From the president

From the president – ruling about unconstitutionality of phrase in Pledge of Allegiance

Ellen Johnson

“One Nation Under God” Unconstitutional Establishment of Religion

On Wednesday, June 26, in an extraordinary decision, the Ninth U.S. Circuit Court of Appeals ruled 2-1 that the phrase “under god” in the Pledge of Allegiance was an unconstitutional establishment of religion. The case was brought by a Sacramento, California Atheist Dr. Michael A. Newdow on behalf of his second grade daughter who was asked to recite the pledge at the Elk Grove Unified School District, in Florida. Dr. Newdow also has a law degree. “B row a rd’s school board policy specifies that schools should conduct the pledge each morning, though the schools could substitute some other ‘thought-provoking’ program planned with discretion.” In 1998, Newdow sued President Bill Clinton, Congress, the Broward County School District, and Florida’s Congressional delegation to have “under God” removed from the pledge, and to bar the Broward County schools from reciting the pledge until the language was removed. The pledge’s language, Newdow claimed, violated both the Free Exercise Clause and the Establishment Claus e of the First Amendment. At the time, Newdow was an ordained minister in the Universal Life Church, which has always been known as a credential mill for anyone wanting a Doctor of Divinity Degree, more as a goof than anything else.

U.S. District Judge Ursula Ungaro-Benages of the Southern District of Florida dismissed Newdow’s case on two grounds. First, Newdow had no standing because no one had forced him or his daughter to recite the pledge, nor was anyone likely to do so in the future. Second, he had failed to state a cause of action, because the words “under God” in the pledge did not endorse religion. Newdow appealed, claiming he had standing because the 1954 law inserting “under God” into the pledge caused him the injury of making him an outsider to American society He also claimed standing to protect his daughter’s interest in avoiding exposure to government-sponsored religion, and that should he run for office or work in the Broward County school system he would have to perform a ritual that offends his beliefs. (1)

The Ninth Circuit Court ruling affects the nine western states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Judge Alfred Goodwin, a Nixon appointee, who authored the majority panel ruling, said that the justices were simply following U.S. Supreme Court precedents in handing down a finding consistent with longstanding First Amendment law, such as rulings that clergy-led invocations and student-led prayers at football games were unconstitutional.

“In his decision, Goodwin wrote that under the establishment clause, reciting ‘under god’ is equivalent to reciting ‘under Jesus,’ ‘under Vishnu,’ or ‘Under no God,.” (1)

Pledge History

On September 8, 1892, Boston based, The Youth’s Companion magazine published a few words for students to repeat on Columbus Day that year. They were written by Reverend Francis Bellamy, the circulation manager and Baptist minister who preached against big business and served as vice president of the Society of Christian Socialists. Bellamy joined the staff of The Youth’s Companion in 1891 and apparently composed the pledge a few months later, while the magazine was in the midst of a campaign to sell American flags. On October 12, 1892, the quadri-centennial (400th year)of Columbus’ arrival, more than 12 million children recited the Pledge of Allegiance, thus beginning a required school-day ritual. In fact, today only half of our fifty states have laws that encourage the recitation of the Pledge of Allegiance in the classrooms.

At the first national Flag Conference in Washington, D.C., on June 14, 1923, a change was made to the pledge. For clarity, the words “the flag of the United States” replaced “my flag.” It was not until 1942 that Congress officially recognized the Pledge of Allegiance. One year later, in June 1943, in the case of West Virginia Board of Education v Barnett, the Supreme Court ruled that school children could not be forced to recite it. The case was brought by Jehovah’s Witnesses who would not pledge allegiance to the flag which they considered to be a graven image. (Makes one wonder why all the other Christian literalists aren’t refusing to pledge to that graven image as well.) In 1935, three Jehovah’s Witness children in Minersville, Pa., refused to recite the pledge at school and were summarily expelled. Two of the children, Lillian and William Gobitis, took their case to court.

By the time the Gobitis case reached the United States Supreme Court, war had broken out in Europe and the country was preoccupied with national security On June 3, 1940, the Court ruled against the Gobitis children by a vote of eight to one. Few Supreme Court decisions have had such a dramatic impact. Six days after the opinion was handed down, a mob of 2,500 sacked and burned a Jehovah Witnesses church in Kennebunk, Maine. On June 16, the citizens of Litchfield, Ill., attacked 60 Jehovah’s Witnesses, who were put in jail for their own protection. On June 29, seven Jehovah’s Witnesses in Richwood, W Va., were rounded up by the police chief, placed in the center of a mass Pledge of Allegiance recital, force-fed large quantities of castor oil and marched out of town. Throughout the country, people broke into the homes of Jehovah’s Witnesses, confronted them with flags and demanded they recite the pledge. The Gobitis decision was the subject of debate at the highest level. Robert Jackson, then Attorney General, bitterly denounced the decision at a Cabinet meeting; and, at Hyde Park, N.Y., President Franklin D. Roosevelt and Mrs. Roosevelt discussed the case with Justice Frankfurter.

