Pink Bunnies and the Pledge

Mario Diaz
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Posted: Mar 04, 2008 2:35 PM

Many people think the battle over the words “under God” in our Pledge of Allegiance is over.  They remember that some extremist judges struck the words down saying they violated the now deified “separation of church and state,” but they also vaguely remember the Senate passing a resolution in support of the Pledge and the more than 100 House members gathered outside the Capitol reciting the Pledge of Allegiance in a spectacular show of support.

That display made us feel really good, but there’s just one problem: it did nothing to protect the Pledge of Allegiance.

That was June 26, 2002, believe it or not, and still there has been no resolution on the lawsuit that started the whole controversy.  Worse yet, we are still waiting for our lawmakers to back up their rhetoric and pass a bill protecting our religious freedoms by protecting the words “under God” in our Pledge.

While nothing is done to protect the Pledge, the forces attempting to remove any mention of God from the public square keep going and going and going like the Energizer bunny.

“We the people” are partly to blame for this because we’ve let them get away with it.  We allowed ourselves to believe that our representatives had listened to our outcry and that the matter would be taken care of when that decision came down.

What a foolish thing to think.  Some say curiosity killed the cat; I’m thinking it was the cat’s naiveté.

But we are not an irrational people, and we have to learn from our mistakes.  It is clear we cannot stay “asleep at the wheel,” blindly trusting that those men and women elected to carry out the will of the people will do the right thing.  We have to stand up and protect our religious freedoms or we will continue to loose them bit by bit.

The Pledge of Allegiance case is one of those bits, and we need to demand that it be protected.

The Pledge of Allegiance case involved devout atheist Michael Newdow, who brought suit against everyone he could think of: the United States, Congress, the President, the State of California, Elk Grove Unified School District and its superintendent, and the Sacramento City Unified School District and its superintendent.  Newdow alleged that the fact that his daughter had to hear the teacher-led Pledge of Allegiance in school with the words “under God” was a violation of the Establishment and Free Exercise Clause of the First Amendment to the U.S. Constitution.  He argued that it violated his right to direct his daughter’s religious education. 

A magistrate judge examined the arguments and concluded that, as we all know, the Pledge is constitutional.  The District Court took a look at Newdow’s argument and agreed with the magistrate judge’s dismissal of Newdow’s capricious complaint.

But the enemies of God in public life got what they wanted in the end — to bring the claim before the iniquitous United States Court of Appeals for the Ninth Circuit.  Leaning on the Ninth’s liberal record, and its reputation as the most overturned appellate court in the country, Newdow hoped they would validate his arguments and do the absurd: declare the Pledge of Allegiance unconstitutional.  That would definitely get him before the Supreme Court.

And he was right. 

The Ninth Circuit reversed the holding of the district court, saying Newdow had standing to challenge a practice that interferes with his right to direct his daughter’s religious education and that the words “under God” on the Pledge were a violation of the Establishment Clause.

At the same time, we also learned that Newdow’s daughter and her mother, who had complete legal custody, did not want any part of the suit because they were Christians and did not have a problem with the Pledge of Allegiance.  Still, “under God” was out now.

It is also interesting to point out that Newdow’s arguments are so extreme that even the Ninth Circuit had to dispense with some of them like rubbish.  For example, the court points out that he was not only suing the school district where his daughter goes to school, but he was also trying to sue a neighboring district, because his daughter might go there in the future.

Sure, go and sue Wal-Mart because you may fall at one of their stores some day.

Another argument that reveals the frivolous nature of Newdow’s claim is the bravado of his prayer for relief.

Newdow asks the district court to order the President of the United States… to “alter, modify or repeal” the Pledge by removing the words “under God”’ and to order the United States Congress… “immediately to act” to remove the words “under God” from the Pledge.

With all of Mr. Newdow’s degrees and titles, it would not be credible to think that this was done out of ignorance of the law.  I’m sure he’s heard that we have three separate branches of government.  No, this purposeful disregard for the law shows complete disrespect for the Constitution and makes a mockery of the court.

