Why the Department of Justice is wrong to support 'Under God'


(FindLaw) -- The week the Supreme Court heard oral argument in the Pledge of Allegiance case, Elk Grove Independent School District v. Newdow.

In the opinion, the U.S. Court of Appeals for the 9th Circuit famously ruled that the phrase "under God" in the Pledge of Allegiance that is recited by schoolchildren is unconstitutional. According to the 9th Circuit, the inclusion of "under God" in the Pledge amounted to endorsement by the school of a religious viewpoint.

Various groups protested loudly, but the 9th Circuit's reasoning is impeccable. The Department of Justice's attacks on the pledge have been misguided. And the Supreme Court, if it were to reverse the 9th Circuit, would be making a serious mistake.

Moreover, that mistake will have implications not only for religious freedom in this country, but also for international perceptions of the United States.

The oral argument in the 'Pledge' case

The oral argument was split between two issues: standing and the Establishment Clause. There is some question whether the petitioner, Michael Newdow, who is the father to the girl on whose behalf the lawsuit was brought has standing to challenge the Pledge, because he does not have custody.

It is conceivable the Court could "dig" (deny certiorari as improvidently granted) the case on standing grounds or address solely the standing issue, but the temper in the courtroom did not seem inclined to avoid the substantive issue. I think it would be unlikely that the Court would lightly reach for a standing decision that could have such far-reaching state family law ramifications.

That leaves the Establishment Clause issue: Has the Elk Grove Unified School District endorsed religion by having its teachers lead its students in the Pledge, with its phrase "one nation under God"? On this issue, this is an extremely important case for the following reason. Not only is Newdow a father, he is also an atheist. We as a country need to listen to his minority viewpoint with some care here.

Newdow is saying with this lawsuit and his many public appearances that knowing his child is being led to say "one nation under God" on a daily basis makes him feel disenfranchised. The Pledge, which touts "liberty for all," is being used to inculcate his daughter in a religious world view he cannot accept. In other words, the state is displacing his role in educating his daughter on religion, and therefore "under God" is unconstitutional.

One would have thought that conservatives would have sided with the parent's right to raise one's child according to one's own religious beliefs, but as the Framers understood only too well, one should never underestimate the powerful temptation to extend one's power when one can.

If anyone thinks that this case is not about the power of the entrenched religious versus the powerlessness of nonbelievers in this society, today's oral argument proves them wrong. Chief Justice Rehnquist floated several proposals to defend "under God." First, he stated that the two words were not really a "prayer," a distinction without a difference.

But his second point led to the most enlightening moment of the day. The Chief noted that Congress unanimously added the two words "under God" in 1954, implying that no one found it offensive then so how could it be offensive now, or perhaps worrying that the Court was in no position to quibble with Congress when it acted with such unity.

But Newdow responded with the undoubtedly true statement, "That's only because no atheists can be elected to office." And when he did, individuals in the audience began to clap.

They immediately proved his point. As an atheist, he is disenfranchised precisely because of his beliefs. He cannot be secure in knowing the school district will not try to inculcate his daughter in the majority religion, he cannot be elected to office, but more importantly, he cannot even argue a case at the Supreme Court--that most hallowed of courtrooms--without being heckled. The preference for "under God" cannot be separated from the desire to suppress conflicting beliefs.

On matters of conscience, it is the Supreme Court's most solemn duty to protect vilified minorities from the majority's demands. From the perspective of the freedom conscience, it is obvious that Newdow should win.

The Solicitor General's attempt to defend "under God" is not persuasive.

The Justice Department's misguided defense

The Department of Justice's first mistake was to choose to defend the "under God" pledge in the first place.

The original Pledge was drafted by a Methodist minister yet did not include the words "under God." That phrase was only added later, by Congress, to distinguish America from "godless communism."

Congress's addition is not worth defending. What distinguishes the United States from Communist societies is that we tolerate the godless and god-loving alike, not that we favor the god-loving.