Eleanor Roosevelt said that she was profoundly disturbed by an opinion that forced little children to recite a pledge repugnant to their conscience. While the President agreed with Justice Frankfurter’s view that the decision was legally correct, he nevertheless said that the action of local authorities was “stupid, unnecessary and offensive.”

Three years later, after hundreds of Jehovah’s Witness children had been expelled from school, the Supreme Court reversed itself. That was the case of West Virginia State Board of Education v Barnette, and the former Attorney General, who became Justice Robert Jackson wrote the majority opinion, a stirring testament to the liberty that our flag represents. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (3)

“Under God”

In June of 1954, at the height of the McCarthy hysteria, and at the urging of the Knights of Columbus, an amendment was made to add the words “under God.” Then-President Dwight D. Eisenhower said of the pledge, “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and every rural school house, the dedication of our nation and our people to the Almighty.”

There were other attempts to turn our nation into a Christian nation. A law passed on June 25, 1948, required all federal judges to believe in a god. On July 11, 1955, a law put “In God We Trust” on all currency and coins. On July 30, 1956, we abandoned our national motto “E Pluribus Unum,” which means from among many come one and unites us, to the phrase” In God We Trust” which now divides us.

Politicians Respond to Newdow Decision

The typical knee-jerk reaction of condemnation of the decision by politicians was immediate. Everyone from President Bush to Senate Majority Leader Tom Daschle derided the decision calling it “just nuts.” Resolutions

and Amendments were introduced on Capitol Hill to restore the old wording of the pledge.

House Resolutions 428, 459, and 466 criticized the decision and “expressed support for the Pledge of Allegiance.” Other resolutions affirmed school prayer, the pledge, and periods in school where students could engage in “quiet reflection.”

Representative Gene Green (D-TX) rushed a proposed amendment into the legislative hopper. Known as H.J. Res. 103, it declares: “Nothing in the First Amendment to the Constitution shall be construed to prohibit the recitation of the Pledge of Allegiance as follows: ‘I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all’.” The Green Amendment is currently in the House Judiciary Committee.

The Senate voted 99-0 in favor of a resolution that started by recalling the embarkation of the Pilgrims and ended up by declaring, “The 9th Circuit Court of Appeals erroneously held, in Newdow v US. Congress, (9th Cir. June 26, 2002) that the Pledge of Allegiance’s use of the express religious reference ‘under God’ violates the First Amendment to the Constitution, and that, therefore, a school district’s policy and practice of teacher-led voluntary recitations of the Pledge of Allegiance is unconstitutional.” Ailing Senator Jesse Helms was the absent Senate vote.

“In the House, where the ’emergency’ legislation was introduced by Judiciary Committee Chair F. James Sensenbrenner, Jr., a conservative Republican from Wisconsin, the vote was 416-3 in favor of a differently worded but similarly intended condemnation of the court’s decision. (Ironically, the House bill, which was passed amid much over-the-top blunderbuss about the role of the Almighty in all things American, included the line: “Whereas the Pledge of Allegiance is not a prayer or a religious practice, the recitation of the pledge is not a religious exercise.. .”) (2)

A Few Courageous Politicians

Not all politicians rushed to wrap themselves in the flag. Three representatives stuck their political necks out to support the decision and they deserve to hear from every one of us with thanks and support. Congressman Gary Ackerman (D-NY) voted “present” on the House resolution to keep the words “under God” in the Pledge of Allegiance, stating that the decision had a ‘tremendous amount of merit. “Some of the people I represent and some people in America are Nonbelievers,” he added, then joked, “God bless them. But I don’t think that God needs my help or needs to be put into a country’s affirmation that he’s out there–or she’s out there–in order to exist. God’s doing fine without the Congress of the United States endorsing him.” Ackerman was one of just eleven Democrats to vote ‘present’ on the Pledge resolution. His New York colleague, Jerry Nadler, initially voted against it but then changed his mind at the last minute and also voted ‘present’, according to the New York Post. The only actual no votes on the pro-Pledge measure came from Reps. Bobby Scott (D-Va.), Mike Honda (D-Ca.) and Pete Stark (D-Ca). Please make sure to contact them and show them your support. Those who support us need to hear from us.

Judge Goodwin Comments

Commenting on the controversial decision, Judge Goodwin told The Recorder, “I never had much confidence in the attention span of elected officials for any kind of deep thinking about important issues. When they pop off after what I call a bumper strip headline, they almost always give a superficial response. I’m a little disappointed in our chief executive–who nobody ever accused of being a deep thinker–for popping off.” Goodwin said he knew the decision would catch people’s attention, but suggested the issues are complex. “The more you know about something, the more difficult it gets sometimes,” he said.

