Pledge of Allegiance Unconstitutional... Again
The Chicago Tribune reports:
U.S. District Court Judge Lawrence Karlton said he was bound by the 9th U.S. Circuit Court of Appeals, which in 2002 ruled that the words "under God," added by Congress in 1954 during the McCarthy era, rendered the pledge unconstitutional. Karlton ruled that saying the pledge's God reference violated school children's right to be "free from a coercive requirement to affirm God."
Karlton's argument is interesting here and it's not clear that it will stand. All other things being equal, it's reasonable to think that the court above him would rule the same way again on the facts of the case when they have only been reversed on an extraneous matter like standing — Newdow might not have had technical standing to bring his original case, but that doesn't impact the reasoning behind the original decision.
However, are all other things equal? The first decision was reached by a random group of 3 judges from all 28 judges in the 9th Circuit. A different group of 3 might rule differently. Also, some of the Supreme Court Justices have made their feelings known on the matter, so this might impact the reasoning of the judges involved. Thus, even if it's reasonable as a general principle to accept the prior decision as binding as a practical matter (though it's not binding legally), it's not clear that this was the correct way to go here.
What are the chances that Judge Karlton agreed with the reasoning of the 9th Circuit Court's original opinion, but found it convenient to simply reference it as binding rather than go through the long process of recreating it from the ground up and having to take the heat for it personally? I'd say that the chances are decent. Consider footnote 22 from his opinion:
This court would be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Court’s recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nation’s asserted religious heritage, and thus are permitted.
As last terms cases, McCreary County v. ACLU... and Van Orden v. Perry... demonstrate, the distinction is utterly standardless, and ultimate resolution depends of the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance. Moreover, because the doctrine is inherently a boundaryless slippery slope, any conclusion might pass muster.
It might be remembered that it was only a little more than one hundred ago that the Supreme Court of this nation declared without hesitation, after reviewing the history of religion in this country, that “this is a Christian nation.” Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting “under Christ” for “under God” in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the Pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus, and other religious adherents who, not only are citizens of this nation, but in fact reside in this judicial district.
Karlton is making an important point at the end: if "under God" is constitutionally acceptable, why not "under Christ"? The arguments used for the former by the Christian Right, combined with the reasoning in recent Supreme Court decisions which they approve of, would suggest that "under Christ" should be quite acceptable. Michael Newdow makes a related point about his case:
"Imagine every morning if the teachers had the children stand up, place their hands over their hearts, and say, `We are one nation that denies God exists,"' Newdow said.
"I think that everybody would not be sitting here saying, `Oh, what harm is that?' They'd be furious. And that's exactly what goes on against atheists. And it shouldn't," he said.
This effectively refutes some of the common arguments used on behalf of allowing the phrase "under God" to stand. Some, for example, say "If you don’t think your kid should say “under God” tell them to politely keep quiet. There’s no damn test to see if you can recite it to graduate from High School - so make it like when you go to a wedding and you’re in a church / synagogue / mosque — whatever — just keep quiet and be polite."
Would they offer the same advice to Christian students faced with reciting "We are one nation that denies God exists"? Certainly not — in so many cases, the advice to just "be polite and be quiet" is advice given to minorities experiencing coercion, and those minorities are not treated as deserving the same respect as everyone else. The question of whether the government is overstepping its authority or whether anyone's rights are being infringed upon is never entertained.
E.J. Montini comments:
Rather than use court cases like this to teach kids (and grown-ups) about the history of the pledge and how we've been struggling with these issues since the beginning of the republic, politicians condemn the courts then try to invoke God's name as a way to gain political advantage. Although, wouldn't a person who truly believed that he was "under God" be afraid to do such a thing?
Instead, why not tell kids that in the late 1800s the "one nation" part was important to include because our divided union still was trying to heal Civil War wounds?
Why not tell kids that the "under God" part was an offshoot of the McCarthy-era witch hunts that were spawned by fear and political opportunism?
