The mainstream media reaction to the 9th U.S. Circuit Court’s decision to overturn the 1954 addition of “under God” to the Pledge of Allegiance reveals precisely why the decision was right. And no matter how many talking heads get upset about it, Newdow v. U.S. Congress, et al. is neither a theological nor social debate; it is a court case with considerable legal backing.
Of course, the decision rests mainly on the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note that it uses rather general terms; it doesn’t say establishment of Christianity, Judaism, or any other religion. The Establishment Clause applies equally to any and all religions. It doesn’t matter if the words “under God” might, by mere coincidence, seem to apply to several faiths. No matter how many religions might potentially be included in that phrase, the fact is that “under God” applies exclusively to (monotheistic) religious belief.
The idea of separating church and state is that your religion is your own business, not that of your fellow citizens or your government. Having a class confirm every morning, in unison, that they believe in “God” qualifies neither as religiously neutral nor free exercise of religion, even if one has the right to single oneself out for ostracization by keeping silent during the Pledge. To quote Justice Sandra Day O’Connor (as quoted in the Newdow decision): “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community…Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
This brings us to the central point of the Newdow case; even if students are allowed to opt out of the Pledge, the imposition of “under God” devalues the civic participation of non-believers. So do the remainder of the government endorsements of religion including, but not limited to, the request that “God save” the Supreme Court recited every session, the “National Day of Prayer,” and the changing of the national motto from “E Pluribus Unum” (“out of many, one”) to “In God We Trust” in 1956.
Now, the court’s decision provided a great opportunity for politicians of both major parties to fall over each other in order to condemn it. The ruling was decried variously as “just nuts,” “junk justice,” and “ridiculous.” “There may have been a more senseless, ridiculous decision issued by a court at some time, but I don’t remember it,” said Senator Joe Lieberman (D-CT). Presumably, shock has temporarily expelled the memory of, say, the Dred Scott decision, which declared “Jim Crow” laws Constitutionally sound. Senator Lieberman also called for a Constitutional amendment to prevent the Pledge from being returned to its pre-1954 version, a sure sign that he realizes the unconstitutionality of Congress’ actions in the first place.
Particularly striking are the ad hominem attacks against the judges who wrote the majority decision: they’ve been called “stupid,” “dumb and dumber,” “robed tyrants,” among other epithets. One editorial cartoon depicted the justices of the 9th Circuit as demons. Pundits, who have the luxury of expressing themselves in somewhat longer soundbites, pontificated about how “under God” is an inclusive, non-sectarian phrase which oughtn’t offend anyone, except maybe some atheists.
This argument by statistical irrelevance (“the overwhelming majority of this country believes in God” and like statements) is really quite appalling, once you think about it. According to the 2001 American Religious Identification Survey, published by the Graduate Center of the City University of New York, roughly seventy-seven percent of Americans are Christians. About fourteen percent classify themselves as having no religion, a category which includes atheists, agnostics, and secular humanists. Jews and Muslims account for a little over one percent each. By comparison, the 2000 U.S. Census reveals that about seventy-five percent of the population is white; African Americans comprise about thirteen percent. Imagine if we substituted “African Americans” for “atheists” in these statistical irrelevance arguments we hear and read in the mainstream media? Remember, Christians comprise roughly the same percentage as whites within America. Realizing the full implications of this line of reasoning is left as an exercise for the reader.
If this is to be the mode of future arguments about accessiblity to American civil institutions, it certainly does not bode well for any minorities seeking protection from the social mores of the majority.
A more established legal argument, although just as wrong, is Justice William Brennan’s “ceremonial deism” thesis. Brennan said that words like “under God” and the motto on our currency have been repeated so often that they have somehow been stripped of their religious meaning. A few questions arise: how is it that only religious sentiments magically lose their meaning after constant repetition? One wonders if this applies to other religious speech, like the Lord’s Prayer, which has been repeated far more often that the Pledge of Allegiance. And what about other oft repeated government speech, such as “you have the right to remain silent?” Furthermore, if these references to God don’t mean anything, why are they there in the first place? Apparently, you don’t have to listen to the government if it repeats itself a sufficient number of times, as long as what the government is saying violates the Establishment Clause.
Newdow is not just a case about one atheist in Sacramento being “offended” at the Pledge of Allegiance. The word “offensive” seems to carry the implication that political correctness is the motivation behind Newdow’s lawsuit; the case is very clearly about civil liberties, and making sure that the government follows its own Constitution. The outcry at the decision demonstrates the need for protection from “the tyranny of the majority,” in the words of John Stuart Mill. The protection of minorities, religious or otherwise, is one of the reasons we have civil liberties in the first place.
Of course, the Newdow decision has prompted an outcry from almost every public official who knows that to come out in favor of the decision would be political suicide. The Republican party, never one to miss an opportunity, somehow blamed this on the Democratic challenges to GOP judicial nominees. The Democrats quietly noted that the judge who wrote the opinion was a Nixon appointee and quickly turned to nervous displays of piety so as not to be outdone by their colleagues across the aisle. When asked about the decison, George W. Bush said, “[w]e need common-sense judges who understand that our rights were derived from God. Those are the kind of judges I intend to put on the bench.” (For those of you keeping score: according to Republicans, judicial activism is bad, but activism in judicial appointments is good.)
Not only is this sentiment dangerous, but illegal. The Constitution clearly states that there shall be no religious test for any public office in the United States. To bring a little context to this point, Torcaso v. Watkins, unanimously decided by the Supreme Court in 1961, declared illegal a provision of the Maryland Constitution which said that while no religious test was required to hold office, officeholders must believe in a god of some kind. Although this case was not mentioned in the Newdow decision, it has tremendous bearing upon the public debate. Belief in a god is not a civic virtue, it’s a matter of personal preference. (Several months ago, The View’s Star Jones stated that she would never vote for an atheist. Immediately, the example came to mind of an election between Mark Twain [an atheist] and Hitler [a self-professed Catholic].)
Compounded in the outcry over Newdow v. U.S. Congress is a particularly hysterical strain of deficient scholarship. Senator Kit Boyd (R-MO) reacted to the decision by saying, “Our founding fathers must be spinning in their graves. What is next? Will the courts now strip ‘so help me God’ from the pledge taken by new presidents?” Of course, our founding fathers made sure there was no mention of God in the inaugural oath (or the Constitution as a whole). This is what it says in Section II: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” The part about “So help you God” is a tradition maintained strictly as a matter of personal preference.
It seems as though many politicians are under the impression that this country was founded fifty years ago. When the Constitution was written, it was made very clear that religious belief, even though it may be a motivation for public service, is not the province of the government. No state religion, even the watered-down Christianity which has placed “under God” into our Pledge of Allegiance, is legal.
Almost every interview or debate about the decision has included the question, “do you want God off the currency, too?” Well, why not? We’re in the middle of redesigning our money anyway. If the Constitution means more than our currently unconstitutional national motto, then we ought to go about fixing the problem. The other inevitable question is, “do you think the Declaration of Independence is unconstitutional, too?” Not exactly; the Declaration of Independence is pre-Constitutional. Furthermore, it’s not the law, but an historic document of national significance.
America was founded with the idea that no matter how important one’s religious beliefs are, they remain personal, and not the business of the government. Now, if only we could get George W. Bush to pay attention to the Constitutional defense part of his oath.
