HEAVEN CAN WAIT: Is the Pledge of Allegiance Unconstitutional?

Friday, February 20, 2004

Is the Pledge of Allegiance unconstitutional? The original pledge, written in 1892 by the Christian socialist Francis Bellamy, did not contain the words "under God." Congress added these two words in 1954. And it is these words that caused the Ninth Circuit Court of Appeals to rule in June 2002 that recitation of the Pledge of Allegiance in schools violated the First Amendment's so-called separation of church and state. Now the case is before the Supreme Court. Will the Court rule that reciting the current pledge in schools is okay, or do the words "under God" have to go?

Recorded on Friday, February 20, 2004

Peter Robinson: Today on Uncommon Knowledge: the United States of America, one nation under...under what?

Announcer: Funding for this program is provided by the John M. Olin Foundation.

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Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: is the Pledge of Allegiance unconstitutional? "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God," those are the troublesome words, under God, "indivisible, with liberty and justice for all." When the Pledge was composed in 1892 by Christian socialist, Francis Bellamy, it did not contain those two words, "under God." They were added by an act of Congress in 1954. And it's because of those two words that in June 2002, the Ninth Circuit Court of Appeals ruled that the Pledge of Allegiance violates the First Amendment to the Constitution and its so-called "wall of separation" between church and state. Now the case is before the Supreme Court. How should the Court decide?

Joining us today, two guests. Erwin Chemerinsky is a professor of law at the University of Southern California. And Douglas Kmiec is a professor of law at Pepperdine University.

Title: The Gods Must Be Crazy

Peter Robinson: Two quotations from the Ninth Circuit Court of Appeals holding the Pledge of Allegiance unconstitutional last June. Two judges of a three judge panel of the Ninth Circuit, Alfred Goodwin and Stephen Reinhardt wrote, "A profession that we are a nation under God is identical for establishment clause purposes to a profession that we are a nation under Jesus, a nation under Vishnu, a nation under Zeus or a nation under no god, because none of these professions can be neutral with respect to religion." Second quotation, dissenting from the Ninth Circuit's refusal to reconsider the case en banc, Judge O'Scanlon writes, "The decision was wrong, very wrong. Wrong because reciting the Pledge of Allegiance is simply not a religious act, wrong as a matter of Supreme Court precedent properly understood and wrong as a matter of common sense." The two-judge decision or O'Scanlon's dissent? Which document would you have been willing to sign? Erwin?

Erwin Chemerinsky: The majority. "Under God" is inherently religious and doesn't belong in the public schools.

Peter Robinson: Doug?

Douglas Kmiec: I would have joined Judge O'Scanlon. "Under God" is not inherently religious. It accurately reflects our history and political principle.

Peter Robinson: Very good. That's what I like at the top of the show, a nice, clean disagreement. All right. The First Amendment to the Constitution, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." What did the men who drafted and ratified that amendment understand it to mean? Doug?

Douglas Kmiec: I think they understood it to give a privileged position to the inquiry into religious belief. In fact, both provisions have the same purpose. The no establishment provision says government shall not establish a national church and prescribe that you go there. The free exercise clause says that government shall no proscribe the choice that you've made in terms of your religious belief. So they basically have the seeker in mind, the individual who wants to know more about faith and have crafted a special constitutional protection to advance that individual's interest and to insure freedom in the inquiry.

Erwin Chemerinsky: I, of course, resist your question because I don't think there was an intent of the Framers and even if we knew it, it doesn't tell us how to resolve the question today. But to go to your specific question, what do I think the Framers meant, I think they wanted to have a secular government. They thought that the place for religion was in the private realm, in people's homes, in their churches. I vehemently disagree with Doug's characterization that the First Amendment Establishment Clause is to keep there from being a national church. If that's all it was, they could have said it. They said, "no law respecting the establishment of religion." And to me, what that says is our government should be strictly secular.

Peter Robinson: I mean, it seems to me that you've just tossed out a couple of centuries of jurisprudence by saying, eh, it doesn't really matter what they intended. Because it's quite clear--surely the constitutional debates had more in mind than letting Goodwin and Reinhardt decide what they think the Constitution means. Surely they were debating some sense that the Constitution meant something and would be binding on succeeding generations.

Erwin Chemerinsky: Of course the Constitution is binding.

Peter Robinson: Pile on here. He's giving us as clear an argument for judicial supremacy as you could ever hope to get.

