One Nation, Divided by God, With Liberty and Justice for the Majority

For those who for years have followed Michael Newdow’s heroic attempts to bring some legal relief to America’s atheists, fighting against the ignorance and arrogance of America’s religious majority, and for those who were stunned by the duplicity and obfuscation of the majority (two-to-one) opinion in yesterday’s ruling by the Ninth Circuit Appellate Court, there’s something to cheer, namely, the minority opinion written by Judge Stephen Roy Reinhardt. It’s here, starting on p. 3930. His dissenting opinion is long (136 pages; two-thirds of the entire, 201-page report!), but it’s brilliant. Illustrative is his following introductory statement:

I. The Majority’s Fundamental Errors

A reader of the majority opinion, if unfamiliar with the facts of this case and the law that intermediate courts are bound to apply to those facts, would be left with a number of misconceptions about both. It might be helpful to identify the most fundamental of those misconceptions at the outset, prior to engaging in the more detailed examination of the facts and the law that follows. Although the majority’s reasoning is far from clear, its conclusion that the state-directed, teacher-led, daily recitation of the “under God” version of the Pledge in public schools complies with the Establishment Clause appears to result from at least seven major errors in its legal analysis.

First, this case involves only the phrase “under God” as recited by young children as part of a state-directed, teacher-led, daily program in public schools. Only those two words are at issue. The plaintiffs in this case do not ask us to “strike down the Pledge” or to prohibit its recitation, as the majority claims. Rather, they ask only that the two words be stricken and that the state-directed, teacher-led, daily recitation return to the original, purely secular Pledge of Allegiance that schoolchildren had recited long before Congress enacted it into law in 1942, and long before Congress added the religious phrase at issue here by statutory amendment in 1954.

Second, the majority asserts that “under God” as that term appears in the amendment to the Pledge is not a religious phrase, and was not inserted in the Pledge for a religious purpose. Instead, the majority argues that “under God” is simply “a reference to the historical and political underpinnings of our nation,” that its purpose is to remind us that ours is a “limited government” and, thus, that the term as adopted by Congress has a predominantly secular meaning and purpose. There is simply no basis in fact or law for so absurd an assertion. If the plain meaning of the words “under God” were not enough to demonstrate beyond any doubt that the majority’s contention borders on the irrational, and that the term is predominantly, if not entirely, religious in both meaning and purpose, the overwhelmingly religious intent of the legislators who added the phrase to the Pledge, as shown by the unanimous statements to that effect in the Congressional Record, would remove any possible doubt from the mind of any objective person.

Third, the majority states that in order to determine the constitutionality of the amendment adding the phrase “under God” to the Pledge, we must examine the Pledge as a whole and not the amendment. Well-established controlling Supreme Court law is squarely to the contrary. See Wallace v. Jaffree, 472 U.S. 38 (1985). Wallace makes it clear, beyond dispute, that it is the amendment and its language, not the Pledge in its entirety, that courts must examine when, as here, it is the amendment, not the Pledge as a whole, that is the subject of the claim of unconstitutionality. The majority’s error in this respect causes it to analyze the legal issues improperly throughout its opinion. Examining the wrong issue inevitably leads the majority to reach the wrong result.

Fourth, the amendment to the Pledge that added the phrase “under God” was, contrary to the majority’s contention, adopted in 1954, not in 2002. Congress’s reaffirmation of the “under God” amendment in response to this court’s Newdow I decision is of no legal consequence. Congress could not and did not change the meaning and purpose of the 1954 amendment in 2002 and did not purport to do so. It simply proclaimed that we [The Ninth Circuit Court] were wrong in our legal ruling and that we erred in our constitutional analysis of the First Amendment issue. Although the 2002 Congress did not purport to suggest a different purpose for Congress’s 1954 action than did the earlier Congress, even had it sought to add a secular purpose, such as to remind us of our nation’s “limited government” or “historical principles of governance,” doing so would not have changed the overwhelmingly predominant religious meaning and purpose of the amendment. See McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). Nor, certainly, would it have changed the effect of the amendment upon the schoolchildren who are subjected to the state-directed, teacher-led, daily recitations of the Pledge.

Fifth, the majority suggests that the School District’s policy is constitutional because under that policy only “willing” students recite the Pledge. The majority does not and cannot make that argument explicitly, however, because it is well established that the Constitution forbids governmental coercion, and not just compulsion, of religious belief. The majority acknowledges at a later point in its opinion that public schoolchildren are “coerced to participate” in the state-directed, teacher-led recitation of the “under God” version of the Pledge, but then excuses that coercion on other grounds that are as fallacious as its initial argument.

