- The Washington Times - Tuesday, July 9, 2002

Except for Rip Van Winkle understudies, everyone knows of the 2-to-1 panel decision of the U.S. 9th Circuit Court of Appeals holding the Pledge of Allegiance unconstitutional in Newdow vs. U.S. Congress (June 26, 2002). Defenders of the majority opinion by Circuit Judge Alfred T. Goodman unconvincingly insist Supreme Court precedents mandated the ruling that startled the nation. Judge Goodman, joined by Circuit Judge Stephen Reinhardt, seemed more Fletcher Christian in "Mutiny of the Bounty" than obedient seamen to a higher authority.

The Supreme Court has never directly confronted the constitutionality of the words "under God" (added by Congress in 1954) in the Pledge. But numerous justices have addressed the question in deciding sibling church-state issues. In Engle vs. Vitale (1962), the court held state organized public school prayer unconstitutional. Speaking for the majority, Justice Hugo Black sharply distinguished prayer from patriotic or ceremonial manifestations of a belief in God: "There is of course nothing in the decision reached here that is inconsistent with the fact that schoolchildren and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's profession of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God."

In Abbington School District vs. Shempp (1963), the court held that opening each school day with a Bible reading was constitutional heresy. But in a concurring opinion, Justice William Brennan, a super-strict church-state separationist, warned against interpreting the precedent as a death knell for the pledge, the motto "In God We Trust" or longstanding historical acknowledgments of a Supreme Being: "The reference to divinity in the revised pledge of allegiance may merely recognize the historical fact that our nation was believed to have been founded 'under God.' Thus, reciting the pledge may be no more a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact." Justices Arthur Goldberg and John M. Harlan, in a separate concurring opinion, endorsed Justice Black's observation about permissible official recognitions of God in Engle, and forcefully added:

"The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact.

It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow."

Writing for a plurality in County of Allegheny vs. American Civil Liberties Union (1989), Justice Harry Blackmun accepted without question that, "Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief."

In Lynch vs. Donnelly (1984), upholding the constitutionality of a municipal creche display, Justice Sandra Day O'Connor in a concurring opinion amplified: "[T]he government's display of the creche in this particular physical setting [is] no more an endorsement of religion than such government 'acknowledgments' of religion as legislative prayers of the type approved in Marsh vs. Chambers (1983), government declaration of Thanksgiving as a public holiday, printing of 'In God We Trust' on coins, and opening court sessions with 'God save the United States and this honorable court.' Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying approval of particular religious beliefs."

These multifarious approvals of "under God" in the pledge or its constitutional equivalents over three decades from an ideological cross-section of Supreme Court Justices is tantamount to a binding case holding. The judicial chorus has featured Chief Justice Warren Burger, Chief Justice William Rehnquist and Associate Justices Harlan, Brennan, Byron White, Goldberg, Thurgood Marshall, Blackmun, Lewis Powell, John Paul Stevens, O'Conner, Antonin Scalia, and Antony Kennedy. No Supreme Court decision enlisted in Judge Goodwin's mutiny caper casts doubt on its repeated constitutional affirmations of the pledge.

If "under God" genuinely endorsed monotheistic religions to the disparagement of others, how could California Sen. Diane Feinstein avow with conviction that in her 30 years of tumultuous public life not a single complaint has been heard over the pledge? Even in Newdow, the atheist father plaintiff conceded that his daughter voluntarily recited the pledge with the words "under God," but alleged that his right to child-rearing was offended by the absence of a public school in which no pledge was said.

The U.S. 7th Circuit Court of Appeals declined constitutional excommunication of the Pledge in Sherman vs. Community Consolidated School District 21 (1992). Its opinion demolished Judge Goodwin's sophistry between Supreme Court dicta and holding: "Plaintiffs observe that the [Supreme] Court sometimes changes its tune when it confronts a subject directly. True enough, but an inferior court had best respect what the majority says rather than read between the lines. If the court proclaims that a practice is consistent with the establishment clause, we take its assurances seriously. If the justices are just pulling our leg, let them say so."

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