“under God” Pledge and the Law – 2004
In the aftermath of the Ninth Circuit Court’s final ruling against the “under God” pledge, several countering appeals were submitted to the Supreme Court of the United States (SCOTUS) for consideration. In October 2003, SCOTUS decided to field only one. The surviving appeal originated from the Eagle Forum Education and Legal Defense Fund (EFELDF) (Reference 1). The EFELDF is an extreme right wing organization with its founder and lead attorney having roots traceable back to McCarthy era politics and more recent entrenchment in the radical ideology of Pat Robertson and the Christian Coalition (Reference 2). The appeal was filed on behalf of the California Elk Grove Unified School District where the Newdow case originated. In addition, the United States Solicitor General was invited to file a brief on matters of standing. This was on behalf of the Bush administration, which opposed the Ninth Circuit Court ruling. SCOTUS delivered a judgment in mid 2004. As it turned out, SCOTUS overturned the Ninth Circuit Court ruling because of technicalities associated with standing. Consequently, the constitutional issues surrounding the pledge itself were not formally ruled upon. Although in dicta the members of the court made it clear that they would not favor striking the pledge down even should another case against it reach the level of SCOTUS.
In a perfect world, issues about the admissibility of the pledge's wording as well as a citizen's right to bring suit against it would turn solely on the non-majoritive rule of constitutional law. It is not a perfect world. From the literal meaning of the Sixth Article and First Amendment establishment clause, no citizen should be forced to compete with a government imposed religious ideology, not in their own public or private lives and not where the education of their children is concerned. Those of us who have followed the case closely are reminded yet again that the world of jurisprudence is not immune to the politics of the moment nor the propaganda that well-funded religious interests levy in the service of their causes. Nor are all players within the judicial arena exactly pure in their devotion to rendering justice pursuant to the literal intent of the Constitution.
None of this should be surprising to anyone. Over the years, the current pledge case and similar litigation would not have been necessary if our constitutionally guaranteed protections against government entanglement with religion had always been treated with the seriousness of respect they deserve. Additional litigation over the pledge is justified, but for it to be successful, there is a war of public opinion outside the courts to be fought. It's a battle over the politics of knowledge and understanding, of legal and historical facts, and of the legacy of the Constitution itself. In 1954 when the pledge was changed to include the "under God" phrase, the doors of government were thrown open to the encroachment by fundamentalist religion. In that fateful year and the ones that followed, biblical theocracy managed to leverage a genre of legislation that has steered much of the Nation into an indoctrinated state of denial about the true meaning of the Constitution's religion clauses and the historical justifications behind them. What's required is a well focused and well supported public awareness campaign to promote understanding about the dangerous path that biblical theocracy is steering our nation down.
proven mandate is to know the adversary well. In the present case,
this encompasses knowing the arguments that biblical theocracy has
successfully employed to justify the under god pledge and other
infringements against the solvency of the Constitution. Confronting
the substance of their arguments and exposing them for what they are, true
or false, is part of the groundwork required to bring public awareness
about the issues to a satisfactory level. With the present case
having run its course through the courts, the EFELDF and other appeals are
now technically dead documents, but the arguments they contain are not.
Several of their more outstanding components were mirrored in the pro-pledge dicta that came attached to the Supreme Court's ruling against
Newdow's standing (Reference 49). These arguments are therefore
likely to show up again in the public arena and in formal litigation
as other challenges to the pledge should build toward judicial review. The
following compilation of commentaries should therefore be
of some value to understanding the popular arguments involved as well as the broader
historical and political terrain that surrounds the Pledge
between government and religion is about as sacred a principle of organic
law as any embedded in our Constitution.
The 1954 insertion of “under God” in the pledge was a landmark
incident in a long-standing movement by biblical religion to
unbind government from enforcing it. The 1954 imposition of the phrase
“under God” symbolically bonded the Nation under the deity God, therefore also
symbolically subverting the sovereignty of the Constitution to the
decidedly monotheistic ideology of biblicalism.
