One Nation Under Something
Professor William R. Long
US District Court of Oregon Historical Society Program on Pledge of Allegiance--September 23, 2004
Along with Judge Jack Landau of the Court of Appeals, I planned the 9/23 program examining the implications for the First Amendment Establishment Clause of the words "under God" in the Pledge of Allegiance. The case on this subject, Newdow v. US Congress et al., originated in our Circuit, and on June 26, 2002 Judge Alfred Goodwin, an Oregonian judge, wrote the opinion for a divided panel of the 9th Circuit striking down the clause as an unconstitutional establishment of rellgion. The US Supreme Court vacated the 9th Circuit opinion in June 2004 on standing grounds--that petitioner Michael Newdow had no standing as a non-custodial parent to bring the case on behalf of his daughter. Thus, the issue on its merits is still a live one, and will probably be reintroduced by Dr. Newdow in US District Court later this year or next year.
The purpose of the program was to present the substantive issue for our consideration. To that end, we had Professor Richard Ellis, Hatfield Professor of Government at Willamette University and author of an upcoming book on the Pledge, address the history and social significance of the Pledge; Dr. Michael Newdow then addressed why the Pledge establishes a religion in contravention of the First Amendment. Mr. Kelly Clark, an Oregon attorney, made the case for why the phrase "under God" was constitutional, and then Professor Steven Green, of Willamette University College of Law, spoke of the "future" of this issue based on some of the Supreme Court opinions on the substance of the matter. A lively and heated question and answer period concluded the afternoon.
Professor Ellis
He first mentioned the history of the Pledge, which was drawn up in 1892 by the Rev. Francis Bellamy, a Christian Socialist and a writer for the Youth's Companion magazine in Boston. It was written to coincide with a "Raise the Flag" ceremony--which hoped to set a flag over every public school building in the nation. In addition, one of the reasons for the Pledge was to give a common statement of Americanism for the millions of new immigrants flooding this country.
The words "under God" were added during the McCarthy Era in 1954 to differentiate us from the "godless communists." But Professor Ellis was just as concerned with what he called the "puzzle of the Pledge," that is why it was that America, unique among Western democracies and most solicitous about freedom of opinions, would have such a required patriotic exercise. What did it say about us as a people?
Dr. Newdow
Dr. Newdow, an emergency room physician and attorney, with certificates of ministry from the Universal Life Church, then presented the case for why "under God" violated the First Amendment. He focused on the words--"no law respecting an establishment of religion"-- and interpreted the first act of the 1789 Congress, in which all mention of God was removed from the proposed law, as an indication that the Founding Fathers wanted no reference to a deity in the public square.
He also argued that the phrase "under God" in the Pledge would violate all three tests the Supreme Court has developed to determine the constitutionality of a statute under the Establishment Clause--the "Lemon" test, Justice O'Connor's "endorsement test," and Justice Kennedy's "coercion test." Keeping these words of the Pledge as they are is a direct violation of the rights of atheists, of which he is one. He stressed that the Establishment Clause forbids not only government favoring one religion over another but favoring religion over non-religion.
Mr. Clark
In making the case for the constitutionality of the phrase, Mr. Clark drew upon the fact that the phrase "under God" was consistent with a core political philosophy first articulated in the Declaration of Independence--that "Nature and Nature's God" were substantially the same as the "God" in the current Pledge. Because of this continuity of acknowledgement of God throughout our history, and because the Founding Fathers obviously found no inconsistency between the reference to God in early official proclamations and the First Amendment Establishment Clause, it cannot well be argued that there is any inconsistency now. In addition, Mr. Clark stressed that even under the Supreme Court's current case law the phrase "under God" is valid. In contrast to Dr. Newdow, Mr. Clark argued that the law putting "under God" into the Pledge had a secular purpose and effect--to promote a well-established political philosophy. He also argued that because no one was actually compelled to say the pledge, it did not violate the holding of the 1943 Barnette case.
Finally, he maintained that America has a "national bipolar disorder" regarding religion in the public sphere. We are told by some that religion is supposed to be a "private matter," but most Christians as well as members of other faiths would like to see their values, rooted in their religious heritage, represented in the public arena. It is far better for America to have a public square where all religions are free to "compete," than a naked one from which religion is banished.
Professor Green
Dr. Green is both a historian of American religion and lawyer with an expertise in the First Amendment. He pointed out that the symbolic significance of the Pledge was mirrored in the huge public outcry on the day of the 9th Circuit's opinion (6/26/02), while there was relatively little outcry regarding a decision by the Supreme Court that same day which upheld a program of school vouchers in Cleveland, OH. He mentioned also that he felt that it was probably wise for the Supreme Court not to reach the merits of the case because had it affirmed the 9th Circuit, the Supreme Court would have been THE election issue in 2004 and if had reversed the 9th Circuit on the merits, it would have wreaked havoc on their case law in the Establisment Clause area.
Then he focused on the opinions of three members of the Court in the Newdow case that expressed either an opinion or an approach to the issue on its merits. Justice O'Connor's opinion offered for Professor Green a "road map" of where the Court might go in the future in considering the issue. She and other justices might tend to allow the words "under God" because the words reflected a "ceremonial deism" that was not inimical to the constitution or, alternatively, that the "violation" of the First Amendment, if at all, is only de minimis. He said that the next Establishment Clause issue that may come to the Court relates to the presence of the 10 Commandments in public spaces--because there is currently a split in the Circuits on the issue.
Copyright © 2004-2007 William R. Long
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