Washington solons hit the steps of Capitol Hill to recite the "God" pledge: issue a litmus test in coming elections? Constitutional amendment looms.

ederal lawmakers gathered on the steps of the U.S. Capitol this afternoon to recite the Pledge of Allegiance, and show solidarity with calls to fight a court decision striking down the phrase "under God."

   Earlier on Wednesday, the U.S. Ninth Circuit Court of Appeals stunned the nation by declaring for the first time that recitation of the pledge in public schools violated the separation of church and state. The decision affects schoolchildren in at least nine Western states under the court's jurisdiction. They are: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The ruling may not take effect immediately, though, since judges did make provisions for an appeal.

   The court noted that the phrase "under God" did not appear in the original pledge -- and thus constituted government endorsement of sectarian, monotheistic religion. Writing for the majority, Circuit Judge Alfred T. Goodwin opined:

"A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, 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 to religion."

   On the internet, news sites and discussion boards lit up within minutes of the ruling. Talk shows and other programs, especially on cable media, moved the story to the top of the news cycle as pundits and politicians weighed in. Senate Majority Leader Tom Daschle (D-S.D.) described the decision as "just nuts," and Georgia Republican Rep. Bob Barr raved against the judicial system, and called for the confirmation of more judges who might be hostile to such a ruling.

   In the Senate, lawmakers were engaged in heated debate over a defense appropriation, but suddenly interrupted their agenda to work on an impromptu resolution condemning the Ninth Circuit ruling. Some declared that they would push for a constitutional amendment authorizing the religious slogan if the Supreme Court did not reverse the decision striking "under God" from the pledge.

   President Bush was in Canada for an economic summit, but White House spokesman Ari Fleischer said, "The president's reaction was that this ruling is ridiculous."

   Many cited cases where religious slogans and symbols are tolerated in government venues. Fleischer declared, "The Supreme Court itself begins each of its session with the phrase 'God save the United States and this honorable court. The Declaration of Independence refers to God or to the Creator four different times. Congress begins each session of the Congress each day with a prayer, and of course our currency says, 'In God We Trust."

   "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."

   Sen. Joseph Lieberman (D-Conn.), a former vice presidential candidate who is considered a front-runner for the Democratic White House nod in 2004, jumped on the ruling, and said that he would support a constitutional amendment. "There may have been a more senseless, ridiculous decision issued by a court at some time, but I don't remember it," Lieberman declared.

   "What's next?" asked a flustered Rep. Roy Blunt, Missouri Republican. "Will our courts, in their zeal to abolish all religious faith from public arenas, outlaw 'God Bless America' too? The great strength of the United States is that we are and will continue to be, despite the liberal court's decision, one nation under God."

   Sen. John Warner (Republican-Virginia) said that lawmakers "shouldn't wait" for the Supreme Court to take action. "Why don't we go ahead and formulate this (constitutional) amendment, put it together, have it in place, presumably with all 100 United States senators?"

   "Our Founding Fathers must be spinning in their graves," declared Sen. Kit Bond, Missouri Republican. "This is the worst kind of political correctness run amok. What's next? Will the courts now strip 'so help me God' from the pledge taken from new presidents?"

   For many separationists, today's ruling is long overdue after more than half-a-century of laws, rulings and public policy decisions which endorse, promote and encourage religion.

   "They (critics of the ruling) just don't get it," said Ellen Johnson, President of American Atheists. "This call is right on the money. And a lot of the practices which people are pointing too, like religious slogans on money or invoking a deity in court, need to be re-examined, too."

   The case was brought by Sacramento, California Atheist Michael Newdow, whose daughter attends a public elementary school. State law and school district rules require that the Pledge of Allegiance be recited at the beginning of each school day. A teacher usually leads the class in the program.

   But the version of the pledge used in California and elsewhere is not the original rendition. On June 22, 1942, Congress first codified the words as:

"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."

   On June 14, 1954, Congress amended the public statues to insert "under God" after the word "Nation."

   The Ninth Circuit ruling notes that the legislative history of this Act "shows that the 'under God' language was not meant to sit passively in the federal code unbeknownst to the public; rather, the sponsors of the amendment knew about and capitalized on the state laws and school district rules that mandate recitation of the Pledge."

   Indeed, noted the court, the sponsor of the House measure, Rep. Louis C. Rabault, testified that "the children of our land, in the daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its origins."

   "The mere enactment of the 1954 Act," said the Ninth Circuit, "constitutes a religious recitation policy that interferes with (plaintiff) Newdow's right to direct the religious education of his daughter..."

