As a matter of law, no one can be compelled to pledge allegiance to the American flag or to the republic for which it stands. A compulsory pledge would be meaningless because it would make a mockery of “freedom and justice for all.”
Way back in 1943, the children of Jehovah’s Witnesses refused to participate in a mandatory Pledge of Allegiance in West Virginia public schools because they believed that saluting the flag was bowing down to a graven image, which was forbidden in Exodus 20:4-5. These children were expelled from school and their parents went to court. The result was the Supreme Court decision of West Virginia State Board of Education vs. Barnette. In this decision the words of Supreme Court Justice Robert Jackson ring out loud and clear: “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” He went on: “If there is any fixed star in our constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” Speaking for the majority of the Court, he concluded: “We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which is the purpose of the First Amendment to our Constitution to reserve from all official control.” Well said, and it was said in the darkest days of our war against Hitler and the Japanese fascists.
So, recitation of the Pledge of Allegiance is voluntary. In some cities and towns, such as New York City, students are actually informed of their right to remain silent. In the very liberal District 3, on New York’s Upper West Side, school board member Larry Sauer made a motion to let each of the schools in the district decide how to deal with the Pledge of Allegiance. In District 3, jokingly called “Moscow on the Hudson,” pledging allegiance to our American republic threw liberals into consternation. New York liberals feared that patriotism might not be suitable for children; every child must be read his rights before being offered the opportunity to join in a civic celebration of his nation and an affirmation of his dedication to its highest ideals of liberty and justice for every citizen.
By a unanimous vote the New York City Board of Education had passed a resolution requiring all public schools to offer the Pledge of Allegiance at the beginning of each school day. Many citizens were surprised to learn that public schools were not already offering the Pledge, since a state law had long ago directed them to do so. The New York Civil Liberties Union instantly objected to the recitation of the Pledge of Allegiance in classrooms. The local ACLU fretted that the recitation of 31 words in a collective affirmation on behalf of the flag as a symbol of our nation’s devotion to liberty and justice would shine too strong a light on those students who did not share a commitment to these ideals, or who felt a stronger commitment to other commandments, such as the religious conscientious objectors in the 1943 case that made all recitations of the Pledge of Allegiance voluntary. But the Board of Education and Schools Chancellor Harold Levy understood that the Pledge serves a valuable civic purpose by providing an opportunity for young citizens to express their commitment to our nation’s highest ideals. For this reason, communities across America have been reviving the Pledge of Allegiance. When the school board of ultra-liberal Madison, Wisconsin passed a resolution against reciting the Pledge of Allegiance, patriotic citizens jammed the next school board meeting to voice their indignation. The left-leaning board reversed itself.
The Hammer Drops
In a recent split decision, the Ninth U.S. Circuit Court of Appeals declared that the phrase “one nation under God” in the Pledge of Allegiance was a forbidden endorsement of religion by the government. According to Circuit Court Judge Alfred T.Goodwin, leading schoolchildren in a pledge that says the United States is “one nation under God” is as objectionable as making them say “We are one nation ‘under Jesus’, a nation ‘under Vishnu’, a nation ‘under Zeus’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.” Judge Goodwin wanted to draw a bright line between church and state, even though the words of the First Amendment require no such demarcation.
Over the vehement objections of nine of its 24 judges, the Ninth Circuit in San Francisco let stand a modified version of the 2 to 1 decision that one of its three-judge panels had handed down in June of 2002. The June ruling was immediately stayed pending a review by the full court; it was a decision destined for the Supreme Court. Attorney General John Ashcroft quickly responded that “The Justice Department will spare no effort to preserve the right of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntary reciting of the pledge.” (Emphasis added).
The decision of the Ninth Court to drop the hammer on such civic celebrations was not unexpected. The Ninth Court is the most liberal court in America and the one most often reversed by the Supreme Court. In any case, the Ninth Court’s decisions are restricted to its jurisdiction. In effect, the liberal justices were demanding that almost ten million American school children stop pledging their allegiance to their nation, under God.
The case seemed destined for the Supreme Court where the Pledge of Allegiance would probably be given a muddled defense of ceremonial deism, or a narrow ruling on “religion lite” which would hold that time-worn references to the Deity do not violate the Establishment Clause. In the opinion of Eugene Volekh, a professor of law at the University of California at Los Angeles, “the Supreme Court will almost certainly agree to hear the case,” partly because “this is a hot-button issue in which a majority of the justices probably disagree with the panel” and partly because of a disagreement between two appeals courts. The Ninth Circuit decision was at odds with a decision by the U.S. Court of Appeals for the Seventh Circuit in Chicago.
A Newsweek poll demonstrated overwhelming public support for including the words “under God” in the Pledge: 87 to 9 percent. By a 60 to 37 percent margin, people said that it was “good for the country” for leaders to publicly express their faith in God. A generous 84 percent of respondents believed that references to God are acceptable in schools, government buildings and other public settings, so long as no specific religion is mentioned. In other words, religious sentiments are commonly shared and welcomed, but specific doctrinal beliefs are best kept a private matter.
When the Ninth Court made its ruling, even the ACLU was subdued; they called the court ruling “correct” but went to some pains to insist that their organization had nothing to do with the instigation of the lawsuit that led to the decision. Even the judge who wrote the opinion took the unusual step of ordering a stay of his own decision pending an appeal, even though a stay was already in effect.
