"One Frankenstein,
Under God- Part 1"

By b.james

The stage is set as the Ninth Circuit Court of Appeals handed down its decision that the words "under God", as contained in the Pledge of Allegiance and recited by millions of our children each day at school; are unconstitutional. The court found these two words specifically violate the Establishment Clause in the First Amendment of the Constitution of the United States of America. The Establishment Clause guards against the establishment of "religion as an institution" and the endorsement of religious theology by our government. This is the essential constitutional underpinning of the separation of Church and State as envisioned by the framers of the Constitution.

Barring significant public outcry or a detour made possible by a review panel of eleven Ninth Circuit judges, this legally sound and well-reasoned decision could become the proverbial snowball in the hell we call the Supreme Court. Indeed, the trend of the Rhenquist court has become apparent, or transparent, if you will. The ink is still wet on its Cleveland School Voucher decision. The High Court ruling in the Cleveland case can only be considered a big win by social conservatives. The court’s ruling will allow public money to go to private and religious schools, with significant collateral damage to the institution of Public Education ( read "equal education" ). In California, this will only fuel the various private interest forces’ semi-annual school voucher initiative; which in turn distracts us from proper focus on how we might enable the improvement of our public schools.

These are the same ilk that led the "taxpayer revolution" of the 1970’s, which took California public schools from among the finest in the nation to a secure ranking among the Nation’s worst. The school buildings, themselves are in generally depressed condition, particularly in the urban areas where it is critically important that schools represent hope and opportunity. This has occurred over the last twenty years, during a time of incredible demand on our schools. As one telling example, Lodi, a modest Central Valley town, has students speaking more than 120 languages. In Compton, there was no money for textbooks last year. With the Golden State looking at a $25 billion budget deficit this year, meeting student needs in the information age is probably not in our immediate future.

While the Ninth Circuit decision will grab the headlines, the bottom line has already been compromised. We may be witnessing the "welfare-ization" of our public schools. The "good" news for those wrapping themselves in no less than God these days, could be that a resulting proliferation of government subsidized private and religious schools will lower the number of our young people subject to a God-less salute to the flag. That is another story for another time.

A Brief History of the Pledge of Allegiance

Writer and editor Francis Bellamy wrote the "Pledge of Allegiance to the Flag" in 1892. It was intended as a patriotic exercise for everyone. It was altered in 1923 and 1924, both times despite Bellamy’s protests. In ’23, "my flag" was changed to "the flag of the United States"; and "of America" was added in ’24. He saw them as "clumsy redundancy". As his grandson would later comment, "He felt it spoils the poetry…Those 23 words were perfect".

Ironically, Francis Bellamy, prior to being a journalist, was a Baptist minister. It is unclear whether he left the clergy voluntarily or was fired. During this time, capitalism had no checks and balances. He was of the opinion that this was not O.K. At one point he delivered a sermon called"Jesus, the Socialist". This probably contributed to the Baptist congregation’s suspicion that Francis may be a bit radical. He was, in fact, an active socialist.

At the time he wrote the Pledge, he was an associate editor of "Youth’s Companion", which had a circulation of about 500,000 school children. He wrote the Pledge on the occasion of the 400th anniversary of Columbus landing in the New World, a traditional celebration in public schools. It was meant as a salute to the flag and the American ideals of liberty and justice. Now don’t let this get out. It could be scandalous if it were common knowledge that our Pledge was written by a socialist. The Pledge, itself, could come under full frontal assault as a commie plot.

According to his niece, Francis "was so for the separation of church and state that he was against parochial schools because he thought education should be a state matter". In 1954, Francis Bellamy was twenty years dead. When the "under God" addition was under consideration by Congress, his son David protested the action in his stead. His response from then-Representative Kenneth B. Keating,R-NY; was: "You cannot vote against matters of motherhood and God". This was the McCarthy era, when dissent on this issue was tantamount to sympathy for God-less communists.

The legislative history makes clear that the intent of adding "under God" to the Pledge was to capitalize on extant state laws and school policies mandating recitation of the Pledge. This would not sit in obscurity as just another federal code. In the report of the House Judiciary Committee, Representative Louis C. Rabaut, sponsor of the "1954 Act" testified, in part: "…the children of our land, in the daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its origins." If the prevailing sentiment were not yet clear, we are treated to the insight of President Dwight Eisenhower as he signed the bill into law, stating: "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty."

This would seem to position us in opposition to the established and fundamental principle of freedom to practice or, more importantly as it applies in the instant case, not practice religion. The action is a result of Sacramento area attorney Michael Newdow, and has some specific implications in California. California state law requires public schools begin each day with "appropriate patriotic exercises", a requirement that the Pledge satisfies. Yet, with the addition of the words "under God" it would seem obvious that we have transcended a secular patriotic exercise in favor of a policy which fosters, at the very least, a perception of government sponsored religion. It says to me: let freedom ring, but not too loud.