   Other pertinent quotes:

   ¶       Citing the opinion of Supreme Court Justice Sandra Day O'Connor --

"The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions ... The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the community."

   Reference was also made to the so-called "Lemon Test," formulated in the historic LEMON v. KURTZMAN decision of 1971. LEMON provides a litmus test of any government action to see if it conforms with the First Amendment. It states:

"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster 'an excessive government entanglement with religion...' "

   O'Connor noted, and the Ninth Circuit agreed that:

"At a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so..."

   ¶       "In the context of the Pledge, the statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation 'under God' is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase 'one nation under God' in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice and -- since 1954 --monotheism..."

   ¶       "Although the defendants argue that the religious content of 'one nation under God' is minimal, to an atheist or a believer in certain non-Judeo-Christian religions or philosophies, it may reasonably appear to be an attempt to enforce a 'religious orthodoxy' of monotheism, and is therefore impermissible."

   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 court noted that inclusion of "under God" had little do with civic religion or class order. Indeed, its origins show a religious purpose.

   "President Eisenhower, during the Act's signing ceremony, stated: '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.' (100 Cong. Rec. 8618 (1954)."

   ¶       The government, in defending the religionized pledge, insisted that any religious component in the recitation and ritual was minimized by looking at the practice "as a whole," and even manifested a secular purpose of "solemnizing public occasions" or expressing optimism in the future, or encouraging "what is worthy of appreciation in society." These arguments appear continually in defense of questionable public religious expression -- from display of the Ten Commandments to prayer in schools or at government meetings. The Ninth Circuit rejected this ruse, citing the WALLACE v. JAFFREE Supreme Court ruling which struck down an Alabama law mandating a moment of silent prayer:

"The flaw in defendants' argument is that it looks at the text of the Pledge 'as a whole,' and glosses over the 1954 Act. The problem with this approach is apparent when one considers the Court's analysis in WALLACE. There, the Court struck down Alabama's statute mandating a moment of silence for meditation or voluntary prayer' not because the final version 'as a whole' lacked a primary secular purpose, but because the state legislature had amended the statute specifically, and solely to add the words 'voluntary prayer.' "

"The legislative history of the 1954 Act reveals that the Acts SOLE purpose was to advance religion, in order to differentiate the United States from nations under communist rule."

   Justices added:

"In language that attempts to prevent future constitutional challenges, the sponsors of the 1954 Act expressly disclaimed a religious purpose. 'This is not an act establishing a religion ... A distinction must be made between the existence of a religion as an institution and a belief in the sovereignty of God..."

"This alleged distinction is irrelevant for constitutional purposes. The Act's affirmation of a "belief in the sovereignty of God,' and its recognition of 'the guidance of God' are endorsements by the government of religious belief. The Establishment Clause is not limited to 'religion as an institution'..."

   Even in the immediate hours following the announcement of today's ruling, it has become evident that American society is entering a new round in the "culture war" debate over the status of religion in the public square. Critics of the Ninth Circuit decision are already comparing it to earlier court actions which abolished coercive prayer in public schools (ABINGTON TOWNSHIP v. SCHEMPP, MURRAY v. CURLETT, ENGEL v. VITALE), and continue to invoke the words 'under God' as a toxin to rampant social ills. Others are framing the new debate over the NEWDOW ruling in terms of the events of September 11, 2001. There, political and religious figures suggested -- like Rev. Jerry Falwell and televangelist Pat Robertson -- that the Islamic radical attacks on the Pentagon and World Trade Center were the responsibility of those individuals and groups advocating rampant secularism, feminism, homosexuality and a "turning away from God." Those supporting Falwell's position will likely find support for their view of events in the Newdow ruling.

   It will be interesting to see if ANY federal Senator or Congressional Representative dares to oppose a constitutional amendment codifying the inclusion of "under God" in the Pledge of Allegiance. We can expect political hopefuls -- both currently in and out of office -- to seize this issue as a "bully platform" in courting voters.

   The NEWDOW decisions also suggests that the courts, particularly the Supreme Court, have created a legacy of muddled and confusing decisions regarding the separation of church and state. It is difficult, if not impossible, to maintain that students should not be compelled to pray or recite a religious pledge, while at the same time mandate that a religious slogan ("In God We Trust") serve as the national motto, or that taxpayers be forced to subsidize faith-based social services, or that government ceremonies and meetings include prayer and other religious exercise. The notion that activities such as public prayer-- especially when performed by adults -- is, somehow, less constitutionally suspect than requiring similar acts by young children -- requires a legal stretch, and likely a misinterpretation of the First Amendment.

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