quarter on pennyOn 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.




  1. Edwin Reynolds says:

    Dear Michael,

    I believe your analysis is correct. Its an interesting concept that by retaining the name of God in a meaningless way we actually are doing worse than if we stripped His name out of our pronouncements. I would note, however, that to refer to God so generically is probably the only way we can constitutionally do so, since it does not identify the God referred to as either Jewish, Christian, Muslim, or any other deity. And, as the ruling notes, there is a value in uniting the citizenry under long-standing patriotic phrases that we have come to view as quintessential to our heritage, even if they render the identity of God virtually meaningless. It is not likely that Christians, Jews, Muslims, or others who identify themselves as worshippers of the true God and who want to protect His name and reputation, will want to strip His name out of the pledge or coinage on the grounds that we are violating the spirit of the 3d commandment. It is the atheists who want to remove His name, although they should be pleased to have His name rendered virtually meaningless. Atheists have their own gods, generally themselves and their own opinions.

    The Declaration of Independence would have had virtually nothing to say had it left out the idea of God altogether. The premises for such a document require recognition of a higher Power that has invested His creation with certain inalienable rights and directs the affairs of men and governments to provide for those rights. Men use the intelligence God has given them to do the right thing to bring about justice and equity for all. Where would our sense of ethical law, justice, and jurisprudence come from apart from the sacred Scriptures and the principles it has established for a balance between mercy and justice in dealing with people living in a world corrupted by sin? There is value in having a sense of Gods watching eye and guiding hand in the history of our nation. The founding Fathers never intended for the concept of God to be banished from every civil act, statement, or institution. The purpose of the first amendment was not to banish religion from our country, but to prevent any particular religion from acquiring a controlling influence over government. The statement that Congress was to make no law respecting an establishment of religion or prohibiting the free exercise thereof has two important parts. We tend to focus on the first part to the neglect of the last part, and we end up prohibiting the free exercise thereof. However, I contend that we also misconstrue the first part, reading it in modern speech rather than in 18th-century speech, as though it were saying that Congress shall make no law with respect to an establishment (or establishing) of religion, when it was really saying that Congress shall make no law giving preference (respect) to a particular establishment of religion, namely, a particular established religion or institution of an established religion. The Bible says that God is no respecter of persons, meaning that He does not give preference to one person above another, that He treats all equally. This is what the founders were trying to say regarding the way Congress should deal with establishments of religion, or churches and their institutions, namely, that they should treat them all equally, without preference or prejudice, not that they should never include anything in government that in anyway has anything to do with God, prayer, worship, or religion. That they were clear on this is shown by the way in which they worded documents, prayed in Congress, built monuments that included God and the Ten Commandments, etc. Clearly, they were not anti-God or anti-religion. They merely wanted to prevent any religion from becoming preferred above others and so having the opportunity to legislate in a way that became oppressive to others. Today we have totally lost sight of the vision of the framers of the Constitution and the Bill of Rights, and we have become obsessive about removing all references to deity, all prayer, all biblical references, all monuments to biblical or religious themes, all crosses, all crèches, etc., from anything having to do with an entity of the government, whether local, state, or federal. This is nonsense.

    Edwin Reynolds

  2. Kevin James says:

    I believe Edwin Reynolds has said it very well.

    If we go after God in the pledge and motto, what of Creator in the Declaration of Independence or mentions of God in other state constitutions? Truly, this nation has some recognition of the Almighty during its settling and founding and this should not be denied nor erased from our history. Yet, the danger is there as we battle for the balance where we actually demean God's name in the process. Where do we find that healthy acknowledgement of the Creator without making Him meaningless in our litigation processes? We are neither purely secular, nor purely ecclesiastical in our nation's legal framework. We are unique in this challenge. It's an ongoing experiment that continues to serve well.

    We as believers need to be wise enough to know that though this nation has a rich heritage of being religious, this country is not the heavenly Canaan Land. We have not arrived to the home that God promises each of the faithful in which righteousness will dwell. As we struggle to keep the proper balance in the church/state debate we must not become neutral on God's name and its meaning. Each dollar bill I see, coin I dispense, or pledge I hear I always try to appreciate the incredible wisdom of the Founders in their positive view of religion among a people, and stay clear of making the name of God meaningless in my mind and heart. Corporately I can engage in a healthy awe of God's guiding this nation and individually keep meaning and substance in the name of the Almighty.

    In closing I share a caveat. Is God His name? Or is His name Jehovah (Yahweh) in the Chrisitan sense? I am not sure we can fully apply the issues of the commandment to this particular usage of identification of the Diety, although I acknowledge that to empty even the term God of its meaning has its draw back. But the Scripture is clear in my thinking that God is a term of title, not a name. There are gods a many, but only one Yahweh, the personal, loving and only true God of both the Old and New Testaments.

  3. Matt McMearty says:

    I read Edwin Reynolds comment on your article. What follows is not to diminish the many good points he makes in relation to the pledge phrase “under God.” I share his sentiments. I do take issue with his historical portrayal of the establishment clause by stating “However, I contend that we also misconstrue the first part [the Establishment Clause], reading it in modern speech rather than in 18th-century speech, as though it were saying that Congress shall make no law with respect to an establishment (or establishing) of religion, when it was really saying that Congress shall make no law giving preference (respect) to a particular establishment of religion, namely, a particular established religion or institution of an established religion.” What he says here is true of those who wanted to ban only the preference of one church over all others. Those multiple attempts for that language all failed in the Senate and the House. It seems to me that any time someone argues that the First Amendment only prohibits the establishment a certain religion (ie. church institutionalized religion), they open the door to potentially allowing the establishing of a coalition of Christianity as religion. James Madison clearly stated that the intent of the Select Committee's revision of his amendment that was proposed to Congress as the Committee of the Whole, he said it was to prevent “one or two” churches joining together and establishing “a religion.” His reference to two churches echoed his and others concern for what happened in VA. The Anglican Church and the Presbyterian Church were supporting the bill for teachers of the Christian religion. The latter backed out and saw what was happening.

    If they were concerned about two getting the benefit of the law, they were concerned about some form of plurality religion, especially the Christian religion getting sway. The revisions of the recommended amendment from the Select Committee did not change the intent of the Committee as Madison himself was the only one who clarified the Committee's meaning and no one contested that clarification. They contested that it might be construed to mean the outlawing of religion altogether (possibly where it was allowed in the states). There has never been and never will be in the next 2-3 decades any chance of one church ever being established by federal law. We have the most to fear when many Christian churches seek to get their generally agreed version of Christianity established in the law. No other religion has a chance of doing that in the US. The “under God” phrase is the seed for such coalitionist Christianity to press the crow bar of their agenda. I don't mind the phrase as long as it is not used to favor Christianity in any form by law, or any other non-Christian religion for that matter as well. God is what every individual understands him to be and the phrase “under God” is only a threat to atheists. I can appreciate their concern but I do not care for their agenda as much as I don't care for a coalition of Christian churches and groups agenda either. And thus I share Edwin Reynolds position but not his First Amendment history.