Why not point out that the "liberty and justice for all" part didn't apply to all Americans when the pledge was written, or in 1954 when "under God" was added, or, some might argue, even now.
Why not reinforce the idea that as politicians and the courts argue over the "under God" part, no citizen can be forced to pledge allegiance to the flag, because the "republic for which it stands" protects the rights of everyone, even those with whom the majority of us disagree.
I can think of two reasons why none of this is done. First, it would cause children to become better educated about the history of America than many politicians, allowing them to see through all of the pious, religious rhetoric which politicians use to curry favor with the voters. Second, it would be contrary to the goals of the Christian Right, which includes using state power to encourage particular religious beliefs in children because churches apparently aren't doing their job.
Theologienne comments:
God is too precious to be bandied about in a civic rite. So they can keep their public fealty off my private deity...
In the Catholic student center at my college, our chaplains had an odd piece of art hanging: it represented several nationalistic slogans: Liberte, Egalite, Fraternite; Pravda Vitesi (excuse my lack of accents aigu and Cyrillic font); dulce et decorum est pro patria mori; and In God We Trust. I couldn't quite figure out what this was supposed to convey, but I suspected a sentiment akin to my own: to show how God is co-opted in American political symbolism for purposes no greater than those pursued by other, potentially hostile, governments. It's funny that without the Kremlin slogan (especially in that Catholic context) I would have been nearly sure it was meant as mere inspirational propaganda, and grossly out of place in a house of prayer.
The church my cousins attend will sing patriotic songs for the recessional on national holidays, and since we tend to visit them on holiday weekends, we've heard more than our fair share of "America the Beautiful" resounding from the pews. I wonder why the GIRM [General Instruction of the Roman Missal] permits this, if in fact it does. Why not remain aloof and above national allegiances, since love for God should always come first and God is for the world?
Blending religion and patriotism is more commonly found in evangelical and fundamentalist Protestant churches, but Catholic churches obviously aren't immune from the trend. In such contexts, extreme nationalism becomes not just a civic duty, but in fact a religious duty with God standing behind the flag. Political dissent becomes religious dissent, and disagreement with political leaders becomes disagreement with religious leaders — if not disagreement with God as well.
Religious conservatives are already distorting the ruling. One particularly egregious example is that school children would be prohibited from reciting the Pledge at all, asking "How is he going to enforce this? Will he hold each child in contempt?" This sounds suspiciously like the popular myth that prayer has been banned in schools, when in fact the only thing banned were state-written, state-mandated, and state-encouraged prayers. Student prayers, individually or in groups, have always been legal. Student recitation of the Pledge of Allegiance, individually or in groups, will also remain legal.
Someone else thinks that taking away from the state the authority to insert religious language in the Pledge is somehow a step down the road to declaring America "unconstitutional" or even "abolishing" America. What nonsense. No one is trying to eliminate public references to gods, but they do insist that such references be made by private individuals, not the state. Such a position isn't even remotely analogous to that of the Taliban because the Taliban treated secularism just like the Christian Right tends to: as an affront to God and as an effort to undermine or destroy the nation.
The Taliban would have reacted in much the same way to this decision as religious conservatives are. People like this see secularism as a threat, but it's only a threat to weak religious beliefs because only the weak religious beliefs need the power of the state to enforce or promote them. Strong religious beliefs aren't interested in an alliance with the government.
As was the case with the original 9th Circuit Court decision, a lot of religious conservatives complain about this without actually offering any substantive arguments against it. The original decision was very carefully argued, relying extensively on prior Supreme Court decisions. Perhaps that is why religious conservatives completely ignore it in their complaints. If they actually had to face the decision and construct arguments against the reasoning used in it, they would either have to admit their opposition to some very important Supreme Court precedents, or they would have to admit that their entire position is a rhetorical house of cards, with all the substance of mist.
Read More:
- Separation of Church and State 101
- Church and State News
- Religion in Public Schools
- School Prayer
- Pledge of Allegiance
tags: atheism, atheist, Christianity, religion, law
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