The result was that the court actually had to devote some of its valuable time to giving Mr. Newdow a refresher course in basic civics.

The President… is not an appropriate defendant in an action challenging the constitutionality of a federal statute.  See Franklin v. Massachusetts … (observing that a court of the United States “‘has no jurisdiction of a bill to enjoin the President in the performance of his official duties’” …

Similarly… the federal courts lack jurisdiction to issue orders directing Congress to enact or amend legislation…  Because the words that amended the Pledge were enacted into law by statute, the district court may not direct Congress to delete those words any more than it may order the President to take such action.  All this, of course, is aside from the fact that the President has no authority to amend a statute or declare a law unconstitutional, those functions being reserved to Congress and the federal judiciary respectively.

Still, the Ninth Circuit gave legitimacy to Mr. Newdow’s arguments and concluded that the words “under God” in the Pledge are unconstitutional.  They said the statement that the United States is a nation “under God” is an establishment of religion.

How in the world the hearing, not even the saying, of the words “under God” in the Pledge to the flag establishes a religion, nobody knows.  Maybe churches should substitute sermons with the pledge.  According to the Ninth Circuit, it would probably be more effective.

That decision was later appealed to the U.S. Supreme Court, which ultimately sidestepped the central issue by ruling that Mr. Newdow did not have standing to challenge the Pledge of Allegiance.  The case was therefore reversed and it is now again at the Ninth Circuit where we await a new decision by the court. 

After all this time, the words “under God” on the Pledge are in as much a danger of being declared unconstitutional as ever.  We must remain diligent and tell our Senators and Representatives that we want our Pledge protected.

But something good did come out of the Supreme Court’s decision.  Three justices, Chief Justice Rehnquist, Justice O’Connor and Justice Thomas, did not shy away from the challenge of answering the question of constitutionality and, although their analyses were not part of the majority opinion and therefore not legally binding, they gave us and the Ninth Circuit (if it would care to listen) a strong message that the words “under God” in the Pledge of allegiance are constitutional.

Chief Justice Rehnquist gave a great historical account of the many instances where “patriotic invocations of God and official acknowledgments of religion’s role in our Nation’s history” were not only accepted but encouraged.  He talked, among other examples, about George Washington’s first inauguration on April 30, 1789, where “Washington put his right hand on the Bible, opened to Psalm 121:1: ‘I raise my eyes toward the hills.  Whence shall my help come.;’” he talked about the first Thanksgiving proclamation which started, “Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore His protection and favor;” he even referenced the last verse of our own national anthem “The Star-Spangled Banner,” adopted by Congress in 1931, which says, “then conquer we must, when our cause it is just, and this be our motto: ‘In God is our trust.’  And the star-spangled banner in triumph shall wave, o’er the land of the free and the home of the brave!”

As all reasonable people already know, the Chief Justice pointed out that these examples serve to show us that our Nation’s culture embraces our religious history and character.  He concluded “I do not believe that the phrase ‘under God’ in the Pledge converts its recital into a ‘religious exercise’…”

Justice O’Connor agreed, emphasizing that the reasonable observer, “fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over non-religion.”

But that is a reasonable observer, and the people who are obsessed with removing God from our culture are not

Justice O’Connor explained that Mr. Newdow’s “distaste for the reference to ‘one Nation under God,’ however sincere, cannot be the yardstick of our Establishment Clause inquiry.  Certain ceremonial references to God and religion in our Nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty.”

She concluded, “I believe that petitioner school district’s policy of having its teachers lead students in voluntary recitations of the Pledge of Allegiance does not offend the Establishment Clause.”

Justice Thomas summarized his opinion in a very simple way: “We granted certiorari in this case to decide whether the Elk Grove Unified School District’s Pledge policy violates the Constitution.  The answer to that question is: ‘no.’"

As we await its decision once again, let’s hope the Ninth Circuit listens.  But don’t hold your breath.