Oregon State Bar Bulletin ó MAY 2003

Wedge of Allegiance
Is the Newdow case a portent of religious intolerance?
By Jacob Pugh

Editorís note: The following commentary was prepared by the author last fall for his college humanities class. Former OSB president Larry Rew, a longtime acquaintance of the authorís family, brought the article to the Bulletinís attention.

No recent case has received as much public attention as the 'Pledge of Allegiance case,' Newdow v. US Congress. In Newdow, the Ninth Circuit Court of Appeals found unconstitutional the 1954 act of Congress which added the words 'under God' to the Pledge of Allegiance. The public response to the decision has been overwhelming condemnation, culminating in a Congressional resolution stating Capitol Hillís opposition to the judgment. Many people (including the dissenting Judge Fernandez) fear that if the Courtís decision stands, then the state will be forced to remove all hints of religion from its affairs; they fear that phrases such as 'In God We Trust' will be driven from currency, patriotic anthems, the architecture of state buildings, et cetera.

The history of the current form of the Pledge begins in the Cold War. The 1954 Act was passed by Congress with the intention of differentiating the religious United States from atheistic Russia. While signing the Act into law, President Eisenhower said, 'From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.'1 The challenge to this act and the practice of reciting the current form of the Pledge in public schools was brought by Michael Newdow, an atheist whose daughter attends a public elementary school. The courtís decision was 2-1 in Newdowís favor; the full court recently rejected the request to reconsider the decision, and the case will undoubtedly be taken to the Supreme Court.

There are two questions that I will address here. First, was the Ninth Circuit Courtís reasoning in this case correct? Second, how will their conclusions, if they stand, affect the relationship between church and state? I offer my conclusions up front: The 1954 act is unconstitutional. However, not all of the Courtís reasoning towards this conclusion is convincing. Indeed, some of it does point towards an Establishment Clause theory which would require the state to expunge all hints of religion from its affairs. Such a theory is entirely opposed to the First Amendment.

Secular Purpose: The Lemon Test
The simplest and most irrefutable test against the 1954 act is the first prong of the Lemon test: does the act have a non-religious purpose? Even the defendants in the case were unable to contest the historical fact that it did not; the sole purpose of adding 'under God' to the Pledge of Allegiance was to advance religion. This result of the secular purpose test is difficult to oppose. Judge Fernandezís dissent is centered around the 'de minimis' argument: the 'tendency [of such phrases as 'under God'] to establish religion (or affect its exercise) is exiguous.'2 This argument fails against the Lemon test, because even if the addition of 'under God' to the pledge has, in fact, done little to advance religion, 'Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail.'3

Neither is it easy to argue that this application of the secular purpose test (which is, after all, merely an invention of jurisprudence) loses sight of the spirit of the First Amendment. It is not necessary to take a strict view of the Establishment Clause, to view the separation between church and state as a wall (as Thomas Jefferson did), to see the validity of Lemonís first prong. Consider the very moderate view of separation of church and state as merely being a division of responsibilities between the two. Even in this context it is quite clear that the acts of the state, although they might deal with religious matters or be motivated in part by religious ideals, should always have a secular purpose. No reasonable theory of the Establishment Clause can disagree with the Courtís application of Lemonís first prong in this case.

The Courtís conclusions based on the Lemon test contribute nothing new to Establishment Clause jurisprudence. Not even the standards for establishing that an act has a 'secular purpose' have been affected, since the 1954 actís purpose was so obviously religious in nature. As noted above, the Courtís use of Lemon does not move us any closer to a harsh interpretation of the Establishment Clause where the state must strictly isolate itself from religion (a so-called separationist interpretation). Nor does it require the state to purge itself of references to God and religious practices (e.g., opening assemblies of government with prayer); plausible secular purposes can be offered for most of these practices. In particular, I would argue that the appearance of 'In God We Trust' on currency can be justified as a recognition of the historical importance of religion in our republic. (The Courtís opinion is very clear on why a similar justification is not applicable to the Pledge of Allegiance).

