PART THREE – The Particulars

Centerpiece to the historical argument is notion that the nation was “founded on a fundamental belief in God.” For example, page 12 of the Justice Department text reads,

“The relevant legislative history confirms that Congress added the words "under God" to the Pledge of Allegiance for the permissible, secular purpose of acknowledging our nation's religious heritage. For example, the House Report accompanying Congress's 1954 revision of the Pledge explains that "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the traditional concept that our Nation was founded on a fundamental belief in God," referring to many of the same historical references to God the Supreme Court noted in Lynch…”

The quote amounts to another obfuscation, the type often easily created compared to the labor required to expose it for what it is. First, the notion that the “under God” phrase was added to the pledge to fulfill a “secular purpose of acknowledging our religious heritage ” is about as coherent as stating that a bottle of moonshine was added to the daily diet to promote sobriety. How could the imposition of the words “under God” possibly ever fulfill a secular purpose? Secular purposes by definition have to do with things worldly and temporal. The term “God” denotes a deity and thus pertains to a classification of non-substantial and supernatural beings. Along with “god” or “gods”, the term “religious”, the antonym to secular, has its denotative roots in these same things. The words “under God” have a purely religious purpose. That is, imbed a monotheistic religious ideology in the Pledge and thereby conscript the nation to it! Even if the quote possessed coherent meaning, which it does not, one should still question why the pledge’s wording should be used to acknowledge “religious heritage” versus some other aspect of the nation’ heritage? This may be harshly worded criticism of the views of a justice that otherwise has often staunchly defended government religion separation. However, the notion that “God” as “secular deity” can somehow be held immune from exploitation as biblical and thus religious and doctrinal deity, is to court unrealistic optimism. In my opinion, the political trends in this nation over the last fifty years simply do not support it.

Originally, the pledge existed in government statute as a pure statement of nationalism. Based on the manifest intent of the Sixth Article and the First Amendment it was transcendent of specificity to either the secular or religious. The theocratic implication is that the contribution of “religious heritage” is superior to the contribution of all other heritage that went into the Nation’s founding and therefore is deserving of top seed. Undoubtedly, the peoples and institutions with theocratic leanings have always assiduously extolled the importance of religious heritage (particularly if not exclusively Biblical) just as vigorously as they have proclaimed the existence of “God”. It does not follow that all people and all institutions have “reflected” or otherwise advocated matters of “religious heritage.” It may be politically convenient for the theocrats to vigorously and persistently assert that the nation was founded on a belief in God. However, bald-faced strength of feeling and persistence of assertion are no proof of anything, other than one’s willingness to so assert. To the contrary, the Declaration of Independence informs us that the Nation was founded on a fundamental belief in human rights. The bottom line is that appeals to “religious heritage” and claims about the role of “belief in God” in the foundation of the Nation, amount to an interpretation of American history designed to serve the theocratic agenda alone. The implied view is by no means well supported by the historical facts or as universally accepted as the theocrats would dearly want us to believe.

The founders of this nation were not all of biblical persuasion. There were atheists and heretics among them and those that subscribed to other religious persuasions, some of which were a genre quite different from biblicalism or monotheism. They were people raised up in the legacy and promise of the Enlightenment, who knew more about the nature of the secular world and of religion than the Bible could ever possibly impart. They knew about the legacy of Athens, the home of Socrates and birthplace of democracy, and the legacy of enumerable other old world cultures that had contributed to the best lawmaking of human kind. They embraced the philosophies and the arts and sciences well beyond the prescriptions and taboos of religious dogma. They were artists and craftsmen, scholars, scientists, engineers, businessmen, industrialists, medicine men, teachers, and warriors, as well as people of the land, and there were Native Americans as well as immigrants who took a hand in standing up this Nation and its sacred Constitution.