Popular sentiment on the matter of God in public life has been constant since the founding of the republic. There is no mention of any separation of church and state in our Constitution. The First Amendment prohibits the government from supporting an official church, an official religious orthodoxy, such as the “established” Anglican Church of England. It was only as recently as 1971 that an adventuresome Supreme Court began discovering until-then unimagined interpretations of the Establishment Clause that abruptly invalidated any attempt by government to support popular religious sentiments. In a 1971 case, Lemon vs. Kurtzman, the court declared that government practices cannot have a religious purpose, primarily advance or promote religion or excessively entangle the government with religion. The high court is now reaping the discord that it has sowed. By twisting the Constitution’s original guarantee of freedom of religion for all citizens and twisting it into a promise of freedom from exposure to any expression of religious sentiment, the Court suddenly began favoring a disgruntled minority of persnickety non-believers at the expense of the vast majority of Americans. The high court was endorsing a “heckler’s veto.” In his dissent, Ninth Circuit Court Judge Ferdinand F. Fernandez cautioned that under his colleagues’ theory of the Constitution “we will soon find ourselves prohibited from using our album of patriotic songs in any public settings.” Judge Diarmuid F. O’Scanulain, writing for six judges, called the panel’s decision “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.
“If reciting the pledge is truly ‘a religious act’ in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto or the singing of the national anthem,” a verse of which says “And this is our motto: In God is our trust.” Justice O’Scanulain continued: “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.”
Now is a good time to meet the principal players in this weird little legal drama: the Ninth Circuit Court of Appeals and a whining atheist plaintiff named Michael Newdow. Michael and the Ninth Court were destined to embrace one another; it was a case of lawyers in love.
The Stench from the Bench
The United States Courts of Appeal are divided into eleven geographic districts. The appeals courts and the federal circuit courts hear thousands of cases each year. The U.S. Supreme Court can only review a few of these cases each year; in the 1999-2000 term the Supreme Court reviewed 67 cases. The number of cases reviewed annually is usually between 50 and 120.
The Ninth Circuit Court of Appeals holds sway over the largest geographic area by far. It encompasses more than twice the area of the next largest appeals court. The Ninth Circuit covers 38 percent of America’s landmass and includes a fifth of America’s population. Decisions of the Ninth Circuit are law in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Commonwealth of the Northern Mariana Islands. Representative Mike Simpson (R-Idaho) echoed the thoughts of many: “It’s clear that the Ninth Circuit is far too large to respect what our Founding Fathers had in mind when they determined the size of the federal courts.”
The Ninth Circuit has 24 full-time judges and 21 “senior” judges, who serve part time. Of the 24 full-time judges, 17 were appointed by the Democrat presidents Clinton and Carter. Because of its heavy case load, much of the Ninth Circuit’s decision making is done by three-judge panels whose members are drawn from a pool of 45 jurists; it was such a three-judge panel that made the first decision declaring the Pledge of Allegiance to be unconstitutional (against the law). Judge Alfred Goodwin, who wrote the panel decision, was on the panel for only one reason: he was filling a vacancy caused by the Daschle Senate’s refusal to vote on President Bush’s judicial nominees. Senator Daschle would later cover his ass by calling the panel’s Pledge decision “just nuts.”
In the early 1980s, Jimmy Carter appointed 15 left-leaning judges to the Ninth Circuit bench, many of whom were well to the left of Carter himself. The new utopian arrivals enthusiastically reacted against their more cautious colleagues: the consequence of their headstrong utopianism was a record of 25 reversals out of 26 cases reviewed by the U.S. Supreme Court.
Reversals have become a Ninth Circuit specialty. From 1990 to 1996 the Supreme Court reversed 73% of the Ninth Circuit decisions that were reviewed. In 1997 the high court reversed 27 of 28 decisions that it reviewed and called the frequency of reversals “troubling.” The reversal rate from ‘96 to ‘99 was 86%, or 54 out of 63 cases reviewed. The next highest reversal rate was in the Eighth Circuit (58%). In the 1999-2000 term, eleven Ninth Circuit decisions were reviewed and eight were reversed, a rate of 73%. In the 2000-2001 term the reversal rate was also 73%, with eleven reversals out of 15 reviewed.
From the moment of its sudden expansion from 13 to 24 judges, the Ninth Circuit has been dominated by Democrat appointees who were out of sync with American social and legal tradition. Over the last twenty years the Ninth Circuit has earned a reputation for being wrong more often than any other federal appeals court. When three former Chief Justices of the Ninth Circuit denied that the Ninth had a poor track record in the Supreme Court, Justice Scalia responded: “There is no doubt that the Ninth Circuit has a singularly (and, I had thought, notoriously) poor record on appeal. That this is unknown to its chief justices may be yet another sign of an unmanageably oversized circuit.” Justice Scalia was echoed by Idaho Attorney General Alan G. Lance who likened taking cases to the Ninth Circuit to consulting a Ouija board. Said the A.G.: “We want out of this unmanageable bureaucracy.”
