March 16, 2010

A Judicial Betrayal of America

I've been doing a lot of reading and re-reading of the case of Newdow v. Rio Linda Unified School District, the most recent Pledge of Allegiance case from the Ninth Circuit.  It is easily the longest opinion I've ever read from any intermediate court, and the first one I've ever seen to have an elaborate table of contents to its dissent.  As Readers following this issue know by now, a panel of the Ninth Circuit voted 2-1 to reject a Constitutional challenge to a policy of a Sacramento-area school board mandating "patriotic exercises" such as the recital of the modified Pledge of Allegiance because of its inclusion of the words "under God."

Now, I can tell you as an atheist that when I am in a social situation where I am asked to recite the Pledge, I am surrounded by clients and under immense pressure to conform, so it is difficult for me to figure out what to do and stay principled. As a practical matter, I remain silent while the others say the two offending words, and recite the balance of the Pledge with the rest of them.  No one has ever said anything and I doubt anyone has ever noticed.  Still, even though I think of myself as strongly self-actualized, sure of my own identity and belief system, and principled enough to articulate what I have to say, I wind up feeling as though I have compromised myself.

If I give in to that kind of pressure, can anyone really doubt that the government is compelling schoolchildren to say the words "under God" by instructing them to recite the Pledge?

In 1983, Justice William Brennan had the guts to admit that he had been wrong in previous Establishment Clause cases he'd decided.  Looking at the practice of opening each session of a state legislature with a prayer made him realize that "if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause."  The Newdow decision is no different -- the government compelling children to acknowledge God's existence and God's supremacy over even the nation itself is obviously -- obviously -- an Establishment of religion, in the form of favoring religion to non-religion.*  That may not be a problem to some, but it does run directly counter to recognized and settled Constitutional law:  "The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."

With that in mind, I'd like to point you to Model Canon of Judicial Ethics 3, in particular Canon 3A(B)(2) and (5):

A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism. … A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status … .
Now, my question to you is, did the majority panel in Newdow v. Rio Linda USD remain true to these ethical norms of judicial function? I submit, sadly, that they fell short. To support this contention, I point you to the reasoning they offered in support of not calling the modified Pledge of Allegiance an Establishment of religion.

First, they said that the words "under God" were not intended by Congress to be religious, but rather to be patriotic.  Really?  Consider the Pledge as it was first enacted into law in 1892:

I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all.
Now, consider the Pledge after its modification in 1954:

I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.
Does the modified Pledge contain any more patriotic content than the original Pledge?  I submit that it does not.  Indeed, after 1954, the loyalty of the Pledger is split between America and God, and ultimately, God prevails and not America.

Second, the majority in the Newdow case claimed that no one is forced to recite the Pledge.  Bullshit.  As I've demonstrated above with my personal anecdote, adults feel pressure to recite the Pledge even when it is obviously not mandatory upon them to do so.  When an authority figure and all your peers are reciting the pledge, it takes a truly exceptional child to resist and not conform.

Third, the modified Pledge obviously endorses religion over nonreligion.  By explicitly acknowledging God's sovereignty over the United States, it tells everyone that to be American is to submit to the will of God.  To be American is to believe in God.  Indeed, the dissent in Newdow makes very explicit that the historical context of the modification to the Pledge -- which was affirmed in 2004 by Congress -- was that to be American was to be religious; the two were inextricably intertwined such that the phrase "atheist American" was thought to be a contradiction in terms.

Fourth, the political pressure on the Court must have been great indeed.  The Supreme Court had already signaled its lack of desire to grab this tiger by the tail, when it decided Newdow's prior case on standing instead of on the merits.  The Pledge is immensely popular and the Ninth Circuit has made a number of immensely unpopular decisions.  There is great political pressure against "activist (read: liberal) judges," there have been calls to break up the influential and powerful Ninth Circuit, and the politics of judicial appointment are now a major factor in Presidential elections.

Fifth, it is clear that the judges favored religion over nonreligion. It does not matter to me that one of the judges publicly follows the Baha'i Faith rather than Christianity; she too is religious and doesn't seem to understand why someone nonreligious would want to be that way. They simply did not appreciate that it is a tangible, real harm to be in an environment where a nonreligious person is asked to publicly identify as religious in order to conform and be accepted. They pointed to the historic fact that most Americas are religious and most Americans have been religious. Well, that's great, but so what? Most Americans historically have been white. Alonzo Fyfe forcefully makes the point that were the government to ask someone to pledge allegiance to "one white nation" would obviously be morally wrong and no one would or should stand for it.

Sixth, they referred to the religiosity of the Framers. So what if the Framers were religious (and it's not clear that they really were and certainly were not religious in the way contemporary Christians are)? The Framers didn't want us to spend a lot of time agonizing over the kind of men that the Framers were, they wanted us to look at the words of the law, the words of the Constitution, and to figure out how to best govern ourselves with circumstances they could not have understood and knew they could not anticipate. Those words prohibit governmental Establishment of religion and that means the modified Pledge violates the First Amendment. As between a patriotic symbol of America and the Constitution, which in a very real sense is America, I'll take the Constitution.

Seventh, they claimed that the phrase "under God" lacks religious significance. If so, why is it that religious people are the ones who are fighting to keep this language in the Pledge and why are non-religious people fighting to get it taken out? People who care about religion care about this phrase. Anyway, how can a reference to "God" lack religious significance? They ignore the legislative history and floor speeches in support of this modification, and the explicit text of the modification itself, to reach this spurious and illogical conclusion.

