On March 11, 2009, the Ninth U.S. Circuit Court of Appeals upheld the phrase “under God” in the Pledge of Allegiance and the motto, “In God is Our Trust” on U.S. Currency. The three-judge panel rejected an argument by Sacramento attorney and physician Michael Newdow that the phrases were an unconstitutional violation of the separation of church and state.
Writing for the majority, Judge Carlos Bea wrote, “”The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded.”
In Newdow v. Rio Linda Union School District, 05-17257, the court found 2-1 that teachers leading students to recite the phrase “under God” in the Pledge of Allegiance did not amount to a religious exercise, but rather was one of the “historical and religious traditions of our country, not a personal affirmation through prayer or invocation that the speaker believes in God.” The court also took into consideration the fact that students could opt out of saying the Pledge on religious grounds, and stated that Newdow did not have standing to pursue the claim as the Pledge was “voluntary.” The phrase “under God” was added to the Pledge in 1954.
This time, Judge Bea wrote that Education Code Sec. 57520, which requires each school to conduct “patriotic exercises daily” expresses a secular purpose and does not mandate the text of the pledge or any other patriotic exercise. Judge Stephen Reinhardt dissented, writing that, “The undeniably religious purpose of the ?under God’ amendment to the Pledge and the inherently coercive nature of its teacher-led daily recitation in public schools ought to be sufficient under any Establishment Clause analysis to vindicate [the plaintiffs’] constitutional claim, and to require that the Pledge of Allegiance, when recited as part of a daily state-directed, teacher-led program, be performed in its original, pre-amendment secular incarnation that served us so well for generations,” he wrote.
Standing to challenge the Pledge was important in this case because in 2005, Newdow had previously won at the 9th Circuit, but the Supreme Court had ruled that Newdow could not pursue the case because he had pursued the case on behalf of his daughter and did not have custody. The U.S. Supreme Court had not decided the merits of the Pledge itself.
Separately, in Newdow v. LeFevre, 06-16344, the court ruled 3-0 that although Newdow did have challenge to sue since he came into contact with coins and paper currency on a daily basis. As this case was decided after the “Pledge” case (Rio Lindo), Judge Reinhardt voted with the majority as he felt required to do so by “precedent” but confirmed again that he believed the majority in Rio Lindo had ruled erroneously.
From this author’s perspective, the 9th Circuit’s ruling appears to be consistent with the U.S. Supreme Court’s decision in Marsh v. Chambers (1983) which found that traditional notions of separation of church and state are not violated if there is a long-standing history of the practice and it is more symbolic than religiously meaningful. In Marsh, Nebraska state senator Ernie Chambers had sued in federal court, claiming that the legislature’s practice of opening sessions with prayer violated the separation of church and state. The 8th Circuit had looked at the issue and decided that it did technically violate the First Amendment, but the Supreme Court found that it was indeed constitutional, essentially because it was form, not substance.
While I think Dr. Newdow may have been technically correct in this case, the use of the word “God” in the Pledge of Allegiance and on U.S. Currency is a politically charged issue. It has historically been a non-issue for most Americans, but if it were removed by a Supreme Court decision, there would be riots in the streets railing against “activist judges” even if they technically made the correct decision. Most people do not understand the legal basis and operation of the First Amendment, and the backlash against the Courts and the resulting legislative and constitutional changes could outweigh the small degree of harm caused by the usage of these symbols.
If these cases proceed to the U.S. Supreme Court, the Court will likely find a way to keep them legal, and might even write a broader decision than Marsh which could extend to more areas of civic religion. From a religious perspective, it is discomfiting, but legally necessary, that the court deny that the use of phrases has any true religious meaning in order for it to remain. So, correct me if I’m wrong, but doesn’t keeping God’s name in the Pledge and on money under the condition that it is permissible only as long as it is meaningless implicate the 3rd Commandment which specifically states, “Thou shalt not take the name of the Lord your God in vain, for the Lord will not hold him guiltless who taketh His name in vain” (Exodus 20:7)?
Shawn Boonstra, the speaker and director of It is Written, in his sermon on the 3rd Commandment, describes intent of the commandment as follows:
“The Hebrew word for ‘vain’ in this commandment basically means ‘nothingness,’ ‘vanity,’ ’emptiness’ or ‘worthless.’ What it’s saying is that you shouldn’t take God’s name in a worthless way. Don’t use God’s name, don’t profess God’s name as if it means nothing. Don’t claim to be a follower of God unless you live like a follower of God. Don’t go around using the name of God and all that it entails unless you’re going to live like you mean it. Don’t cover your personal sins in the name of a God who never, ever sanctions your sins. Don’t defile the name of the Lord. In short, don’t be a religious hypocrite.”
I don’t know if Shawn Boonstra would agree, but it is ironic that although this was a lawsuit brought by an atheist, had he won and the phrases been struck, the result might have actually been more protective of the honor of God. After these rulings stripping the name of God of any religious meaning, those who have so long clamored for God’s name to be mentioned as a civic symbol might want to re-think their position.
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