Most disturbing is the high number of unanimous reversals of Ninth Circuit decisions. According to Arthur Hellman, a law professor at the University of Pittsburg, “When the Supreme Court overrules you unanimously, they are sending a message.” Unanimous reversals are considered public slapdowns, but the Ninth Circuit now collects them as badges of honor; they are now beyond embarrassment; they just don’t care about being reversed. The sting of unanimous reversals wore off long ago at the Ninth Circuit; their strategy now is to issue far more decisions than the Supreme Court could ever hope to review. The Ninth Circuit is now a rogue court hell-bent on legislating from the bench.
According to a former clerk, “The operating assumption is that all but a fraction of its cases will not be corrected by the Supreme Court, especially on immigration.” In other words, “thousands of bad cases slip through the cracks.” He adds, “. . . so you have judges that are flagrantly ignoring Supreme Court precedent because the high court just doesn’t have the time to review all the cases.” It used to be that political struggles were resolved at the Supreme Court level, but now the Democrats have shifted that struggle to the lower courts where a tidal wave of trashy decisions is shaping American culture without any hope that Supreme Court review could ever catch up and set things right.
When you consider that today’s Supreme Court is moderate to conservative and includes liberal jurists Stephen Breyer and Ruth Bader Ginsberg, the torrent of Supreme Court unanimous reversals reveals a great deal about the Ninth Circuit’s disrespect for the Supreme Court, for legal tradition and for American culture. In response to a question about the high number of unanimous reversals by the Supreme Court, Yale University law professor Akhil Amar bluntly stated: “When you’re not picking up the votes of anyone on the Court, something is screwy.”
An example will illustrate how the renegade Ninth Circuit operates. In March 2003 the Supreme Court ruled that California’s “three-strikes” law did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. A companion decision barred the federal courts from setting aside three-strikes sentences as unconstitutionally excessive. So that’s the law.
But on May 19th, a scant three months later, a three-judge panel of the Ninth Circuit Court of Appeals began disposing of several California three-strikes appeals. The law was crystal clear: the Supreme Court had declared that all lower courts were powerless to reduce the sentence of 25 years to life for a third criminal offense by using Eighth Amendment arguments. The high court sits atop our nation’s hierarchical system of justice and once the Supreme Court decides a question of constitutional law, judges serving on the lower courts must apply the Supreme Court’s ruling whether they like it or not. If any one judge can place his own sentiments above the law, then so can others and soon the whole system of American justice would be characterized by judges who felt free to decide cases based on their personal predilections rather than binding precedents, statutes, or the Constitution. Judges should excuse themselves from deciding cases if their personal feelings prevent them from applying the law properly.
The Ninth Circuit three-judge panel that reviewed the California three-strikes cases consisted of Judges Harry Pregerson, Stephen Reinhardt, and Susan Graber. Judges Reinhardt and Pregerson were unhappy that they were compelled by law to impose stiff sentences on repeat criminals. Reinhardt said, “...I believe the sentence is both unconscionable and unconstitutional.” Pregerson went further and refused to join in the rulings, writing instead: “In good conscience, I can’t vote to go along with the sentence imposed in this case.” The pouting Judge Pregerson wanted to make his own law, in his own way, and to hell with the Supreme Court.
But if there’s a crown jewel in the Ninth Circuit’s dunce cap it’s Judge Stephen Reinhardt. Judge Reinhardt was appointed to the Ninth Circuit by Jimmy Carter in 1980. He’s now 68 years old, liberal, cranky and outlandish; he is one of the most overturned judges ever. In a single term his decisions were overturned unanimously by the Supreme Court seven times. He views the Constitution as an elastic document that can be stretched to hitherto unknown limits in the pursuit of previously unknown and unsuspected “rights.” He’s the darling of the California Trial Lawyers who crowned him “Appellate Judge of the Year” in 1987. His ever-increasing collection of Supreme Court reversals has made him a glowing icon of the activist legal Left. What leftist wouldn’t love a judge who ruled that the use of dogs to sniff out drug smugglers was a violation of the Fourth Amendment?
Of Judge Reinhardt’s seven reversals in a single term, three were on a per curiam basis, which means that Reinhardt’s legal reasoning was so flawed that there was no need to proceed to any legal arguments. In other words, the man was dispensing junk justice.
Judge Reinhardt is a dedicated defender of racial preferences. He considers abortion to be a “fundamental right,” but he is an adamant opponent of the death penalty; he’s firmly in the “preserve the guilty but slay the innocent, if you wish to” camp. In 1993, Judge Reinhardt shot off a letter to the Washington Post about the really pressing need for lots more openly homosexual judges on the bench. After an openly gay guy was appointed to the bench a year later, Reinhardt complained that there had not been nearly enough excitement about the appointment. “That’s not how firsts work,” he whined.
In May of 1994, soon after Bill Clinton nominated Stephen Breyer to the Supreme Court, Judge Reinhardt fired off an open letter to the Los Angeles Times pleading for Breyer to become the high court’s liberal conscience. He declared that America “is entitled to at least one justice with vision, with breadth, with idealism, with . . .a liberal philosophy and an expansive approach to jurisprudence.” Wow. Imagine Barbra Streisand on the bench; that’s Judge Reinhardt. By “expansive approach” we may assume that he wished Stephen Breyer to become what Reinhardt himself had become: a left-wing utopian philosopher king, a liberal sensibility disconnected from all legal precedent and social tradition.
