Below are excerpts of some of the thoughtful commentaries on the 9th Circuit decision tempering the hysterical outbursts against it:
"The 'Under God' addition, by identifying patriotism with religion, excludes agnostics, atheists and all believers in some deity or deities other than the Christian God. Nor does the 'under God' addition meet Theodore Roosevelt's test of promoting reverence and appealing to high emotions. Doubtless all the crooks in the corporate community have recited the pledge without notably improving their conduct."--Arthur Schlesinger Jr. ("When Patriotism Wasn't Religious," New York Times, July 7, 2002)
"The soundness of the decision is best revealed when it is measured against the objections to it. Prominent politicians, rather than offering reasoned responses to a challenging constitutional question, merely came up with sound bites condemning what they knew was an unpopular decision." --Westchester News Editoral, NY ( June 28, 2002)
"Religion and devotion to God should, like St Paul's charity, not be puffed up. God does not reward the loudest voice. Moreover, the 'under God' inclusion in the pledge is, as the much-maligned majority in the Ninth Federal Circuit ruled, unconstitutional."--Phil Donahue, (MSNBC premiere, July 15, 2002)
"The response to the court's decision exposed the fundamentalism that weaves through American public life, where many . . . confuse the worship of God with patriotism. . . . praise these two appeal judges--Alfred Goodwin and Stephen Reinhardt--for rendering a gutsy decision and for flushing American faundamentalism into the open."--Nation columnist David Corn ("I Pledge Allegiance to Fundamentalism in the United States of America. . .", Tompaine.com, July 16, 2002)
"Those two words went into the pledge nearly 50 years ago, and for the most deplorable reason. . . . the pledge had become yet another cold-war litmus test. The words 'under God' were a way to indicate that America was better than other nations--we were, after all, under the direct protection of the deity--and adding them to the pledge was another way of excluding, of saying that believers were real Americans and skeptics were not. 7 ". . . what was embarrassing was watching all those people--Republicans, Democrats, liberals, conservatives--shout 'under God' on the Senate floor, as though government were a pep rally and they were on the sanctified squad. . . . [Now our nation] settles for sloganeering, demonizing and politicking."--Anna Quindlen ("Indivisible? Wanna Bet?" The Last Word, Newsweek, July 15, 2002)
". . . before they trampled one another on the way to the TV cameras, a lot of the congressional Bible-thumpers who rose to the pledge's defense were busy making the world safe for the likes of Enron and WorldCom."--Brian Dickerson ("Getting it Straight," Detroit Free Press, June 28, 2002)
Atheist politicians seem to be an endangered species these days, but things were very different a century to a century-and-a-half ago. Between the mid-1800s and the start of World War I--the period we think of as the Golden Age of freethought--public servants with no use for religion were a common sight on the political landscape.
Nowhere was this more the case than in Second empire and early Third Republic France--the France of the second half of the 19th century. These were glory years in the annals of French freethought, a time when scientific positivism, anti-clericalism and faith in science and reason reinvigorated the climate of ideas with the spirit of Voltaire. It was a period that might well be called the French Neo-enlightenment. One of its standout figures was Georges Clemenceau.
Clemenceau (1841-1929) was born in a little village in the Vendee region of western France. The son of a physician, he studied medicine in Paris in the early 1860s, eventually earning a medical doctorate. While in medical school he took his first steps into journalism, meeting and befriending emile Zola and writing with him for an ephemeral newspaper called Travail (Work). In his articles, Clemenceau boldly endorsed freedom of speech, freedom of the press, and the establishment of a Republic. These opinions, during the years of Napoleon III's Second empire, were bound to get him into trouble. In 1862 he served sixty-three days in jail for participating in a pro-republican student demonstration.
In 1865 Clemenceau sailed to New York City as a foreign correspondent for Le Temps. He ended up spending four productive years in the United States. During this time he sent back many pieces to his Parisian home office on life in post-Civil War America, including several anti-slavery articles and an interview with Ulysses Grant.
Clemenceau's U.S. sojourn also left him with an excellent command of english, a skill that would serve him well a half century later at Versailles, in his discussions with Woodrow Wilson and British prime minister David Lloyd George at the table of the Paris Peace Conference, where Clemenceau served as leader of the French delegation.
In addition, Clemenceau translated John Stewart Mill's Auguste Comte and Positivism into French (positivism would leave a lasting impression on his own thinking) and taught French and equestrianism at Aiken Seminary for Young Ladies in Stamford, Connecticut. Here he met a student named Mary Plummer, whom he married in 1869. The marriage would last seven years, producing three children.
Returning to France with his new wife, he plunged into politics. In 1870, in the wake of France's disastrous defeat at the hands of the Prussians, the radical government known as the Commune appointed him Mayor of Montmartre. Clemenceau's anti-German sentiments, which would never abate, took root at this time. He was a member of the Paris Municipal Council from 1871 to 1876. During the 1870s and 1880s he was five times elected a deputy to the National Assembly.
Clemenceau was out of politics between 1893 and 1906 but continued his social action as a journalist. For much of this period he owned and edited La Justice, a newspaper to which he contributed a steady stream of articles, many of them anti-clerical. Biographer Wythe Williams calls the Clemenceau of the 1890s "the most widely read and influential molder of public opinion in the [French] nation."1
Between 1898 and 1901, peak years in the Dreyfus Affair, Clemenceau edited and contributed regularly to the daily L'Aurore (Dawn), where he was joined by old friend emile Zola in that paper's ardent campaign on behalf of Alfred Dreyfus. Zola's famous open letter to the French president, "J'accuse," published in L'Aurore in January 1898, owed its title to Clemenceau. The complete collected newspaper articles of Clemenceau fill nineteen volumes; articles written during the Dreyfus Affair account for seven of the nineteen. Criticism of religion is a thread running through all nineteen volumes.
In spite of his intense social involvement during the 19th century's final decade, Clemenceau found time to ponder the history of religions, and this resulted in a collection of essays entitled Le Grand Pan (The Great God Pan, 1896). The idea behind Clemenceau's title is that Pan is paradoxically still among us. Although it may please us to think that primitive, "false" gods have been replaced over time by more modern and "truer" ones, such changes are illusory. Historically, says Clemenceau, there are no new gods, just old gods recycled. We are mistaken to think that Pan was buried under with the advent of Christianity. In actuality he lives on, as do various other deities from earlier eras, all of them disguised, but only slightly, under new names and costumes, all of them false, all of them eternally animated by the same unchanging forces: ignorance and superstition.
From 1903 to 1906 Clemenceau served in the Senate while continuing to edit L'Aurore. He was twice Prime Minister of France, first from 1906 to 1909, then from 1917 to 1920. During the second of these two terms, the defeat of Germany was his all-consuming goal. When World War I came to an end with France on the winning side, Clemenceau was acclaimed throughout his country as Pere Victoire, Father Victory. In 1920, at age 79, he narrowly missed being elected President of the French Republic.