Since 1954, this movement has gained much additional ground,
having infiltrated to the highest offices in the land, including some
among the Supreme Court bench itself where “interpretation” of constitutional
law is the all-important responsibility.
issue of the pledge's wording is a central player in the overarching issue
of government-religion separation. The issue also begs the
question of how American nationalism should be defined. It compels us
to confront the problem of what a legitimate ceremonial expression of
national allegiance should be. If
we are to look to Webster’s dictionary we find patriotism defined as
“the spirit of action of a patriot; devotion to one’s country”.
From this, patriotism is rather exclusively about allegiance to the
Nation and therefore what defines our unique nationality rather then allegiance to religious ideology. To
suggest otherwise as the EFELDF appeal attempts to do, is to consign
our nation to the status of a
theocracy. The latter
status satisfies the agenda of the biblical right, but not the collective
intent of the Nation’s founders or the
better judgment of
history. As a matter of
historical precedent, if
we are to look anywhere
for a defining statement about
the fundamental tenets
that characterize this nation, then we must
look first to the
Constitution itself, the Nation’s supreme document of law, not to the
baggage of old world religious dogma.
The imposition of “under God” on the pledge was the undeniable handiwork of a religious movement whose ultimate intent is to completely de-authenticate government-religion separation as an organic principle of national law. Essentially, two rhetorical tactics have been used to that end. The first is to “interpret” the Constitution so as to convince us that the literal import of its words mean something altogether different from what they actually do. Failing in this, the second tactic is to convince us that the Constitution's Framers intended something altogether different from what the wording of the Constitution clearly implies. Today, the right wingers assert that the exact phraseology “wall of separation” does not appear in the Constitution. Therefore, as the argument goes, it does not represent a valid principle of constitutional law. In addition therefore, "partnerships' between government and religious institutions are admissible (Reference 4). It satisfies the social conservative party line but the argument is patently cheesy. The exact wording "separation of powers" and "checks and balances" don't appear either, but these phrases do nevertheless express something essential about the structure and function of the law contained within.,
Sixth Article declares that “no religious test will ever be required as
a qualification to any public office or public trust under the United
States”, while the First amendment declares, "no law respecting an
establishment of religion." The mandates contained therein are
clear and unequivocal for anyone of reasonable literacy. The
phraseology “no religious test” and "no law
respecting an establishment of religion" are both
sufficiently transparent in meaning and forbid of any exception!
Churches or other
organizations, either long standing or emergent, dedicated to the purpose
of promoting deity veneration and religious doctrine, are establishments
of religion. The fact that the term "church" is not
specifically embedded in the wording of First Amendment does not exempt
churches, temples, mosques, synagogues or any other kind of religious
institution or organization from its mandate. They are all properly
classified as religious institutions and therefore are establishments of
religion. Likewise, the wording of the sixth article makes it clear
that membership or conscription to any religious institution or any
declaration of allegiance to or under any deity is not required to hold
public office, elected or appointed.
If follows with logical necessity that no test of religious belief
or religious allegiance can ever be justly imposed on the common citizen
or their children. All this
says rather unequivocally that partnerships between religion and
government including government endorsements of religion or its deities,
ideologies, or doctrinal dogmas are constitutionally inadmissible.
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State." (Justice Hugo Black from Everson v. Board of Education, 1947)
One of the most
influential contemporary attempts to de-authenticate the long-standing
principle of separation between government and religion showed up as
dissenting opinion in a Supreme Court majority ruling against school
prayer. The ruling struck down school prayer in Alabama in 1985
(Wallace vs. Jaffree). The
dissenting justice claimed,
‘wall of separation between church and State" is a metaphor based
on bad history, a metaphor which has proved useless as a guide to judging.
It should be frankly and explicitly abandoned" (Reference 5).
"A metaphor based on bad history" is a rather curious statement. What or whose bad history is the statement referring to? A metaphor "which has proved useless as a guide to judging"? Whatever else could be thought about it, the metaphor has certainly been a serious impediment to the right wing agenda and those judiciary who lean in favor of that agenda.
The dissenting opinion, written by the late Chief Justice Rehnquist, is complex, lengthy, and consequently difficult to briefly summarize. The essential thrust was nevertheless that the Framers of the Constitution and Bill of Rights only intended the First Amendment to prevent the establishment of a national church, but not prevent government from endorsing or supporting religion.
The text of
goes still further by claiming that a general if not universal sentiment
existed among the Constitution’s Framers and larger population of the
time that government should both endorse and
support religion, specifically biblical religion as in Christianity.
Such a sentiment might have been popular among the clergy, but the
historical evidence does not support the notion that it was well supported
in the larger population or in the Continental Congress itself. The most
optimistic demographic estimates suggest that church membership at the
time of the Nation’s founding was perhaps only twenty percent of the
population at the very most. (Reference 6)
In addition, with the possible exception of George Washington, none of the
first nineteen men who held the office of the president were ever members
of any Christian Church (Reference 32)
In addition, with the possible exception of George Washington, none of the first nineteen men who held the office of the president were ever members of any Christian Church (Reference 32)
To paraphrase Gene
Garman's observations (Reference 7), Rehnquist’s dissent attempts to
paint a picture of Thomas Jefferson, the man who first penned the “wall
of separation” metaphor, as an oddball among the Nation’s founding
notables. The implication was
that the metaphor merely reflected Jefferson’s personal view and
did not validly represent the collective intent of the Constitution’s
Framers. The justice's assertions are rather curious because Jefferson,
our third President, was a key figure in the early days of the Nation.
He was about as contemporary to the Framers as anyone could possibly be.
Moreover, Jefferson was secretary of state when the Constitution
and Bill of Rights were ratified into law. It's difficult to
understand why Rehnquist, two hundred years removed from the time of the Continental
Congress, would presume to have a more accurate insight than Jefferson.
More curious still,
Rehnquist leaned heavily on the Constitution’s primary architect, James
Madison, as a ploy to support his thesis.
This was in spite of the fact that Madison corresponded regularly
with Jefferson during formulation of the Constitution and Bill of Rights
and he himself used terminology very similar to Jefferson’s, such as
“total separation of the Church from the State” and “perfect
separation between ecclesiastical and civil matters” to express his
disposition toward religion and its institutions (Reference 7).
The following excerpt from “A Memorial and Remonstrance”, which
he addressed to the General Assembly of the Commonwealth of Virginia in
1785, elaborates more fully the actual reality of Madison’s views.
witnesseth that ecclesiastical establishments, instead of maintaining the
purity and efficacy of religion, have had a contrary operation.
During almost fifteen centuries has the legal establishment of
Christianity been on trial. What
has been its fruits? More or
less, in all places, pride and indolence in the clergy; ignorance and
servility in the laity; in both, superstition, bigotry and
persecution." (Reference 3)
Rehnquist’s claim even more decisively in a Letter to Edward Livingston,
dated July 10, 1822.
the general progress made within the two last centuries in favor of this
branch of liberty, & the full establishment of it, in some parts of
our Country, there remains in others a strong bias towards the old error,
that without some sort of alliance or coalition between Gov' &
Religion neither can be duly supported: Such indeed is the tendency to
such a coalition, and such its corrupting influence on both the parties,
that the danger cannot be too carefully guarded agst. And in a Gov' of
opinion, like ours, the only effectual guard must be found in the
soundness and stability of the general opinion on the subject. Every new
& successful example therefore of a perfect separation between
ecclesiastical and civil matters, is of importance. And I have no doubt
that every new example, will succeed, as every past one has done, in
shewing that religion & Gov will both exist in greater purity, the
less they are mixed together;" (Reference 3)
Contrary to Rehnquist's
spin, Jefferson’s view of the intent of the First Amendment was far from
minority opinion. Further,
Madison’s statements strongly confirm that the collective intent of the
Framers was never to have the First Amendment “interpreted” so as to
permit either endorsement or support of religion and most particularly not
biblical religion, nor any sectarian denomination or coalition thereof. In addition, although Rehnquist seemed to think we should
believe otherwise, eighteenth century English was not so different from
what it is now that the meaning of the term “establishment” was
somehow magically only applicable to religion in the process of
establishing itself, but not to religion already established.
