One Nation, Easily Divisible?
National Hysteria Erupts When Federal Appeals Court Ejects 'Under God' From Pledge Of Allegiance
written by Steve Benen
In the 110-year history of the Pledge of Allegiance, there have been a handful of controversies about the patriotic ritual. In 1924, the phrase "my flag," was changed to "the flag of the United States of America." In 1940, the U.S. Supreme Court ruled that public school students could be required to recite it even if it violated their religious beliefs; three years later the justices reversed the ruling. In 1954, in the midst of a national "red scare" over the growing threat of communism and the Soviet Union as an international power, Congress altered the Pledge to include the words "under God."
While each of those developments generated considerable attention and debate, the nation has enjoyed relative tranquility over the Pledge for the last half-century. That serenity was shattered in June with a national frenzy generated by a controversial court ruling.
In a case brought by a California parent, the U.S. 9th Circuit Court of Appeals ruled on June 26, 2002, that Congress violated the First Amendment when it revised the Pledge to include religious language. As a result, the court held, public school teachers cannot ask students to recite it.
"A profession that we are a nation 'under God' is identical...to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect of religion," the court ruled. "The coercive effect of this policy is particularly pronounced in the school setting given 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."
The ruling was written by Judge Alfred Goodwin, who was appointed to the federal bench by former President Richard Nixon. He was joined by Stephen Reinhardt, nominated to the appeals court by former President Jimmy Carter.
The 2-1 decision was a rewarding victory for Michael Newdow, a Sacramento medical doctor and lawyer, who filed the lawsuit and argued the case himself. Newdow, an atheist, was motivated to bring the case because he objected to his second-grade daughter being encouraged to recite the Pledge in her Elk Grove, Calif., elementary school.
A federal district court dismissed Newdow's case last year, but he was vindicated on appeal.
"I believe I have done something good for America," Newdow told reporters after the Newdow v. US Congress decision was handed down.
As Newdow would quickly discover, most Americans were not exactly appreciative of what he had done to benefit their freedom of conscience. In fact, the national reaction was not only severe, at times it bordered on hysteria.
President George W. Bush was among the nation's loudest and quickest critics of the ruling. Within hours of its release to the public, the administration issued a statement that read, "The view of the White House is that this was a wrong decision, and the Department of Justice is now evaluating how to seek redress.... This decision will not sit well with the American people, and it certainly does not sit well with the president of the United States."
The next day, after Bush had finished meeting with Russian President Vladimir Putin at a G-8 conference in Kananaskis, Canada, the president returned to the issue.
"Yesterday a court in America made a ruling that I want to comment on," Bush said. "America is a nation that values our relationship with an Almighty. Declaration of God in the Pledge of Allegiance doesn't violate rights. As a matter of fact, it's a confirmation of the fact that we received our rights from God, as proclaimed in our Declaration of Independence."
Bush was not content to merely criticize the 9th Circuit's ruling. In light of his ongoing battle with Senate Democrats over his conservative judicial nominees, the president decided he could exploit the Pledge controversy to score some political points and advance his agenda in Congress.
"I believe that [the ruling] points up the fact that we need common-sense judges who understand that our rights were derived from God," Bush added at the G-8 press conference. "And those are the kind of judges I intend to put on the bench."
The emphasis on playing politics with the controversy was deliberate and widespread. According to MSNBC, the National Republican Congressional Committee issued an urgent memo to GOP House candidates nationwide shortly after the ruling was issued.
"I strongly encourage you to put out a statement as soon as possible in response [to the ruling]," said Steve Schmidt, spokesman for the NRCC. "Call on every school board to ignore this decision."
Schmidt also adopted the Bush approach and urged Republicans to use the controversy to advance the White House's goal of bringing more conservative jurists to the federal bench. The NRCC memo encouraged GOP politicians to blame Senate Majority Leader Tom Daschle and Senate Democrats for blocking Bush's most conservative judicial nominees "who would serve as a counterweight to this type of nonsense. This ruling demonstrates why it is so important that Daschle move on President Bush's judicial nominees."
White House operatives weren't the only ones with politics on their minds. According to a report in The Washington Times, two Republican fund-raising firms were "using the California decision as a hook" to raise money within about 12 hours of the decision's release.
Similarly, Ralph Reed told Newsweek, "This is what motivates our base. In low-turnout midterm elections, this will help."
Rush Limbaugh took to the airwaves June 26 with a simple message: "This [decision] is great. This is going to elect Republicans all over the country."
Republicans in Congress were more than willing to jump on the political pandering bandwagon.
A spokesperson for House Majority Whip Tom DeLay (R-Tex.) initially told reporters that the GOP would not use demagoguery to exploit the Pledge controversy. A couple of hours later, however, DeLay's office issued a statement urging lawmakers to "put pressure on the do-nothing Daschlecrats in the Senate to take up President Bush's judicial nominees."