Nicknamed "The Tiger" early in his career, Clemenceau was a scrappy political fighter who excelled at ousting political opponents by provoking votes of no confidence, a tactic that earned him the title "wrecker of ministries." He also cut a fierce figure in the beau monde of French society. A famed duelist, he was known and feared as an expert swordsman and marksman.
Toughness of character notwithstanding, Clemenceau was a person of learning and culture. He knew and loved painting and sculpture and was among the first to herald the genius of Van Gogh. Rodin, who sculpted a bust of him, was a personal friend. So was Claude Monet, about whom Clemenceau wrote a book. Clemenceau owned Monet's self-portrait, eventually donating it to the Louvre. He himself, like his friend Zola, sat for edouard Manet. It was at Clemenceau's insistence that James McNeill Whistler's famous painting "Arrangement in Gray and Black" (we know it better as "Whistler's Mother") was purchased by the French government. A statue of Clemenceau stands on the Champs-elysee.
Clemenceau's 17th-century forebears were Protestants who had experienced persecution during the reign of Louis XIV. In time the family returned to Catholicism, but without abandoning a certain streak of rebelliousness and skepticism. Clemenceau's paternal grandfather, though a member of a Catholic parish, was buried without a religious funeral. His father was an outspoken nonbeliever who insisted that his children be raised without religious training. In this he was opposed by Clemenceau's mother, a practicing Protestant. Though deeply attached to both parents, young Georges identified strongly with his father. At age 16 he was once suspended from school for arguing against Christianity with a teacher.
When he married in 1869, Clemenceau insisted, to the dismay of his bride and her family, on a strictly civil ceremony, free of all religious trappings. "Throughout his life," biographer Williams tells us, "the Tiger declined to attend religious services, except for an occasional state ceremony in a cathedral, which in his public position he could not avoid."2 In his will, Clemenceau stipulated that his body was to be taken from the mortuary to the graveyard without rites of any kind.
The Tiger's wry sense of humor added to his popularity. As he progressed into his eighties, he enjoyed raising eyebrows by referring fondly to his impending death as a long overdue sleep he was eager to enjoy. For his burial he chose a plot next to the grave of his father. When the carver in charge of his tombstone took Clemenceau to the site to complain that the area was too small for a coffin, the two-time Prime Minister of France, indifferent to gaping onlookers, strolled over to the spot in question and fell to the ground, stretching out full-length and "modeling" his future grave, to demonstrate that the bed he had chosen for his final slumber was indeed a comfortable fit.
Not surprisingly, history textbooks and encyclopedias tend to skirt the issue of Clemenceau's atheism. His anti-clericalism (a political stance and thus a relatively "safe" topic) is inevitably discussed, but specific mention of his personal rejection of religion is carefully avoided. Collier's Encyclopedia, Encyclopedia Americana, The Encyclopedia Britannica and Grolier's Multimedia Encyclopedia are all cases in point: nowhere in the Clemenceau entries found in these standard reference works is there a direct statement about Clemenceau's open, lifelong atheism.
Georges Clemenceau is a towering figure in the history of France's Third Republic. Throughout his political and journalistic career he fearlessly attacked the Church as an institution guilty of fostering ignorance, superstition and inhumanity. Along with countless other 19th-century French artists and intellectuals, he dreamed of a day when organized religion would be rendered obsolete by the forces of reason and science.
With an affectionate but alcoholic father, a vain and distant mother, a husband who turned out to be unfaithful and a mother-in-law so domineering that she controlled her son's finances even after he was elected president, Eleanor Roosevelt needed all the guidance and mentoring she could get.
Providing just the inspiration and example for her pupil to become the most admired woman of the twentieth century was an unmarried French headmistress some fifty years Eleanor's senior by the name of Marie Souvestre. The accompanying portrait was kept by Eleanor Roosevelt on her desk during the course of her life.
Mademoiselle Marie Souvestre was the daughter of a Breton philosopher. Her mission was to establish a preparatory school where young women could expand their minds and attain intellectual independence, a daunting task in the era of Victorian piety. At a time when the term atheist was virtually unutterable, she owned up to being an agnostic. Her teaching method was based on primordial doubt and the testing of every proposition. First established at Fontainbleau as Les Ruches, Souvestre's academy attracted some of the brightest daughters of well-to-do on both side of the Atlantic. The most famous graduate of Les Ruches was Natalie Clifford Barney, the Cincinnati railroad heiress who, with Getrude Stein, co-reigned over the literary and artistic scene in early twentieth-century Europe.
With Napoleon III's defeat at Sedan in 1870 and the supression of the Paris Commune by the Third Republic and its Prussian ally, Souvestre decided it was time to get out of France. With the help of her great English friend Lady Strachey, mother of the critic Lytton, Souvestre set up her school under the name Allenswood in Wimbledon. French remained the language of instruction however, though German and Italian were also required. It was to this island of progressive thought and international education for women that young Eleanor Roosevelt was sent, at the urging of her grandmother and aunt.
Eleanor turned out to be better prepared than most for Allenswood, due to extensive French tutoring prior to departure. She soon became Souvestre's special favorite. Although six feet tall with prominent front teeth, she quickly lost her shyness and acquired the self-confidence and background which would stand her so well in later life. The two women would make field trips to Venice and Paris, a teenaged Eleanor charged with making the arrangements. Souvestre died in 1905 but her influence would reverberate through the life of her protŽgŽe, as events would soon demonstrate.
The great moral drama of Eleanor's adult life after marrying her cousin Franklin and bearing five children, was to discover, by accident, that her own social secretary, a young Catholic female by the name of Lucy Mercer, had become her husband's mistress.
Instead of retreating to religious martyrdom or obtaining a punitive civil divorce, Eleanor used her husband's presidential ambitions to negotiate an arrangement for separate bedrooms while the pair maintained a facade of public unity. To her chagrin, Eleanor would later discover what labor leaders learned in the 1930s--that FDR was not to be trusted. Though he had sworn to break off the relationship with Mercer, it continued for the rest of his life with assignations scheduled by Eleanor's own first-born daughter, Anna, according to an excellent two-part biography by Blanche Wiesen Cook (Viking Penguin, 1992).
A successor of sorts to Souvestre was the worldly and experienced Associated Press reporter, Lorena Hickok. Having established herself in a profession dominated by men and while covering the statehouse after FDR had been elected governor of New York, "Hick" spotted in Eleanor a female who needed bringing out, as well as getting rid of the hairnets. They soon became inseparable, spending weekends together in New Hampshire. After Eleanor became first lady in 1932, it was Hick at her side for the seaplane trip to inspect the slums of Puerto Rico. As Hick eventually relinquished her own career to accompany Eleanor and work for the New Deal, FDR realized what an asset he had not only in his independent wife but also in her assertive companion. It was Hick who ended up being chief field investigator for Harry Hopkins's Federal Emergency Relief Administration. After Eleanor's death, her children cut out Hick's pictures from the family albums but Hick outlived the first lady and left a thousand of her letters to the FDR Library in Hyde Park. (See Doris Faber, The Life of Lorena Hickok, E. R.'s Friend, William Morrow, 1980).
Time has only increased the stature of Eleanor Roosevelt. While the Supreme Court was still denying relief to Americans jailed for miscegenation a century after the Civil War, Eleanor Roosevelt early recognized racial inequality as the Achilles' heel of American democracy. In November 1938, she keynoted the biracial Southern Conference on Human Welfare in Birmingham, Alabama, and ended up on a camp stool in the aisle for refusing to sit with the whites in a public meeting segregated by law.
Of all Eleanor Roosevelt's accomplishments, there is none greater than her authorship of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948. It was her insistence on constitutional language that gives the document its power, despite a lack of specific enforcement machinery. Article 23 provides, "Everyone has the right to form and to join trade unions for the protection of his interests." With the notable exception of the Federal Republic of Germany prior to the War Service Amendment of 1954, no European government dared follow suit. While the Council of Europe adopted a Declaration which appeared to track Eleanor Roosevelt's great statement, Article 11 contains the fatal hedge: "This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
In 1978, Congress made it a felony for anyone to urge or solicit any member of the armed forces to join any labor organization, 10 U. S. Code, Section 976.
That fascist wannabes like Jean-Marie Le Pen are now coming out of the woodwork all over Europe and phony democracies are being deserted by cynical electorates is an ominous indication of the price to be paid for ignoring the foresight and courage displayed half a century ago by Eleanor Roosevelt, prize pupil of a French unbeliever, Mademoiselle Marie Souvestre.
Although I am nearly a year late, please let me now take the time to publicly apologize to Ms. Kathleen Parker, whose guest editorial in the September 30, 2001, USA Today, chastised us atheists for being so silent (and nowhere to be found) in the aftermath of the September 11 terrorist attacks. Expounding on the effects of war, Ms. Parker also asserted, "there are no atheists in foxholes."
I hope Ms. Parker will accept my belated apology for not being as vocal and as visible as I should have been, but you see, as an active duty Air Force officer, I've just returned from a one-year assignment at Prince Sultan Air Base, a base located in a remote part of the Saudi Arabian desert. While she was busy praying to her god, singing her many religious songs, marveling at the ubiquitous "god bless America" signs, and writing an editorial that questions the patriotism of approximately 30 million Americans, I was busy taking part in Operation Enduring Freedom, the war against terrorism. I'm sorry I was unable to come out of my foxhole long enough to make my presence known to her, but I was rather busy defending the very freedoms that she would like to see compromised.
When I joined the military, I took an oath to support and defend the Constitution of the United States. Perhaps Ms. Parker is (or was) unfamiliar with this document, since the entire premise of her article is to "reconcile the legal separation of church and state with the marriage of god and country." I'm surprised a journalist seems so ignorant of the wording and meaning of the religious clauses found in the First Amendment. The marriage of god and country that she advocates is precisely what our founding fathers wanted to prevent. They understood such a marriage might increase the probability of a theocratic society emerging: something akin to a modern-day Afghanistan or Iran.
What is tragic about Ms. Parker's view is that she, as do unfortunately many other Americans, equates god-belief and patriotism as near synonymous qualities. According to their rationale, if you don't share these "values," you are not a good American. Even more tragic was her use of this catastrophic loss of life to promote her ideology while also attempting to ridicule her fellow citizens with no superstitious beliefs. Unlike Ms. Parker and her followers who feel you can only be patriotic in a time of crisis by shouting your belief from every rooftop, atheists understand that Robert Ingersoll's axiom--hands that help are better than lips that pray--is the true patriotic response. But the ultimate tragedy, which Ms. Parker and her fellow believers fail to acknowledge, is that this calamity took place because of, and in the name of, theistic belief, not in spite of it. None of the September 11 terrorists were atheists--all were devoutly religious.
In over 20 years of military service, I've had the great fortune to travel to many spots on the globe and live in several countries. Those of us who have seen firsthand how societies have evolved in different parts of the world have an even greater appreciation for the democratic institutions and principles that have emerged in the United States. Freedom, and not religion, is what makes America so great. In this country, our Founders ensured our freedom was grounded in reason, not faith. Consequently, our form of freedom tolerates all religious beliefs, and yes, Ms. Parker, even nonbelief.
When I returned to the States, I found that Kathleen Parker has her own website. I was amused to see she proudly advertises that she received the 1993 H.L. Mencken Writing Award issued by the Baltimore Sun. According to her website, the judges praised her for "singing another note on the subject of family values and following the traditions of H.L. Mencken in attacking ignorance and stupidity with vividness and originality."
Readers of Freethought Today will immediately recognize that H.L. Mencken was one of this nation's strongest voices of reason over faith. In his autobiographical notes, Mencken writes, "religion is fundamentally opposed to everything I hold in veneration--courage, clear thinking, honesty, fairness, and, above all, love of the truth." Perhaps Ms. Parker should re-attack the ignorance and stupidity expressed in her own editorial with the vividness and originality of H.L. Mencken.
"The Court's Decision Is Profoundly Misguided"
Justice Stevens, dissenting
Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a "law respecting an establishment of religion" within the meaning of the First Amendment? In answering that question, I think we should ignore three factual matters that are discussed at length by my colleagues.
First, the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program is not a matter that should affect our appraisal of its constitutionality. In the 1999--2000 school year, that program provided relief to less than five percent of the students enrolled in the district's schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program. Of course, the emergency may have given some families a powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program.
Second, the wide range of choices that have been made available to students within the public school system has no bearing on the question whether the State may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education. The fact that the vast majority of the voucher recipients who have entirely rejected public education receive religious indoctrination at state expense does, however, support the claim that the law is one "respecting an establishment of religion." The State may choose to divide up its public schools into a dozen different options and label them magnet schools, community schools, or whatever else it decides to call them, but the State is still required to provide a public education and it is the State's decision to fund private school education over and above its traditional obligation that is at issue in these cases.
Third, the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family that cannot afford a private education wants its children educated in a parochial school is a sufficient justification for this use of public funds.
For the reasons stated by Justice Souter and Justice Breyer, I am convinced that the Court's decision is profoundly misguided. Admittedly, in reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.
I respectfully dissent.
"Protect Against Religious Strife"
Justice Breyer, with whom Justice Stevens and Justice Souter join, dissenting
. . . I believe that the Establishment Clause concern for protecting the Nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. . . .
The First Amendment begins with a prohibition, that "Congress shall make no law respecting an establishment of religion," and a guarantee, that the government shall not prohibit "the free exercise thereof." These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to "worship God in their own way," and allows all families to "teach their children and to form their characters" as they wish. The Clauses reflect the Framers' vision of an American Nation free of the religious strife that had long plagued the nations of Europe. Whatever the Framers might have thought about particular 18th century school funding practices, they undeniably intended an interpretation of the Religion Clauses that would implement this basic First Amendment objective.
In part for this reason, the Court's 20th century Establishment Clause cases--both those limiting the practice of religion in public schools and those limiting the public funding of private religious education--focused directly upon social conflict, potentially created when government becomes involved in religious education. In Engel v. Vitale, 370 U.S. 421 (1962), the Court held that the Establishment Clause forbids prayer in public elementary and secondary schools. It did so in part because it recognized the "anguish, hardship and bitter strife that could come when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval. . . ." Id., at 429. And it added:
"The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs." Id., at 431. . . .
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court held that the Establishment Clause forbids state funding, through salary supplements, of religious school teachers. It did so in part because of the "threat" that this funding would create religious "divisiveness" that would harm "the normal political process." Id., at 622. The Court explained:
"[P]olitical debate and division . . . are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which [the First Amendment's religious clauses were] . . . intended to protect." Ibid.
And in Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973), the Court struck down a state statute that, much like voucher programs, provided aid for parents whose children attended religious schools, explaining that the "assistance of the sort here involved carries grave potential for . . . continuing political strife over aid to religion." . . .
In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife, particularly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation's minds and spirits. . . .
I concede that the Establishment Clause currently permits States to channel various forms of assistance to religious schools, for example, transportation costs for students, computers, and secular texts. See Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947); Mitchell v. Helms, 530 U.S. 793 (2000). . . .
School voucher programs differ, however, in both kind and degree from aid programs upheld in the past. They differ in kind because they direct financing to a core function of the church: the teaching of religious truths to young children. For that reason the constitutional demand for "separation" is of particular constitutional concern.
Private schools that participate in Ohio's program, for example, recognize the importance of primary religious education, for they pronounce that their goals are to "communicate the gospel," "provide opportunities to . . . experience a faith community," "provide . . . for growth in prayer," and "provide instruction in religious truths and values." History suggests, not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing funding for secular textbooks, computers, vocational training, or even funding for adults who wish to obtain a college education at a religious university. . . .
Vouchers also differ in degree. The aid programs recently upheld by the Court involved limited amounts of aid to religion. But the majority's analysis here appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools. That fact, combined with the use to which these dollars will be put, exacerbates the conflict problem. State aid that takes the form of peripheral secular items, with prohibitions against diversion of funds to religious teaching, holds significantly less potential for social division. In this respect as well, the secular aid upheld in Mitchell differs dramatically from the present case. Although it was conceivable that minor amounts of money could have, contrary to the statute, found their way to the religious activities of the recipients, that case is at worst the camel's nose, while the litigation before us is the camel itself.
I do not believe that the "parental choice" aspect of the voucher program sufficiently offsets the concerns I have mentioned. Parental choice cannot help the taxpayer who does not want to finance the religious education of children. It will not always help the parent who may see little real choice between inadequate nonsectarian public education and adequate education at a school whose religious teachings are contrary to his own. It will not satisfy religious minorities unable to participate because they are too few in number to support the creation of their own private schools. It will not satisfy groups whose religious beliefs preclude them from participating in a government-sponsored program, and who may well feel ignored as government funds primarily support the education of children in the doctrines of the dominant religions. And it does little to ameliorate the entanglement problems or the related problems of social division that Part II, supra, describes. Consequently, the fact that the parent may choose which school can cash the government's voucher check does not alleviate the Establishment Clause concerns associated with voucher programs.
The Court, in effect, turns the clock back. It adopts, under the name of "neutrality," an interpretation of the Establishment Clause that this Court rejected more than half a century ago. In its view, the parental choice that offers each religious group a kind of equal opportunity to secure government funding overcomes the Establishment Clause concern for social concord. An earlier Court found that "equal opportunity" principle insufficient; it read the Clause as insisting upon greater separation of church and state, at least in respect to primary education. See Nyquist, 413 U.S., at 783. In a society composed of many different religious creeds, I fear that this present departure from the Court's earlier understanding risks creating a form of religiously based conflict potentially harmful to the Nation's social fabric. Because I believe the Establishment Clause was written in part to avoid this kind of conflict, and for reasons set forth by Justice Souter and Justice Stevens, I respectfully dissent.
"Doctrinal Bankruptcy Has Been Reached Today"
Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting
. . . The applicability of the Establishment Clause to public funding of benefits to religious schools was settled in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), which inaugurated the modern era of establishment doctrine. The Court stated the principle in words from which there was no dissent:
"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."
The Court has never in so many words repudiated this statement, let alone, in so many words, overruled Everson.
Today, however, the majority holds that the Establishment Clause is not offended by Ohio's Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious schools. In the city of Cleveland the overwhelming proportion of large appropriations for voucher money must be spent on religious schools if it is to be spent at all, and will be spent in amounts that cover almost all of tuition. The money will thus pay for eligible students' instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension. Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools, to speak only of major religious groupings in the Republic.
How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today's decision on those criteria. . . .
. . . doctrinal bankruptcy has been reached today. . .
There is, in any case, no way to interpret the 96.6% of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6% reflects, instead, the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students. And contrary to the majority's assertion, public schools in adjacent districts hardly have a financial incentive to participate in the Ohio voucher program, and none has. For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious. And it is entirely irrelevant that the State did not deliberately design the network of private schools for the sake of channeling money into religious institutions. The criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobson's choice is not a choice, whatever the reason for being Hobsonian. . . .
The scale of the aid to religious schools approved today is unprecedented, both in the number of dollars and in the proportion of systemic school expenditure supported. . . .
The Cleveland voucher program has cost Ohio taxpayers $33 million since its implementation in 1996 ($28 million in voucher payments, $5 million in administrative costs), and its cost was expected to exceed $8 million in the 2001--2002 school year. These tax-raised funds are on top of the textbooks, reading and math tutors, laboratory equipment, and the like that Ohio provides to private schools, worth roughly $600 per child.
The gross amounts of public money contributed are symptomatic of the scope of what the taxpayers' money buys for a broad class of religious-school students. In paying for practically the full amount of tuition for thousands of qualifying students, compare Nyquist, (state aid amounting to 50% of tuition was unconstitutional), the scholarships purchase everything that tuition purchases, be it instruction in math or indoctrination in faith. The consequences of "substantial" aid hypothesized in Meek are realized here: the majority makes no pretense that substantial amounts of tax money are not systematically underwriting religious practice and indoctrination.
It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation. I anticipated these objectives earlier, in discussing Everson, which cataloged them, the first being respect for freedom of conscience. Jefferson described it as the idea that no one "shall be compelled to . . . support any religious worship, place, or ministry whatsoever," A Bill for Establishing Religious Freedom, even a "teacher of his own religious persuasion," and Madison thought it violated by any " 'authority which can force a citizen to contribute three pence . . . of his property for the support of any . . . establishment.' " Memorial and Remonstrance. "Any tax to establish religion is antithetical to the command that the minds of men always be wholly free," Mitchell, 530 U.S., at 871 (Souter, J., dissenting). Madison's objection to three pence has simply been lost in the majority's formalism.
As for the second objective, to save religion from its own corruption, Madison wrote of the " 'experience . . . that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.' " Memorial and Remonstrance. In Madison's time, the manifestations were "pride and indolence in the Clergy; ignorance and servility in the laity[,] in both, superstition, bigotry and persecution,"; in the 21st century, the risk is one of "corrosive secularism" to religious schools, and the specific threat is to the primacy of the schools' mission to educate the children of the faithful according to the unaltered precepts of their faith.
The risk is already being realized. In Ohio, for example, a condition of receiving government money under the program is that participating religious schools may not "discriminate on the basis of . . . religion," which means the school may not give admission preferences to children who are members of the patron faith; children of a parish are generally consigned to the same admission lotteries as non-believers. This indeed was the exact object of a 1999 amendment repealing the portion of a predecessor statute that had allowed an admission preference for "[c]hildren . . . whose parents are affiliated with any organization that provides financial support to the school, at the discretion of the school." Nor is the State's religious antidiscrimination restriction limited to student admission policies: by its terms, a participating religious school may well be forbidden to choose a member of its own clergy to serve as teacher or principal over a layperson of a different religion claiming equal qualification for the job. Indeed, a separate condition that "[t]he school . . . not . . . teach hatred of any person or group on the basis of . . . religion," could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others, if they want government money for their schools.
For perspective on this foot-in-the-door of religious regulation, it is well to remember that the money has barely begun to flow. Prior examples of aid, whether grants through individuals or in-kind assistance, were never significant enough to alter the basic fiscal structure of religious schools; state aid was welcome, but not indispensable. But given the figures already involved here, there is no question that religious schools in Ohio are on the way to becoming bigger businesses with budgets enhanced to fit their new stream of tax-raised income. . . . (of 91 schools participating in the Milwaukee program, 75 received voucher payments in excess of tuition, 61 of those were religious and averaged $185,000 worth of overpayment per school, justified in part to "raise low salaries"). The administrators of those same schools are also no doubt following the politics of a move in the Ohio State Senate to raise the current maximum value of a school voucher from $2,250 to the base amount of current state spending on each public school student ($4,814 for the 2001 fiscal year). Ohio, in fact, is merely replicating the experience in Wisconsin, where a similar increase in the value of educational vouchers in Milwaukee has induced the creation of some 23 new private schools, some of which, we may safely surmise, are religious. New schools have presumably pegged their financial prospects to the government from the start, and the odds are that increases in government aid will bring the threshold voucher amount closer to the tuition at even more expensive religious schools.
. . . it is enough to say that the intensity of the expectable friction can be gauged by realizing that the scramble for money will energize not only contending sectarians, but taxpayers who take their liberty of conscience seriously. Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America's Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines "a nationalistic sentiment" in support of Israel with a "deeply religious" element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife's obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention. Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only because the Free Exercise Clause protects them directly, but because the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious schools, that privacy will go, and along with it will go confidence that religious disagreement will stay moderate.
* * *
If the divisiveness permitted by today's majority is to be avoided in the short term, it will be avoided only by action of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. Perhaps even cities with problems like Cleveland's will perceive the danger, now that they know a federal court will not save them from it.
My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority's decision. Everson's statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the Establishment Clause has largely been read away. True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Clause principle.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. NEWDOW, Plaintiff-Appellant, v. US CONGRESS; UNITED STATES OF AMERICA; GEORGE W. BUSH, President of the United States; STATE OF CALIFORNIA; ELK GROVE UNIFIED SCHOOL DISTRICT; DAVID W. GORDON, Superintendent EGUSD; SACRAMENTO CITY UNIFIED SCHOOL DISTRICT; JIM SWEENEY, Superintendent SCUSD, Defendants-Appellees.
Filed June 26, 2002 Opinion by Judge Alfred T. Goodwin, joined by Stephen Reinhardt, Circuit Judge
GOODWIN, Circuit Judge:
Michael Newdow appeals a judgment dismissing his challenge to the constitutionality of the words "under God" in the Pledge of Allegiance to the Flag. Newdow argues that the addition of these words by a 1954 federal statute to the previous version of the Pledge of Allegiance (which made no reference to God) and the daily recitation in the classroom of the Pledge of Allegiance, with the added words included, by his daughter's public school teacher are violations of the Establishment Clause of the First Amendment to the United States Constitution.
FACTUAL AND PROCEDURAL BACKGROUND
Newdow is an atheist whose daughter attends public elementary school in the Elk Grove Unified School District ("EGUSD") in California. In accordance with state law and a school district rule, EGUSD teachers begin each school day by leading their students in a recitation of the Pledge of Allegiance ("the Pledge"). The California Education Code requires that public schools begin each school day with "appropriate patriotic exercises" and that "[t]he giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy" this requirement. Cal. Educ. Code # 52720 (1989) (hereinafter "California statute"). To implement the California statute, the school district that Newdow's daughter attends has promulgated a policy that states, in pertinent part: "Each elementary school class [shall] recite the pledge of allegiance to the flag once each day."
The classmates of Newdow's daughter in the EGUSD are led by their teacher in reciting the Pledge codified in federal law. On June 22, 1942, Congress first codified the Pledge as "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all." Pub. L. No. 623, Ch. 435, # 7, 56 Stat. 380 (1942) (codified at 36 U.S.C. # 1972). On June 14, 1954, Congress amended Section 1972 to add the words "under God" after the word "Nation." Pub. L. No. 396, Ch. 297, 68 Stat. 249 (1954) ("1954 Act"). The Pledge is currently codified as "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." 4 U.S.C. # 4 (1998) (Title 36 was revised and recodified by Pub. L. No. 105-225, # 2(a), 112 Stat. 1494 (1998). Section 172 was abolished, and the Pledge is now found in Title 4.)
Newdow does not allege that his daughter's teacher or school district requires his daughter to participate in reciting the Pledge. Rather, he claims that his daughter is injured when she is compelled to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our's [sic] is 'one nation under God.' "
Newdow's complaint in the district court challenged the constitutionality, under the First Amendment, of the 1954 Act, the California statute, and the school district's policy requiring teachers to lead willing students in recitation of the Pledge. He sought declaratory and injunctive relief, but did not seek damages.
The school districts and their superintendents (collectively, "school district defendants") filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. Magistrate Judge Peter A. Nowinski held a hearing at which the school district defendants requested that the court rule only on the constitutionality of the Pledge, and defer any ruling on sovereign immunity. The United States Congress, the United States, and the President of the United States (collectively, "the federal defendants") joined in the motion to dismiss filed by the school district defendants. The magistrate judge reported findings and a recommendation; District Judge Edward J. Schwartz approved the recommendation and entered a judgment of dismissal. This appeal followed. . . .
. . . .  In the context of the Pledge, the statement that the United States is a nation "under God" is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation "under God" is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase "one nation under God" in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and--since 1954--monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a 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. "[T]he government must pursue a course of complete neutrality toward religion." Wallace, 472 U.S. at 60. Furthermore, the school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, and thus amounts to state endorsement of these ideals. Although students cannot be forced to participate in recitation of the Pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge.