In spite of how dearly some may desire to “interpret “ matters
of intent, justice demands that the Framers be credited with actually
intending the literal meaning of the words they finally did sign into law.
If the Framers had collectively intended the establishment clause
to be so narrow as to apply only to the establishment of a national
church, then they would have used terminology like “establishment of a
national church”, whereas they did not.
The church-state (government-religion) separation metaphor describes a fundamental axiom of advanced civilization that the religious right has selfishly endeavored to purge from our nation’s law ever since it was first institutionalized. The reason being that it stands in stark antithesis to ancient Roman theocracy, which was built on a standard of absolute unity between church and state. It is sometimes referred to as Constantinism (Reference 9). It is at the root of the totalitarian ideology that drenched Europe in blood time and again and ultimately inflicts suffering wherever it or any of its offspring are allowed to entrench themselves in power. The doctrine of the Bible is Constantinism. It would be easiest to write off Justice Rehnquist’s dissent as the simple product of history poorly learned or poorly recalled. Tragically, it has served all to well to as fuel for the right wing's regressive causes. The kind of thing the EFELDF appeal itself attempts to exploit as it wove its own misattributions about matters of fact and intent.
If one were to truly believe that metaphors like “separation between church and state” and “separation between the spheres of religion and government” do not legitimately characterize the collective resolve of the Framers, one might just as well conclude that the Constitution itself is just hollow metaphor, ratified into existence only to be “interpreted” out of existence anytime it suits the fancy of the Christian Collation or some other religious faction. Although this is exactly the outlook the EFELDF and Christian Coalition would have us embrace, it is not reconcilable with any historically legitimate sense of national identity or patriotism.
The EFELDF appeal
wasted no time attempting historical justification in defense of the "under
God" pledge. On page 2
of the appeal the following was found.
phrase ‘under God’ is attributable to the Gettysburg Address, and
perfectly describes who we are as a nation.
There is no adequate substitute to convey our unique disavowal of
monarchy, dictatorship and nobility.
Yet the decision below (Ninth Circuit Court) completely ignores the
American origin of this phrase in the Gettysburg Address, and the lack of
any substitute. The
Establishment Clause does not require censorship of these words.”
The EFELDF appeal does correctly identify several historical artifacts of Western (European) civilization that were disavowed by the Constitution's Framers, but neglects to mention the all-important issue of ecclesiastical or theocratic rule. Considering the religious and political alignment of EFELDF, the omission is not surprising. Still, it is a telling omission from the standpoint of the credibility of their thesis.
As the several opening
pages of this commentary demonstrated, it was particularly our disavowal
of Divine right that characterizes who we are as a nation.
Nowhere in the binding legal text of the Constitution do we find
any dialogue like “under God” or any mention of a deity called God,
nor mention of any other deity for that matter.
Theocracies are characterized by and dedicated to enforcement of
deity veneration. We are not a biblical nation or any other kind of
theocracy. Rather, we are a
constitutional nation made up of people with diverse beliefs all united
under a supreme body of law intended to achieve and maintain a high standard
of religious and civil freedom.
The endorsement of the “under God” pledge in government statute
seriously subverts that standard. The undeniable intent was to
use government statute as a device to force supplication to deity.
Whatever the "under God" phraseology may or may not be construed
to disavow, it clearly does disavow the Constitution as the Supreme law of
the Nation and that should be considered unacceptable!
The EFELDF appeal was
also correct in pointing out that the establishment clause doesn’t
require censorship of the words “under God”.
The First Amendment’s free speech clause protects the
individual’s right to use such phraseology.
But it does not follow that the government itself has any
license to peddle an “under God” ideology as an article of national
allegiance. Nor does it have the right to employ legal statute to
endorse or enforce daily imposition of that ideology in the classroom. The
United States government does not have the right to mandate or prescribe
to its citizens how many deities there are or are not, or to prescribe
allegiance to or under any of them, or to endorse allegiance to or under
any religious ideology or faith.
