred by the Creator which government must respect. The Declaration of Independence stated the now familiar theme, We hold these truths to be self-evident, that all men are created equal, that they're endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. In the body of the Constitution as well as the Bill of Rights is enshrined these principles."
Some of you might think the words that I just spoke are my words, carefully structured to fit my own ends; or perhaps a quote from a past long ago, but certainly not true or relevant to our law today. On the contrary, those words are not my words, they're not an ancient quote relevant to law. They're the words of Justice William O. Douglas in 1961 in the case of McGowan v. Maryland.
But today, a mere forty years later, many judges and other government officials across our land deny that there's a higher law. They forbid teaching your children that they're created in the image of Almighty God, and that while they purport all the while that it is government and not God who gave us our rights. Not only have they turned away from those absolute standards which form the basis of our morality and the moral foundation of our law, but they have divorced the Constitution and the Bill of Rights from these principles. As they have sown the wind, so we have reaped the whirlwind, in our homes, in our schools and in our workplaces.
[* * *] It is axiomatic that to restore morality, we must first recognize the source of that morality. From our earliest history in 1776, when we were first pleased to be called the United States of America, our forefathers recognized the sovereignty of God.
As late as 1954, the United States Congress placed in our Pledge of Allegiance the word "under God," and said the inclusion of God in our pledge, therefore, would further acknowledge the dependence of our people and our government upon the moral directions of the Creator. Judges, legislators, and executive officers around our country have, since our nation's birth, consistently pledged under oath, "so help me God," to uphold the Constitution.
[* * * * *]
And what an appropriate date this is. For it was on August 1st of 1776, exactly 225 years ago today, that Samuel Adams, the father of the American Revolution, stood before a rather large crowd at the Philadelphia State House. And on its steps, he delivered a speech prior to the formal signing of the Declaration of Independence on August 2nd of 1776. He began by stating, "We have explored the temple of royalty and found that the idol that we have bowed down to has eyes which see not, ears that hear not our prayers, and a heart like the nether millstone."
Today a cry has gone out across our land for the acknowledgment of that God upon whom this nation and our laws were founded and for those simple truths which our forefathers found to be self-evident; but once again, we find that those cries have fallen upon eyes that have seen not, ears that hear not our prayers, and hearts much like that nether millstone.
Samuel Adams concluded his remarks by saying, "We have this day restored the Sovereign, to whom alone all men ought to be obedient. He reigns in Heaven and with a propitious eye beholds his subjects assuming that freedom of thought and dignity of self-direction which he bestowed upon them. From the rising to the setting sun, may His kingdom come." And may this day mark the restoration of the moral foundation of law to our people and the return to the knowledge of God in our land.
This [Ten Commandments] monument, ladies and gentlemen, tells a story. If you look to the front, you'll see on the inset, "The Laws of Nature and of Nature's God." It was on those laws, the will of the Maker, upon which the Declaration of Independence was premised and upon which the Constitution was predicated.
James Madison, for example, the chief architect of the Constitution, said we were entitled to have a constitution because of the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.
They knew the law. The law was clearly written by Sir William Blackstone, which was the law of this country for many, many decades. He said, "This law of nature, being co-eval with mankind and dictated by God himself, is, of course, superior in obligations to any other. It is binding over all the globe in all countries and at all times, and no human laws are of any validity if contrary to this." This law of nature and the law of revelation pin all human laws on these two foundations.
[* * * * *]
Indeed, in 1956, the United [S]tates Congress, by act of Congress, by law today, made "In God We Trust" [...] our national motto. "So help me God," by which we pledge to uphold the [C]onstitution, has been around since 1789, when the Judiciary Act established that as the basis of our oath.
[* * * * *]
Surrounding this [Ten Commandments] monument, you see every ounce of support for the acknowledgment of the sovereignty of that God and those absolute standards upon which our laws are based. [* * *] All history supports the acknowledgment of God.
[* * * * *]
Glassroth v. Moore, 229 F.Supp.2d at 1321-1324 (APPENDIX C) (Speech by Justice Moore at monument's unveiling ceremony).
Justice Moore offered the following quotations to show that the American Founders did, indeed, acknowledge the sovereignty of God over the State (i.e., "a government of laws and not of men"):
Quotations inscribed on the [Ten Commandments] monument's four sides
[* * * * *]
"Laws of nature and of nature's God" --- Declaration of Independence
"The laws of nature are the laws of God, whose authority can be superseded by no power on earth" --- George Mason [Taken from arguments submitted by George Mason in Robin v. Hardaway, 2 Va. Reports (Jeff.) 109, 114 (Va. 1772)]
"The transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed" --- James Madison [Taken from The Federalist No. 43, at 295]
"This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this; ... upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these" --- William Blackstone [Taken from Volume I of The Commentaries of the Law of England, "Of the Rights of Persons," at 41 (1765)]
[* * * * *]
"In God We Trust" --- National Motto
"We, the people of the state of Alabama, in order to establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of almighty God, do ordain and establish the following constitution and form of government for the state of Alabama" --- Constitution of Alabama
"O thus be it ever when freemen shall stand between their lov'd home and the war's desolation! Blest with vict'ry and peace may the heav'n rescued land praise the power that hath made and preserv'd us a nation! Then conquer we must, when our cause it is just, and this be our motto --- 'in [G]od is our trust,' and the star-spangled banner in triumph shall wave o'er the land of the free and the home of the brave" --- National Anthem
[* * * * *]
"One nation under God, indivisible, with liberty and justice for all" --- Pledge of Allegiance 1954
"The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our government upon the moral directions of the [C]reator"--- Legislative History [Taken from the House Report of legislation adopting the Pledge of Allegiance, at 2340]
"Human law must rest its authority ultimately upon the authority of that law which is divine" --- James Wilson [Taken from Volume I of The Works of the Honourable James Wilson, at 104-05 [Bird Wilson ed. 1804)]
"And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of [G]od? That they are not to be violated but with his wrath?" --- Thomas Jefferson [Taken from Notes on the State of Virginia, at 169]
Id., 229 F.Supp.2d at 1320-1321 (APPENDIX B) (Quotations inscribed on the monument's four sides).
Just so. To quote Thomas Jefferson: The liberties of a nation are not secure "when we have removed their only firm basis, a conviction in the minds of the people that these liberties are [...] the gift of God."
Thus spoke the architect of the phrase "separation of church and state."
If, in the name of that "separation", one removes the idea that people's liberties ("inalienable rights") are the gift of God ("endowed by their Creator"), one does what Thomas Jefferson warned against.
For further reading:
Good Cheer Signs for All Times
Smith v. Denny (E.D. Ca. 1968) (district court within the jurisdiction of the Ninth Circuit Court of Appeals upheld the constitutionality of the Pledge of Allegiance in 1968)
Sherman v. Community Consolidated School District 21 of Wheeling Township (7th Cir. 1992) (upheld constitutionality of Pledge of Allegiance)
Excerpts from the District Court Decision: Sherman v. Community Consolidated School District 21 of Wheeling Township (N.D. Ill. 1991) (upheld constitutionality of Pledge of Allegiance)
Standing Up to Autocracy: An American Value (a Good Cheer Chronicles essay)
Benjamin Colman, Government the Pillar of the Earth (1730)
William Cooper, The Honors of Christ Demanded of the Magistrate (1740)
John Webb, The Government of Christ (1738)
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