June 27, 2002 | WebMemo on Legal Issues
Until Wednesday the phrase "America Under Attack" would most certainly have been used to describe the war on terror. Now it can be used to describe the actions of the 9th Circuit Court of Appeals in California.
There, two old men from San Francisco - both in their 70s - decided that nine Western states can no longer recite the Pledge of Allegiance in schools because the words "under God" in the pledge violate the Constitution's clause barring establishment of religion.
This ruling ( Newdow v. U.S. Congress) will not stand. It is in direct opposition to written documents of America's founding, and provides further evidence of unelected judges trying to take over the country by usurping policymaking authority. (It is also in conflict with the 7th Circuit in Chicago).
The fundamental question is what the First Amendment's Establishment Clause means, and it shows how far we've come from the Founding.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." is clearly written to guard against the establishment of a state-sponsored religion. The Founders didn't want America to be a Protestant state.
Remember the Pilgrims came from church repression.
But the court has moved from conventional understanding of the antiestablishment clause to reading it as an anti-religion clause.
Essentially the court has developed this idea of a coercive environment: Little Suzy is gravely affected when others around her say the pledge, including the phrase, "one nation...under God."
However the law doesn't normally condition ones behavior on how it will affect others around them. Instead, we are told to avert our eyes and turn our heads away from something we find objectionable.
In Cohen v. California, the Court found that the words "F--k the Draft" on the back of a war protester's jacket, worn in a public place, were constitutionally protected speech. The rights of unwilling viewers by do not outweigh the speakers. Furthermore, the Court explained that a viewer, after becoming aware that the message was offensive, could avert their eyes and avoid further contact with the "speech."
While some would view this as a great moment for teaching tolerance and diversity, we are instead relegated to bad sociology. Religion should be a more highly protected value, not a lower protected value. At the very least it deserves equal protection.
Equally disheartening is the partial dissension in the Newdow case, where the judge wrote that the use of "one Nation under God" is ok, because its use has "drained [it] of meaning."
But it does have meaning. In The Declaration of Independence the Founders write:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
We, therefore, the Representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States;
And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
As White House Press Secretary Ari Fleischer said in the opening moments of yesterday's press conference:
The Supreme Court, itself, begins each of its sessions with the phrase, "God save the United States and this honorable court." The Declaration of Independence refers to God or to the Creator four different times. Congress begins each session of the Congress each day with a prayer. And of course, our currency says, "In God We Trust."
Real meaning indeed. The Supreme Court has previously upheld the motto on our currency. In its own chambers the Supreme Court has a motif of all the great lawgivers, including Moses with the Ten Commandments.
At a certain point this goes beyond narrow confines of jurisprudence and strikes at much larger question of American history and American culture, begging recognition of the importance of religion and Providential power in our own history.
For more see Heritage's Founder's Almanac, Independence Forever: The 225th Anniversary of the Fourth of July, by Matthew Spalding and James Madison and Religious Liberty, by Joseph Loconte.