The Case and the Court’s Decision

Though the case originated in my own back yard, my introduction came by way of Rush Limbaugh in predictable fashion. I could tell by his analysis that he had little in the way of the "rule of law" to validate his effusive indignation, only his usual babble about crazy liberal judges and pandering to the fears of his audience. It struck me that Rush doth protest too vociferously and his reasoning had not the muster to pass the smell test. This aroused my curiosity enough to want to read the decision itself.

Local attorney Newdow is an atheist with a school-age daughter. Sharing custody was hard enough without the State of California giving what he viewed as daily religious indoctrination. He brought action against the U.S. Congress under the Establishment Clause in the First Amendment of the Constitution. Newdow claimed standing as a parent to challenge a practice he believed interfered with his right to direct the religious education of his child. In Doe vs. Madison School District the courts held that "parents have a right to direct the religious upbringing of their children and, on that basis, have standing to protect their right." Predating even the inclusion of "under God", the courts found that compulsory recitation of the Pledge to be unconstitutional. This during World War II, a patriotic time indeed, finding that practice compelled students to "declare a belief", any kind of belief. Imagine the ire o’ Rush were this issue to be decided in such fashion today!

Newdow’s case worked its way to the Ninth Circuit Federal Court of Appeals. The Ninth Circuit has the reputation as a place where social conservative causes go to die; as opposed to most federal courts whose benches are full of Republican appointees. This court found the Pledge, as amended, "…an impermissible government endorsement of religion" as it sends a message to non-believers "that they are outsiders, not full members of the political community and an accompanying message to adherents that they are insiders…"; kind of a most favored citizen status.

In terms of the effect on students, the court found guidance in Lee vs. Weisman by noting that the practice places students in the "untenable position of choosing between participating in an exercise with religious content or protesting." The school and its teachers, the immediate authority in the classroom, essentially convey "a message of state endorsement of a religious belief"; in this case a religious orthodoxy of monotheism. This is found to have a coercive effect, a particularly sensitive matter when the environment is a classroom full of impressionable minds.

Now before any of you zealots gather for vigilante justice, it must be stressed that this court applied every significant test for evaluating alleged violations of the Establishment Clause. The addition of "under God" by Congress could not withstand any of them. It must be understood that the court need only find one failure of the applied tests to conclude a violation of the Constitution has occurred. This court went above and beyond the call of duty to ensure a decision beyond reproach, probably knowing full well the likelihood of review by the Supreme Court and the potential for controversy in the court of public opinion.

In order to survive a question of constitutionality, government conduct must meet a three-pronged set of standards as set forth in Lemon vs. Kurtzman. The "Lemon Test" requires the government conduct in question must "1)have a secular purpose, 2)have a principal or primary effect that neither advances nor inhibits religion, and 3)not foster an excessive government entanglement with religion." Again, the failure to satisfy any one of these standards is sufficient to determine unconstitutionality. The "coercion test" found in Lee is enough to find government conduct unconstitutional; and the court need not even consider the standards set forth in Lemon. In Lee, the court set forth the principle that "at a minimum, the Constitution guarantees that the government may not coerce anyone to support or participate in religion or its exercise…"

Lest there be any doubt, this court applied the "endorsement test", as defined in Lynch vs. Donnely. In Lynch, the Court found unconstitutional government conduct which conveys "a message of State endorsement of a religious belief…" Lynch also reminds us, and the court duly notes that "the Constitution also requires that we keep in mind the myriad, subtle ways in which the Establishment Clause values can be eroded." The Supreme Court’s conclusion as to compulsory recitation(Barnette) states: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein."

In its deliberations, the court also considered the legislative history. This provides the court with insight into the intent of Congress in making the "1954 Act" into law. In examining the Congressional Record, the court found that the "Act’s sole purpose was to advance religion, in order to differentiate the United States from nations under communist rule." Further, the court found: "The inclusion of God in our Pledge therefore would further acknowledge the dependence of our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual." So for "purposes of completeness", this court applied all available tools to measure the constitutionality of the "1954 Act" and was led to an imminently just and logical decision.

In the context of that time in history it is understandable how well meaning people could get caught up in the sentiments leading to the passage of the 1954 Act. In retrospect, it seems ridiculous and paranoid; provincial and desperate; chauvinistic and wallowing in uncertainty about the strength of America’s founding and shared values of liberty and justice for all. Now in this country, when you speak of "God" outside your church, you will find no shortage of opinions contrary in some manner, way, shape or form, to your particular concept of just what God is or isn’t. And that, gentlepersons, is our beauty and strength.

This predictable-in-its-response, right-wing mentality reminds me of the idiots a few years ago that would have us amend the Constitution to prohibit burning the American flag. You must remember. It was their social ill de jour.
I’ll never forget driving up from San Diego during the self-serving furor and the topic came up on sports radio. A U.S. Marine called with a comment. He stated in no uncertain terms "I was trained and I’m prepared to die for the right of someone to burn that flag." He didn’t have to say it twice.

Rather than "defend the Constitution" as stated in the Oath of Office, the current crop of politicians seem all too comfortable with constitutional mediocrity if it means another vote at election time. Interestingly, this may give us true measure of real patriots. Give me an atheistic defender of liberty over a God-fearing bigot any day.