To suggest otherwise is to disavow our civil rights under the First
Amendment’s free exercise clause and our protections against religious
test as guaranteed under the Sixth Article.
remaining part of the clause (Sixth Article) declares, that 'no religious
test shall ever be required, as a qualification to any office or public
trust, under the United States.' This clause is not introduced merely for
the purpose of satisfying the scruples of many respectable persons, who
feel an invincible repugnance to any test or affirmation. It had a higher
object; to cut off for ever any pretense to alliance between church
and state in the national government. The framers of the constitution were
fully sensible of the dangers from this source, marked out in history of
other ages and countries; and not wholly unknown to our own. They knew,
that bigotry was unceasingly vigilant in its own stratagems, to secure to
itself an exclusive ascendancy over the human mind; and that intolerance
was ever ready to arm itself with all the terrors of civil power to
exterminate those, who doubted its dogmas, or resisted its
infallibility." (from Joseph Story's Commentaries, 1833, Reference
Observance of these
simple truths should have been all that was necessary for the Ninth
Circuit Court’s ruling against the “under God” pledge to be upheld.
Unfortunately, the courts have allowed the issue to become tangled
by the politics of concessions to biblicalism that have grown to a virtual
epidemic state. The pseudo
legitimacy of such concessions has provided theocracy with ample
leverage to press an insidious agenda of encroachment against the neutrality
of our government’s formal proceedings.
An agenda that two hundred years after the Nation’s founding is
seriously threatening the historically justified wall of separation
between government and religion and consequently our unique identity as a
nation and our sacred civil rights under it.
With the intent to exploit the politics of concessions, the whole thrust of the EFELDF appeal could be characterized as an argument to historical supremacy. The implicit suggestion being that biblical religion and its theistic artifacts are older and thus have a longer track record in Western (European) civilization. Therefore, as the reasoning must surely go, this should be given precedent over the Constitution, which is little more then an unworthy upstart compared to the biblical ecclesial monolith. All this as if the war to secure independence from the totalitarian edifices of the old world should be completely robbed of meaning. Their argument is one to historical gridlock in the service of biblical theocracy's infamous will to high authority over all matters temporal and spiritual, particularly those of state. As if our Nation with its roots entrenched in the soil and spirit of North America, half a world and seventeen centuries of history removed, should have its sovereignty and carefully crafted civil standards crushed aside in subservience to the inferior designs of an archaic monotheistic religion. In essence, the underlying motives are no different from the culturally oppressive anti-evolutionary agenda of fundamentalist Islam in the Middle East.
The EFELDF strategy was
dual pronged. One prong concentrated on other notable concessions to
biblicalism that were allowed to creep into government proceedings over
the years. The other traced
the origins of the “under God” ideology from its alleged appearance in
Lincoln’s Gettysburg address back to still earlier usage in British
government. Accurate discussion
of these things is made difficult because “ceremonial
biblicalism” is not a part of the judicial rhetoric as
traditionally applied to issues of concessions.
What is found instead is the popularized use of “ceremonial
deism”. As a descriptive
convenience, both ceremonial deism and ceremonial biblicalism fall under
the auspices of ceremonial supernaturalism with both sharing the more
restrictive status of being monotheistic in nature.
“Ceremonial deism” was made the terminology of choice because it was
thought to dilute the religious significance of the concession, thus
making it appear less repugnant from a constitutional standpoint.
The intervening problem is that even though deism is not
biblicalism, it is still by definition a belief of a religious kind and a
monotheistic one at that (Reference 10).
The intervening problem is that even though deism is not biblicalism, it is still by definition a belief of a religious kind and a monotheistic one at that (Reference 10).
