In 1954, at the height of the cold war, Congress amended the phrase "one Nation indivisible" in the 62 year-old Pledge of Allegiance to read "one Nation, under God, indivisible." Last week, over a blistering 160-page dissent, the Ninth Circuit held that the state-directed, teacher-led, daily recitation of the amended Pledge by children in public schools did not violate the Establishment Clause of the First Amendment.
The original version of the Pledge (without any reference to God or religion) was written by Francis Bellamy in 1892, although many mistakenly assume the founders wrote it. (Sarah Palin once wrote that if the Pledge "was good enough for the founding fathers, its [sic] good enough for me.") In 1942, the Pledge (again without any reference to God or religion) was officially codified by Congress.
But in 1954, one day after Rev. George M. Docherty, a highly regarded Presbyterian minister, delivered a sermon attended by members of Congress, urging that the Pledge be amended to add "Under God," several resolutions were introduced in the House and Senate to do just that.
Soon, members of Congress were piously declaring that "without these [new] words ... the pledge ignores a definitive factor in the American way of life and that factor is belief in God," that there "should be embodied in the pledge our allegiance and faith in the Almighty God," that "we are officially recognizing once again this Nation's adherence to our belief in a divine spirit, and that henceforth millions of our citizens will be acknowledging this belief every time they pledge allegiance to our flag," and that Congress was engaged in "a sacred mission" to achieve a "victory for God."
On June 14, 1954, as he proudly signed the joint resolution amending the Pledge to add the phrase "under God," President Dwight D. Eisenhower solemnly declared that "[f]rom this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty. To anyone who truly loves America, nothing could be more inspiring than to contemplate this rededication of our youth, on each school morning, to our country's true meaning."
To celebrate, according to the Congressional Record, the victorious legislators recited the newly minted Pledge of Allegiance to "our Nation [and] to the Almighty," while a bugle played "Onward, Christian Soldiers."
In the face of such overwhelming evidence (and much more recounted in detail in the dissent filed by Judge Stephen Reinhardt) establishing the predominantly religious purpose behind the amendment, Judges Carlos T. Bea and Dorothy W. Nelson in Newdow v. Rio Linda Union School District, held that, instead, the predominate purpose was "to inspire patriotism" and convey the secular principle that our nation is founded on "the concept of a limited government."
Mincing no words, Reinhardt wrote that "[t]o put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today's majority purports to do, that the words 'under God' were inserted into the Pledge for any purpose other than an explicitly and predominately one: 'to recognize the power and the universality of God in our pledge of allegiance'; to 'acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,' 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919."
Reinhardt goes on to bemoan the fact that "[w]e should indeed have had more faith in our country, our citizens, and Constitution than we exhibited at the peak of the McCarthy era when we enacted the religious amendment to our Pledge of Allegiance, in part to inculcate in our children a belief in God. In doing so, we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so once again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us."
Reinhardt proceeds in detail to demonstrate how the addition of "under God" to the Pledge violates all three of the Establishment Clause tests established by the Supreme Court, to wit: the Lemon test, the Endorsement test and the Coercion test. As persuasive as this trenchant and authoritative analysis is, it is Reinhardt's compassionate examination of the damaging and corrosive impact of the amended Pledge on our schoolchildren and those who do not believe in God that should persuade the entire Ninth Circuit to reverse this decision on en banc review.
The plaintiff is a five-year-old child compelled by law to attend school, where "her teacher, a state employee, leads her and her classmates in a state-directed exercise explicitly designed to inculcate a religious belief in each of them - a belief in God."
The Supreme Court has expressed special concern for "young impressionable children." A study conducted 20 years after the Pledge was amended to include the words "under God" found that for grade school children the most important part is "talking about God" and, as one child put it, "We better be good cause God is watching us even if he is invisible."
The very nature of coercive activity, the Supreme Court has repeatedly held, is that it exerts enormous "pressure upon religious minorities to conform to the prevailing officially approved religion." Reinhardt points out that 766,000 Hindus, one million Buddhists, 106,000 adherents of Native American religions, "not to mention our two million atheists, agnostics, humanists, and secularists and quarter million other believers in some other form of spiritualism" in America might take issue with the "explicitly monotheistic nature of the Pledge and its reference to a "superintending God."
"The very fact that the religious beliefs now embodied in the Pledge is antithetical to the beliefs of millions of Americans, religious and irreligious alike," Reinhardt wrote, "is why the Constitution prohibits the government from taking sides, and certainly from coercing schoolchildren to adopt and proclaim an officially prescribed belief."
Reinhardt concluded by pointing out the regrettable truth that the "majority opinion will undoubtedly be celebrated by a large number of Americans as a repudiation of activist, liberal, Godless judging." Nevertheless, he pointed out that by reaching the result the majority does, "we have failed in our constitutional duty as a court. Jan Roe and her child turned to the federal judiciary in the hope that we would vindicate their constitutional rights. There was a time when their faith in us might have been well placed. I can only hope that such a time will return someday."
Judge Reinhardt has done his part. For the sake of the Constitution, we can hope that a majority of the Ninth Circuit or a majority of the Supreme Court will do their part. But upholding the Constitution, in general, and separation of church and state, in particular, are not only the responsibilities of judges. Popularly elected members of Congress converted the Pledge of Allegiance into a religious exercise in 1954 and Congress can return it to its secular origins.
But that will require the people to speak out, people who are deeply religious or not religious, who understand the genius of Thomas Jefferson and James Madison when they guaranteed that we must keep the state out of the church and the church out of the state.
It will require us to lobby our elected representatives, telling them that in a free country religion can thrive without indoctrinating children in public school to espouse religious beliefs they may not believe and that it demeans religion itself to dilute the sacred concept of God by pretending that it's not religious.
Over a half-century ago, Justice Robert H. Jackson warned us that "[i]f 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 [or] religion."
Stephen Rohde, chair of the American Civil Liberties Union Foundation of Southern California, is author of "American Words of Freedom and Freedom of Assembly."