Not to be outdone, Democrats deflected political pressure by expressing at least as much outrage as their colleagues on the other side of the aisle. Daschle took to the Senate floor and called the decision "just nuts." Sen. John Edwards (D-N.C.), a likely presidential candidate in 2004, said it was "wrong."
To further demonstrate their disdain for the 9th Circuit's ruling, senators quickly introduced a resolution to express "disapproval" of the decision and order the Senate Legal Counsel to intervene in the case. The measure, S. Res. 292, was sponsored by Daschle and co-sponsored by every member in the Senate that day. It passed 99-0.
After the unanimous Senate vote, Daschle urged Senators to show up at 9:30 a.m. the next morning so that the body could recite the Pledge in unison. Although the Pledge is recited every morning in both congressional chambers, the halls are generally empty as lawmakers rarely take time from their busy schedules for the daily ritual. On June 27, the day after the decision was issued, 80 senators arrived bright and early to recite the Pledge en masse and hear Senate Chaplain Lloyd Ogilvie offer a politically charged prayer.
"We acknowledge the separation of sectarianism and state, but affirm the belief that there is no separation between God and state," Ogilvie said. "With gratitude, we declare our motto 'In God We Trust.' Though that trust may be expressed in different religions, we do proclaim You as ultimate sovereign of our nation."
Shortly after Ogilvie was finished undermining the principle of church-state separation, Sen. Tim Hutchinson (R-Ark.) introduced another resolution, S.2690, to "reaffirm" the Senate's support for the religious reference in the Pledge. It, too, passed 99-0. (Hutchinson is in a tight race for reelection in Arkansas, where many voters are looking askance at the senator's divorce from his wife of 29 years and his remarriage to a young former staffer.)
Sen. Joe Lieberman (D-Conn.), who has expressed interest in joining the 2004 presidential race, wasn't satisfied with resolutions that lacked the force of law, so he decided to take matters one step farther. Before the Senate adjourned June 26, Lieberman called for a constitutional amendment to maintain the religious language in the Pledge.
Sen. John Warner (R-Va.), who volunteered to cosponsor Lieberman's amendment, thought it wise to quickly move forward on altering the Constitution before the final ruling on the Pledge case could be determined by the judicial process.
"Let us not wait for the Supreme Court to act on this," Warner told his colleagues. "Why don't we go ahead and formulate this amendment, put it together, have it in place, presumably with all 100 United States senators?"
The House of Representatives also got to work attacking the Pledge ruling.
The night of June 26, a mere four hours after the ruling was announced, about 100 House members gathered on the East steps of the Capitol to recite the Pledge and sing "God Bless America." The lawmakers, led by House Speaker Dennis Hastert (R-Ill.), were careful to wait until television cameras were in place before launching into their "spontaneous" patriotic exercise.
The next day, lawmakers took up H. Res. 459, a resolution that reflected a sense of the House that "God permeated the founding and development of our nation," and that "the phrase 'One Nation, under God,' should remain in the Pledge of Allegiance."
Like their Senate counterparts, House members jumped at the chance to go to the floor to give speeches criticizing any efforts to remove religious references from the Pledge. Unlike their counterparts, when it came time for a vote, the body was not quite unanimous.
After the votes had been tallied, 416 members supported the resolution, 11 voted "present," and three were brave enough to vote against it. The lawmakers were Reps. Robert Scott (D-Va.), Michael Honda (D-Calif.) and Pete Stark (D-Calif.).
Scott told his colleagues that the "spectacle of the United States House of Representatives putting aside discussion of prescription drugs for Medicare" to pass this resolution was worse than the 9th Circuit's ruling.
Scott, Honda and Stark may have been part of a very small minority in Congress, and indeed, the nation, but they were not alone.
The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said that despite the controversy, the court decision reflects an appropriate concern for the religious liberty rights of all Americans.
"This decision shows respect for freedom of conscience," said Lynn. "You can be a patriotic American regardless of your religious belief or lack of religion. Our government should never coerce school children or anyone else to make a profession of religious belief."
Lynn also noted that the Pledge of Allegiance originally contained no religious language. Written in 1892 by a Baptist minister, the Pledge was recited for several decades without any religious references.
"This ruling simply says that schools should return to the original Pledge," Lynn said. "There wasn't anything wrong with it before 1954. America survived the Great Depression and won two world wars with a completely secular Pledge.
"Members of Congress made a mistake when they added religious language to the flag pledge," Lynn added. "It changed an appropriate patriotic exercise into a religious ritual in which many Americans cannot in good conscience participate."
Many constitutional and legal scholars echoed Lynn's analysis of the decision. Eugene Volokh, a church-state scholar at UCLA Law School, told The Washington Post that the 9th Circuit's ruling is "eminently defensible" and consistent with the "principle the Supreme Court has established." Jack Balkin, a professor at Yale Law School, told Time, "As a matter of common sense, a court should struggle not to reach this result."
