Inside the First Amendment
By Charles C. Haynes
Director, Religious Freedom Education Project at the Newseum
The long, bitter and emotional legal battle over “under God” in the Pledge of Allegiance may have come to a quiet end on March 11.
That’s the day a panel of the 9th U.S. Circuit Court of Appeals decided by a 2-1 vote that “the Pledge is constitutional.” The ruling in Newdow v. Rio Linda Union School Dist. was greeted with a big yawn by the news media — and virtual silence on Capitol Hill.
Eight years ago, this same court sparked a very different reaction when it ruled the other way, striking down the use of the Pledge in public schools because it includes the phrase “under God.” Cable news channels declared a national emergency and lawmakers on both sides of the aisle in Washington, D.C., lined up to defend God.
This time around, the court (with two different judges on the panel) saw no religious intent in the history and meaning of the Pledge, giving particular weight to congressional action in 2002 reaffirming the secular and civic purposes of the flag salute.
For Michael Newdow, the California atheist who has spent years challenging the Pledge, this decision will likely mark the end of his seemingly endless roller-coaster ride up and down the court system. Newdow will no doubt appeal, first to the full 9th Circuit and then to the U.S. Supreme Court (as he did in 2004; the high court dismissed his case). But his chances of getting another hearing in either court are slim to none.
Newdow lost because the two-judge majority viewed the Pledge as patriotic, not religious — and the reference to God as ceremonial, not theological. According to the court, teacher-led recitations of the Pledge in public schools have the “secular purpose” of instilling love of country and do nothing to promote state-sponsored religion.
In a blistering dissent, Judge Stephen Reinhardt (in the majority eight years ago) argued that Congress violated the First Amendment’s establishment clause by inserting the words “under God” in the Pledge in 1954. By so doing, Congress transformed a secular patriotic pledge into “a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God.”
For the majority on the panel, however, “one nation, under God,” isn’t state indoctrination of religion, but rather an acknowledgement of the Founders’ conviction that people “derive their most important rights, not from government, but from God.”
Both sides have a point. It’s certainly true that the Founders believed all people are “endowed by their Creator with certain unalienable rights” (in the words of the Declaration of Independence). And it’s also true that many, if not most, Americans today view their fundamental liberties as God-given.
At the same time, however, the Founders were determined to safeguard freedom of conscience so that no American could be coerced by the state into affirming anything to do with matters of faith, including a belief in the divine origin of the rights guaranteed in the Bill of Rights.
The Constitution, in other words, recognizes that all people have inalienable rights — but leaves us free to believe whatever we choose about how we got them in the first place.
Whatever side you take in the Pledge debate, the phrase “under God” is here to stay for the foreseeable future. But the fight over what gets recited in classrooms is far from over. As America’s diversity continues to expand, growing numbers of students and parents who love their country will be compelled to opt out of a patriotic exercise that defines the nation in ways contrary to their conscience.
I’ve never been convinced that rote recitation of the Pledge of Allegiance, with or without “under God,” does very much to prepare young people for effective, engaged citizenship. But if public schools are going to require a patriotic exercise, then maybe we should find one that unites rather than divides — and includes rather than excludes — citizens of all faiths and none.
Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected].