The Republican-led House yesterday passed a bill to preclude the federal courts from hearing cases on the constitutionality of the inclusion of the words “under God” in the Pledge of Allegiance.
The Pledge Protection Act would remove judicial review on the issue of whether the phrase, which has been challenged in several lawsuits as a violation of the separation of church and state, should be in the Pledge. The Supreme Court recently threw out a case claiming that the phrase was unconstitutional, but did so on narrow grounds that would not necessarily preclude further legal challenges.
House Republicans, citing a 2002 California federal appeals court ruling that the Pledge was unconstitutional because it “endorsed religion,” said the bill is necessary to keep judges from imposing their views on an unwilling American public.
“If we allow activist judges to say that it is wrong for schoolchildren to say ‘under God,’ we are emasculating the foundation of our country,” said Rep. Todd Akin, Missouri Republican. “Are they going to tell us to get rid of ‘In God we trust’ on our walls, that we can’t have chaplains in the Congress? Are we going to get rid of the Gettysburg Address? How far should we let them go?”
The bill passed 247-173, with all but six Republicans voting to protect the Pledge and 34 Democrats siding with them, while 166 Democrats and one independent voted against the measure.
Earlier this year, the House stripped federal courts of the power to determine the constitutionality of the Defense of Marriage Act. The bill has yet to make it to the Senate floor for a vote.
“The great strength of the United States is that we are and will continue to be, one nation under God, despite liberal courts’ rulings,” said House Majority Whip Roy Blunt, Missouri Republican.
House Judiciary Committee Chairman F. James Sensenbrenner Jr., Wisconsin Republican, said the bill will “place final authority over a state’s Pledge policy in the hands of the states themselves,” a side effect that Democrats said could return the country to a time of the “Articles of Confederation,” when states were sovereign to the central government.
House Democrats said the bill had little if anything to do with the Pledge of Allegiance or the constitutionality of “under God.” Instead, Rep. Jerrold Nadler, New York Democrat, said, it is a bill designed to exercise “demagoguery” over the courts because they didn’t like the California appeals court’s decision.
“If a state court determines that ‘under God’ is unconstitutional, what do we do in that case?” asked Rep. Melvin Watt, North Carolina Democrat. “We may have 50 different standards, so this is not about whether we want ‘under God’ to remain in our Pledge.”
Democrats fear that Republicans will continue to challenge the premise of judicial review established in the Marbury v. Madison case in 1803, a common-law doctrine that gives the courts final say on constitutional matters.
“Two months ago, we were promised that we would see the end of the court-stripping measures once the other side got its coveted Defense of Marriage Act, and our ‘Dean of the House,’ John Dingell, warned that we would continue to see these measures, and today his prediction has come true,” House Minority Leader Nancy Pelosi, California Democrat, said, referring to the veteran Michigan Democrat.
But the bill has little chance of reaching the Senate floor for a vote this year with only six days left in the session and no mention of it by Senate leaders Bill Frist, Tennessee Republican, and Tom Daschle, South Dakota Democrat.