Likewise, Jamin Raskin, who teaches constitutional law at American University, told Salon.com, "If we could somehow drain the emotion from the discussion, the vast majority of people would see this as a perfectly logical and modest decision."
Removing the emotional angle to the debate, however, was virtually impossible in the volatile political atmosphere that existed in the days after the public learned of the ruling.
At least in part, America's outrage over the ruling stemmed from the impression that the 9th Circuit had actually outlawed the Pledge, instead of ruling against two words within the Pledge. People could be forgiven for being confused, especially in light of the media's drive to sensationalize the story. Bill O'Reilly on Fox News, for example, thundered, "Say goodbye to the Pledge of Allegiance." CNN's Judy Woodruff told a national television audience that the 9th Circuit has "declared unconstitutional what many Americans see as an act of patriotism, and a hallowed tradition in our schools."
NBC's Brian Williams told viewers, "Schoolchildren across this country recite it every morning. Generations of us were raised on it. But now it is the first ruling of its kind. A federal appeals court in San Francisco says the Pledge of Allegiance is unconstitutional."
With journalists telling the public that the sky had fallen, it came as little surprise to poll watchers to see Americans largely disagreeing with the 9th Circuit's Pledge ruling. In a Newsweek cover story on newsstands in time for the Fourth of July, under the headline, "Under God, Under Fire," survey results reflected that 87 percent of respondents wanted "under God" to stay in the pledge, while nine percent wanted the phrase to be removed. Moreover, 84 percent believe religious references in schools and other government buildings are acceptable, so long as no "specific religion" is mentioned.
The Religious Right moved quickly to take advantage of this sudden interest among Americans to blur the church-state line. In fact, in several examples, the reaction from Religious Right opponents of church-state separation was even more vituperative than that of their political allies.
Cal Thomas, a conservative syndicated newspaper columnist, went so far as to compare the 9th Circuit's ruling to the Sept. 11 terrorist attacks and concluded that the decision may be even worse than the vicious murders of thousands of people.
"On the eve of our great national birthday party and in the aftermath of Sept. 11...the 9th Circuit Court of Appeals in San Francisco has inflicted on this nation what many will conclude is a greater injury than that caused by the terrorists," he argued.
TV preacher and Christian Coalition founder Pat Robertson followed in a similar vein by suggesting the Pledge ruling may actually lead to more terrorism.
"After the shocking events of September 11th, I was asked on television interviews, 'Where was God in all of this?'" Robertson said in a statement. "The court should realize that if something much more terrible than September 11th befalls our beloved nation, the answer to the question 'Where was God in all of this?' may well be 'He was excluded by the 9th Circuit.'"
Robertson also told viewers of his "700 Club" program that bumper stickers were available from his Christian Broadcasting Network, free of charge, that read "I Proudly Pledge Allegiance To One Nation Under God" (emphasis in the original) with a 700 Club logo at the bottom.
Likewise, Jerry Falwell, best known for being so patriotic that he blamed Sept. 11 on liberal Americans for helping cause the attacks, called the decision "probably the worst ruling of any federal appellate court in history.
Falwell added in a message to his supporters, "[I]t's time to go to war! It is high time that God-fearing, freedom-loving American people stand up and say, 'Enough is enough!' If we don't do so right now, we will soon lose this culture war."
To help his cause, Falwell is using his website to collect signatures for an online petition directed to the "Supreme Court, the U.S. Congress, all 50 state governors, all state legislators and the President" that expresses disdain for the 9th Circuit's ruling and asks that the religious language in the Pledge be maintained, so as to not "alienate God."
On the petition front, Falwell is far from alone. Within 48 hours of the ruling's release, D. James Kennedy's Center for Reclaiming America, the American Family Association and the Rev. Lou Sheldon's Traditional Values Coalition each had created online petitions devoted to leaving "under God" in the Pledge.
The petition drives, regardless of how many signatures they receive, will probably have no impact on the judiciary's deliberations, but it will give Religious Right groups new lists of names to seek donations from.
Newdow's case could end up before the Supreme Court next term, but it is more likely that an 11-judge appeals court panel at the 9th Circuit will rehear the case en banc. Attorney General John Ashcroft has already announced that his Justice Department will formally ask for the rehearing soon.
Should the broader panel of judges uphold Judge Goodwin's ruling, the matter could then reach the high court. If, however, the 9th Circuit agrees that Congress was wrong to add "under God," and the Supreme Court decides not to hear the case, school districts throughout the western part of the country will no longer be using the Pledge as it has been recited since 1954. The 9th Circuit, the nation's largest court of appeals, covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.
In the interim, Judge Goodwin has already put his ruling on hold pending further appeals.
Newdow, meanwhile, is being held out as a villain by critics of his lawsuit. As the controversy unfolded and tempers began to flare, Newdow was inundated by threatening phone calls and emails at his home.
NBC's Katie Couric asked Newdow about the threats on the Today show on June 27.
"There have been messages that are not particularly attractive," Newdow said, "I guess from the people who have God on their side."
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