The Supreme Court recognized the normative and ideological nature of the Pledge in Barnette, 319 U.S. 624. There, the Court held unconstitutional a school district's wartime policy of punishing students who refused to recite the Pledge and salute the flag. Id. at 642. The Court noted that the school district was compelling the students "to declare a belief," id. at 631, and "requir[ing] the individual to communicate by word and sign his acceptance of the political ideas [the flag] . . . bespeaks," id. at 633. "[T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind." Id. The Court emphasized that the political concepts articulated in the Pledge [Barnette was decided before "under God" was added, and thus the Court's discussion was limited to the political ideals contained in the Pledge] were idealistic, not descriptive: " '[L]iberty and justice for all,' if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement." Id. at 634 n.14. The Court concluded that: "If there is any fixed star in our constitutional 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." Id. at 642.
 The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers "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." Lynch, 465 U.S. at 688 (O'Connor, J., concurring). Justice Kennedy, in his dissent in Allegheny, agreed:
[B]y statute, the Pledge of Allegiance to the Flag describes the United States as 'one nation under God.' To be sure, no one is obligated to recite this phrase, . . . but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.
Allegheny, 492 U.S. at 672 (Kennedy, J., dissenting). Consequently, the policy and the Act fail the endorsement test.
 Similarly, the policy and the Act fail the coercion test. Just as in Lee, the policy and the Act place students in the untenable position of choosing between participating in an exercise with religious content or protesting. As the Court observed with respect to the graduation prayer in that case: "What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy." Lee, 505 U.S. at 592. Although the defendants argue that the religious content of "one nation under God" is minimal, to an atheist or a believer in certain non-Judeo-Christian religions or philosophies, it may reasonably appear to be an attempt to enforce a "religious orthodoxy" of monotheism, and is therefore impermissible. The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students. Furthermore, under Lee, the fact that students are not required to participate is no basis for distinguishing Barnette from the case at bar because, even without a recitation requirement for each child, the mere fact that a pupil is required to listen every day to the statement "one nation under God" has a coercive effect. The coercive effect of the Act is apparent from its context and legislative history, which indicate that the Act was designed to result in the daily recitation of the words "under God" in school classrooms. President Eisenhower, during the Act's signing ceremony, stated: "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty." 100 Cong. Rec. 8618 (1954) (statement of Sen. Ferguson incorporating signing statement of President Eisenhower). Therefore, the policy and the Act fail the coercion test.
Finally we turn to the Lemon test, the first prong of which asks if the challenged policy has a secular purpose. Historically, the primary purpose of the 1954 Act was to advance religion, in conflict with the first prong of the Lemon test. The federal defendants "do not dispute that the words 'under God' were intended" "to recognize a Supreme Being," at a time when the government was publicly inveighing against atheistic communism. Nonetheless, the federal defendants argue that the Pledge must be considered as a whole when assessing whether it has a secular purpose. They claim that the Pledge has the secular purpose of "solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." Lynch, 465 U.S. at 693.
The flaw in defendants' argument is that it looks at the text of the Pledge "as a whole," and glosses over the 1954 Act. The problem with this approach is apparent when one considers the Court's analysis in Wallace. There, the Court struck down Alabama's statute mandating a moment of silence for "meditation or voluntary prayer" not because the final version "as a whole" lacked a primary secular purpose, but because the state legislature had amended the statute specifically and solely to add the words "or voluntary prayer." 472 U.S. at 59-60.
 By analogy to Wallace, we apply the purpose prong of the Lemon test to the amendment that added the words "under God" to the Pledge, not to the Pledge in its final version. As was the case with the amendment to the Alabama statute in Wallace, the legislative history of the 1954 Act reveals that the Act's sole purpose was to advance religion, in order to differentiate the United States from nations under communist rule. "[T]he First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion." Id. at 56 (citations omitted) (applying the Lemon test). As the legislative history of the 1954 Act sets forth:
At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and 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.
H.R. Rep. No. 83-1693, at 1-2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. This language reveals that the purpose of the 1954 Act was to take a position on the question of theism, namely, to support the existence and moral authority of God, while "deny[ing] . . . atheistic and materialistic concepts." Id. Such a purpose runs counter to the Establishment Clause, which prohibits the government's endorsement or advancement not only of one particular religion at the expense of other religions, but also of religion at the expense of atheism.
[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of a free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among "religions"--to encompass intolerance of the disbeliever and the uncertain.
Wallace, 472 U.S. at 52-54.
 In language that attempts to prevent future constitutional challenges, the sponsors of the 1954 Act expressly disclaimed a religious purpose. "This is not an act establishing a religion . . . . A distinction must be made between the existence of a religion as an institution and a belief in the sovereignty of God. The phrase 'under God' recognizes only the guidance of God in our national affairs." H.R. Rep. No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2341-42. This alleged distinction is irrelevant for constitutional purposes. The Act's affirmation of "a belief in the sovereignty of God" and its recognition of "the guidance of God" are endorsements by the government of religious beliefs. The Establishment Clause is not limited to "religion as an institution"; this is clear from cases such as Santa Fe, where the Court struck down student-initiated and student-led prayer at high school football games. 530 U.S. 310-16. The Establishment Clause guards not only against the establishment of "religion as an institution," but also against the endorsement of religious ideology by the government. Because the Act fails the purpose prong of Lemon, we need not examine the other prongs. Lemon, 403 U.S. at 612-14.
 Similarly, the school district policy also fails the Lemon test. Although it survives the first prong of Lemon because, as even Newdow concedes, the school district had the secular purpose of fostering patriotism in enacting the policy, the policy fails the second prong. As explained by this court in Kreisner v. City of San Diego, 1 F. 3d 775, 782 (9th Cir. 1993), and by the Supreme Court in School District of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985), the second Lemon prong asks whether the challenged government action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices." Ball, 473 U.S. at 390. Given the age and impressionability of schoolchildren, as discussed above, particularly within the confined environment of the classroom, the policy is highly likely to convey an impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God. Therefore the policy fails the effects prong of Lemon, and fails the Lemon test. In sum, both the policy and the Act fail the Lemon test as well as the endorsement and coercion tests.
 In conclusion, we hold that (1) the 1954 Act adding the words "under God" to the Pledge, and (2) EGUSD's policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause. The judgment of dismissal is vacated with respect to these two claims, and the cause is remanded for further proceedings consistent with our holding. Plaintiff is to recover costs on this appeal.
REVERSED AND REMANDED.
In the now-famous lawsuit brought by Sacramento physician Michael A. Newdow, the 9th U.S. Circuit Court of Appeals issued a 2-1 decision on June 26 declaring the words "under God" in the Pledge of Allegiance to be unconstitutional.
Newdow, an atheist who also holds a law degree and brought the case himself, will be named "Freethinker of the Year" at the Freedom From Religion Foundation's annual convention in San Diego Nov. 22-24.
Newdow contends his 8-year-old daughter should not be pressured to support others' religious views. Since the decision was handed down, a firestorm has rained down on Newdow as well as the two judges who issued the ruling.
Circuit Judge Alfred T. Goodwin, a 79-year-old Nixon Court appointee, wrote in the decision:
"A profession that we are a nation 'under God' is identical to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god.' "
The addition of "under God" in the pledge forces schoolchildren to swear allegiance to "monotheism," Goodwin wrote, impermissibly taking a position on the "existence and identity of God." (To read the decision, go here.)