OíConnorís Endorsement Test
Before proceeding to judge the 1954 act by Justice OíConnorís endorsement test, set forth in her concurring opinion in Lynch v. Donnelly,4 the court clears away the several arguments which have been used to confuse the meaning and significance of the phrase 'under God' and the Pledge of Allegiance as a whole. The most common of these try to argue that the pledge is not religious, or that it merely appreciates the historical importance of God in the nationís founding and development. The court correctly recognizes that the pledge is not neutral towards religion, and that by reciting it, one voices support for its ideals Ė including its monotheistic religious ideal. I will refrain from restating the arguments the court made in coming to this conclusion; see Newdow at 9122-9124. However, it is worth pointing out that many of the people who pretend that there is no substantial religious content in the pledge put themselves in a very hypocritical position by doing so; the religious nature of the pledge is the primary cause of the attention and controversy that this case has attracted.

The Ninth Circuit then concludes that the pledge does unconstitutionally endorse religion. They borrow Justice Kennedyís explanation of how the pledge tells non-believers they are outsiders:

[B]y statute, the Pledge of Allegiance to the Flag describes the United States as Ďone nation under God.í To be sure, no one is obligated to recite this phrase, Ö but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.5

The courtís conclusion on this matter is very hasty. Judge Fernandez makes the right point against it in his dissent: the Ninth Circuit did not offer evidence that the pledge, in its current form, actually endangers anyoneís freedom to exercise (or not exercise) religion, or moves our government towards theocracy. He continues by asserting that the danger posed by such phrases as 'under God' is utterly minimal, and he reminds us that the courts have traditionally found that they do not offend the First Amendment.

This situation illustrates the dangers of simply running through tests of jurisprudence without carefully considering the ideas behind them. It is obvious that the 1954 act has the potential to bring about an unconstitutional endorsement of religion. But does it? The Supreme Court has stated that just because a policy might 'operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.'6 Therefore the circuit court should have demanded evidence of the pledgeís alienating effects upon non-believers before reaching the conclusion it did. As it stands, the court has no answer for Judge Fernandezís de minimis argument, nothing to help it prove that the pledge has actually caused real harm. Furthermore, for the court to declare the pledge an unconstitutional endorsement of religion if, in fact, it produced none of the ill-effects of religious endorsement, would be to create a problem where there was none, to end up on the wrong side of excessive entanglement.

The Coercion Test
The coercion test comes from Lee v. Weisman, in which the Supreme Court found religious invocations at the graduation ceremonies of public schools to be unconstitutional. The coercion test, unlike OíConnorís endorsement test, strikes at the heart of the issues in this case. As Justice Scalia noted in his dissent to Lee, the problems in that case are essentially analogous to the problem of the phrase 'under God' in the pledge. In its opinion in the present case, the court neatly summarized the foundation of the coercion test: 'primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting.'7 That much of the coercion test is well accepted jurisprudence, supported by the classic 'school prayer cases,' Engel v. Vitale and Abington Township v. Schempp. The actual 'coercion' of the coercion test is psychological in nature: 'there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.'8 Remember, however, that four justices thought this extended psychological definition of 'coercion' was a lot of nonsense and that it led to conclusions which were antithetical to the First Amendment; see Scaliaís dissent in Lee.

Examining Newdow with the ideas of the coercion test, there are two questions that must be answered in order to decide on the constitutionality of the pledge. First, does the daily recitation of the Pledge of Allegiance, in its current form, qualify as a 'religious ceremony' from the perspective of a non-believer? Second, are non-believers coerced to participate? This second question can be more pertinently restated by asking if the childrenís First Amendment freedom of conscience is violated; to see the validity of this approach one need only examine the 'school prayer' cases.

The pledge cannot be spared the coercion test for lack of religious content. The courtís opinion carefully explains the religious nature of the phrase 'under God' and how its religious message is especially clear from the perspective of non-believers. Neither does Judge Fernandez attempt to disavow the religious content of the pledge in his dissent. Although the pledge is a 'religious ceremony' for these purposes, it must be kept in mind that the religious message in the pledge is far less explicit than the graduation prayers that were found unconstitutional in Lee. Note that the courtís opinion in Newdow neglects to mention this difference.

The second question is much more difficult to answer because of the controversy over the validity of the coercion test. However, for the sake of argument, let us momentarily accept the idea that subtle, psychological 'coercion' can indeed constitute coercion that is unacceptable under the First Amendment. The court states that coercion results from 'the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.'9 This assertion is also supported by the fact that the pledge is recited daily in schools, whereas Lee found that such unconstitutional coercion could result from a one-time event. However, the supposed violation of the childrenís freedom of conscience is lessened in this case because the religious content of the pledge is much less explicit than the prayers in Lee. We are left pitting the courtís assertion that non-believing children face indirect coercion 'as real as any overt compulsion' against the ever-present de minimis argument. There was no real-life evidence presented to help decide between the two. The Ninth Circuit Court of Appeals, however, very readily accepted that the coercion test struck down the Pledge of Allegiance.