Erwin Chemerinsky: We haven't even gotten to the question of judicial supremacy. We're talking about is--when anyone interprets the Constitution, you, me, the legislature, the courts, to what extent are we bound by the intent of the Framers? And I think that the Constitution does mean something. They gave us the words of the document. And those words then stand on their own to be interpreted. James Madison took the notes at the Constitutional Convention and he instructed that they not be opened until after his death because he wanted the words of the Constitution to be there on their own.

Peter Robinson: Let's turn now to the Pledge of Allegiance case itself.

Title: Terms of Endorsement

Peter Robinson: That two-judge majority of the three-judge panel, that decision submitted the Pledge of Allegiance to several tests. The first test to which they submitted is the so-called endorsement test and this they find in a concurring opinion in the Lynch v. Donnelly case, 1984 of Supreme Court Justice Sandra Day O'Connor who writes--and she says that the First Amendment means the government may not endorse religion. "Endorsement sends a message to non-adherents, that they are outsiders, not full members of the political community and an accompanying message to adherents that they are insiders, favored members of the political community." And the Ninth Circuit applying her test writes, "The statement that the United States is a nation under God is an endorsement of religion." Now they're right about that, are they not? It fails the endorsement test.

Douglas Kmiec: No, I don't think so. Justice O'Connor has been the principal advocate of the endorsement test and she has also said in opinions dealing with religious displays that the use of the word "under God" in the Pledge of Allegiance does not, in her judgment, offend that test. Now…

Peter Robinson: She's on record saying that?

Douglas Kmiec: She's on record, not in a holding but in the context of a discussion of another case.

Peter Robinson: So Reinhardt and Goodwin suggest that the author of the endorsement test doesn't quite know what it means?

Douglas Kmiec: But Peter, before you start applying these tests, we do have a basic issue that the Court has to decide. Is the Pledge a prayer? Because all of these tests, no endorsement, coercion…

Peter Robinson: You speak to this endorsement question because the coercion test goes to that very directly as they wrote about it in their opinion. Go ahead.

Erwin Chemerinsky: The words "under God" are inherently religious. The Supreme Court has said for decades that government-sponsored religious activity in public school classrooms is impermissible. There's no other way to understand the words "under God" but as an endorsement of religion. Think of it this way, as the Ninth Circuit said, what if the Pledge said we're one nation under Jesus. Wouldn't that clearly be unconstitutional? Well, for an atheist "one nation under God" is just as offensive as for a non-Christian, "one nation under Jesus" would be.

Douglas Kmiec: This is why going back to the historical understanding of things makes things clear because the fact of the matter is, is what the Pledge is, is a patriotic statement of unity but it's also an accurate statement of our history. Mr. Newdow may not choose to believe in God himself…

Peter Robinson: Mr. Newdow was the plaintiff in this case?

Douglas Kmiec: He's the plaintiff who…

Peter Robinson: …atheist father of the schoolgirl…

Douglas Kmiec: …who doesn't want his daughter to say the Pledge even though she's willing to say the Pledge, even though the mother of the daughter who has decision-making authority over the daughter wants her to say the Pledge as well. But put all that aside. The fact of the matter is, is that the Pledge is an accurate statement of political principle that our rights are traceable to a transcendent source, which means they're not traceable to a political source. That it is an extraordinarily important proposition that the Framers make in the Declaration of Independence. Mr. Newdow can't take his eraser out and just strike the Declaration of Independence…

Peter Robinson: What about Professor Chemerinsky?

Erwin Chemerinsky: What I think is wrong with that is it ignores the history of how the words "under God" were put in the Pledge of Allegiance. They were inserted in 1954 and they were inserted by Congress with members of Congress saying at the time we're fighting godless communism, we should reaffirm our belief in God. It's not a statement of history. And when a child feels pressure to say in school, we're one nation under God, that's not about history. That is a religious affirmation and it is a symbolic endorsement of religion.

Peter Robinson: On to the next constitutional test for the Pledge of Allegiance.

Title: Twist My Arm

Peter Robinson: Second test is the coercion test. Supreme Court formulates this in the 1991 Lee case writing, "At a minimum, government may not coerce anyone to support or participate in religion or its exercise." And the two-judge majority of the Ninth Circuit Panel held that the Pledge fails this test because it places students in "the untenable position of choosing between participating in an exercise with religious content or protesting." Now that's common sense? Children would feel--some little kids--either they recite the Pledge or they're the outsider? They're right about that?

Douglas Kmiec: If this was a religious exercise, Peter, if it was liturgy, they are right about it.

Peter Robinson: And Judge O'Scannlain says that the assertion belies common sense; the assertion that it's religious belies common sense. Whereas in school prayer cases, the Supreme Court has ruled against formal religious exercises, this is quoting O'Scannlain's dissent, "To pledge allegiance to flag and country is a patriotic act, in contrast, to pray is to speak directly to God which nobody does in reciting the Pledge."

