One
Nation "Under God"? Three "Amens" for Judge
Alfred T. Goodwin's Ruling!
By David
R. Larson
How well I remember the day
in my first or second grade when our teachers told us that from then on we
would include the words "under God" when reciting the
"Pledge of Allegiance to the Flag of the United States of
America"! Although I was attending a Christian elementary school, I
recall thinking that there was something strange about this new
development.
I recently asked one of my
classmates from those days if he remembered that day too.
"Yeah!" he exclaimed, "Wasn't that weird?" "It
sure was," I agreed, "but why?" "They had just taught
us the pledge, and then they changed it on us," my friend reminisced.
"But do you think that
it might have also seemed odd because so many of our classmates were not
Christians?" I pressed, still convinced that our friends and their
families back then were loyal Americans even though they adhered to other
faiths. "Maybe," he agreed, "after all, our school was
right next door to a Buddhist temple!"
At that time, almost fifty
years ago, we lived with our parents and siblings in Honolulu, Hawaii. Our
homes were just minutes by car from Pearl Harbor, still the final resting
place for many of the 2,330 Americans who perished early in the morning of
Sunday, December 7, 1941 when Japan attacked our nation with 360 or so
aircraft.
Although I recite the
Pledge without hesitation or reservation, and although I have been a
Christian minister for more than thirty years, adding the words
"under God" still strikes me as peculiar. God doesn’t need
them. The United States of American doesn’t need them. Our students don’t
need them. The families from which our students come don’t need them.
Our churches, synagogues, temples and civic organizations don’t need
them. After all, our nation did not have a pledge that included these
words until Congress added them in 1954. It seems to have done as well
before that date as after.
Defending the insertion of
these words can become difficult. On the one hand, if we say that they do
not violate our Constitution's boundaries between religion and government
because they are so vague and vacuous, few should notice or care if we
take them out. On the other hand, if these words are meaningful and
important enough to provoke protests if we consider removing them, it is
reasonable to infer that they favor some views about religion and disfavor
others in violation of our Constitution. Either way, despite much popular
opinion, the words "under God" probably shouldn’t be there.
A related consideration is
that in 1961 the Supreme Court of our nation ruled that it is
impermissible to require persons who desire to serve in offices of either
state or federal government to profess belief or disbelief in any
religion. It is doubtful, however, that citizens who are otherwise
qualified could be elected or appointed to such positions while openly
refusing to recite the Pledge, even if the sole objection to doing so were
the words "under God." Insisting on these words is therefore
tantamount to stipulating that in our nation atheists, polytheists,
henotheists, animists and agnostics cannot hold public offices. The two
little words "under God" seem to violate what the Supreme Court
ruled seven years after they were added.
In view of considerations
such as these, Congress probably did make a mistake in 1954 when it added
the words "under God" to the Pledge. The only
justification for continuing to include them would therefore seem to be
that at this time it might be socially too disruptive to remove them.
Sometimes it is wise to leave a bullet in the body of someone who has been
shot because the dangers of doing so are less in likelihood and magnitude
than the harms of removing it. Whether judges should take such factors
into account when formulating their rulings remains an interesting and
important question, however.
Michael A. Newdow, a
physician with a law degree who resides near Sacramento in northern
California, apparently believes that at least in this instance our answer
should be "no." He therefore sued the President, the Congress,
the State of California, the public school district his daughter attends,
the one she will probably attend in the future, and the superintendents of
both school districts over the matter. An atheist who represented himself
in court, Newdow asserted that the frequent recital of the Pledge at her
public school injures his daughter in ways that violate the First
Amendment of our nation’s Constitution.
On June 26, 2002, the Ninth Circuit Court of Appeals in San Francisco,
which covers nine states plus Guam and the Northern Mariana Islands,
agreed with Newdow; however, it swiftly issued an order that postpones any
changes in the public schools for the time being.