To make matters worse, Reinhardt is a tireless, dedicated liberal ideologue. In the first half of the 1990s Reinhardt wrote more majority decisions, dissents and concurrences than any other judge on his circuit. He selects only the most liberal law-school graduates he can find and keeps four of them busy, instead of the usual three. Reinhardt is the fifth husband of Ramona Ripson, the leftist leader of the southern California branch of the American Civil Liberties Union.
Like Bill and Hillary, Reinhardt is a graduate of the Yale Law School, a notorious incubator of leftist legal activism where students are routinely taught to choose a social objective and then twist the law to make their fantasies come true. Reinhardt lacked the usual credentials to become a federal judge, but Jimmy Carter just “knew” that Reinhardt would be Carter’s kind of judge. Reinhardt had impressed Jimmy and the Democrats as a party activist and a labor lawyer; he was a favored chum to Tom Bradley, the Democrat mayor of Los Angeles. Reinhardt’s primary charm was his unscrupulous dedication to leftist political objectives.
For example, in the case of Compassion in Dying vs. State of Washington, Reinhardt cranked out 109 pages in defense of physician-assisted suicide, wherein he dragged in cases such as Roe vs. Wade and Planned Parenthood vs. Casey and did his best to blur the distinction between simply allowing a person to die and actively hustling a human into the grave. Reinhardt was unconcerned that the legitimization of assisted suicide would lead to inappropriate applications or an increased obligation on burdensome old folks to get on with the business of dying. Reaching for an analogy, Reinhardt declared that “The legitimization of abortion has not undermined our commitment to life generally; nor as some predicted, has it led to widespread infanticide.” He doesn’t define “widespread” but abortions shot up abruptly immediately after the 1973 Roe decision and even proponents of abortion concede that the number of gruesome partial birth abortions numbers in the thousands each year. If you opened your bedroom door one morning to find two thousand perfectly formed dead babies stacked like cord wood on the floor of your home would you say to yourself, “Gee, I feel so good that this type of late-term baby killing isn’t ‘widespread,’ it’s only two thousand babies?”
Legal experts predict that Judge Reinhardt’s opinions about the Pledge of Allegiance will soon join many of his previous opinions in the ash can of junk justice; but what is one more overturned opinion to a utopian liberal like Judge Reinhardt? In an average year he will participate in 500 cases. Only a tiny number of these cases will ever be reviewed by the U.S Supreme Court. To quote Stephen Reinhardt, the liberal who lives to legislate from the bench: “They can’t catch ‘em all.”
So there they were, the liberal Ninth Circuit judges, waiting in anticipation to rubber stamp the next whacky liberal cause, when along came Michael Newdow.
Meet the Model Atheist
In a nation that has grown excruciatingly sensitive to “minority perspectives,” the ultimate refinement of “minority rights” is a tiny demanding egoistic minority comprised of just one disgruntled person: meet Michael Newdow.
Mike is the atheist who took his displeasure to the Ninth Circuit Court of Appeals. His parents were non-practicing Jews. Mike’s mother, Rosalyn Newdow, recalled: “We never disparaged God. We just never talked about it.” According to Newsweek, “his parents recalled a child obsessed with precision in word and action. As a toddler he insisted on putting his stroller away in a precise spot in the basement of their Bronx apartment.” He would insist that meals be stopped while he checked the dictionary. He was bright; he skipped the second grade; he studied law at the University of Michigan. Recalled one of his professors: [He was] “the most memorably contentious student I’ve ever had.” Newdow was barely inside a law school before he began filing lawsuits because . . .
The world was forever failing to live up to Michael Newdow’s high standards. In 1996, Mike was standing in a checkout line in Chicago. He had just bought a bar of soap; he glanced at his change and he was immediately offended by the words In God We Trust. That’s all it took. That’s how exquisitely sensitive Michael Newdow was to all things that did not comport exactly with the way Michael Newdow was convinced things should be.
Michael Newdow simply accepted that his feelings were the standard by which all things should be measured. Mike recalled his feelings at that special moment in the checkout line: “This is offensive. I don’t trust in God.” That was it; Mike didn’t trust in God, the world must change to suit that ever-demanding voice inside Michael Newdow’s head.
Mike had lots of time on his hands: His wife had left the ever-so precise Mr. Mike and the court had given her custody of their daughter. The former wife had put a continent between herself and Mr. Perfection; she had moved to California, leaving Michael alone in Florida with nothing to do but fret. He spent long nights at the computer preparing his assault on other people’s expressions of faith. In his own words: “It’s fun to use your own head and think of responses to arguments.” In 1998, Michael Newdow challenged the Pledge of Allegiance in the Florida courts, but he was rebuffed because his daughter was not yet old enough to attend school. So Mike moved to California where his daughter was enrolled in the Elk Grove schools and then he filed another lawsuit.
In his complaint Mike claimed that his daughter was made uncomfortable by the presence of other children professing their allegiance to America. His daughter says she couldn’t care less; the discomfort was Daddy’s alone. Mike was beginning to look like an obsessive-compulsive nut with a fixation.
Back in 1977, Michael Newdow had himself ordained a minister in the Universal Life Church, the adherents of which believe that rational thought, not God, is the guiding light of humanity. It’s not most people’s idea of a church, but ours is a weird republic and it’s getting weirder all the time. Lately, Mike has taken to calling himself the founding minister of the First Amendment Church of True Science (FACTS); he signs his legal papers “The Reverend Doctor Michael A. Newdow.” He says he still plans to challenge the motto In God We Trust on our currency. He really wants to see an end to prayers at presidential inaugurations: “At President Bush’s it just went on and on,” Newdow complained. “I said ‘Holy smokes,’ they can’t do that!’”
