Ninth Circuit Pledges Support to Constitutional Principle (November 2003)

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.”

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.”

Freedom From Religion Foundation