To: new46@yahoogroups.com
From: "Deke Barker" <deke@andbar.com>
Date: Tue, 14 Oct 2003 15:31:48 -0700 Subject:
[new46] Under the God We Trust

Under the God We Trust... and under no other gods, neither Allah nor YHWH, and certainly not Zeus.

The Supreme Court has accepted an appeal of the 9th Circuit's decision that declared the phrase "under God" in the American Pledge of Allegiance to be unconstitutional. This should provide a fascinating opportunity to observe the Court in action. It should provide an even more fascinating view of the public.

The issue is rather simple: In 1954, not one of America's better years, we were in the midst of rampant McCarthyism. Demagogues raged against the "godless communists" who had allegedly infiltrated all segments of government and society. That is when some opportunistic politicians jumped on the bandwagon and added "under God" to the Pledge. There was minimal opposition. People weren't too interested in the nuances of Constitutional law, and politicians weren't interested in risking their careers over such a highly-charged issue, especially given that its affect (if any) would be hard to measure in the long term and impossible to measure in the short term.

Even those who would normally oppose such a clear violation of the Constitutional separation of church and state felt intimidated by those on the far right.... and for good reason: The witch hunts in the late '40s and early '50s and extending into the '60s terrified and ultimately hurt and even ruined many innocent people. As with politicians, civil libertarians had much more pressing issues to deal with than a seemingly-innocuous phrase in the Pledge.

There is little question among Constitutional scholars that the addition of the words "under God" was contrary to the 1st Amendment at the time they were added. The reference to "God" could only refer to the Xian deity. "God" (spelled out) couldn't refer to the Jewish deity, because it is contrary to Jewish tradition to speak or write the deity's name. Nor could a reference to "God" (capital "G") refer to Allah or Vishnu. It was and remains an obvious act of promoting Xianity as the national religion, a cle ar violation of any rational interpretation of the "establishment" clause of the 1st Amendment. (If promoting Xianity wasn't a key intention, why not a generic "under divine guidance"?)

According to the New York Times, the original complaint "argued that his daughter's First Amendment rights were violated because she had been forced to 'watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is one nation under God.'"

The 9th Circuit's decision stated that the words "under God" were the equivalent of saying that we are a nation "under Jesus", a statement that is not "neutral with respect to religion". The opinion noted that "under God" was no different in kind from a statement in the Pledge that we were "under Vishnu", "under Zeus", or "under no god". It went on to note that "public sentiment or outcry" was not a sufficient rationale for violating the clear intention of the Constitution.

The dissenting opinion declared that patriotic songs and other patriotic traditions in public settings could be banned if we ban "under God" from the Pledge. In particular, the dissenter referred to "God Bless America", "America the Beautiful", and the third stanza of "The Star Spangled Banner".

Deke's analysis:

For Constitutional scholars and civil libertarians, THE PROBLEM IS THAT THE PUBLIC, IN SPITE OF INCESSANT LIP-SERVICE ABOUT THEIR "RIGHTS", HAS NEVER BEEN ENTHUSIASTIC ABOUT OUR MOST BASIC CONSTITUTIONAL RIGHTS. Most people, even some otherwise-rational people on this forum, appear to look at our "rights" as not extending to those who are on the fringes, and *ESPECIALLY* not to those on the opposite fringes. Look at recent arguments by Jim Massey in favor of a law banning flag burning, in which he engaged in rhetorical contortions and absurd claims about flag-burners in order to rationalize his claim that flag-burning is not "_expression". One suspects that Jim's problem was less with the definition of "_expression and more with the scope of the 1st Amendment, and that his arguments were framed so as to avoid addressing the real issue.

An earlier Supreme Court decision declared that references to God on our money ("In God We Trust") did not violate the Constitution because they are so ubiquitous that nobody pays any attention to them. Under this reasoning, even if the reference (in this case, "under God") was originally contrary to the Constitution, there is no *EXISTING* act of establishment if there is no longer any practical consequence resulting from the original act. Such reasoning is, of course, a cop-out, but IMO a justifiable one.

The Supreme Court has often ducked its formal responsibilities in favor of its ultimate responsibility: to maintain the integrity of Constitution in the eyes of the public.

The opponents of the 9th Circuit's decision have an excellent argument *IF* the phrase "under God" is perceived by the public in the same way that we perceive "In God We Trust" on our money. As a matter of orthopraxis, the Supreme Court wisely avoids unnecessary clashes with the public. If there is no burning issue here, the Supreme Court might properly rule in favor of the appellants and retain "under God" in the Pledge.

However, in my opinion, supporters of the 9th Circuit decision have the better argument.

"In God We Trust" is printed on the dozen or so bills and coins we all carry in our wallets and purses, which we use every day without reading one word that is printed on them other than the denomination.

By contrast, adults encounter the Pledge only upon special occasions. In nearly every case, we not only LISTEN to the words, we RECITE them. There is an undeniable difference in both degree and kind between the words that one might notice on a dollar bill if one bothered to look, and the words that we recite on special occasions to pledge our loyalty to America.

The dissenter in the original 2-1 decision managed to duck the real issue. Popular songs often refer to religion. Up to a point, this is not a serious problem. Many people do not sing those songs -- the national anthem in particular -- because they don't have good singing voices. Nobody minds. Nor do people pay all that much attention to the words. With the exception of the third stanza of the "Star Spangled Banner" (that nobody knows and few have even heard or read), these songs are not enshrined in public law. They have no official role. In effect, singing the song "God Bless America" on public occasions is no more troubling --and probably far less troubling -- than "In God We Trust" on our coins and currency. If the other expressions of patriotism to which the dissenter referred are similar in kind to "God Bless America", his concerns are unwarranted. If they are more like "under God", then they are effecting establishment and should be prohibited.

Should it so desire, the Supreme Court would have no trouble crafting an opinion that upheld the 9th Circuit's decision and simultaneously blocked any efforts to extend that decision to much less troubling examples of state entanglement in religion.

At this point, there is no doubt in my mind that the 9th Circuit's decision was *PRECISELY* in accordance with both the intention and the subsequent interpretations of the 1st Amendment. However, the real question is whether this is enough of a "burning issue" that the Supreme Court needs to take a highly-unpopular stand in support of the establishment clause. That is, what is the practical impact of the words "under God" on those patriotic Americans who -- by nature of their faith or their lack of faith -- feel obligated to opt out of repeating the Pledge with the words "under God"? Whatever the intent (an intent that was clearly contrary to the 1st Amendment), does the *RESULT* as it occurs today serve to promote Xianity and/or religion in general?


The Supreme Court should craft an opinion affirming the 9th Circuit's decision with an introduction that speaks to the public at large and not just to lawyers. Such an introduction could go bar toward forestalling a tragic effort to amend the Constitution and redefine humanity's most precious words of freedom that constitute the 1st Amendment of the American Constitution.

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