Erwin Chemerinsky: The assumption in that and the assumption that Doug makes is that only prayer is impermissible in schools. All government-sponsored religious activity is impermissible, prayer or otherwise. I don't think you can make the words "under God" anything but religious. And the reality is children in public school do feel pressure to say "one nation under God." It's not patriotic to say "one nation under God." It's religious.

Douglas Kmiec: The late Justice Powell once pondered the question this way in the Edwards case. He said if schoolchildren came to their teacher and asked what did our Founders believe, the teacher could rightly say they believed in inalienable rights from a transcendent source. And if the schoolchild then followed up that question and said why did the Founders have that belief; it would be entirely appropriate in the schoolhouse for the teacher to explain because they were deeply religious people. That is part of the accurate history of this nation, de Tocqueville, the Founders, every president has referred to this aspect of our support for our republican institutions and at the same time, preserved the individual freedom of individuals to say, you know, in terms of my life, I don't believe, but in terms of the institution of the United States of America, we trace our rights to this source.

Erwin Chemerinsky: If it was a history teacher instructing students that the Framers were religious, I would have no objection, I'm sure the Ninth Circuit would have no objection. But instead what we're asking children to say every school day is "I pledge allegiance and…"

Douglas Kmiec: …to the flag and to the republic…

Erwin Chemerinsky: …one nation under God." We're asking a child to pledge allegiance to the notion that we're a nation under God. And for you, that's not a problem…

Peter Robinson: …which is historically correct.

Erwin Chemerinsky: Well, I don't know what it means to say it's historically correct we're a nation under God. But what I do know is it's pressuring a child to affirm that there is a God. And for many who believe there's not, that's deeply offensive.

Peter Robinson: Now let's submit the Pledge to its third test.

Title: Squeezing the Lemon

Peter Robinson: The Lemon test which comes from the 1971 case, Lemon v. Kurtzman. The Supreme Court holds that to be judged constitutional, the government conduct in question must have a secular purpose and it must neither advance nor inhibit religion. In its decision, the two-judge majority reviews the legislative history of the 1954 act that adds the words "under God" to the Pledge. Now here's a little bit of the legislative history that the two-judge majority includes in its own decision. Congress writing here, "Our American government is founded on the concept of the individuality and dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by him with certain inalienable rights which no civil authority may usurp." So far that's just a restatement of the Declaration of Independence, right? "The inclusion of God in our Pledge therefore would further acknowledge the dependence of our people and our government upon the moral directions of the creator." Now the first two sentences are no problem with either one of you I'm assuming. But that third one is explicitly religious is it not?

Douglas Kmiec: Well, again, it seems to me that it's just historically accurate and it's as accurate as asking students to memorize and recite the Gettysburg Address where Abraham Lincoln repeats the phrase that we are a nation under God which he hopes will not perish from the earth. I suspect if we stop teaching the foundational principles of our government, we will perish from the earth.

Erwin Chemerinsky: There is a tremendous difference between a history lesson and a pledge. The words "under God" were inserted in the Pledge of Allegiance not to reaffirm our history but because it was said…

Peter Robinson: How can you say that? This was congressional. Congress itself wrote this in 1954 and part of their intent was to reaffirm our history. They say so themselves. Unless you're suggesting you not only know better than Thomas Jefferson but better than the people who voted for that legislation in 1954.

Erwin Chemerinsky: I can say it because I've read the legislative history. And the legislative history was…

Peter Robinson: I just read it to you myself!

Erwin Chemerinsky: You read a short passage from it. Having read the whole legislative history, I'll tell you what it said. It was all about fighting godless communism. How we should have our children reaffirm our belief in God. At this time, we're fighting godless communism. I think the purpose was to advance religion. And the second part of Lemon…

Peter Robinson: Hold on. No, no, wait. That's a terribly important point. I don't know quite why you say "godless" communism…

Erwin Chemerinsky: That was the word of the legislature.

Peter Robinson: Oh, they used the word…

Erwin Chemerinsky: Those were the exact words…

Peter Robinson: But the argument would run as follows: Communism was indeed atheistic and the experiment of communism showed exactly Doug's point which is to say, when you remove some higher force, some supreme being from the equation, the state itself becomes supreme and all kinds of untrammeled activities turn into horrors. And that's exactly the communist experiment and Congress quite reasonably as a matter of history and as a matter of good government, wish to reassert for schoolchildren that this nation was underneath something larger and something higher, that the government was not supreme.

Erwin Chemerinsky: It's not a history lesson. It is then a statement by Congress that we are a nation under God. And that is an inherently religious statement. And it is just as offensive as saying we're one nation under Jesus or one nation under any specific religion.

Douglas Kmiec: Although you will admit that at least the Court up to this point hasn't likened those two statements. I mean, when they have dealt with religious displays, one of the issues has been is the religious display inclusive of a set of principles, histories, traditions, customs? And if it is, it's perfectly acceptable. And it's in these very cases where Justice O'Connor and other justices have articulated the view that the Pledge is likely perfectly fine, which I expect them to reaffirm.

Erwin Chemerinsky: Actually, I disagree in the prediction. I think the Court's going to affirm the Ninth Circuit.

Peter Robinson: We'll get to predictions in a moment. Go ahead.

Erwin Chemerinsky: But even your example of religious displays--the Supreme Court has been clear if there's going to be religious symbols on government property, there have to be symbols for more than one religion and secular symbols as well. There is nothing secular about the words "under God."

Douglas Kmiec: But it's in the context of the whole Pledge. It's a nation that enjoys liberty and justice and freedom. It's a nation that's indivisible. This is completing a description of a nation that, in fact, in the original Pledge had been hopelessly incomplete.

Erwin Chemerinsky: No, but only if you believe the words "under God" can be secular and that seems to me an oxymoron. The second part of the Lemon test that you refer to says that the effect can't be to advance or inhibit religion.

Peter Robinson: Right.

Erwin Chemerinsky: Where I just don't get the argument on this side is how you can see the words "under God" as secular.

Peter Robinson: That leaves us with just one last test to discuss.

Title: Calling Thomas Paine

Peter Robinson: We've run through the tests of the majority decision. O'Scannlain in his dissent applies another test: the test of common sense. Declaration of Independence refers to God four times, most famously of course in the passage that all men are created equal and that they are endowed by their creator with certain unalienable rights. The Constitution is dated in the year of our Lord, so and so, and such and such. The national motto, "In God We Trust," the national anthem, fourth stanza, "then conquer we must when our cause is just and this be our motto, in God is our trust." National holidays, Thanksgiving, explicitly according to the language creating Thanksgiving as a national holiday, a day of thanksgiving to God. Christmas is also a national holiday. So the question would be if Mr. Newdow's daughter observes Thanksgiving as a day off from school or Christmas as a day off from school, is that unconstitutional? Is it unconstitutional to put "In God We Trust" on our coins and currency?

Erwin Chemerinsky: The problem with that argument is there's no stopping point. 'Cause you could say since we have all of these things that are religious, we can have any amount of religion in the schools. The problem with the argument that O'Scannlain makes is you don't have to say "In God We Trust" to spend money. You don't have to say "God Save This Honorable Court" in order to argue before the Court. But children feel pressure every day to affirm that we're a nation under God. And it's that pressure to affirm…

Peter Robinson: It's the coercion. It's the implied coercion. That's the nexus of your argument?

Erwin Chemerinsky: That and the government endorsement for religion.

Peter Robinson: Well, but the government endorsement of religion applies as well to the motto "In God We Trust…"

Erwin Chemerinsky: But there's a huge difference. The Supreme Court as Doug would admit has often said schools are different with regard to endorsement. And the Supreme Court has consistently said that government endorsement, government-sponsored religious activity in public school classrooms isn't allowed. That's why the Court has said the government can't post the Ten Commandments in public schools.

Peter Robinson: I just want to pursue one--now you just said that O'Scannlain's position has no stopping point. If the government puts it on--who knows where it may end up? But just look at history. As a matter of fact, you don't see any creeping religiosity in American culture since 1954, quite the reverse. And so it's you who has no stopping point. If you strike down "under God" in the Pledge, the next thing will be to take it off the--you're the one with the aggressive argument. You're the one who wants to rewrite the fabric of American life, not O'Scannlain who wants to let be what is.

Erwin Chemerinsky: The Supreme Court has said since 1962 that prayer in public schools is unconstitutional in all of its forms. Otherwise, it would be in public schools today.

Douglas Kmiec: Well, if this was a prayer, Erwin and I would agree. If students in the schoolhouse were being coerced to pray, to give supplication to God, to ask God for blessings, that would be a different question. The Court has settled that question. I don't argue with that settlement of that issue. But this is not a prayer. This is a patriotic exercise. It is a historical statement. It is an affirmation of first principle. It is not unconstitutional under any of these tests for that reason.

Peter Robinson: Last topic: the whole trend of the Court's rulings on religion in public life.

