SPECIAL REPORT

Pledge Case: A 'Win' For All The Wrong Reasons
by Tim Ewing, Publisher, Rare Jewel Magazine

Earlier this week, many Americans breathed a heavy sigh of relief when the Supreme Court (in an 8-0 landslide decision!) reversed the Ninth Circuit Court's judgment that our Pledge of Allegiance was unconstitutional because it included the words "under God."

The case (formally, "Elk Grove Unified School District v. Michael Newdow") finally has been decided, and the Pledge remains intact. However, the waters are not as smooth as they may seem on the surface . . . let us look deeper into this decision, to really understand what the Supreme Court has said.

I have read the entire 57-page decision by the Supreme Court. Read along to discover what you won't find in the headlines of your usual news sources:

1. The 8-0 Supreme Court decision means that all eight justices (the ninth justice, Antonin Scalia, recused himself) agreed that the Circuit Court's judgment should be reversed. However, this does not mean that all eight justices agree that our Pledge of Allegiance is constitutional when it includes the words "under God."

2. Five (Stevens, Kennedy, Souter, Ginsburg, Breyer) of the eight justices held that the judgment should be reversed because the party bringing suit (Michael Newdow) "lacks standing."This legal term means that because Newdow does not have legal custody of his daughter (he is not, and never was, married to his daughter's mother) he therefore cannot sue on her behalf in a federal court; the suit therefore has no basis, the five justices maintained, and should be thrown out.

3. Thus, these five justices avoided altogether the original argument - the arguments of both sides, plaintiff Newdow and the Federal government as well as many "friends of the court including Christian and patriot groups -- whether it is constitutional to include the words "under God"in our Pledge of Allegiance. Hence this question, from a legal standpoint, remains unanswered and will undoubtedly find its way back to the Supreme Court in a few years.

4. The remaining three justices (Rehnquist, O'Connor, Thomas) held that the judgment should be reversed because they feel it IS constitutional to include the words "under God"in the Pledge. They each wrote in their separate Opinions that Newdow DID have "standing,"expressly stating that the other five justices simply ducked the real issue at hand. Since these three were in the minority, the decision of the five carries as the official Majority Opinion of the Court.

5. Why did three justices advance a firm Constitutional stand on "under God"? Why did the other five blatantly avoid what every citizen, much less legal scholar, knew was a core-belief, burning issue with an aroused public? Is this an indicator that the "five"have already decided against "under God,"and in the future, when the political and cultural winds are blowing more in their favor, they will render a judgment accordingly? Time will tell.

6. Meanwhile, the "three"advanced strikingly differing rationales for their opinions. Delving into the reasons they give for their decision gives us a clearer view of the Pledge's status and the traditional acknowledgment that we are "one nation under God."

* Chief Justice William Rehnquist stated in his Opinion, "The phrase 'under God' in the Pledge seems, as a historical matter, to sum up the attitude of the Nation's leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound."He then detailed a wonderful list of many examples in our nation's history when political leaders acknowledged God.

Good so far. But he continued, "It [the Pledge] is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase 'under God' is in no sense a prayer, nor an endorsement of any religion . . . Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church."

Rehnquist's subtle misinformation must be met with giant alarms and red flags. We should be aware of his attempt to secularize "God,"to turn our nation's traditional acknowledgment of the Christian God into a vague and meaningless term that can be whatever one wants it to be.

* Alarmingly, Justice Sandra Day O'Connor was very overt in her attempts to minimize the true meaning of our nation's Christian heritage, including how it has been manifested in the inclusion of "under God"in our Pledge. In her Opinion, she defined a concept she calls "ceremonial deism"-- that it is constitutional for our governmental institutions to recognize the historical fact that our nation was founded upon Christian principles, but that it is NOT constitutional for our public institutions to suggest that those principles have any real meaning; nor, in her argument, should these principles influence our public policy.

Justice O'Connor wrote, "The constitutional value of 'ceremonial deism' turns on a shared understanding of its legitimate nonreligious purposes. That sort of understanding can exist only when a given practice has been in place for a significant portion of the Nation's history, and when it is observed by enough persons that it can fairly be called ubiquitous."

