As a science teacher, I’m required by Washington state law (RCW 28A.230.140) to lead students in reciting the Pledge of Allegiance every morning. I despise doing so. For one, it reminds me uncomfortably of the fascistic pledges of loyalty we observe in the subjects of every oppressive regime through history. For another, it contains the words, “under God.” Now, I may be an atheist, but I respect every student’s right to whatever beliefs they arrive upon. The words are a problem because they force teachers to lead their students in chanting that the USA is God’s country, that you can’t be a patriotic American unless you believe in God. This seems to me as obvious a violation of the Establishment Clause as is humanly possible. The 9th Circuit Court of Appeals has agreed with me at least twice.
Not so anymore. I’ve just started reading the decision in Newdow v. Rio Linda today, in which the 9th Circuit ruled that the current wording of the pledge is perfectly constitutional. I don’t have much knowledge of the law, but there are some things that stick out at me about this.
One, the decision holds that the words “Under God” don’t violate the Establishment Clause because the purpose of their inclusion was “to foster national unity and pride.” In other words, because the purpose was not to establish a religious viewpoint, the phrasing does not violate the Establishment Clause. But the Lemon test has two parts: purpose and effect. While the government’s purpose in adding the words “Under God” to the pledge may not have violated the First Amendment, its effect is certainly to discriminate against those who hold no theistic belief. If the purpose is to foster national unity, but the effect is to imply that only God-believers are true patriots, how is this not an establishment of religion?
Two, the decision holds that “not every mention of God or religion by our government or at the government’s discretion is a violation of the Establishment Clause.” The decision goes on to mention some decisions by the Supreme Court to uphold such actions, such as the display of the Ten Commandments at the Texas State Capitol. The decision goes on to claim that, were we to focus on the religious aspect of government actions, we would have to overturn these actions on the basis of the Establishment Clause. Not only would we have to remove “Under God” from the Pledge, but we would also have to strike the Ten Commandments monument, and the Nativity scenes on public property, and the explicitly Christian prayers outside so many police stations. To which I say: It would be about time! All of these are unwarranted uses of public funds to favor one religious view over another. The Supreme Court’s position that they are valuable for their “history” is laughable, given how divisive they are.
Finally, the decision references the Founding Fathers’ belief that “people derive their most important rights, not from the government, but from God: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’ ” Well, the Declaration of Independence might refer to a Creator (not necessarily to a God), but it is not the highest law of the United States. The Constitution has that honored place, and it makes no mention whatever of a God. A cursory glance at the Preamble reveals that it is We the People, not God, who endow ourselves with rights, among them freedom of religion.
This is a bad decision in a long line of bad decisions in Establishment Clause cases. For the foreseeable future, at least, it looks like I will be dragging my students through a Pledge that divides this Nation right down the middle.