The “under
God” Pledge and the Law – 2004
Part
One
Background
Constitution and
Religion
Wall of Separation
Metaphor
Monarchy and Theocracy
Ceremonial
Supernaturalism
Biblicalism,
Deism, and Natural Law
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 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 with standing. Consequently, the constitutional issues surrounding the pledge itself were not formally ruled upon. The case against the pledge will eventually show up in the courts again.
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. From the literal meaning of the Sixth Article and First Amendment and their incorporation through the Fourteenth Amendment, 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 far from a perfect one. It is not immune from the politics of the moment nor the associated propaganda that well-funded religious interests levy in the service of their causes. Nor are all players within the judicial arena are 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 were always treated with the seriousness of respect that they deserve. Additional litigation over the pledge is both essential and inevitable, but in the intervening time, there is also a war of public opinion outside the courts to be fought. It is an battle over the politics of knowledge and understanding, of legal and historical facts, and 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 of 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 ignorance and denial about the true meaning of the Constitution's religion clauses and the historical justifications behind them. What is required in defense of these unfortunate developments 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.
The time
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
standing (Reference 49). These arguments are therefore likely to show up
again both in the public arena and in formal litigation as other challenges to the pledge build toward judicial review. The following
compilation of observations and commentaries should therefore be of some value
to understanding
the many arguments involved and the broader historical and political terrain
that surrounds the Pledge of
Allegiance controversy.
Separation
between government and religion is about as sacred a principle of organic law as any
that exists in our Constitution. The
1954 insertion of “under God” in the pledge was a landmark incident in a
long-standing movement on the part of biblical religion to unbind government from enforcing it. The 1954 imposition of the phrase
“under God” was a significant victory for that faction because it 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 significant additional ground, having
infiltrated to the highest offices in the land, including some among the Supreme
Court bench where “interpretation” of constitutional law is the
all-important responsibility.
The
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 our United
States American nationalism should be defined. It compels us to
confront the problem of what a legitimate ceremonial expression of allegiance
to our nation 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 being about 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 comprehensive 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).
The
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
Wall of Separation Metaphor
"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,
“The
‘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 its favor.
The dissenting opinion, written by Chief Justice Rehnquist, is complex, lengthy, and consequently difficult to briefly summarize. Nevertheless, the essential thrust was 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 the dissent goes still further by claiming
that a general if not universal
sentiment existed among the Constitution’s Framers and larger population at
the time of the Nation's founding
that government should both endorse and support religion, specifically biblical
religion as in Christianity. Such a
sentiment was probably 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)
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.
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.
"Experience
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)
Madison repudiates
Rehnquist’s claim even more decisively in a Letter to Edward Livingston, dated
July 10, 1822.
"Notwithstanding
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 foundation of 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 the origin of the totalitarian ideology that drenched Europe in blood time and time again and ultimately inflicts suffering wherever it or any of its offspring are allowed to entrench themselves in power. The doctrine of the Judeo-Christian 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 is the sort of stuff that has served all to well as rhetorical fuel for the right wing's regressive causes. The kind of thing the EFELDF appeal itself attempts to exploit as it weaves 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
biblical
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. In this regard,
religion-government separation and the “under God” pledge are inextricably of
the same classification of issue.
The EFELDF
appeal waists no time attempting historical justification in defense of the
"under God" pledge. On page 2 of the appeal the
following is found.
“Its
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 uniquely 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 theocracy 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 civil 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 is
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.
However, 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.
"The
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 every pretence of any 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 54)
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 sufficient
leverage
to press an insidious agenda of encroachment against the constitutional purity
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 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 religious historicity. The implicit suggestion being that biblical religion and its theistic artifacts are older and thus more deeply embedded 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. Theirs is an argument 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. This is 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 to be less repugnant from
a constitutional standpoint.
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 Sixth Article or 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. Therefore the distinction between biblicalism and deism deserves 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.
Biblicalism, Deism, and Natural Law
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 scriptural 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.
The right
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 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).