Judge Alfred T. Goodwin
wrote the majority opinion for the Ninth Circuit. He reviewed the factual
and procedural background of the case, restricted and clarified the court’s
jurisdiction and established why Newdow has legal standing. Because the
contesting parties presented no arguments about it, he set aside, for now,
questions about a California law that directs public schools to begin each
day with "appropriate patriotic exercises," such as reciting the
Pledge, without requiring every student actively to participate.
Judge Goodwin then turned
to the primary issue. The First Amendment to the United States
Constitution declares that "Congress shall make no law respecting the
establishment of religion." During the last three decades, he wrote,
the Supreme Court of the United States has used three interrelated tests
when analyzing claims that this norm is being violated in public
education: the so-called Lemon standards, the endorsement test and
the coercion test.
According to the Lemon
standards, government action must have a secular purpose, must neither
advance nor inhibit religion in its primary or principal effects and must
not foster excessive entanglement of government in religion. Citing the
words of those in Congress who introduced it, Judge Goodwin found that the
1954 legislation fails the first of the Lemon criteria and that the
policies of the school district where Newdow’s daughter studies violate
the second.
According to one of the
legislation’s 1954 sponsors, the addition of the words in question
"would further acknowledge the dependence of our people and of our
Government upon the moral directions of the Creator. At the same time it
would serve to deny the atheistic and materialistic concepts of communism
with its attendant subservience of the individual." According to
Judge Goodwin, these words frankly announce the legislation’s religious,
and therefore unconstitutional, purpose.
The endorsement test, which
apparently combines the first two Lemon criteria, stipulates that
governmental action may not make religious considerations relevant in any
way to a person’s standing in the political community. It particularly
prohibits governmental references to religion that signal that some
citizens are "insiders" and others "outsiders." In the
case of Michael A. Newdow and his daughter, and many others like theirs,
the Pledge as now written fails this test, Judge Goodwin wrote.
The coercion test prohibits
government from pressuring students either way regarding religious
matters. Judge Goodwin wrote that the 1954 legislation fails this test as
well. In support of this conclusion he cites what the President of the
United States said when he signed it into law.
"From this day
forward," declared Dwight David Eisenhower, "the millions of our
school children will daily proclaim in every city and town, every village
and rural school house, the dedication of our Nation and our people, to
the Almighty." When our nation’s president, declares that our
children "will" do something, Judge Goodwin held, it is
difficult to ignore the presence of pressure.
Some agree that the 1954
legislation technically violated our nation’s Constitution, but that it
did so in such a minor way that this infraction is best overlooked, much
like a driver who travels 56 miles an hour where the speed limit is 55.
Judge Ferdinand F. Fernandez, who wrote the minority opinion in this case,
made a related but different point. He held that inserting the words
"under God" into the Pledge, and placing expressions like
"In God We Trust" upon our nation’s coins, cause so little
damage that they do not amount to violations. This is like saying that
driving 56 miles an hour in a 55 zone is so well within the expectations
of the law that there is no infraction for the courts to overlook, none at
all.
Like a number of others,
Judge Fernandez apparently fears that efforts like those of Newdow would
push religion to the margins of our nation’s life, so far to the edges
and sidelines that it can have little or no effective influence beyond the
private sphere. I believe this worry is exaggerated.
Even if people like Newdow
ultimately prevail in cases like this one, it still will be possible for
religious believers like myself to persuade others by precept and example.
The one thing that would be denied us is the very thing we should
relinquish anyway: the ability to use the coercive power of government to
compel people to think and act as we think best, even when the majority of
citizens disagree with us. The ultimate power of government is
coercive; the ultimate power of religion is persuasive. Both function best
when they are kept apart.
I believe that Judge
Goodwin wrote the better legal opinion, but that the views of Judge
Fernandez, however he came by them, are more harmonious with the current
thinking of most of our nation’s citizens and leaders. Because those who
review this decision may agree with Judge Fernandez, Newdow might lose
when his case is taken up for the final time, whether by a larger panel at
the Ninth Circuit or by the Supreme Court. Meanwhile,
three "Amens" from me for Judge Goodwin’s ruling! |