One day after handing down the decision, a stay order was placed on it, even though the case is automatically stayed anyway. Judge Goodwin called it “damage control.” He said that was done for the benefit of the media, who don’t understand the intricacies of court rues–especially TV reporters. “Their attention span can’t handle anything more than a haiku of about four lines. The worst thing about it was that some people said we were caving under pressure.” He said he also issued the order so that other judges could get back to work. “Judges that weren’t on the panel were getting lots of calls,” he added.

The defendants in the case have announced that they intend to ask an 11-judge en banc panel to rehear the case, which many experts expect to happen. Normally, senior judges aren’t included in the pool of active judges from which the panel is drawn. But under circuit rules, senior judges who author the three-judge decision in question are eligible–meaning Goodwin could possibly join the panel.

Media Reaction

American Atheists was not a party to the lawsuit. We have reported on the case, but there are many cases around, and this one hardly seemed like a sure thing. Since the case wasn’t brought by our organization, we at American Atheists were deluged with calls from the media about it, many assuming we were involved with it. There were at least fifty radio, newspaper and television interviews done over the next several days. I was tied to my phone for two days straight. The calls were coming in so fast that we had to farm them out to our state directors to help. An urgent call for help went out and thanks to our Michigan State Director Arlene-Marie, our Illinois State Director Jim Senyszyn, and our California State Director Dave Kong for helping me with those calls. Thanks to our New Jersey State Director Dave Silverman for helping with television appearances on the FOX Network, several times! Our National Communications Director Ron Barrier was on FOX Television debating Jerry Falwell, and former New York Senato r Al Damato. I was on the FOX network twice but on different issues.

If you missed our media appearances, you might have the impression that we weren’t out there supporting Dr. Newdow. We were out there in full force. We have an on-line petition to support the decision which has almost 1500 signatures! This newsletter has a copy of the petition for you to sign and mail back to us. And Dr. Newdow has been invited to speak at our March on Washington and at our convention next April.

Is this a moot issue since the Supreme Court decision of 1943 (brought by Christians against the requirement of school children to recite the pledge) declared that no child can be compelled to recite the pledge? Well, if that is the case then public schools should stop asking children to recite it.

Is the pledge our best attempt to teach patriotism to children? My children have been asked to recite it since nursery school and no teacher has ever taken five minutes to explain what it means. How many students understand the terms allegiance, liberty, and republic? Young children can hardly grasp what a city is let alone pledging allegiance to the United States of America. If we want to teach patriotism we need to set examples and show our children what it means to support your country. One way to do that is to support the Constitution of the United States. We were amazed when The Catholic League issued a press release, the very same day of the pledge decision, urging school teachers to ignore the law. So, how much does the Catholic League really care about patriotism when it wants to teach children to ignore the laws of the land?

Is this part of a liberal, left-wing agenda? Our right-wing Republican members might be surprised to hear that they are a part of a left wing agenda. I have received e-mails from Christians who support the pledge, and there have been editorials written by Christians also in support of the decision.

New Jersey State Director Dave Silverman summed up the decision, and the hold put on it, on one of his television appearances in a most memorable way: “For one good day, we were talking about a pledge of allegiance that was all-inclusive again. A pledge of allegiance that actually talked to all the students, in all the schools and said ‘we are one nation, indivisible, with liberty and justice for all.’ That’s gone now, again, and it’s really too bad….” Well-said Dave.

Charles E. Stevens American Atheist Library and Archives Fundraiser

We want to thank all of you who responded to our CESAALA fundraiser by sending in a donation. Whether large or small we are gratified by your support. Your generosity brought in $25,131 to help complete the library. This won’t cover all the expenses we will incur but we will use it to proceed with what we can do and we thank you for that.

Dr. Pepper. The Official Soft-Drink Of American Atheists

No, we haven’t started accepting advertising in the newsletter. But Dr. Pepper has earned our endorsement because it sold Dr. Pepper “Patriot” cans with the Pledge of Allegiance on them minus the words “under god.” Maribeth Exley, Consumer Relations Coordinator for Dr. Pepper explained their decision, “Given recent national events, this patriotic packaging was designed to reflect our pride in this country’s determination to stand together as one, strong and indivisible, under any circumstances. The Statue of Liberty and the Pledge of Allegiance were chosen as two of the greatest symbols to represent that feeling. We think we have a message that is resoundingly patriotic, a message that we are a united nation. We felt “One Nation… Indivisible” best represented the message we were trying to get across. You can send your comments about this to Maribeth Exley, Consumer Relations Coordinator. Dr. Pepper/Seven Up, Inc. PO Box 869077, Plano, Texas 75086-9077.


(1.) Fulton County Daily Report, July 1, 2002

(2.) The Nation Magazine

(3.) Jon C. Blue, New York Times, September 2, 1988

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