Sixth, the majority repeatedly asserts that under the coercion test only “religious exercises” may be deemed unconstitutional. The majority’s “religious exercise” limitation conflicts with the express holding of Lee v. Weisman, 505 U.S. 577, 587 (1992), as well as the Supreme Court’s decisions in Stone v. Graham, 449 U.S. 39 (1980) (per curiam), and Edwards v. Aguillard, 482 U.S. 578 (1987). Coercion is prohibited with respect to participation in religious activities as well as other efforts to support or promote religion. Moreover, the majority errs in its contention that because the Pledge constitutes a patriotic rather than a religious exercise, the religious component does not fail the coercion test. A religious component included in a secular exercise, whether or not a patriotic one, is subject to the same coercion rules as is any other religious practice to which public school students are subjected. Further, the majority’s assertion that the coerced recitation of the Pledge does not require “a personal affirmation… that the speaker believes in God” is not only contradicted within the majority opinion itself, but is foreclosed by the Supreme Court’s explicit statement that the Pledge “requires affirmation of a belief.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). In any event, it is self-evident that one cannot profess to believe that our nation is “under God” without professing to believe that God exists.

Seventh, the majority appears at several points in its opinion to imply that the use of the term “under God” in the Pledge may be justified by the doctrine of ceremonial deism. The theory of ceremonial deism has never been approved by the Supreme Court for use in Establishment Clause cases in general; the Court has, however, expressly disapproved the use of that doctrine to justify state-sponsored religious practices in the public schools. Lee, 505 U.S. at 596-97. The majority’s suggestion that the doctrine may be applicable here is clearly erroneous.

If the majority made only one or two of the seven fundamental errors described above, its conclusion that the state-directed, teacher-led, daily recitation of the “under God” version of the Pledge is constitutional could not stand. With all seven errors, the majority sets an all-time record for failure to conform to any part of any of the three tests governing compliance with the Establishment Clause. Unless and until those tests are reversed or repudiated by the Supreme Court, an appellate court is not free to disregard the law and the Constitution in the manner that the two judges in the majority have in the case before us.

Judge Reinhardt’s conclusion stirs me to want him on the Supreme Court:

I end where I began. Today’s majority opinion will undoubtedly be celebrated by a large number of Americans as a repudiation of activist, liberal, Godless judging. That is its great appeal; it reaches the result favored by a substantial majority of our fellow countrymen and thereby avoids the political outcry that would follow were we to reach the constitutionally required result. Nevertheless, by reaching the result the majority does, we have failed in our constitutional duty as a court. Jan Roe and her child turned to the federal judiciary in the hope that we would vindicate their constitutional rights. There was a time when their faith in us might have been well placed. I can only hope that such a time will return someday.

As a judge of an intermediate appellate court, I would hold that our decision is controlled by the binding Supreme Court precedents governing this case. We are required to follow those precedents regardless of what we believe the law should be or what we think that the Supreme Court may hold in the future. Were today’s majority to examine the amended Pledge as applied “through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.” Marsh v. Chambers, 463 U.S. 783, 796 (1983) (Brennan, J., dissenting). Following settled precedents, I conclude that the state-directed, teacher-led daily recitation in public schools of the amended “under God” version of the Pledge of Allegiance, unlike the recitation of the historic secular version, without the two added words, contravenes the rules and principles set forth in Lemon v. Kurtzman, Santa Fe v. Doe, and Lee v. Weisman. Accordingly, we are, in my view, required to hold that the amendment, as applied, violates the Establishment Clause of the United States Constitution. I should add that I firmly believe that the existing Supreme Court cases and doctrine reflect the true purpose and values of the Establishment Clause and of our Constitution as a whole, and that the holding that we should, but do not, reach best ensures the rights and liberties of the schoolchildren of this country. Finally, I firmly believe that any retreat from the existing Supreme Court doctrine and cases would constitute a most unfortunate diminution of the freedom of all our citizens.

Had my views prevailed here, our decision would not preclude daily recitation of the Pledge of Allegiance by public schoolchildren. To the contrary, public schoolchildren would be free to recite the Pledge as it stood for more than sixty years, a patriotic Pledge with which many of us grew up – a patriotic Pledge that is fully consistent with the Establishment Clause. All that would be required would be the deletion of the two words added by an amendment designed to promote religion and to indoctrinate schoolchildren with a religious belief. As has long been agreed in this nation, the teaching of religious views is the function of the family and the Church, not the State and the public school system.

As a judge of this court, I deeply regret the majority’s decision to ignore the Pledge’s history, the clear intent and purpose of Congress in amending the Pledge, the numerous Supreme Court precedents that render the school district’s course of conduct unconstitutional as applied, and the very real constitutional injury suffered by Jan Roe and her child, and others like them throughout this nation.

Accordingly, I dissent.

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