- The Washington Times - Wednesday, June 16, 2004

For the moment, the Pledge of Allegiance is safe from judicial mutilation.The U.S. Supreme Court last Monday in Elk Grove Unified School District vs. Newdow (June 14, 2004) voided a ruling by the U.S. 9th Circuit Court of Appeals holding that the words “under God” in the 31-word Pledge constituted a law respecting an establishment of religion offensive to the First Amendment. But Justice John Paul Stevens, writing for a five-member majority, declined to affirm the constitutionality of the Pledge, a reticence that could demoralize United States soldiers in Iraq and Afghanistan risking that last full measure of devotion to protect the nation’s security and religious freedom.

Instead, Justice Stevens invented a hypertechnical prudential excuse to deny the atheist father of a public school child standing to assert his constitutional claim. That temporizing indicated qualms by the majority over the Pledge’s consistency with the prevailing (albeit outlandish) wall of separation between church and state.

The Supreme Court should have sustained the Pledge as a declaration of a self-evident historical truth: namely, that the nation was born “under God,” and continues to believe in a Supreme Being. The Pledge acknowledges God, but eschews “establishing” a religion. To borrow from Justice Oliver Wendell Holmes, a few pages of history speaks volumes of logic about God and the Pledge, as Chief Justice William H. Rehnquist elaborated in a concurring opinion.

The Declaration of Independence invokes God to justify the nation’s birth. “Nature’s God,” according to the Declaration, entitles America to a “separate and equal station” among nations of the world. Further, all men “are endowed by their Creator with certain inalienable rights.” And “with a firm reliance on the protection of Divine Providence,” the Declaration’s signatories mutually pledged their lives, fortunes, and sacred honor.

President George Washington’s first Inauguration is equally informative. The president placed his right hand on the Bible, opened to Psalm 121: 1: “I raise my eyes towards the hills. Whence shall my help come.” He concluded his oath by adding, “So help me God,” and then kissed the Bible.

President Abraham Lincoln’s Gettysburg Address declares a resolution “that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the Earth.”

President Woodrow Wilson invoked God in seeking a declaration of war against Germany in April 1917. President Franklin D. Roosevelt asked God “to guide me in the days to come” in his first Inaugural address. Then Gen. Dwight D. Eisenhower exhorted the Allied Expeditionary Force on D-Day to “beseech the blessings of Almighty God upon this great and noble undertaking.” The motto “In God We Trust” initially appeared on currency during the Civil War at the direction of Treasury Secretary Salmon Portland Chase, future chief justice of the Supreme Court.

In 1956, Congress inserted “under God” in the Pledge and explained: “From the time of our earliest history, our peoples and our institutions have reflected the traditional concept that our nation was founded on a fundamental belief in God.”

Unwilling students, moreover, may remain silent, excuse themselves, or say the Pledge but omit “under God.” The Supreme Court held in West Virginia Board of Education vs. Barnette (1944) that the First Amendment prohibits school boards from compelling students to recite the Pledge. Further, the recitation is a patriotic exercise lead by school teachers as opposed to a religious ritual presided over by chaplains.

Constitutional law, however, seldom strays far from the moral deposit of the times. It is not constrained by Aristotelian logic. In 1896, the separate-but-equal doctrine sanctioned Jim Crow. In 1954, the Supreme Court in Brown vs. Board of Education assailed the doctrine as racist in violation of the 14th Amendment. In 1986, the high court sustained the constitutionality of laws against homosexual sodomy. In 2003, the court brandished the identical Constitution to prohibit punishment of such sexual acts, reflecting a spiraling climb in the social and moral acceptance of homosexuality.

The Elk Grove ruling is likewise vulnerable to obsolescence if a popular disrespect for religion grows, at least among the intellectual elites. The best way to preserve the Pledge is for religion to inspire and to guide by example. Virtue is the most persuasive legal argument.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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