The “under
God” Pledge and the Law – 2004
Part Four
Thanks Giving
E Pluribus Unum
Star Spangled Banner
The Solicitor Generals Brief
Thanks Giving
Another
strategy employed in defense of the pledge is the implicit notion that every fact of
concession is equal to every other fact of concession and the courts should
therefore view them as such. For
instance, the Justice Department Appeal declared that “the day after the First
Amendment was proposed, Congress urged President Washington to proclaim a day of
public thanksgiving and prayer."
What the appeal did not address were the probable
motives behind this act of political bone rolling.
A reasonable explanation is that congress wanted to demonstrate to the
religious factions that the purpose of formulating the First Amendment as they
did was not to discourage religious belief in the Nation, or to ban religious
gatherings and celebrations in the civilian community.
Rather, its purpose was both to protect religion from becoming a tool of
government, and to protect the government from becoming a tool of religion, thus
protecting citizen from enslavement to any
church or religious persuasion.
With this in mind, the more central question boils down to a matter of equivalency. That is, can the “under God” pledge really be considered an equivalent concession to that of Thanksgiving? Thanksgiving is a holiday that occurs just once a year and no one is obligated to subscribe to, witness, or otherwise participate in any kind of religious gathering, oath taking, or idol worship as a consequence. Whereas, the Pledge is our primary ceremony of nationalism, an oath collectively performed on a daily basis in the public schools and now also since 1999 in both houses of congress (Reference 50). That makes it a concession of an entirely different magnitude altogether.
The afore mentioned alterations to the Judicial Oath demonstrate that the pledge was not the only victim of McCarthy era politics. After the 1954 change, a host of other religious oath tests and religious "acknowledgments" were salted into government statute. Notably, even though they were established in statute after the fact, they are still frequently invoked as "facts" of history and tradition that justify the "under God" pledge. One of the most significant instances was the 1957 replacement of the national motto "E Pluribus Unum" with "In God We Trust". At the same time, it became mandatory that "In God We Trust" appear on all our paper money. First Amendment violations notwithstanding, one might legitimately question the intent of this rather blatant exercise in idolatry. Was it an intended to elevate God to the level of money or was money intended to be raised to the level of deity?
E Pluribus Unum, “Out of Many, One”, adorns the Great Seal of the Nation and the Statue of Freedom atop the Capitol Building. It is the original national motto, handed down to us by Benjamin Franklin, Thomas Jefferson, and John Adams (Reference 24). Why was it repealed? Was it because E Pluribus Unum is the affirmation of a heritage of diversity and pluralism, of a nation of many people united as one under a standard of religiously neutral, non-majoritive civil law and government? Was it because it is a motto that flies in the face of the monotheistic biblical obsession? E Pluribus Unum is a hugely significant case in point, because it identifies the profound bigotry with which arguments of history and tradition and the so-called "historical test" has been wielded.
The evangelically motivated encroachment of biblicalism upon the public trust is notoriously dogmatic. Conflicts of interest between the practitioners of biblicalism and the limits of reasonable free exercise have occurred since the first days of the Nation. So frequent have they become of late that several judicial tests were devised to weigh the admissibility of religion's intrusions on the public trust. Most notable among these are the coercion test, the endorsement test, the three-pronged Lemon test, and the infamous historical test. Unfortunately, the courts have inconsistently applied these tests, often coming to conflicting conclusions about their meaning or used them selectively, evidently depending on the agenda and insight of whomever was sitting on the bench at the time. No wonder the political infighting over judicial appointments is so intense. On the shear grounds of reason alone, the “under God” pledge and the motto "In God We Trust" both fail any legitimate interpretation of the first three tests.
As
a common strategy, the various pro-pledge appeals have sought to invalidate or neutralize any
judicial test that threatened their cause. Consistent with this, the
previous Justice Department appeal asserted that the courts preferred the
historical test in all previous rulings, although the Ninth Circuit Court
judgment against the pledge did not.
It is curious that so little concern for heritage is shown toward the 62 years prior to 1954 when several constitutionally admissible versions of the Pledge were employed. Moreover, what concern has been shown for the nearly two centuries prior when E Pluribus Unum rather then "In God We Trust" was the official national motto. The EFELDF appeal declared that the Ninth Circuit Court decision against the pledge was " a tragic step towards uprooting and redefining our culture in a way not seen outside of literature." What, after only 50 years? The EFELDF appeal is right, a tragic redefining of culture did occur, but not the one they purport. It began in 1954 when the cold war biblical movement defaced the 62 year old nationalistic purity of our pledge and then shortly thereafter subtended our 200 year old national motto, one that was a historical legacy from the very foundation of the Nation! That was the tragic cultural sacking that occurred. What is next in the name of religious history and traditions, direct defacement of the Constitution itself?