Title: Heaven Can Wait

Peter Robinson: Erwin is correct is he not, as a matter of the Supreme Court's trajectory over the last four or five decades? We have seen the place of religion in public life shrunk and shrunk and shrunk again. And so my question to you is do you simply want the Court to permit the words "under God" to pass constitutional muster under the current constitutional jurisprudence as laid down over several decades? Or do you want to roll back these several decades of encroachment on the place of religion in public life? I'm trying to tease out just how radical your position is.

Douglas Kmiec: Well, I don't think it's radical at all because I think it's based on the original understanding and I think the Court itself is returning to the original understanding. Where it went wrong was to adopt a metaphor of separation of church and state, a metaphor that Thomas Jefferson used in private correspondence, not with regard to the establishment clause but with regard to free exercise, where he was comforting Baptists who were being prosecuted and persecuted and physically assaulted because of their religious beliefs. And of course, that was a violation he said of free exercise. The Supreme Court has actually in my judgment, in the last two decades, understood better the Establishment Clause than it had done in the 1940s and '50s when some of these problematic tests first emerged in terms of our jurisprudence. So they have become more respectful of two propositions. That the government has no business establishing a theology and number two, that accommodating private expressions of belief are not unconstitutional. The Pledge of Allegiance borrows from some religious understanding of the Founders to make a political, philosophical point. It can't be erased from our history.

Peter Robinson: So Congress passes this law in 1954, Dwight Eisenhower signs it and the words "under God" are placed in the Pledge. So we have now 50 years of experience. And it would seem to me that it is simply obvious that there's no creeping establishment of religion, that in these last 50 years, it's not as if those words have given rise to constraints or limited people's religious choices. So it would suggest to me that you're arguing in theory. In practice, they do no harm at all. Where is the harm? Where is the specific harm in practice that you've seen in the last half century?

Erwin Chemerinsky: The harm is for all of the children whose parents don't believe in God and the children are pressured to say "under God." And I can give you a practical example. My youngest child is in kindergarten. At the beginning--the second week of school in September, she came home and showed us how she can recite the Pledge of Allegiance. My wife said you know, you don't have to say the words "under God." And my five-year-old daughter said, oh yes I do or I get sent to the principal's office. Now that's not what her teacher said. But she had internalized the message that you have to say these words. And so I think the whole point here is in the place where we all disagree, can be illustrated by two simple questions that I ask the two of you. Would it be constitutional to say we're one nation under Jesus? And second, if not, how is this any different than that?

Douglas Kmiec: Well, it is not constitutional to say "one nation under Jesus" because that is a particularistic, specific embrace of one religious tradition. And the history of the words "under God," even though added in 1954, when traced back to the reason they were added, which I believe has a lot to do with refuting a political philosophy, the political philosophy of communism…

Peter Robinson: They had communism on their minds…

Douglas Kmiec: And in fact, in that legislative history, you know that there are statements that talk not about religion at all but about what happens when totalitarianism under a communistic regime emerges with the individuals' rights not being acknowledged. Mr. Newdow has the right, you have the right, I have the right as a parent, to say to my child, we believe this way or we don't believe at all. That's his constitutional entitlement, to not believe himself and to teach his child. He does not have the constitutional entitlement to censor anyone else. This is a battle between freedom and censorship. Mr. Newdow's on the side of censorship.

Erwin Chemerinsky: Nonsense. The reason what you say is wrong here is that the words "under God" are as offensive to an atheist as the words "nation under Jesus" would be to a non-Christian. It is the government pressuring children to affirm a belief in God. And that's not the role of the government.

Peter Robinson: Last question: How will the Court decide? Erwin?

Erwin Chemerinsky: I predict they're going to affirm the Ninth Circuit.

Peter Robinson: Close?

Erwin Chemerinsky: I think it will be close. I think it may even be a 4-4 split because Justice Scalia isn't participating which then means the Ninth Circuit is affirmed by an evenly divided Court.

Peter Robinson: And Scalia has recused himself for what reason?

Erwin Chemerinsky: Because he gave a speech expressing his view that the Ninth Circuit should be reversed before the Supreme Court took the case.

Peter Robinson: I see. Doug?

Douglas Kmiec: They're going to reverse. They're going to reverse…

Peter Robinson: Even without Scalia, the votes…

Douglas Kmiec: Without Scalia, it's going to be 7-1 and…

Peter Robinson: Who's the 1?

Douglas Kmiec: I'm not going to disclose but it's going to be overwhelmingly in favor of an accurate restatement of American history.

Peter Robinson: Douglas Kmiec, Erwin Chemerinsky, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.