Many of the immigrants from the old world came to escape the strangling grip of governments dominated by autocratic theocracies. The kind of government largely supported and sustained by corrupt biblical aristocracies. The founding fathers and mothers built the Constitution on a profound legacy of knowledge about the nature of civilization and the ingredients of just and fair civil law. A legacy of history’s lessons painfully accumulated over the course of the ages, and all too often in spite of the obstructive dogmas of the biblical faith. Only by virtue of all these other heritages and the people who stood in unyielding advocacy of same, was our nation and its sacred Constitution stood up at all! So how can the theocrats make special claims for their “heritage” or expect special dispensation before the common ground of our nationalism? The self-evident answer is that in all legitimacy they cannot, and should not continue to enjoy such advantage!

The accessible truths supporting this opposing slant on American history aught to be sufficient evidence against the selfish claims of the theocrats. Is it just coincidental that nowhere in the binding law of the Constitution is any reference to “God” found? Is it coincidental that the Sixth article specifically mandates “no religious test”? Is it coincidental that the First Amendment mandates “no law respecting an establishment of religion”? As before, the answer to these questions aught to be self evident to anyone with a reasonably sound knowledge of history.

All the baggage of “religious heritage” imported from the old world is insufficient justification for the theocrats to claim special superiority of contribution. Nor does their baggage justify any special dispensation to subvert the Constitution and use government authority to impose their ways, ceremonial or otherwise. It is the worst kind of political irresponsibility to sanction blatant undermining of the Constitution in the service of overblown claims about “religious heritage”. Nor are theocracy’s overt efforts to extort a broadening of license ever justified by “facts” of concession created in the past by some politician either properly or improperly. The evolving trends in Washington toward matters of “faith-based” social welfare reform aught to be proof enough that theocracy is an insidiously dangerous adversary to the solvency of the Constitution and to the basic civil rights of the people.

The number of things that could be said to debunk their claims are many and thus beyond the limited scope of this discussion. Still, because it so often used as justification for the theocratic view, the issue of “God” in the Declaration of Independence requires special attention. Only four phrases in the whole document reference anything about gods or supernatural influences. These are “their Creator” and “nature’s God” which appear in the opening paragraphs, and “Supreme Judge of the World” and “divine Providence”, which appear in the closing paragraphs. The former two are the ones most often seized upon to support the claim about a fundamental belief in God.

The notion of “God” as a singular omnipotent supreme being is ecumenical to the biblical claim. If the Declaration of Independence truly supported the foundational claim, then why didn’t Thomas Jefferson just say “God” or perhaps “the Creator” instead of saying “their Creator” and why did he say “nature’s God” rather than simply saying “God” or perhaps “the God”, or “our God”, or almighty God, or “under God”? If the presence of phraseology like “the Supreme Judge of the World” and “Divine providence” intended to imply the monotheistic idol of old testament theocracy, then it would have so stipulated. In addition, although several interpretations of the Declaration’s meaning are possible, a pantheon of supernatural entities each having different roles in the affairs of the world is as reasonable as any other. In view of these rather telling issues about the meaning of the Declaration’s phraseology, the claim that it affirms an exclusive belief in a singular omnipotent supernatural being, or that the deity “God” is that being, becomes strained past the point of being tenable. This observation is not trivial. Even the nation’s highest court has sometimes ascribed “proof” where none actually exists. For example, page 6 of the Justice Department appeal, contains the following commentary

“However, the Court was careful to point out that nothing in its ruling was "inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being."

The court’s usage of the phraseology “the Deity” and “Supreme Being” is specific in its intended monotheistic meaning. As demonstrated above, there is no phraseology identical to “the Deity” or “Supreme Being” anywhere in the Declaration that justifies the court’s referencing it in support of their decision. Regardless of how personal sentiment may sway one’s interpretation, it should be indelibly clear the Declaration does not specifically identify any deity simply called “God”. Although the Declaration and other historical documents do contain phrases that entertain the notion of higher powers, it does not substantiate a universal preference for monotheism as the above quoted commentary asserts. Exactly what historical documents or songs was the Justice referring to that employ terms like “the Deity” or “Supreme Being”? It would not be surprising to find that none do!

