The Constitution says that Congress shall make no law "respecting an establishment of religion." In 1954, when Congress added the words "under God" to the familiar Pledge of Allegiance, did Congress violate the First Amendment?
In a case from Illinois 10 years ago, three federal judges of the 7th Circuit said no. In a case from California last year, two federal judges of the 9th Circuit said yes. On April 30 the issue landed in the Supreme Court on a petition for review. My guess is that the high court will agree to hear the case, reverse the 9th Circuit and give God a break. The pledge will continue to speak permissibly of "one nation under God, with liberty and justice for all."
The California case involves an avowed atheist, Michael Newdow, whose daughter attends a public elementary school in the Elk Grove district near Sacramento. Under state law, every elementary school in California must begin its day with "appropriate patriotic exercises." Elk Grove has implemented this mandate through its own decree: "Each elementary school class (shall) recite the Pledge of Allegiance to the flag once each day."
It may be significant that the district's rule requires each "class" to recite the pledge. The pledge itself is individual and personal: "I pledge allegiance," etc. If the district's rule means that every child in a class must recite the pledge, the rule is patently unconstitutional. But this is not the case. In his panel opinion last year, Circuit Judge Alfred T. Goodwin made this clear:
"Newdow does not allege that his daughter's teacher or school district requires his daughter to participate in reciting the pledge. Rather, he claims that his daughter is injured when she is compelled to watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming 'that there is a God,' and that ours is 'one nation under God.' "
Judge Stephen Reinhardt joined Judge Goodwin in concluding that even if there is no element of formal compulsion in the Elk Grove policy, pupils are subjected to "impermiss-ible pressure to participate in, or at least show respect" during recitation of the pledge. Notably, the Supreme Court has banned "invocations" before high school football games. The high court has frowned upon prayers at public school graduation ceremonies. It is the "coercive effect" of a teacher's leading a class that renders the recitation unconstitutional.
Circuit Judge Ferdinand F. Fernandez filed a passionate dissent. He argues that such phrases as "under God" and "in God We Trust" reflect no tendency to establish a state religion. That danger exists only "in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity." Those expressions have not caused any real harm since 1791 and are not likely to do so in the future.
Nine other judges in the 9th Circuit filed a statement denouncing the Goodwin-Reinhardt position as "wrong, very wrong." It was "an exercise in judicial legerdemain," a serious mistake, a radical departure from precedent.
In any event, the Goodwin-Reinhardt opinion in the 9th Circuit is in direct conflict with the opinion of Judge Frank Easterbrook in the 7th Circuit in 1992. In that case, Robert Sherman, president of an atheists' society, complained that his 6-year-old son Richard was subjected to intolerable damage by having to listen to his classmates recite the pledge.
Easterbrook would have none of it. Joined by Judges Walter J. Cummings and Daniel A. Manion, Easterbrook held that teachers may lead the Pledge of Allegiance daily, "so long as pupils are free not to participate." Because there is no prescribed penalty for non-participation, "the most severe constitutional problems dissolve." The ceremonial reference to one nation "under God" is not a prayer. It is an individual affirmation of allegiance to a flag.
Easterbrook and his two colleagues had it right in 1992. The constitutional commandment, that Congress shall make "no law" respecting an establishment of religion, hasn't been obeyed since 1791. Congress and the states have enacted hundreds of laws respecting religion — chaplains in Congress, tax deductions for sectarian institutions, "in God We Trust" on currency. The line is drawn at state-sanctioned prayer. Let us pray the high court leaves it that way.
Universal Press Syndicate.
E-mail Jack Kilpatrick at kilpatjj@aol.com.