In other words, if a given practice, such as stamping the words "In God We Trust"on our coins or reciting the words "under God"in our Pledge, is observed long enough so that the practice loses its original meaning (of trusting in the Christian God, of acknowledging that our nation was established by direct intervention of the Christian God) only then it is constitutional for our government to continue such a practice.

In 1954, the United States Congress amended the Pledge of Allegiance to include the phrase "under God."The House (of Representatives) Report that accompanied this act stated: "From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God."[H. R. Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954)]

U.S. Representative Louis Rabaut sponsored the amendment and stated its purpose was to contrast our country's belief in God with the Soviet Union's embrace of atheism. [100 Cong. Rec. 1700 (1954)]

Fifty years ago President Eisenhower signed the Pledge amendment into law and stated, "In this way we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resources in peace and war."

History reveals as fact that the "God"and "religious faith"referenced in the quotations is the Christian God. History reveals this as fact with no dispute. Thus, when Justice O'Connor suggested that it is constitutional as a nation to continue with a Christian tradition such as the Pledge ONLY when it has lost its true meaning and purpose is akin to "having a form of godliness but denying its power"(2 Timothy 3:5), an attitude that the Apostle Paul says we are to "have nothing to do with."

Justice O'Connor said of the words "under God"in the Pledge, "Any religious freight the words may have been meant to carry originally has long since been lost." She further stated, "The Pledge complies with this requirement [i.e. fits her definition of "ceremonial deism"]. It does not refer to a nation 'under Jesus' or 'under Vishnu,' but instead acknowledges religion in a general way: a simple reference to a generic 'God.'"

Unfortunately, Justice O'Connor is wrong. Historical context and original intent show that the Pledge does precisely refer to Jesus Christ the only begotten Son of the Living God, and if we take this meaning out of the Pledge then we have no reason to recite the Pledge. Once a practice loses its intended purpose and meaning then soon the practice will fade away. This will happen to the Pledge if we do not act to restore its original meaning.

We do not want to win this case for the wrong reason. By framing the Pledge of Allegiance (or the Ten Commandments, or Nativity scenes) in an historical context void of its original meaning is a fruitless goal to pursue. We may win a few court cases in the short run, but in the long run culture will follow the same pattern - re-cast other meaningful practices as meaningless traditions, and eventually purge them as wastes of time and effort, or insidious offenses.

Rehnquist and O'Connor might have reached the correct conclusion that it IS constitutional to say "under God"in our schools, but their lines of reasoning were faulty.

* A better line of reasoning was boldly advanced by Justice Clarence Thomas. He is conveniently blunt in his Opinion: "We granted 'certiorari' [a hearing] in this case to decide whether the Elk Grove Unified School District's Pledge policy violates the Constitution. The answer to that question is: 'no.'"

Justice Thomas took the opportunity in his Opinion to revisit the First Amendment and its Establishment Clause, which reads, "Congress shall make no law respecting an establishment of religion."Surprisingly, he chastised his own Court for its faulty views of the Establishment Clause, especially in "Lee v. Weisman"(1992), which made it unconstitutional to have prayer at high school graduation ceremonies (In rendering its decision to strike "under God"from the Pledge, the Ninth Circuit Court relied heavily on "Lee"to establish precedence for its decision).

Justice Thomas shockingly granted that under previous Supreme Court rulings, precedence should dictate that Newdow should have prevailed in this case . . . however he also maintains that this precedence is wrong. Thomas writes, "Adherence to 'Lee' would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in 'Lee.' . . . The difficulties with our Establishment Clause cases, however, run far deeper than 'Lee' . . . I conclude that, as a matter of our [the Supreme Court's] precedent, the Pledge policy is unconstitutional. I believe, however, that 'Lee' was wrongly decided."

Keeping "under God"in the Pledge of Allegiance by denying its true meaning, by watering it down to be a more palatable concept for non-Christians, to be satisfied with shadow-substance issues like whether the girl's father is her full guardian, achieves a victory for all the wrong reasons. In the end this is not a victory at all and therefore it will not last.

Let us raise our voices along with Justice Thomas to push aside the poor decisions of our Supreme Court over the past 50 years, especially in the area of interpreting the First Amendment. We must educate ourselves about the facts and then make our voices be heard, confident that we represent the truth and the intentions of our Founding Fathers.

To read the full text of the Supreme Court's decision, go to:

http://www.supremecourtus.gov/opinions/03slipopinion.html