As a really self-important atheist, Mr. Newdow plans to expunge all troublesome public manifestations of religion. “Why should I be made to feel like an outsider?” whined the perplexed Mr. Newdow. Why, indeed. In Mr. Newdow’s estimation it would be far better if it were the vast majority of believing Americans who felt estranged at sterile civil ceremonies that were a mere shrunken husk of the vibrant community gatherings of bygone days.
Michael Newdow is also troubled by pronouns. Mike wants to scrap the words he and she and replace them with the word re. He wants to replace his and hers with rees and him and her with erm. Got that?
“Come on, try it out,” he says. “’Re went to the store.’ It’s easy.”
He reminds a New York Times reporter, “Don’t forget the re, rees, erm thing. Just make it a little aside. Our language would be so much richer.”
Newdow is 51 years old. He grew up in Teaneck, New Jersey, graduated from Brown University, the University of Michigan Law School and the University of California at Los Angeles medical school. Though he passed the bar examination in February 2003, he began his challenge to the Pledge of Allegiance back in 1997. He argued that the phrase “one nation under God” violated the separation of church and state. He took this argument to the most liberal appeals court in America and won. His win was no surprise; the liberals on the Ninth Circuit bench embraced Newdow like a coven of horny spinsters groping some hunky blind date.
After the ruling, Newdow said that no one should be forced to worship a religion in which he did not believe. What he meant by this is anyone’s guess. The Pledge of Allegiance is not a prayer; reciting it is not worship. Saying the Pledge is an affirmation of one’s allegiance to our nation’s highest ideals. The Pledge places the nation “under God” as a way of reminding us all that our fundamental liberties are not granted to us by the government, but were given to all of humanity at the dawn of Creation, that our rights are ours by a higher authority than that of any government. The humility that this hierarchy of authority instills in mere mortals is an impediment to tyrants and over-reaching utopians alike; it serves to keep our republic politically healthy.
In an attempt to sound enlightened and philanthropic, Michael Newdow says, “Many people who are upset about this are people who just don’t understand. People have to consider what if they were in the minority religion and the majority religion was overpowering them.” Huh?
What minority religion is this man referring to; he’s an atheist. Perhaps he was referring to the religion of secular humanism. In any case, there is no “majority religion” in America and no such religion is threatening to overpower anyone, least of all Michael Newdow or his daughter. Reciting the Pledge is always voluntary. Any threat that the Pledge poses to Michael Newdow is purely the product of his own fevered imagination. What Mr. Newdow is seeking is not freedom of religion, but a comforting personal freedom from other people’s religious expressions. His likening himself to a religious minority is preposterous and pathetic. Even if believers in the world fell silent, Mike’s special liberal way of “knowing” would inform him that they were secretly praying, and this too would disturb his peace of mind.
A Brief History of the Pledge of Allegiance
The original Pledge of Allegiance was the brainchild of a Nineteenth Century socialist. Francis Bellamy had been a Baptist minister with a fondness for giving sermons and lectures that glorified his socialist utopian vision of an America with a government-run economy. He shared the views of his first cousin, Edward Bellamy, the author of the American socialist utopian novels Looking Backward (1888) and Equality (1897).
Soon after Francis Bellamy was squeezed from the pulpit of his Boston Baptist church because of his unpopular ideas, he was hired as an assistant by Daniel Ford, the owner and editor of The Youth’s Companion. Mr. Ford had enjoyed Francis’ sermons as a member of the congregation; he would later found the liberal and controversial Ford Hall Forum, in downtown Boston.
In 1892 Francis Bellamy was also the chairman of a state committee of superintendents of the National Education Association. In this capacity he created a program for the public schools’ quadricentennial celebration of Columbus Day of 1892. Mr. Bellamy visualized this public school program as centering on a flag raising ceremony and flag salute: his Pledge of Allegiance.
The original Pledge of Allegiance was only 23 words long: I pledge allegiance to my Flag and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all. This salute was unique; no other nation has an anthem dedicated to its flag, which is probably just a quirk of history, the consequence of Francis Bellamy’s decision to center a celebration around a flag-raising ceremony. The Pledge soon became a kind of vision statement or mission statement.
The Pledge was published in the popular Youth’s Companion in 1892. James B. Upham, the patriotic head of the Companion’s promotional department, had pushed for a national schools celebration of Christopher Columbus to be centered on a flag ceremony and a pledge. He had asked Bellamy to author a pledge.
The Youth’s Companion published the Pledge of Allegiance in its September issue of 1892, and it proved to be good for business. Because the Pledge was always recited before the American flag, the flag became one of the magazine’s most popular premiums, along with laying hens, singing canaries, pianos, bedsteads and 93-piece dinner sets. Prior to the publication of the Pledge, American flags were flown only at government buildings and military encampments. After the Youth’s Companion promotion of 1892, the flag became a familiar presence in American classrooms.
Six months after writing the Pledge of Allegiance, Francis Bellamy attended a flag-raising ceremony in New Jersey on April 25, 1883, at which citizens became the first adults to recite the Pledge of Allegiance in unison. Francis Bellamy and James Upham led the recitation, saying: “The times demand a patriotic citizenship, patriotic schools, a patriotic pulpit, a patriotic press.”