In decisively notable addition, documents like the Declaration of Independence, although cherished for their historical value, are not the binding law of the land. Whereas, by ratified mandate, the Constitution is the binding “supreme law of the land” (Article Six) and nowhere within is there any acknowledgment or affirmation of God. Therefore, affirmation of, belief in, or allegiance to God, does not stand as a valid obligation of citizenship or public office. Consequently, neither does it stand as something that the government has the right to prescribe or require as a matter of legal statute. These profoundly telling issues notwithstanding, what the Declaration of Independence does unambiguously substantiate, is a fundamental belief in liberty and equality, both secular and religious, and thus a fundamental belief human rights. This is an altogether different and transcendent kind of belief! The Department of Justice appeal and the textual evidence of past court rulings that it cites are full of holes, deficiencies, and misattributions of fact. Just about every paragraph possesses errors of fact, denotation, or reason and interpretation.

Working through the Justice Department’s wicket of words, we now directly confront the poignant issues of judicial authority, previous court judgments, and their use of “tests” to assess the merit of cases involving the First Amendment establishment clause. One of the ploys that the Justice Department appeal hung on was the allegation that the Ninth Circuit Court ruling deviated from previous judgments, some handed down by the Supreme Court itself. According to the appeal, the present judgment deviated from established judicial precedents in the analytical criteria used and the conclusion arrived at, and therefore was improper.

All the issues about the “religious heritage” that occupied the dialogue of the first nine pages of the appeal, were devised as prelude to the claim that the present judgment violated precedent by using the endorsement and Lemon tests rather than the “historical test” as previous and higher court rulings had preferred. The discussions above identified many reasons for questioning the merit of appeals to evidence of “religious heritage.” The examples cited were nevertheless an attempt to consolidate empirical justification for the so-called “historical test”. This was prelude to attempting to devalue if not invalidate the other tests as applied in the present ruling. In any event, page 9 of the appeal states,

“The panel majority was wrong to hold that it need not follow Lynch and County of Allegheny because those decisions failed to apply the "endorsement" test. This Court is not free to disregard the Supreme Court's clear dictates merely because a panel of this Court believes the Supreme Court did not fully think through an issue, or because the panel disapproves of the Supreme Court's mode of analysis in a particular case. Moreover, in County of Allegheny, the Supreme Court specifically noted that Congress's addition of the words "under God" to the Pledge satisfies the endorsement test. As the Court explained, "Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief."

Transcendent of whatever traditions of jurisprudence in effect, on the sheer grounds of wisdom and reason alone, the assertions embodied in the above stated quote are hideously untenable. Wherever and however a previous judgment might be flawed, either in the relevance or sufficiency of evidence, analytical criteria, or soundness of reasoning applied, it is the duty of every justice in the land to reevaluate the level of authority that should be ascribed to it. To ascribe unimpeachable authority to all past judgments, as the Justice Department appeal demands, mirrors the crippling impediment imposed by every monolithic religion on the planet (as in the unimpeachable correctness of the sutras, bible, or Qur’an) and by cultural enslavement, one of the worst Achilles heals of civilization. No bad ruling, no matter how high the court that handed it down, should retain the status of legal benchmark. What gives? Does anyone else get the feeling that his or her intelligence is being insulted? One need not be a rocket scientist to comprehend that the words “under God” rather explicitly communicate a religious belief!

Allowing flawed rulings to stand and thus become holy cows only begets more bad rulings, which bury the judicial system under an increasing mound of corruptions, becoming increasingly more difficult to eradicate. It fosters corrupt and autocratic government, which ultimately aims to strangle the people’s rights to extinction, and thus plant the seeds of tyranny, oppression, and civil war if not ultimately the downfall of the Nation. We must be able to overturn any judicial precedent that is demonstrably flawed. This unassailable requirement of civil justice is the high ground on which the profound issues of the present case reside. Previous rulings, which endorsed the imposition of “under God” on the Pledge, either failed to apply the other tests when they should have, or failed to apply them appropriately when they did.