Eighth, they said the policy of making schoolchildren recite the modified Pledge was okay because an individual teacher only had to lead a brief "patriotic exercise" that didn't necessarily have to be the Pledge, as long as it was patriotic and brief. But this betrays reality and common sense. A teacher has enough to worry about with a class full of students and subject matter that may not be civics or government, to bother coming up with a lesson plan that includes 200+ brief lessons in secular patriotism as an alternative to a theistic Pledge† – a theistic Pledge which the students have been taught by rote to expect and recite without ever pondering its meaning, but the absence of which would swiftly provoke bitter complaints from parents. Far easier for the teacher to simply do what is expected and prescribed.

Ninth and most risibly, they claimed that the phrase "under God" is intended to signify the notion of a limited government. [Slaps palm on forehead.] Oh, of course. I'm sure that's what all of you take away from that clause, too. Seriously – let me assure you all that never once has anyone ever tried to explain to me before this opinion that to say something was "under God" meant that it was somehow limited. This bit of judicial fancy bears no relationship whatsoever to the intent of Congress when the modification to the Pledge was passed, and it bears little, if any, congruence with the way the Framers thought about God and government. If the nation is somehow "under God," that indicates to me that God somehow approves of the nation, and God being omnipotent and all, an association of the government with God suggests to me that the government's power is more unlimited than it is limited.

Tenth and finally, the majority said that it was perfectly okay for a school to mandate recitals intended to inspire patriotism and love of country. In other words, they say it's okay for a public school to indoctrinate students with a government-approved political belief. I say, no way. Students should be taught facts and allowed to explore and form their own opinions, and if those opinions are critical of the government, well, perhaps the government ought to be spending more time earning the respect of its citizens instead of mandating it.

So the fact of the matter is that the majority visibly reached a pre-determined result – they looked in their robes and couldn't find a set large enough to handle the public criticism that would inevitably have come from striking down a mandatory Pledge policy. They then cravenly strained logic and credulity to come up with the politically acceptable response. And unless the Ninth Circuit agrees to hear the matter en banc, I would expect that this will be the end of this lawsuit – the Supreme Court has already indicated its lack of desire to address the issue on its merits. We can only hope that next time, the judges find a way to decide the case in such a manner as to fulfill and enlarge our ideals, to understand that non-theists can be great Americans too, and to stay true to the Constitution that is the true guiding spirit of America.


* I do not need to be reminded that the First Amendment also includes the Free Exercise Clause.  This case has nothing whatsoever to do with the Free Exercise Clause.  The Free Exercise Clause lets you recite the Pledge or any variation of it you want within the context of your own religious observances.  Hell, you can worship the flag as a religious icon for all I care.  This case is about what the government compels children to do.  If you think the modified Pledge is A-OK because of the Free Exercise Clause, then just swap out the word "God" for "Allah" and tell me what you think of the government ordering your child to acknowledge Allah's supremacy every morning.

† That would make for a good series of blog posts here – a series of sixty-second-or-less lessons that teach patriotic ideas without discriminating against anyone. Suggestions from Readers are welcome.


The Fourth Branch said...

Certainly the court's position is a bit of a compromise on its Establishment Clause jurisprudence, but then again, so is the entire premise that the Establishment Clause applies to states to begin with.

The First Amendment is quite clearly a provision designed to promote federalism. It doesn't apply to the states. Its language expressly controls only "Congress," not states.

Many would be surprised to know that a majority of the states in 1791 had state sponsored religion. They kept their state sponsored religions well after 1791 too (because nobody really viewed that as a problem under the First Amendment- especially given that the First Amendment's history shows it was designed in part to permit states to do as they wished with religion).

Massachusetts was the last to get rid of their official state religion in the 1830s. That said, many states kept provisions that, for example, required citizens to be Protestant, or some other religious denomination, to hold office or serve on a jury. Those were clearly constitutional provisions under the US Constitution.

The Supreme Court changed all that when it incorporated the Establishment Clause against the states, but how do you do that? How do you incorporate a federalist provision, designed to give states FREEDOM, against the states? What does that even mean?

Justice Thomas hit on precisely this point in the Newdow case when it came before the Supreme Court. I don't generally agree with him, but his reading was more or less factual.

No, I am not advocating a return to the original understanding of the First Amendment. It is hard to understand how it would have worked in today's America (much more diverse today than in 1791). That said, people often want to cite the Constitution as mandating that a specific act be prohibited (In God We Trust on money, the language in the Pledge, legislative prayer, etc.). Some of those are federal questions, but in the Newdow case it is an expressly state question (under the 1791 reading of the Constitution, the state absolutely would have been entitled to have those words read in a public classroom).

I sense the courts engage in a bit of a balancing act, then. On issues that are quite well-established, such as the language in the Pledge (in there since the 1950s), they let it go (they have actually said just this on legislative prayer- it has gone on for a long time and gets more leeway as a result). Not a perfect answer, but nobody has a clear answer on much of anything when it comes to Establishment Clause cases.

Unknown said...

Thank you for your multifacted analysis. Perhaps this constitutional challenge to another law made by Congress will interest you:

Unknown said...

make that "multifaceted"