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington state, and Guam. The ruling is stayed while it is under appeal.
Less than four hours after the historic ruling, U.S. Senators voted 99-0 (Jesse Helms was absent) to pass a resolution denouncing the decision. Senators not only adjourned a debate on a defense bill in order to do so, but took the unusual measure of voting from their desks in the Senate chamber, standing in turn to vote "aye."
House members, not to be one-upped, raced to the steps of the Capitol to recite the Pledge of Allegiance, shouting when they came to the words "under God."
President Bush vowed, despite the constitutional proscription of religious tests for public office, to make support of "under God" in the Pledge of Allegiance a litmus test for federal nominees.
"The declaration of God in the Pledge of Allegiance doesn't violate rights. As a matter of fact, it's a confirmation of the fact that we received our rights from God, as proclaimed in our Declaration of Independence." The country, he added, needs "commonsense judges who understand that our rights were derived from God. Those are the kind of judges I intend to put on the bench."
Politicians outdid each other in castigating the 3-judge panel of the Ninth U.S. Circuit Court of Appeals. Senate President Pro Tem Robert Byrd, D-WV, called Judge Alfred T. Goodwin an "atheist lawyer."
Sen. "Holy Joe" Joseph Lieberman, D-CT, immediately called for a constitutional amendment to ensure the words stay in the pledge: "There may have been a more senseless, ridiculous decision issued by a court at some time, but I don't remember it." (Hint: Supreme Court on Florida 2000?)
"This decision is just nuts," said Senate Majority Leader Tom Daschle, S-SD. Daschle was among the many members of the House of Representatives who uncharacteristically arrived early the day after the decision so as to be seen as the chaplain opened the House, and to recite the Pledge of Allegiance, again.
The House adopted its own resolution on June 27 calling upon the Ninth Circuit Court of Appeals to reverse its ruling. The vote was 416-3, with only Rep. Bob Scott, D-VA, and Reps. Mike Honda and Fortney "Pete" Stark, D-CA, dissenting. (Eleven voted "present.")
Honda issued a statement, observing:
"As a former teacher and principal, I am concerned that our children are asked to say the pledge by rote at a young age. I believe that adding the phrase did nothing to expand the rights of Americans--but rather curtailed the religious rights of certain minorities."
Attorney General John Ashcroft immediately asked for a rehearing of the case.
Circuit Judge Stephen Reinhardt, who joined Goodwin in the pledge ruling, told the media: "I can't think of any decision where the entire Congress immediately rushes to condemn a decision by the court. It's getting to be election time and this gives everyone in Congress a chance to prove they are patriotic."
Goodwin, in a July interview, said although he has been involved in many "hot button issues," nothing matches the reaction to the pledge ruling: "It's the noisiest thing I've ever experienced."
Both judges were surprised when demonstrators began picketing their courts and homes. One group even flew a plane over Reinhardt's home. trailing a banner reading: "One Nation Under God."
"I think it's a bit excessive," said Reinhardt.
Receiving scant attention during the pledge furor was the June 28 hearing in federal appeals court in Atlanta, in a case challenging an Alabama school's paddling of a student who stood silently with his fist raised rather than recite the Pledge of Allegiance.
The decision sparked not only controversy, but many articles recapitulating the Pledge of Allegiance's secular history. Composed in 1892 by Rev. Francis Bellamy, a prominent Boston socialist, the original wording read: "I pledge allegiance to my flag and to the Republic for which it stands, one nation indivisible, with liberty and justice for all."
In 1924, against Bellamy's wishes, the phrase "my flag" was changed to "the flag of the United States of America." The government officially recognized the pledge in 1942, leading to a 1943 Supreme Court decision, West Virginia State Board of Education v. Barnette, holding that schoolchildren could not be forced to stand or recite the Pledge of Allegiance. That case was brought by Jehovah's Witnesses.
"If there is any fixed star in our constitutional 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 words or act their faith therein," ruled the 1943 court.
Only in 1954 was "under God" added to the pledge by an Act of Congress, at the urging of religionists, including the Knights of Columbus, a Catholic men's club. The religious amendment was intended to repudiate the "godlessness" of Communism during the Cold War.
"There are people springing up all over the place taking credit for this," Knights executive vice president Paul Devin told the New Haven Register, "but it started with us." The group voted in 1951 to amend the pledge recited at its own regional meetings, and in 1952 to push for national adoption of the religious pledge. Other groups, including the American Legion, joined them.
Scottish-born Rev. George Docherty, 91, also claimed credit in an interview with the Pittsburgh Post-Gazette. As pastor of Washington's New York Avenue Presbyterian Church, two blocks from the White House, he said he raised the issue from the pulpit in February 1954, with president Dwight Eisenhower present in the front pew: "Without this phrase 'under God,' the Pledge of Allegiance to the flag might have been recited with similar sincerity by Muscovite children at the beginning of their school day."
According to the preacher, Eisenhower told him afterward, "I think you've got something."
In signing the Act of Congress, Eisenhower said: "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty," a statement cited by Goodwin to show that the policy and the law "fails the coercion test."
In a letter published in the New York Times on July 14, Francis Bellamy's great-granddaughter Sally Wright wrote that he was a "deeply religious man" but "also a strict believer in the separation of church and state, who opposed parochial schools on the grounds that the state should educate its children." She added: "He intended the pledge to be a unifying statement for those same children."
"I believe that my great-grandfather got it right. A Pledge of Allegiance that does not include God invites the participation of more Americans."
His granddaughter Barbara Bellamy Wright told media her grandfather "would have objected strongly to this change [adding "under God"], as it changed the fundamental meaning. He had considered that 'One nation, indivisible,' conveyed the deep meaning that after the Civil War our nation could not be divided." The reference to a deity, she said, "tampered with the original meaning of the pledge as well as spoiling its rhythmic cadence."
The Freedom From Religion Foundation's newest lawsuit is against the City of La Crosse, Wisconsin, over the placement of a Ten Commandments tombstone marker in a downtown city park.
"The monument is profoundly religious," reads the complaint filed in federal court in Madison on July 1, 2002, "replete with messages that are unequivocally religious in nature. Its display on public property has the primary purpose and effect of advancing religion."
Earlier this year, at the request of the Foundation, the City of Milwaukee moved a Ten Commandments marker from outside its city hall to private property. The City of Monroe, Wisconsin, also responded to the Foundation's request with a vote to move its religious marker from a public park.
In response to the Foundation's lawsuit, the city council in La Crosse has announced its intent to sell a small amount of the city park to the Eagles, a private religious group which donated the monument, and whose offices are across the street from the park.
"The lawsuit will proceed despite this manuever," said Anne Nicol Gaylor, Foundation president. "The intent of the city in all this is purely religious; the property is not being opened for bid. It's religious subterfuge, plain and simple."
The Foundation has asked that its plaintiffs be anonymous, a Jane and John Doe, because of the city's outpouring of religious condemnation. The city is opposing this request.
"Wouldn't you think they would want to agree?" Gaylor said. "Anyone who reads the newspapers or listens to radio should know that we are dealing with religious fanatics."
