In 2002, the United States Court of Appeals for the Ninth Circuit cemented its reputation for left-wing judicial activism—and drew nationwide outrage—by ruling the words “under God” in the Pledge of Allegiance unconstitutional. The Supreme Court reversed that decision on a technicality, and recently, the Ninth Circuit got to try again. This time it ruled in favor of the Pledge. But the big news is not that the Ninth Circuit came to its senses and aligned itself with every other court that has addressed the issue. The big news is that the Ninth Circuit did so in uniquely and dramatically conservative fashion.
Let me explain. There are two basic arguments for why “under God” is constitutional. One argument—pushed by the Department of Justice at the Ninth Circuit, and adopted by every other court to uphold the Pledge—is that “under God” is just an innocuous example of what the Supreme Court has called “ceremonial deism.” This theory holds that there have been many references to God in our nation’s history, but that over time, through rote repetition, these sorts of references have lost their religious meaning—indeed, all meaning whatsoever—and are therefore harmless. Kind of like a doddering old relative who says embarrassing things, but no one minds because he doesn’t know what he’s saying.
The other argument—pushed by the Becket Fund for Religious Liberty, which argued the case at the Ninth Circuit—is that “under God” is neither meaningless nor a primarily religious statement, but an important statement of political philosophy. Specifically, when Congress added the phrase “under God” to the Pledge, it was tapping into a venerable political philosophy of natural rights and limited government—namely, the idea that our rights are inalienable because they do not come from the state, but from a “higher power” beyond the state.