And so the Pledge entered our popular culture as a popular public ritual. The Youth’s Companion suffered an advertising decline and closed its doors in 1929, mostly because it refused to advertise alcohol and tobacco. (Fifty years later, Ms. Magazine would keep itself afloat on a gush of alcohol and tobacco advertising and little else.)
In 1923-24 the Daughters of the American Revolution successfully argued that immigrants might misconstrue the Pledge as a vow of loyalty to their native nations, and so “my flag” became “the flag of the United States of America.” The next revision of the Pledge was more controversial. The Soviet Union detonated its first atomic bomb in 1949; the absolute dictatorship of Joseph Stalin held much of Christian Europe in its iron grip and the unquestioned orthodox doctrine of Uncle Joe Stalin was one-hundred-percent atheistic Marxist-Leninist communism. The communists were then an aggressive threat and Americans felt the urge to distinguish themselves from the Red Menace.
The evangelical Reverend Billy Graham was denouncing communism as a “satanic religion,” and Secretary of State John Foster Dulles reminded everyone that Christianity was what distinguished Americans from the hard-boiled communists. Congress created a prayer room in the Capitol. They added the words In God We Trust to our greenbacks in 1955. A year later E Pluribus Unum was replaced by the phrase In God We Trust as our national motto.
With Americans feeling ever more threatened and righteous, the push to include the words “under God” in the Pledge intensified. In the early 1950s the Catholic fraternal Knights of Columbus had already added “under God” to the Pledge their members recited at meetings. The Knights pressed Congress to alter the Pledge and in April 1953 a Michigan congressman introduced a bill to include the words “under God” in the Pledge of Allegiance.
Ten months later, with President Dwight Eisenhower in attendance, the Reverend George M. Docherty belted out a Presbyterian sermon in which he extolled the inclusion of the words “under God” in the Pledge as a good way of distinguishing the United States of America from the godless commies. Congress quickly reconsidered the languishing bill and in 1954 the words “under God” were included in the Pledge of Allegiance.
After all this fine tuning the Pledge of Allegiance finally read: 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.
It’s only thirty-one words, but it drives some people nuts.
When the words “under God” were included in the Pledge back in 1954, President Eisenhower said that doing so would “strengthen those spiritual weapons which forever will be our country’s most powerful resource in war and peace.” Good ol’ Ike also famously declared that, “Our government makes no sense unless it is founded on deeply held religious belief – and I don’t care what it is.” Perhaps he meant something like the notion of “ceremonial deism,” the purpose of which is to excite a feeling of reverence and deep concern in the populace without conjuring up any pesky denominational particulars about the gender, habits or intentions of the Deity or deities.
The principle worth upholding here is the balance between the rights of believers and the rights of non-believers. This means that religion cannot dominate the public arena, but neither should this arena be swept clear of religious sentiments. Before the Ninth Circuit ruling, we thought we had achieved this rough balance; it was accomplished by placing limits on religion’s role in government, while allowing some forms of religious expression. The Ninth Court decision threatened to crush all traditional expressions of reverence in public forums.
After the Ninth Circuit ruling, every religious person must accommodate a single atheist who might be offended by any favorable mention of God, while all blasphemous mentions are forever protected by the very same First Amendment that prohibits favorable mentions in the presence of possible nonbelievers. That’s pretty screwed up. No atheist is ever compelled to accommodate a single religious person who might be offended by an atheist’s expressions of unbelief. It is only the big tent of liberal diversity and pluralism that is never quite big enough to include people who believe in God.
To religious folks “under God” now represents the last remaining reference to God in our public schools after the sweeping liberal makeover that demanded everyone in public school buildings shut up about his true feelings. To make matters worse, the Ninth Circuit liberals rubbed salt in the wound by bolstering their position with a stupid “hurt feelings” argument: the words “under God” might make someone uncomfortable. In dissent, Judge Ferdinand Fernandez blew off this shallow pop-therapy worry: “Some people may not feel good about hearing the phrase recited in their presence, but then others might not feel good if they are omitted.” In other words, the sensibilities of tiny minorities do not constitute a clinching argument. Liberals were masking an aggressive ideological campaign against religion behind such high-toned rhetoric as “safeguarding church-state separation to allow all faiths to flourish” while relentlessly striving to obliterate religious expression from every public forum. Children are free to write essays about Hitler, Stalin and Pol Pot, but a paper about Jesus will throw public school teachers into consternation. A request for a simple moment of silence becomes wildly controversial because some children might use it to offer a silent prayer on public property. The nasty message that children receive is that religion is backward and threatening, which is an article of faith among secular humanists.
Judge Alfred T. Goodwin had opined that the offending couplet “under God” was “impermissible government interference” because it suggested the United States is in the grip of what he called “monotheism.” There it was, for all to see, the dreaded threat of monotheism. Heaven forefend that those who secretly long for a revival of the blood-drenched altars of the serpent god Quetzalcoatl and his Aztec sidekicks should be made to feel uncomfortable in an American classroom.