If historical tests are to have any credibility at all, then analogous criteria should be used to weigh the constitutionality of having sidelined E Pluribus Unum, an established fact of heritage that epitomizes the foundation of our nationalistic ideals and thus our historical identity as a nation. What gives here folks, some kind of double standard perhaps? Are we to believe that facts of history and tradition only carry weight in court when applied to biblical things, but not when they apply to things nationalistic and secular? There is a profound bigotry at work here that truly needs to be purged out of judicial reasoning.
The Star Spangled Banner is one historical artifact that does predate the "under God" pledge in government statute. References to it showed up in both the dissenting opinion attached to the original Ninth Circuit Court ruling and in the dicta that came attached to the SCOTUS ruling against standing. Both invoked the last stanza of the anthem, which reads in part:
"Then
conquer we must, when our cause it is just,
and this be our motto: “In God is our trust!”
This passage has been invoked in support of the history and traditions argument used to justify the current national motto and pledge. Scrutiny, however, shows that the anthem is not the "smoking gun" justification that some believe it is. Both behavioral and historical factors have bearing on the issue.
Frances Scott Key wrote the Star Spangled Banner
in 1814. Since then, it has become standard
patriotic ritual at many public gatherings, particularly high profile sporting
events. As a virtual right de passage, every song artist of any notoriety is
eventually obliged to step forward and solo the venerable old piece. The
behavioral factor to be observed is that under no common circumstances does the singing of the anthem
go past the first stanza, although the full version
contains four stanzas.
On the surface, this omission would seem to be mostly due to the sheer tedium of length that would be involved with singing the whole song. In addition, however, since only the first stanza is typically sung, the existence of the other three stanzas and the presence of the term "God" within, are likely not common knowledge. In of themselves, fine-print observations like this would seem not to have much practical relevance. After all, one would think that Congress went over the words carefully before making the Star Spangled Banner the official national anthem in 1931. Then again, did the wording of the latter stanzas ever receive the attention it properly deserved?
In any case, the pro-pledge dicta that cited the anthem unanimously failed to make any mention of the third stanza, which reads in part as follows.
"No
refuge could save the hireling and slave
from the terror of flight or the gloom of the grave" (Reference 52)
When Key wrote the
anthem, the Civil War was still a half century away and thus the institution
of slavery still infected the Nation. Key himself evidently found little
ambiguity between the inequality of slavery and his own claimed love of freedom.
The symbiotic association between slavery and biblicalism received ample
attention in previous sections of this post. At the time the anthem was inscribed in
statute, the civil rights movement was still
three decades away. Perhaps Congress had not yet
cultivated the political sensitivities required to fully comprehend the racially
provocative nature of the third stanza's wording.
The third and fourth stanzas contain racially or religiously biased elements, while the second stanza seems little more than a pale reflection of the first stanza. Because of these things, as well as overall length, it is unlikely that anything other than the first stanza ever enjoyed universal acceptance. In other words, the first stanza alone is the only part of the song that can truly claim status as the national anthem, while the other stanzas amount to little more than cast off husk. It would be rather disingenuous to believe or assert otherwise. If the fourth stanza of the Star Spangled Banner is going to be invoked in disputes concerning either the pledge or national motto, then all the wording of the latter stanzas along with the historical context in which the anthem was rendered, needs be on the table.
If matters of history and tradition are going to be considered when deliberating on the patriotic legitimacy of the "under God" pledge, the latter stanzas of the national anthem would seem to be a factually poor choice at best. Not only because of the issues just raised, but also because of the existence of other documents of classificatory relevance, which predate both the anthem and the "under God" pledge in statute, and which are not tainted with constitutionally controversial ideological artifacts.
Take for specific example, The American's Creed, written by
William Tyler Page and adapted by the House on behalf of the American
people in 1918.
“I believe in the United States of America as a government of the people, by the people, for the people; whose just powers are derived from the consent of the governed; a democracy in a republic; a sovereign Nation of many sovereign States; a perfect union, one and inseparable; established upon those principles of freedom, equality, justice, and humanity for which American patriots sacrificed their lives and fortunes. “I therefore believe it is my duty to my country to love it, to support its Constitution, to obey its laws, to respect its flag, and to defend it against all enemies.” (Reference 52)
What is notable about the Creed, is the expression of nationalistic identity that it represents. It is an expression that characterizes the Nation's traditional sense of patriotic allegiance. Like the pre-1954 versions of the pledge, there is no reference to religion whatsoever, and thus also no reference to the deity God. If the issue were judged from the vantage point of the Creed, then the "under God" pledge is clearly not consistent with the Nation's historically grounded traditions of patriotic allegiance. To the contrary, it is a blatant perversion of those traditions.
