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"Under God"

From the October 18, 2003 issue: The history of a phrase.

Oct 27, 2003, Vol. 9, No. 07 • By JAMES PIERESON
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THE UNITED STATES SUPREME COURT has now agreed to review the ruling from the Ninth U.S. Circuit Court of Appeals in California that challenged the use of the phrase "under God" in the Pledge of Allegiance. To nearly everyone's surprise, the lower court held that the recitation of the pledge in public schools constitutes an "endorsement of religion," in violation of the Establishment Clause of the First Amendment. As a result of this decision, public schools in the nine western states under the jurisdiction of the Ninth Circuit are forbidden to hold pledge exercises for their students. The Supreme Court will render a decision by next June.

The Ninth Circuit's decision was met by sharp criticism when it was announced last year. After all, there were few precedents for such a ruling. The Supreme Court has ruled in the past that ceremonial references to God in public places and institutions do not represent an establishment of religion. The Court has never blinked, for example, at the use of Bibles in courtrooms or the phrase "In God We Trust" on our coins or even the singing of "God Bless America" in public places. Yet the Ninth Circuit's ruling, if upheld, would almost certainly be applied to these situations, too; indeed, the plaintiff in the case, Michael Newdow, has argued for precisely such an application.

A surprising number of Americans nonetheless felt that the judges had a good point--that the reference to God in the pledge was an inappropriate endorsement of religion on the part of the government. Atheists and agnostics, they pointed out, were offended by this unnecessary reference to God in a patriotic pledge, as were adherents of exotic religions who may not worship a monotheistic God. Why should they be required to endorse the religious doctrines of the majority?

Conservatives, on the other hand, saw the decision as just the latest example of a liberal court run amok, imposing the personal views of judges on the Constitution in defiance of tradition, precedent, and common sense. Some called for the impeachment of the judges who had issued the ruling. Even the editors of the New York Times, who can usually be relied upon to take the most liberal positions on church-state issues, felt that the ruling was imprudent and impolitic. The Senate passed a resolution by a vote of 99-0 expressing support for the Pledge of Allegiance and its reference to "one nation under God." Most observers looked for a decisive reversal from the Supreme Court.

That assessment may turn out to have been premature. It is entirely possible that we could wake up some morning next June to learn that the Supreme Court has decided that the Pledge of Allegiance, in its current form, cannot be recited in the public schools. To understand why requires a closer look at the Ninth Circuit's decision.

IN ARRIVING AT ITS DECISION, the Court of Appeals placed great weight on the fact that Congress inserted the words "under God" into the pledge in 1954 as a means of advancing religion at a time when the nation was engaged in a battle against the doctrines of atheistic communism. The court further noted that when President Eisenhower signed the bill, he stated, "From this day forward, the millions of our schoolchildren will daily proclaim . . . the dedication of our Nation and our people to the Almighty." From the Ninth Circuit's point of view, the record amply demonstrated that the purpose of the act was not to advance patriotism (a legitimate secular goal), but rather to promote religion.

The court also ruled that the inclusion of "under God" in the pledge represents an unconstitutional endorsement of religion by government, particularly when the oath is recited by a captive audience of students in a public school. This conclusion was, in truth, not nearly so radical as some critics have claimed, since the Supreme Court itself has, in recent decades, moved very far in the direction of construing an "endorsement" of religion as an "establishment" of religion. Indeed, in a shrewd albeit somewhat obvious tactical feint, the Court of Appeals was able to draw support from no less an authority than Justice Sandra Day O'Connor--often the swing vote between the Court's liberal and conservative blocs--who is on record as saying that the Establishment Clause prohibits government from endorsing religion. Here the Ninth Circuit ruling quoted at length from O'Connor's concurring opinion in Lynch v. Donnelly (1984):