This takes the present writing full circle to the critique with which it began. Where the theocrats and their lawyers and politicians are concerned, there are far too many among them who brazenly seek to convince themselves and others that the words of the Constitution and the phrase ‘under God’ mean things altogether different from what they actually do.”

The footnotes on page 11 of the Justice Department appeal contain the following.

“With respect to the endorsement test, the majority also was wrong to hold that the words "under God" in the Pledge are "identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god . . ." Slip op. at 9123. The Supreme Court specifically rejected this notion in County of Allegheny, where the Court struck down a Christmas display at a county courthouse because it included a "patently Christian message: Glory to God for the birth of Jesus Christ." 492 U.S. at 601. The Court recognized an "obvious distinction" between that reference and the "references to God in the motto and the pledge," id. at 603, which the Court regarded as being, in this context, a "nonsectarian reference to religion by the government." Ibid. See also id. at 630-631 (O'Connor, J., concurring) (references to "God" in ceremonial acknowledgments of our country's religious heritage permissible because of their "nonsectarian nature" and longstanding existence).”

All other issues notwithstanding, the Court’s prior rejection of the basis of the present ruling (as stated in the Justice Department appeal), could only be relevant if substantiated that “God” the deity, occupies a uniquely superior and exclusionary status among all other deities including Christ, Vishnu, Zeus and the rest. The profound trouble with the explicit monotheistic assumption is that it has no basis in fact. The belief that there is but one singular almighty Supreme Being and that “God” is that being, are assumptions about the nature of the cosmos and the existence of supernatural beings that are un-provable and thus are strictly matters of religious faith.

Clearly, we do not all agree to have our personal ground of faith invested in such assumptions. There are a substantial number of citizens that embrace alternative metaphysical views, either ascribing the same exalted status to some other deity or embrace an ideology of multiple deities each having unique characteristics but nevertheless all sharing in the status of the supernatural. Monotheistic notions of deity are very ancient, but so are pantheistic, polytheistic, agnostic, and atheistic notions. They are all part of the soul of the species, all being modes of ideation about the inscrutable nature of the cosmos and the ultimate mysteries of life. As an intellectual or theological dogma, each one carries its own inherent limitations and thus the potential for cultural corruption. Nevertheless, if history carries any reliable message at all, the totalitarian tendencies of monotheism ultimately foster the most violently repressive cultural circumstances of all. Witness the reality of Islamic fundamentalism in Afghanistan for a recent case in point. Allow it special government sanction and monotheism will act with insidious and draconian intent to extinguish any threat to its authority, either religious or secular, thus inflicting severe damage on the ideational, religious, and spiritual freedom of the people.

The framers of the Constitution were wise enough to know that allowing any religion to dominate government and civil law would surly breed corruption and consequently foster conflict, strife, and tyranny. In view of the historical circumstances in which the Constitution arose, and the specific import of the Sixth Article and First Amendment, it should be very clear that the framers intended no exception for biblicalism. Considering these things, as well as whatever alternative personal reasons that one may have, many citizens justly do not want “under God” or any other religious artifact corrupting this nation’s official Pledge. The courts do not have the right to shirk off our legitimate grievances, neither in the service of a popular religious faction, or their own personal preferences. Even if the existence of “God” or any other deity could be proven, which it can’t, there still would be no legal basis to subvert the mandates of the Constitution in it’s service.

Clearly, the imposition of the phrase “under God” on the pledge, is a prejudicial endorsement of a specific deity (God), a specific religious ideology (monotheism), and a specific existential relation to it (under). The words do not lie; the wording of the present pledge is in blatant violation of the Supreme Law of this nation. The insidious encroachment of biblical theocracy over the past century is slowly but relentlessly crushing constitutional law into a state of impotence. The manifest presence of legislation designed to extinguish separation between religion and government by investing government money and authority in a takeover of our welfare system by “faith-based” organizations, and the Supreme Court’s recent favoritism toward school vouchers, are two glaringly obvious cases in point. In a very tangible way, the presence of the phrase “under God” in the current pledge amounts to an ultimate symbolic contravention of constitutional law, one that has paved the way for severe congressional and judicial transgressions only five decades later.