Since
the US Solicitor General’s brief was afforded status
before SCOTUS, its contents also deserve mention.
Coming from the camp of President Bush and John Ashcroft as it did, it
was not surprising that the theme within held much in common
with the two former Justice Department Appeals (Reference 35). In
this, the main thrust was an attempt to establish that several
justices had previously
declared the “under God” pledge to be constitutional and
therefore the Supreme Court was compelled to uphold that "established" precedent.
Like the EFELDF appeal, the Solicitor General’s thesis is a convoluted
piece of work. A few quotes should suffice to reveal the serious strain of
obfuscation and misattribution that runs through it all.
For example, on page 5 (Reference 36) the following rhetoric is found.
“The Court's cases thus establish as settled law that official acknowledgments in public life of the Nation's religious heritage and character do not constitute a prohibited endorsement of religion and do not otherwise violate the Establishment Clause."
As the common metaphor goes, Mr. Olson would seem to suffer from an inability to distinguish the difference between an apple and an orange. Reasonable instances may or may not exist where the public trust was used as a podium for referencing the supernatural or for acknowledging the claimed heritage of some religious faction. Even so, it does not follow that any usage of government statute or the public trust for said purposes is then miraculously admissible. In addition, there is the neglected issue of exactly what or whose religious heritage is being peddled? Most obviously, as the present commentary demonstrated, the "heritage" argument definitely does not conform to everyone’s disposition about matters of religious legacy or allegiance. Consequently, the notion that the "under God" pledge validly represents the nation's historical ideals regarding matters of allegiance to religion, is seriously defective.
In any case, Mr. Olson goes on to say that:
"[P]ublic acknowledgment of the [Nation's] religious heritage long officially recognized by the three constitutional branches of government" renders "farfetched" "[a]ny notion that these symbols pose a real danger of establishment of a state church." Lynch, 465 U.S. at 686; see also Pet. 14-21 (discussing cases).”
Like other participants in the case, Mr. Olson either has a gift for overlooking the obvious or just simply isn't shy about insulting our intelligence. What is undeniably at issue here is the overt endorsement of a specific religious belief as a national standard in direct contravention of the First Amendment. The undeniable substance of that religious belief is that there is only one deity (monotheism), that “God” is that deity (biblicalism), and that the individual’s and Nation’s obligatory relationship to same is one of submission (under).
He goes on to declare and cite:
“As
pointedly explained by the Court in County of Allegheny, the inclusion of
the phrase ‘under God’ in the Pledge is one such permissible official
acknowledgment of the role of religion in the Nation's culture and history, and
it is ‘consistent with the proposition that government may not communicate an
endorsement of religious belief.’ 492 U.S. at 602-603.”
Whatever
the source of the above stated dicta, the fallacy contained within is so obvious
that it bleeds. If
we were to conclude that such reasoning should become legal
precedent, we might as well also conclude that the courts can declare 2 and 2 to
equal 3 and hold that malformed ruling to be unimpeachable divine law
for ever more. How can the presence
of the phrase “under God” in the pledge ever be considered permissible when
it stands in stark antithesis of our Sixth Article protection’s against
religious test? Is
it because we are afforded the pass or fail “choice” of accepting the
pledge as it stands or dissenting against it and thus being singled out as
"atheistic" and "unpatriotic" for doing
so? To assert that the
phrase “under God” doesn’t “communicate an endorsement of religious
belief” is itself so incredibly far fetched as to amount to pure flatulence.
The
pile mounts on as the next excerpt from Solicitor General’s brief
demonstrates.
“Beyond
that, Newdow's supposition that his non-specific quotations render the Pledge of
Allegiance unconstitutional (Br. in Opp. 2) fails to come to grips with this
Court's longstanding refusal to construe the Establishment Clause in a manner
that ‘press[es] the concept of separation of Church and State to * * *
extremes’….”
Pressing
the concept of Church-State separation to extremes?
The issue at hand is not one of Church-State separation in the extreme,
but rather one of pressing government entanglement with religion to the extreme.
When we find government statute being used to make supplication to some religious idol an
officially endorsed article of allegiance, then government entanglement with
religion has clearly gone too far!
Whenever government statute is used to peddle an explicit religious
ideology, as in “under God”, then the government is being used as a tool of
proselytization and that unequivocally amounts to government endorsement of religion in extreme defiance of the First Amendment! To suggest otherwise is
just more unmitigated denial before the self evident.