In any case, “concession” pertains to instances where either a President, or Congress, or some other government agent allowed prayer or the term "God" to be employed as a peripheral element in some government proceedings even though all such allowances are unconstitutional from the strict standpoint of the First Amendment. All existing concessions were declared admissible on the premise that they did no serious harm to our constitutional protections against government entanglement in religion or against government authority or taxpayer money being put in the hands of religious institutions or their clergy. To the extent that this accurately portrays the basis of the underlying reasoning, the notion that such concessions do not tend to endorse or promote biblical religion is extremely moot. The term “ceremonial deism” was politically convenient because some of the Nation’s historically notable personages were deists either in part or whole or had that view claimed of them. The distinction between biblicalism and deism deserves closer examination. The following sections of this commentary are in the service of that end. They serve as prelude to directly addressing some specific "facts" of concession on which the EFELDF case so heavily depended.
Deism, a theistic variant of natural law philosophy, adapts the metaphysical notion of a supreme being, but rejects revealed religion with its dependence on so-called divinely dictated scripture to know its influence or purpose. The classical deist believed that the posited higher power is resident in nature itself rather then being over it or otherwise apart from it. Its handiwork or laws can only be discovered and understood through reason mediated by observation of what is tangibly observable. It should be evident from this explanation that the "under God" ideology is not a deist ideology. In somewhat more detail, the deist assumes that a higher power was the originator of the natural order of things, but after having accomplished that feat, no longer intervenes in the affairs of the world. This is antithetical to the biblical claim that the posited higher power or supernatural intelligence, “Almighty God”, is transcendent of nature and actively intercedes in the events of the world. Further, that "he" directly reveals “his” will through conversations with chosen prophets who subsequently bestow the “divinely inspired” and thus "unimpeachable" teachings and doctrinal mandates upon the common folk (Reference 11).
In some manner or another, the latter scenario could apply to the claims and venerated teachings of any religious tradition based on revelations, visions, and divine intercession. For the present discussion, the one of central concern is doctrine as selected and preferentially slopped together by Constantine and his ring of priests in the forth centaury CE. That scriptural compilation is known today as the Judeo-Christian bible.
From this discussion, it should be evident that a rather irreconcilable difference exists between biblicalism and deism. What a deist means when they have occasion to speak about higher powers verses what the term "God" means to those of biblical faith are two different things altogether. The use of "God" in prayers and invocations for favor, or formal oaths is not ceremonial deism, but rather ceremonial biblicalism in specific regard for the root deity of that religious tradition (Reference 12). Herein lies the danger of anything other then very economical usage in government proceedings if at all. Simply stated, biblicalism and its doctrinal artifacts have been used to distort the ideological identity of the Nation and subvert the supremacy of the Constitution. The incident with “Judge” Roy Moore and his Ten Commandments monument is only one painfully notable example of the retrograde agenda of biblical fundamentalism at work in the realm of national affairs.
These are not trivial issues. Long standing habits of bad doctrine die hard. This is particularly so when bad doctrine remains embedded in the venerated writings of popular religious faiths. Whatever else could be validly stated about the Civil War, it was very tangibly a conflict between an emergent standard pursuant to the high ideals of the Declaration of Independence, Constitution, and Bill of Rights, versus a more medieval scheme of things underwritten by the Bible's sanctioning of slavery (References 13 and 14). Simple economics were at the bottom of the issues for the south. Nevertheless, Lincoln's second inaugural address provides chilling testament about how thoroughly the bible and God had been used to prop up the slaver's world (Reference 51). Even though the civil war emancipated the Nation from that cultural defect, biblicalism has been a persistent force against valid incorporation of the Sixth Article and the First Amendment as well as other Bill or Rights protections and entitlements.
wing will continue to impose its re-constructionist agenda if we do
not endeavor to keep national politics and government well inoculated
against it. The
defacement of our pledge in 1954 with the “under God” ideology, the
sidelining of the Nation’s original motto, “E Pluribus Unum”, and
the parallel defacement of our printed currency in 1957 with “In God We
Trust”, are undeniable manifestations of biblical theocracy operating
under the guise of “ceremonial deism”. The people who lobbied
for those changes were not deists, but all hard-core theocrats from within
the biblical establishment itself. Now, in brazen defiance of the
Constitution, right-wing factions in Washington peddle dangerously
incompetent legislation and executive orders intended to create
partnerships between religion and government supported by bipartisan
politicos in both major parties (Reference 15).