Sunday, March 14, 2010

Newdow v. Rio Linda Union School District

This past Thursday, the 9th Circuit US Court of Appeals (in California) ruled (here) that the "Pledge of Allegiance" does not violate the Establishment Clause of the First Amendment to the US Constitution, which prohibits the government from institutionalizing a favored set of religious beliefs. As reported at Jurist.com, a 2-1 majority of the court concluded that:
the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge - its wording as a whole, the preamble to the statute, and this nation's history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activity.

Accordingly, we hold that California's statute requiring school districts to begin the school day with an "appropriate patriotic exercise" does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.
I am not a Constitutional Law expert. In fact, I believe Constitutional Law (though not the Constitution itself) is more a matter of politics than of law. That said, I respectfully disagree with the 9th Circuit's ruling because it is historically myopic. The court may well be right that "the ostensible and predominant purpose was to inspire patriotism." That was surely the "ostensible and predominant purpose" when the Pledge was first created in 1892, without reference to any god. The phrase "under God" was only added in 1954. On any sensible rule of construction, those two words must be read to add a new and religious significance to the Pledge that did not exist before. Why else would those words, and only those words, have been added more than a half-century after the original Pledge was designed?

According to the 9th Circuit's interpretation, the belated addition of the phrase "under God" to the Pledge of Allegiance had no special significance for the Pledge's meaning. That conclusion strikes me as both disingenuous and insulting to religion.

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