Meanwhile, one religious capitalist, a youth minister, is making money peddling plastic Ten Commandments for residents to put in their yards.
"They seemed to think it would bother us," Gaylor said, "but we tried to explain that while we believe it's tacky, it certainly is legitimate when the property involved is private. That's the whole point. It is government ownership and endorsement of religion we object to, as well as the religious favoritism demonstrated in this scheme to sell a small piece of the park so a religious object can be displayed there."
Attorney James Friedman of the firm of La Follette, Godfrey and Kahn is representing the Foundation.
Ireland on March 6 of this year once again held a referendum to amend the constitution on the matter of abortion. The amendment submitted to the electorate would have further restricted what are now the most restrictive laws on abortion in Europe. As in other countries where the issue of abortion arises, it brings to the forefront religious forces of all colors. No exception in Ireland, and all the more so because of the strong influence of the Catholic church in Irish society.
The campaign preceding the election on this particular amendment stood out because of the full-court press by the Irish Catholic bishops, all 26 of them, in support of the amendment. The pope himself got into the act by signaling from the Vatican his strong support. And on the Sunday before voting day, all Catholic mass-goers in the entire country were subjected to a sermon on the importance of voting for the amendment. The faithful were then again reminded of the pope's endorsement.
Now, most voting in Ireland takes place in school buildings, and since most of the schools in Ireland are run by the Catholic church, voting takes place on church property. So here we had a highly charged social issue, heavily laden with religious notions about life and sex, and the electorate, made up of all faiths and no faith, given no choice but to enter church grounds and buildings to cast their vote.
Such polling places certainly do not convey a sense of neutrality on matters of religion, what with their religious statues and other icons which one must circumnavigate to reach the voting booth.
The accompanying photo of a polling station in Dublin is one example of such a scenario. The notice over the door reads "Peace to all," and on the door itself is a government document which states "Referendum on the Twenty-Fifth Amendment to the Constitution (Protection of Human Life In Pregnancy)." Note also the mini-altar with a statue of the "Virgin" Mary and appurtenant gaudy trappings, all shamelessly presented at the entrance to the polling station. The sign on the base of the mini-altar reads "The spirit of the Lord is upon me."
But there was some good news from all this. The amendment failed to carry by the slim margin of about 0.8% of the total vote. By how much more it would have failed to pass if the polling had been conducted on neutral territory is difficult to say. So the spirit of this Lord did not seem to fall upon the Irish voting public, and the effort of all the Irish Catholic bishops and the pope himself failed to convince a majority of the voting population to tow the party line.
Good news for Ireland!
In downtown Indianapolis, there's a beautiful old European-style brick and stone building called the Athenaeum. Today many people work out in the gym, enjoy a show at the cabaret theater or eat at the Rathskeller restaurant there, but have no idea about the significance of the structure. The building is rich in German-American, freethought and athletic history. It was originally called "Das Deutsche Haus" and was built as a joint effort by various German clubs in the 1890s.
In the early 1850s, a number of Germans called the Forty-eighters moved to the city. Many of them were political activists who had been persecuted in their homeland or were disillusioned with German politics. The revolution of 1848 had not brought about the liberal social and political changes they'd hoped for in Germany, so they came to America.
The first organization established by the Forty-eighters in Indianapolis was the Turnverein. A German named Friedrich Jahn, known as the father of gymnastics, founded the Turner movement in 1811. He invented the parallel bars, the rings, the horse and the horizontal bar used in gymnastics today. His motto was "A Sound Mind in a Sound Body." He promoted physical exercise programs as well as intellectual development. Many Forty-eighters embraced his philosophy.
Turner clubs sprang up in Germany and later in many American cities. They provided physical education, lectures, libraries, musical entertainment and other services to the German community. They acted as a kind of "welcome center" for newly arrived immigrants and helped keep their German language and culture alive, yet promoted American ideals of democracy and freedom. Several of the original Turner buildings are still standing today in our city, including the Athenaeum.
The gym at the Athenaeum, now run by the YMCA, has been in use since the 1890s for athletic training. The Athenaeum provided a training program for physical education teachers from 1907 until 1941 when it merged with the Physical Education Department of Indiana University.
Some of the more radical members of the Forty-eighters and Turners were freethinkers. They founded the Freethinkers Society of Indianapolis in 1870 to promote freethought ideas.
Author Kurt Vonnegut's great-grandfather, Clemens Vonnegut, was the first president of the organization. He was a well-respected businessman in the community and a member of the Indianapolis Public School board for many years. The group fought against religion in the schools and started a Freethinker's Sunday School.
The freethinkers, many of whom were highly educated, strongly supported public education, particularly vocational programs. Emmerich Manual High School, located on the south side of Indianapolis, opened in 1894 as a manual training school. It was later named for Charles Emmerich, an active member of the Freethinkers and the school's first principal. Although the Freethinkers Society dissolved in 1890, their ideas continued to live on through the nonsectarian educational system they helped establish in the city.
Members of the Turners were quite influential and politically active in the city. They founded German newspapers, businesses, schools, singing groups and orchestras. Some of the singing groups, Saengerchor, Maennerchor and Liederkranz, are still in existence today. They created innovative physical education programs in the Indianapolis Public Schools for both boys and girls. Indianapolis hosted large Turner festivals with hundreds of members from all over the US and Germany participating in parades, singing events and gymnastic competitions.
Turner groups supported progressive ideas like better working conditions, educational reform, the emancipation of women and the abolition of slavery. The Turner Hall of Indianapolis became the anti-slavery headquarters in the city. Shortly after the start of the Civil War, a number of Turners enlisted to fight for their new country, even though many spoke little or no English. The 32nd Indiana Regiment was composed of Turners from Indianapolis, Madison, Lafayette and other Hoosier towns. Other Turner regiments were formed throughout the U.S. Over 70 percent of the Turners fought on the Union side.
At its peak in 1894, the American Turners had 317 societies with over 40,000 members. The organization suffered declines in membership due to decreasing German immigration rates, anti-German sentiments during the world wars and the Americanization of the German population. When their loyalty to America was questioned during the First World War, the Indianapolis Turners changed the building name from "Das Deutsche Haus" to the "Athenaeum" and offered the use of the place to the Red Cross.
Today there are approximately 60 Turner societies in America with about 13,000 members. The American Turners headquarters is now located in Louisville, Kentucky.
Over the years, the Athenaeum's structure fell into sad decay. I attended an event there in the early 1980s and saw sagging ceilings, water damaged walls and rotted roof timbers. Fortunately, a few years ago, various far-sighted individuals raised money to restore it to its former glory.
The Indianapolis Cabaret Theater opened in a beautifully renovated section. The Rathskeller restaurant and the beer garden in the back have reopened to serve German food and drink with live music. The YMCA took over the gym and it has become a popular downtown fitness facility. I was in the building for a dinner recently and noticed that many improvements had been made to other sections of the building since my last visit. One former Turner building in Indianapolis has been converted into expensive condos!
If you are fortunate, you may find a Turner club or old building still in existence in your town or city.