Judge in pledge case is right; case law is wrong
By Robert Jeffrey
Guest Columnist

The recent U.S. Court of Appeals ruling that mandatory recital of the Pledge of Allegiance in schools is unconstitutional because the phrase "under God" violates the Establishment Clause of the First Amendment gave rise to cacophonous incredulity among the leadership class.

"It's just the liberal 9th Circuit," said most of the leading pundits, along with assurances that the decision would quickly be overturned.

If the latter is the case however, it will not be because of the law, but only out of embarrassment that a dirty little secret is out of the bag. For the fact is that the opinion written by Judge Alfred Goodwin is absolutely correct on the case law as established by the Supreme Court.

Further, it relies not only on a longstanding interpretation currently supported mostly by liberals, but also on more recent elaborations of that rule developed by Supreme Court Justices O'Connor and Kennedy, justices appointed by President Reagan.

The original meaning of the Establishment Clause ("Congress shall make no law respecting an establishment of religion") was to prohibit the federal government from preferring one religious sect over another, and especially from coercing that preference through laws that would compel financial support of a particular church. In 1947, however, in the Everson case, the Supreme Court initiated a revolution in constitutional law by reinterpreting the Establishment Clause as prohibiting government preference for religion over non-religion. Government was to remain neutral between religion and non-religion.

Among purists, the Everson Doctrine meant the exclusion of religion from American public life. There are four theoretical exclusionists on the court today (Justices Stevens, Souter, Ginsburg and Breyer) and two practical exclusionists (Justices O'Connor and Kennedy). Three justices would overturn Everson and return to the original understanding (Justices Rehnquist, Scalia and Thomas).

Justices O'Connor and Kennedy have joined in a series of cases with the Rehnquist group leading to the recent school voucher case, upholding neutral government programs that result in indirect financial assistance for religious schools. In other areas, however, O'Connor and Kennedy have climbed aboard the Everson bandwagon, and it is to legal rules developed by them that Judge Goodwin most appeals in his pledge ruling.

One such rule is the "no endorsement test" developed by Justice O'Connor and accepted by a court majority in a 1989 case that outlawed a Nativity scene from the main staircase of a county courthouse. According to this test, a government practice is not permitted if it sends a message to unbelievers "that they are outsiders, not full members of the political community."

Judge Goodwin correctly notes that the pledge is an endorsement of religion that sends a message to the young, atheist non-participant that she is not a part of the political community, since in the pledge the political community is identified with monotheism. He also observes that Justice Kennedy, in his dissent in the Nativity case, actually argued that the endorsement test would outlaw the pledge.

But Justice Kennedy is not off the hook. In 1992 he was the swing vote in Lee vs. Weisman, the case that outlawed non-sectarian prayers at middle school and high school graduations. In his opinion in that case, Kennedy extended the rule against coercion to "psychological coercion" and "social pressure." According to Kennedy, an atheist student is virtually coerced to attend the graduation ceremony and must endure the social pressure to conform by standing respectfully during the prayer.

For Kennedy, the latter constitutes coercion to participate in a religious exercise and the establishment of a state religion since state officials "direct the performance" of the prayer.

As Judge Goodwin notes, "the mere fact that a pupil is required to listen every day to the statement 'one nation under God' has a coercive effect."

Judge Goodwin also relies on the first part of the so-called "Lemon test," a rule that derives from a 1971 case, and by which that court hoped to implement the Everson doctrine. One part of the Lemon test requires that government actions affecting religion have a "secular purpose." Judge Goodwin correctly notes that the 1954 amendment adding "under God" to the pledge had as its clear purpose to distinguish our country from atheistic communism on the basis of our belief in God. The primary purpose of the act was to advance religion, thus violating Everson.

The text of the 1954 amendment reads in part: "Our American Government is founded on the concept of the‘.‘.‘. dignity of the human being.

"Underlying this concept is the belief that the human being is important because he was created by God and endowed by him with certain inalienable rights which no civil authority may usurp."

It is here that one sees clearly the problem with the Everson doctrine.

Correctly applied, Everson would prohibit the public expression of the philosophy and understanding of human nature that informed our Declaration of Independence and Constitution. But how can the Constitution possibly be read to do any such thing?

Citizen anger at Judge Goodwin is misplaced. The scrupulous judge has actually done us a service by laying out in a way every American can understand the way the Constitution is read by a majority of the high court.

Does this mean the Supreme Court will affirm the judge's decision? I predict not. Justices O'Connor and Kennedy, perturbed at having the 9th Circuit call their bluff, will, if necessary, find a diplomatic way to finesse this political hornet's nest. But for citizens appalled at the court's decision, you now know the remedy: Work for a court that will overturn Everson.

------------------------------
Dr. Jeffrey teaches constitutional law at Wofford College.