If we do not take such an amiable stance towards the Lee decision and its coercion test, then the obvious conclusion is that all of this 'coercion' is only imagined, and that there is no real coercion in the legal sense. There is, however, a subtlety in the Newdow case which in many ways makes it more similar to the school prayer cases than to Lee. In his dissent to Lee, Scalia expounded the differences between that case and the school prayer cases. He points out that the unconstitutional prayers in Schempp were 'prescribed as part of the curricular activities of students who are required by law to attend school.'10 He states that the 'indirect coercive pressure [of school prayer] should be understood against this backdrop of legal coercion.'11 Lastly, he points to the problems of 'the studentsí emulation of teachers as role models and the childrenís susceptibility to peer pressure'12 in an instructional environment. These issues are absent from the Lee case, but they are absolutely central to Newdow. The school prayer cases provide a strong precedent for finding the Pledge of Allegiance unconstitutional, even if they do not fully resolve the de minimis argument. (Strangely, the courtís opinion barely mentions these venerable and well-regarded cases, instead relying primarily on the highly controversial decisions of recent years.)

What about the parents?
The courtís opinion focused primarily on issues of religious endorsement/coercion and its harmful effects on school children. An alternative approach is to examine this case as it relates to their parents. It has long been accepted that 'the religious upbringing of children is such an important and personal responsibility of parents and family that the state should avoid any interference with it.'13 This parental right is firmly established in common law and has been recognized in a variety of cases, including Schempp. Parents, such as Michael Newdow, who do not wish to raise their children to believe in God are put in a difficult position if they must explain to a child why part of a pledge which is recited every day is false. However, it is not clear how removing the words 'under God' from the pledge would frustrate a religious parentís efforts to instill a belief in God in his or her children. The rights of parents would be best respected by not having school children swear allegiance to 'one nation, under God' each day.

What does Newdow mean for the future?
There is much more at stake in this case than the two little words which were added by the 1954 act. Newdow brings to a climatic point much of the recent separationist Establishment Clause jurisprudence. The tone and method of the courtís opinion show how eager they were to bring out these three tests and shoot down the 1954 act. It is quite understandable that many religious people feel the judicial system launched a senseless attack against them. There are good reasons to find the current form of the pledge unconstitutional, and the Ninth Circuit Courtís decision wonít harm the balance of church and state. The philosophy behind their decision, however, is more than enough to make sane people fear a future where religion is banned from the public square.

ABOUT THE AUTHOR
Jacob Pugh, 18, a native of Pendleton, prepared this article for his humanities class on religion in America. In June 2002 he graduated from both Pendleton High School and Blue Mountain Community College and is now a freshman at Harvey Mudd College in Claremont, Calif., studying physics and mathematics. The author give special thanks to Brian Johnson for his assistance in preparing this article.

Endnotes

1. 100th Congressional Record 8618 (1954) (statement of Sen. Ferguson incorporating President Eisenhowerís signing statement).

2. Newdow v. U.S. Congress (2002), at 9134.

3. Santa Fe v. Doe, 530 U.S. 290 (2000), at 317.

4. Lynch v. Donnelly, 465 U.S. 668 (1984), beginning at 687.

5. County of Allegheny v. ACLU, 492 U.S. at 672 (note: for Justice Kennedy this result against the Pledge was a reason to reject the Endorsement test.)

6. United States v. Salerno, 481 U.S. 739, at 745.

7. Newdow, at 9121, paraphrasing from Lee v. Weisman, 505 U.S. 577 (1992) at 594.

8. Lee v. Weisman, 505 U.S. 577 (1992), at 592.

9. Newdow, at 9125.

10. Abington Township v. Schempp, 374 U.S. 203 (1963), at 223.

11. Lee, at 643.

12. Edwards v. Aguillard, 482 U.S. 578 (1987), at 584.

13. Mark W. Cordes, 'Prayer in Public Schools After Santa Fe Independent School District,' Kentucky Law Review 90, no. 1 (2001/2002): 43.

© 2003 Jacob Pugh


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