American Values Challenged by Initial Ruling on Pledge

Every morning the second-graders in the Elk Grove Unified School District near Sacramento, Calif., rise to recite the Pledge of Alleg-iance. Michael Newdow, a Sacremento atheist, objected to the practice because the pledge includes the phrase, "one nation under God," and he did not want his daughter exposed to, in his words, a "religious idea that certain people do not agree with."
Newdow filed a lawsuit in 2001 that was dismissed at the federal district court level. But last June, a three-judge panel for the 9th U.S. Circuit Court of Appeals agreed with Newdow, holding, in a 2-1 vote that "although the students cannot be forced to participate in recitation of the pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it re-quires public school teachers to recite, and lead the recitation of, the current form of the pledge." 
The court's decision, the first time a U.S. court has ruled any part of the pledge unconstitutional, set off a fire-storm of controversy around the country. The ruling, if allowed to stand and if affirmed by the U.S. Supreme Court, would mean that schoolchildren nationwide no longer would be permitted to recite the pledge in its present form. The Supreme Court may never get the chance, however, since the 9th Circuit has agreed to reconsider the case with all 11 of its judges participating, and a reversal of the court's earlier decision is likely.
In its written ruling, the court said that the "under God" portion of the pledge violates the Establishment Clause, which says "Congress shall make no law respecting an establishment of religion." According to the court, "A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus' or a nation under 'no God,' because none of these professions can be neutral with respect to religion." 
The court's decision, given one of several tests the U.S. Supreme Court uses to determine violations of the Establishment Clause, technically is correct because Congress' decision in 1954 to add the phrase "under God" does not carry a secular purpose and has the obvious effect of advancing religion. This twofold test frequently is used by courts to uphold the important principle of the separation of church and state. 
But in many cases, the Supreme Court does not follow this test. The Court frequently accommodates expressions of civil religion -- public rituals and symbols that express the nexus of the political order to the divine reality. In addition to the Pledge of Allegiance, the most common symbols of American civil religion are the national motto "In God We Trust," which also appears on U.S. currency; the Declaration of Independence, which has four references to God; observance of a national day of prayer; and the utilization of government-paid chaplains in the military, U.S. Congress and state legislatures.
Accommodating these religious expressions takes the rough edge off the separation of church and state and helps to maintain the American government's fundamental credibility. People lose faith in a system that is unmoored from their principal source of values, which in America has always been God. 
America is a nation "of the people, by the people and for the people." The laws serve us; we do not serve the laws. On the matter of the pledge, the people have spoken clearly and resoundingly in disapproving the 9th Circuit's decision. Courts inevitably are faced with the difficulty of determining when a particular practice should be stricken down to uphold the Constitution's requirement of church-state separation versus when to validate a practice that expresses the religious dimension of American public life. Although the 9th Circuit panel is to be commended for attempting to protect the consciences of young, impressionable schoolchildren who might be offended by having to recite the pledge, in this case it makes little sense to obliterate one of the great traditions of American civil religion that so clearly expresses the fundamental values of the vast majority of Americans, whom the court also is obligated to serve.
 

Dr. Derek H. Davis, professor of political science and director of The J.M. Dawson Institute of Church-State Studies, BA '71, MA '88, JD '73, PhD '93 (University of Texas-Dallas)