Americans have grudgingly accepted most court rulings, but this one was especially irksome for it ignored the consent of the governed; it fixed nothing that was broken; it dismissed as hollow propaganda words that millions of Americans cherished. Only left-wing True Believers could believe that two little words tucked away in a familiar little pledge that school children recite every day by rote was a threat to basic human rights. Stupidly releasing the court’s decision a week before the first Fourth of July after the horrendous September 11th terrorist attacks against America only added to the incendiary mix of religion, patriotism and political ambition. It further contributed to the perception that the liberal Ninth Circuit court was hopelessly tone deaf to the traditional hymns of popular civic sentiment: philosopher kings lack the common touch. Worse yet, by bringing the Constitution into play over the alleged discomfort of a second grader, the entire endeavor of interpreting the Constitution was trivialized.
An Argument for Not Changing a Word
The First Amendment makes no mention of any separation of church and state. In plain English the Establishment Clause prohibits Congress from favoring an official religious orthodoxy. That’s all. The expression “separation of church and state” has never been anything other than a sloppy metaphor intended to capture Thomas Jefferson’s feelings about the proper relationship of the government to religious institutions. This metaphor was never codified in law; it’s a thumbnail sketch, a snapshot, of one man’s vision and it can never outweigh the actual purpose and meaning of the Establishment Clause.
The words of God Bless America have been traditionally sung by school children. The words God Bless America are a fixture of the customary presidential benediction at the conclusion of presidential speeches. Displaying the words God Bless America is well within the bounds of accepted practice for public institutions; it is included in the species known as ceremonial deism, which includes In God We Trust and One Nation Under God on our currency, and God Save the United States of America and this honorable Court, intoned by the Supreme Court bailiff at the start of oral arguments. The phrase “under God” sprang from Lincoln’s Gettysburg Address: “this nation, under God, shall have a new birth of freedom. . .”
The Supreme Court has already found the words “One nation under God” in the Pledge to be one of many examples “of government’s acknowledgment of our religious heritage.” In deciding the case of ACLU vs. Capitol Square Review and Advisory Board, the Sixth Circuit Court upheld Ohio’s state motto “With God, All Things Are Possible” even though Ohio was quoting Jesus. The state was immune from the Establishment Clause. The court made special note of the similarity of the Ohio motto to the Pledge of Allegiance.
David Cole, a professor at the Georgetown University Law School, predicted that the high court would trash the Ninth Circuit decision. He said of the Pledge: “It’s been with us so long. It’s so much a part of our culture that it’s very unlikely that the Supreme Court is going to declare it unconstitutional.”
Our founding document, the Declaration of Independence, holds that “all men are created equal, that they are endowed by their Creator with certain unalienable rights.” This was not a careless slip of Jefferson’s lip. The often repeated idea that there is no power on Earth that can strip people of their God-given rights is shot through the founding of the United States. Sam Adams and James Otis declared: “The right of freedom being a gift of God almighty, it is not in the power of man to alienate this gift.” Alexander Hamilton reminds us that. “The sacred rights of mankind . . .[are written] by the Hand of the Divinity Himself, and can never be erased or obscured by mortal power.”
So when we say that America is a nation under God we are affirming our belief that the rights we enjoy as Americans are not gifts of the government, but of nature and nature’s God. Because the government should always be humble before the people it represents, reminding the government that our rights were bestowed upon us by an authority higher than the government is a good way of keeping the government in its proper place. Atheists, such as Michael Newdow, are at liberty to spin alternative theories about why their rights are unalienable, but they cannot remake the history that defended these rights. Eugene Volokh, a specialist in church-state law at UCLA Law School observed: “There is still a very credible argument that at some point you have to stop trying to relentlessly extirpate religious symbolism from the life of a country that is, after all, very religious.”
President Bush says that the Pledge is “a confirmation of the fact that we received our rights from God as proclaimed in our Declaration of Independence.” George Bush articulated this vision again when he declared that American armed forces had not given the people of Iraq new rights, but had simply secured for them unalienable rights that were already theirs as children of their Creator. He speaks with a confidence born of 200 years of tradition. Our public schools should instill a healthy, educated patriotism in our nation’s school children. We possess excellent tools to do so: deeply moving, easily memorized documents that capture the essence of America’s highest ideals. Before assaulting these grand documents even the most driven atheist should pause and reflect.
Let’s assume for a moment that Michael Newdow was motivated by something more noble than the smart-alecky desire to poke his neighbor in the eye with a sharp stick. Perhaps, like so many assertive self-righteous unbelievers, he has dedicated his life to a heartfelt crusade to rid the world of unfashionable ideas and outmoded myths. To people like Mr. Newdow, a belief in any god is just so last week.; people should spend their Sundays reviewing texts on cosmology and evolutionary biology and leave all the myth making to the Madison Avenue ad men; God is totally out of fashion; get hip; smarten up; religious faith is just a crutch.
Forty years ago I embraced this sort of visionary iconoclasm; I was book-smart and short on experience and ready to rewind the world back to the year zero: from now on we would all be brave and smart and scientific and modern in our modes of thought. Henceforth, we would only believe in ourselves. No more crutches!
After four decades of experience as a son, a lover, an infantryman and a father, I have concluded that the kind of intelligence that I.Q. tests measure is not the same thing as wisdom; being able to split the atom is very different from being able to mend a broken heart; dismissing faith and irrational hope as mere crutches is to stupidly undervalue the immense worth of a good crutch.