The final arm of the Justice Department appeal focused on the issue of personal injury itself. Being only a dilettante in matters of jurisprudence makes it difficult to comprehend the underlying legalistic criteria required to establish proof of “personal injury”, or even its necessary relevancy to the present case. In any event, the Justice Department’s position was that regardless of the objective merits of the case against the Pledge, the majority ruling was invalid because Newdow had no standing to challenge a federal statute in the first place. They contend that proper standing did not exist because information had surfaced concerning a dispute between Newdow and his daughter’s mother over matters of parental custody and their daughter’s education. On page 17 of the Justice Department’s appeal, the following text is found.

At best, Mr. Newdow can only have standing to bring this case, if at all, based on his claimed right "to direct the religious education of his daughter." Slip op. at 9114. That is a claim that is, however, properly directed at state defendants, and does not provide any basis for striking down the federal statute. As Judge Fernandez correctly noted, 4 U.S.C. 4 merely sets forth the words of the Pledge; it does not compel anyone to do anything. See Slip op. at 9131 n.1. Finally, as to Mr. Newdow's "parental" standing, we note that on August 5, 2002, Sandra Banning, mother of Mr. Newdow's daughter, moved to intervene in this case and submitted a declaration advising the Court that she has sole legal custody of the daughter, that she wishes for the daughter to recite the Pledge in school, and that the daughter wishes to recite the Pledge in school. This evidence may call into question whether Mr. Newdow has standing to challenge a policy allowing his daughter to recite the Pledge in school.

This is not an attempt to address the details of Mr. Newdow’s personal claims to injury, or the associated domestic adversities undergone by himself and his family. Without the necessary detail of reliable information, it would take the discussion into an un-wieldable mode of speculation about events in the aftermath of the ruling and the potential for culpable factions. Nevertheless, the more general issue of proof of injury and other alleged requirements for legal standing deserve more than a passing glance.

As with the rest of the Justice Department appeal, the quote above is full of obfuscation. If an individual citizen cannot challenge a federal statute, then exactly who can? It appears that the Justice Department is contending that federal statutes, which are lower order law relative to the Constitution and its Amendments, are somehow mystically beyond the reach of challenge via the First Amendment right of petition. That would certainly be convenient in terms of reducing the caseload in the nation’s courts. With the First Amendment right to challenge the products of congressional lawmaking null and void, the judicial arm of government would have no basis to rule on the constitutionality of anything. Evidently, some autocratic personalities in Washington think that things should be exactly that way. If their agenda prevails then say goodbye to individual rights and the balance of powers within government.

Second, as per his dissenting opinion in the majority ruling, Judge Fernandez demonstrated a curious gift for overlooking the obvious by stating that the statute in question “merely sets forth the words of the Pledge; it does not compel anyone to do anything”. Well, it most certainly does! It compels every politician, ordinary citizen, and their children to choose between standing for a pledge that tangles issues of allegiance to nation with those of allegiance to a religious belief! Further, the statute compels the United States government and its functionaries to peddle a religious ideology regardless of whether anyone is “officially” compelled to take the pledge or not!

Why in the first place is it necessary, as the Justice Department appeal contends, for Newdow’s claim of personal injury to stand in order for the ruling against the statute to stand also? The “Catch 22” knotted into the Justice Department appeal is that if the First Amendment right to challenge a federal statute can be grid-locked to extinction, then the issue of “personal injury” becomes academic anyway. The whole appeal amounts to an advocacy that any lawmaking, no matter how defective, should be beyond challenge regardless of whether personal injury can be legally substantiated or not. It is tantamount to saying that a federal statute, no matter how dangerous and ill conceived, is unassailable until at least a train wreck is caused by it, while on the other hand, it should remain unassailable even if a train wreck does occur. Is this not just another batch of theocratic moonshine? The twisting of the issues notwithstanding, the following concluding section pursues the matter of injury to the bottom.

PART FOUR

Conclusions