“…
and that thus would condemn as unconstitutional the ‘references to the
Almighty that run through our laws, our public rituals, [and] our
ceremonies." Zorach v. Clauson, 343 U.S. 306, 313 (1952); see
also Abington Township, 374 U.S. at 306 (Goldberg, J., concurring) …”
Consider the historical factuality of the references that now “run through our laws, rituals, and ceremonies.” One might ask, exactly what was in place at the beginning of the Nation regarding officially approved concession? The Court’s opening ritual invocation has been around for a long time, but its exact origins are somewhat of a mystery. There was the case of Congress soliciting clergy to supply prayers and then the declaration of a single day in the calendar year as a day of thanksgiving. However, not all of Congress agreed to these concessions, and it is of some historical conjecture that enough votes were ever obtained to formally qualify them as law. Moreover, contrary to popular myth, chaplains were not employed by the Continental Congress and James Madison himself wrote that formal employment of them by the State was unconstitutional (Reference 37).
Noticeable also, none of the above stated concessions compel anyone to make oath of obligation or allegiance to or under anything, whereas the "under God" pledge does. This is not exactly a trivial difference. Now 200 years later, we are inundated with all kinds of references and oaths to the deity God. It’s on our money, in government oaths, and elsewhere. The larger part of it all inflicted on the Nation during the 1950’s McCarthy witch-hunts. This was the same period when our national pledge was defaced with the “under God” ideology and our original national motto E Pluribus Unum was subtended.
The smoking gun is an unprecedented encroachment of biblical theocracy upon the public trust. One that amounts to an entanglement of government with religion that is literally anarchistic. What is more, the “under God” pledge is a symbolic master link to them all. There is a long difference between some peripheral acknowledgment of a belief in the supernatural, or in a song or speech versus a government compelled oath of submission to a monotheistic religious ideology and its deity. That amounts to the establishment of a state religion. There is no way that matters of national allegiance can be tangled up with those of religious allegiance and not have a situation where concession to religion has been pressed past the threshold of acceptability!
Adding
insult to injury the right wing and their gofers
evidently expect us to be goaded into silence before the travesty of their insurrection, as if
we are nothing more than ignorant, contentious rabble for taking issue with their
theocratic holy cow.
“…
("untutored devotion to the concept of neutrality can lead to * * * a
brooding and pervasive devotion to the secular and a passive, or even active,
hostility to the religious. Such results are not only not compelled by the
Constitution, but, it seems to me, are prohibited by it."). Indeed, it is
precisely because isolated, broad statements of Establishment Clause principles
would produce absurd results if applied to their logical extremes in disparate
contexts that the Court has used common and unobjectionable practices, like the
reference to God in the Pledge of Allegiance, as consistent analytical
guideposts in Establishment Clause cases.
There are those who blindly believe that biblical religion should be held on a pedestal of infallibility, beyond accountability, and beyond impeachability. Such people evidently also hold that any criticism against their biblically motivated intrusiveness, no matter how factual and justified, is politically incorrect, socially unseeingly, and thus evidence of some kind of pathological "hostility" toward religion. Should there not be hostility against bad religion, should there not be hostility when a causally maligned religious initiative becomes embedded in the workings of state? To be sure, there is hostility involved, and righteous it is. Speaking of that which is not, however, what is one to think of the serious strain of bullish acrimony pervading throughout the Solicitor General's brief?
Without apology for asking, isn't blunt criticism rather inevitable and justified when theocracy takes it upon itself to trash out our constitutionally guaranteed protections against enslavement to religion, all in the name of devotion to Constantine’s archaic little precious? This is literally the state of affairs we face today, and the "under God" pledge is the most repugnant symbolic manifestation of all. Mr. Olson's notion that the “under God” pledge should be used as some kind of “guidepost” standard of admissibility for establishment clause cases, is itself a hideously anti-constitutional absurdity. Perhaps the office of the Solicitor General may sometime have occasion to reevaluate the legitimacy of its present occupant's rhetoric.
Regarding non-binding judicial opinion, it is notable that the Supreme Court has never directly ruled on the constitutionality of the pledge. This was pointed out in the Ninth Circuit Court majority ruling (Reference 38), although the Solicitor General's brief would seem very intent on not accepting it as fact. The Seventh Circuit Court had ruled against an earlier challenge to the pledge, but the Supreme Court declined to review that case when forwarded to them on appeal. The simple fact that the Supreme Court failed to review that ruling neither implies concurrence nor non-concurrence with the Seventh court's judgment. This is not unlike the various litigation over display of the Ten Commandments. Some lower courts have ruled in favor of the Ten Commandments while others have not. Both favorable and unfavorable rulings have been appealed to the Supreme Court and all subsequently turned away. As such, the Solicitor General's thesis amounts to an attempt to hold the Supreme Court's feet to the fire of a ruling that it has never made.