Civilization is a precious and fragile thing and it is far superior to savagery. A well-ordered, humane society is something to be cherished. Anything that draws humans together, anything that puts people in touch with their better selves, is good for the overall health of a civilized society. Some of these things may strike persons of cultivated tastes as being sentimental or gauche or kitschy. Nonetheless, the sentiments engendered by paintings, sculpture, films, novels, music and popular rituals are the touchstones that keep a society in touch with its binding ideals and sentiments.
American civilization is founded on a truly revolutionary idea: that the Divine Right of Kings is crap. This revolutionary idea struck even many Eighteenth Century Americans as odd; the world waited for the infant America to unravel. What held American civilization together was a deepening popular conviction that America was a new Zion, a righteous community dedicated to high ideals. America was understood to be a refuge from ancient tyrannies, a place where citizens had unalienable rights endowed to them by an authority greater than any government.
This luminous vision of American citizenship strikes Michael Newdow as a bit of what H.L.Menchen used to call “the higher malarkey.” But even from Mr. Newdow’s low-angle perspective this vision is still worth preserving. The popular conviction that our civil rights are ours by birth and not gifts of some gang of humans stands as a bulwark against the thuggish tendencies of arrogant men in positions of power. This conviction may be the creature of a popular myth, but it is a powerful myth and one that the Founders of the American Revolution dearly hoped would frustrate the dreams of any future would-be American monarch.
President Bush, who has not shied from public demonstrations of his personal faith, has expressed his belief that the Pledge of Allegiance is “a confirmation of the fact that we received our rights from God as proclaimed in our Declaration of Independence.” Can this statement be proven in a laboratory? Of course not. It’s an article of faith; it’s an idea; it’s an important dimension of a shaping American social myth that protects our individual rights and restrains the arrogance of men in power.
The Pledge of Allegiance has always been a daily reminder to millions of young citizens of what their country’s purpose should be: liberty and justice for all. Its passing reference to the proper place of government in the grand scheme of things, which is somewhere below a higher authority, is good for the political health of our nation. When all is said and done, the final firewall against tyranny is the widespread American sentiment in favor of popular sovereignty which is founded on the popular belief that we are all God’s children and that our rights are an endowment from an authority higher than any earthly government.
Atheists are now laboring to eradicate all expressions of this concept from our public discourse. They want a world where everything is crystal clear and as squeaky clean as a freshly washed test tube, a tidy universe of interlocking theorems where nothing can be accepted unless it has a logical antecedent. It’s an intolerant utopian vision: it’s intolerant of differing perspectives; it’s intolerant of the naturally occurring messiness of our shared social history.
In his common-sense dissent from the Ninth Circuit ruling, Judge Ferdinand Fernandez reminds us that “legal world abstractions and ruminations aside, when all is said and done, the danger that ‘under God’ in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody’s beliefs is so miniscule as to be de minimis. The danger that phrase represents to our First Amendment freedoms is picayune at most.”
He goes on: “Some, who rather choke on the notion of de minimus, have resorted to the euphemism “ceremonial deism.” But whatever it is called (I care not), it comes to this: such phrases as ‘In God We Trust,’ or ‘under God’ have no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. Those expressions have not caused any real harm of that sort over the years since 1791, and are not likely to do so in the future. As I see it, that is not because they are drained of meaning. Rather, as I have already indicated, it is because their tendency to establish religion (or affect its exercise) is exiguous. I recognize that some people may not feel good about hearing the phrases recited in their presence, but, then, others might not feel good if they are omitted. At any rate, the Constitution is a practical and balanced charter for the just governance of a free people in a vast territory. Thus, although we do feel good when we contemplate the effects of its inspiring phrasing and majestic promises, it is not primarily a feel-good prescription. In West Virginia Board of Education v. Barnette, for example, the Supreme Court did not say that the Pledge could not be recited in the presence of Jehovah’s Witness children; it merely said that they did not have to recite it. That fully protected their constitutional rights by precluding the government from trenching upon ‘the sphere of intellect and spirit.’ As the Court pointed out, their religiously based refusal ‘to participate in the ceremony [would] not interfere with or deny rights to others to do so.’ We should not permit Newdow’s feel-good concept to change that balance.”
Well said. The tidy little legal minds that are forever pulling threads from the rich fabric of our common culture will always be with us. The anxiety-ridden little boy who could not find emotional peace until his stroller was parked in one exact spot in the basement was destined to become the compulsive, nitpicking, frenetic, legalistic short-pants known as Michael Newdow.
Public response to Mike’s lawsuit was overwhelmingly and predictably negative, but Mike was clearly stunned by it. “I wasn’t prepared,” he said, shaking his head. “And I should have been prepared.” Mike was unprepared because Mike is emotionally unequipped to understand normal humans. His egoistic tunnel vision blinds him to the sweeping social landscape around him; he lacks the emotional and intellectual peripheral vision called wisdom. He’s the color-blind guy at the painting gallery; he’s the tone-deaf guy at the symphony; he just can’t understand what everyone else is getting so excited about.
Should his suit over the Pledge reach the Supreme Court on appeal, Newdow says he still plans to represent himself. Imagine his enormous ego boost; he would be in his own private heaven. “I’ve done okay so far,” he said, with a smile.
More Good Stuff on the Homepage, Click Here!
Thomas Clough
Copyright 2003
July 4, 2003