By Jennifer Van Bergen
t r u t h o u t | Perspective
Thursday, 11 June, 2002
If one believes the Newsweek poll that nine out of ten Americans support the inclusion of the phrase "under God" in the Pledge of Allegiance, one might consider it foolish to try to explain why the 9th Circuit Court decision declaring it unconstitutional is correct.
Consider me foolish, then. I believe Americans still know how to think things through.
Given the huge public outcry that included statements by President Bush and a resolution by Congress condemning the decision, and given the majority right-wing composition of the United States Supreme Court, even the New York Times was emboldened to declare that the 9th Circuit Court "has developed a reputation for being wrong more than any other federal appeals court."
This is quite an amazing declaration. Who says it is "wrong?" The United States Supreme Court? We forget that the United States Supreme Court can be as fallible as any lower court. In fact, this Supreme Court made one of the most criticized rulings in its history when it decided not to count all the votes in the last presidential election. Indeed, it is not unknown for Congress, itself, to occasionally enacts laws overturning Supreme Court decisions.
What does it mean to say the court is "wrong?" Wrong on how to interpret the law? Wrong on the facts? Wrong on what the law is? These are things which are open to considerable debate and federal courts themselves frequently differ on all of them.
To impugn the decision of the 9th Circuit without understanding the reasoning behind it is to endorse ignorance.
An "avalanche of criticism" (as the New York Times called it) does not make the criticism right. Courts are bound to apply the laws, not merely the latest beliefs.
About twenty years ago, I sat in a library lounge at New York University and quietly told a friend that I was a patriot, that I believed in the principles on which this country is built. A woman who had been eavesdropping for quite some time before I made that statement, seemed to take offense at my declaration of patriotism, got up, and left. At that time, it was not popular to be a patriot.
Now it is, but now patriotism has become confused with religious belief.
One can be patriotic and not be religious. One can be religious and not patriotic.
The Founders of this country consciously and intentionally insisted upon a clear separation of church and state.
Thomas Jefferson wrote that "our civil rights have no dependence on our religious opinions." (An Act for Establishing Religious Freedom, 1779.) In other words, we have the same civil rights - all of us - whatever our religious opinions might be.
In a famous statement, he declared that "that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus buil[t] a wall of separation between Church and State." (To the Danbury Baptists, January 1, 1802.)
Jefferson quotes the portion of the First Amendment known as the Establishment Clause. It was enacted to prevent the government from establishing an official church. It has come to mean much more than that, however.
In 1971, the Supreme Court established a test for determining whether a law or government expenditure violates the Establishment Clause. This test requires that (1) the law must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religions, and (3) it must not foster an excessive government entanglement in religion. Violation of any one of these rules violates the Establishment Clause.
Justice Sandra Day O'Connor has proposed an alternative test: any law or governmental practice which endorses a religion or religion generally is unconstitutional.
One result, if not an overt purpose, of these tests is not only to keep the church and state separate, but also to protect the free exercise of religion. A government that endorses religion, controls it. American's right to freedom of religion requires that government stay out of religious matters.
The Supreme Court has made one exception to the 1971 test. Where a religious practice has had long historical acceptance - in other words, where it no longer has religious meaning - although it would otherwise violate the 1971 test, it may be allowed to stand.
This is the argument currently used by some who would sustain the reference to God in the Pledge of Allegiance. The Pledge has contained those words for almost fifty years.
But, if the words "under God" no longer have religious meaning, why would anyone fight to retain them? Certainly those who feel strongly that this is a Christian nation could not rely on the argument that the words have lost their meaning. Their position must be that the words DO have meaning and that the religious meaning is inextricably intertwined with the patriotic meaning. If this is so, if the religious meaning and the patriotic meaning are inseparable, then the Pledge violates the Establishment Clause.
Certainly in the context this case was brought - public school recitation -- the Supreme Court has repeatedly held that voluntary prayers offered as part of a public school practice or ceremony are unconstitutional.
It does not satisfy constitutional requirements that the student be allowed to absent herself from the occasion. As Justice Anthony M. Kennedy wrote, "the State cannot require one of its citizens to forfeit his or her rights and benefits [eg. the right to participate in a school event] as the price of resisting conformance to state-sponsored religious practice."
The question remains, then, whether a nonreligious child, or a child who did not believe in one God, or the same god, or who simply had not decided what she believed in yet, although not herself required to recite the religious phrase, should be forced to listen every day to her teacher and classmates do so and, apart from the issue of being subjected to continual religious indoctrination this way, thus also potentially be perceived as unpatriotic.
The 9th Circuit reasonably thought not.
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