The Department of Justice's second mistake was to argue that the phrase "under God" is just surplus -- like the phrase "In God We Trust" on United States money. According to the Department of Justice, the phrase, in modern times, retains no meaning that could possibly be interpreted as government endorsement of religion.

Add to the federal government's reductionist reading of "under God," the fundamentalist Christian groups' suggestion that the complete cultural heritage of the framing generation rests on securing "under God" in the Pledge -- and one can understand why the United States sometimes appears to the rest of the world to be a bit unbalanced.

The language on the money is surely surplus, because everyone can and does use money everyday without reading or reciting the language. But no school child orally recites "under God" without knowing what is being said or without being affected by it.

Would the Department of Justice argue as well that the phrase "and liberty for all" is just surplus, drained of any possible meaning by its endless repetition? Surely not. That phrase has inspired children for decades, and properly so.

It's plain and simple endorsement of a particular religion -- as the 9th Circuit held -- and the Court will have to tie the Establishment Clause into a pretzel to make it anything else.

If one wants to make the point this is a religious culture, it would be far more effective to eliminate "under God" and observe true religious liberty by encouraging every school child to believe in "liberty for all" without the caveat.

Many of the Framers believed in the Christian God, but plenty of the framing generation was nonbelievers, and nonchurchgoers, as well. They founded the United States and its Constitution to create the "freedom of conscience," not some safe haven for only a likeminded hegemonic majority. The latter was precisely what they escaped in Europe.

The Framers wanted not to entrench a permanently Christian nation, but rather to free every citizen from the government's despotic ability to direct citizens to believe what the government approved. This is a glorious heritage that is imperiled, not enriched, by insisting on the Christian God's solitary place of honor in a pledge to the values of this country.

The danger of domestic intolerance

Not only Americans have been watching to see what position the Department of Justice and the president take in this case. The message the Department of Justice is sending to our enemies is that we indeed are godless infidels. Even the God in which so many profess belief is just a placemarker in a rote public ritual imposed on children every morning.

Even more troubling was the president's response to citizens who wrote letters to him denouncing the decision. As Linda Greenhouse pointed out in the New York Times, he declared that the Pledge showed "our reliance on God."

If by "our," the president meant those who believe what he believes, the letter should have been sent on his personal stationery, not that of his office. Alternatively, if by "our" he meant every citizen, he was fundamentally misguided, because not every citizen believes in his God; indeed, many do not, and chief among them right now is Michael Newdow, being disenfranchised once again.

Under our Constitution, the nonbelievers are still citizens, with all rights, including the right to a president that is neutral toward all religious viewpoints.

It is becoming increasingly necessary to pose the question: Has anybody in the White House ever read the First Amendment past the Free Exercise Clause? The Establishment Clause is just as crucial in preserving liberty for all, even if following it does not serve some narrow interest group.

There has never been a time in United States history when it was more important for the government to maintain scrupulous neutrality with respect to religion. It is abidingly important to show that this country stands for freedom for every faith. Here, every conceivable belief can be accommodated, and the number of denominations, sects, and beliefs that inhabit this country is breathtaking. That is what makes the United States distinctive -- better -- if you will.

To endorse Christianity, is to show ourselves as hypocrites to liberty -- and to provide fresh fodder for critics. Only if the government stays neutral on matters religious, can it persuade the world that this world war is over the right to be free, not a holy war.

The war on terror is only a religious war if President Bush permits himself to characterize us as a people unified by a single religion. We are not -- we are a tolerant people united by a passionate devotion to the Pledge's "liberty for all."

For these reasons, it is not only the right thing for the Court to find in favor of Mr. Newdow and the principle of neutrality toward religion in the First Amendment's Free Exercise and Establishment clauses. It is also in the national interest to do so.





Marci A. Hamilton, a FindLaw columnist, is the Paul R. Verkuil chairwoman in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her e-mail address is hamilton02@aol.com.