May 13, 2010 - 12:30pm
Ninth Circuit Finds “Under God” in Pledge of Allegiance Constitutional Posted by: Joseph R. Pope

 

In Newdow v. Rio Linda Union School District, the Ninth Circuit in a 2-1 decision rejected atheist, Michael Newdow’s latest claim that teacher-led recitations of the Pledge of Allegiance constitutes an establishment of religion prohibited under the First Amendment of the Constitution. 

 

Everyday, willing students in the Rio Linda Union School District in California, led by their teacher, recite the Pledge.  One of the plaintiffs, Jane Roe, an atheist, whose child attended an elementary school in the district claimed that the words “under God” served to endorse religious belief and coerce and indoctrinate her child that God exists.  Roe’s daughter had never said the pledge; instead, she remained silent during the recital.

 

Reversing the district court, the majority asked: “Does Roe have the right to prevent teachers from leading other students from reciting the Pledge of Allegiance—something we all agree is a patriotic exercise—because the mention of God in the Pledge offends her as an atheist?”  The Court answered: No. 

 

According to the majority:

 

The Pledge reflects many beliefs held by the Founding Fathers of this country—the same men who authored the Establishment Clause—including the belief that it is the people who should and do hold the power, not the government.  They believed that the people derive their most important rights, not from government, but from God:

 

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.

 

The majority inferred from reading the Declaration of Independence and the Constitution that the founding fathers did not view the two ideas—that individuals were endowed by God with certain inalienable rights and that we do not want our government to establish a religion—as being in conflict.

 

The majority went on to recount that the current Pledge was adopted by Congress in 1954 and was recodified by Congress in 2002. (After a panel of the 9th Circuit held that the Pledge was unconstitutional, see Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002), Congress “recodified” the Pledge as a means of reiterating its view that the Pledge was Constitutional.  The 9th Circuit’s decision was reversed on standing grounds by the Supreme Court.  See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)).

 

Upon reviewing the history of the Pledge and after applying all three Establishment Clause tests—Lemon, Endorsement, and Coercion—the majority said:

 

We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activity

 

Accordingly, we hold that California’s statute requiring school districts to begin the school day with an "appropriate patriotic exercise" does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.

 

In a sharply worded 133-page dissent (complete with table of contents), Judge Reinhardt said, in part:

 

[N]o judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words "under God" were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one . . . . Nor could any judge . . . seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.

 

It is equally clear that no judge . . . could legitimately rely on a 2002 "reaffirmation" to justify the incorporation of the words "under God" into the Pledge . . . as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred . . . .  In doing so [in 1954], we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.

 

Today’s majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts . . . .  [T]o the joy or relief . . . of the two members of the majority, this court’s willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.

 

If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular . . . .  I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all.