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Tuesday, March 04, 2003

I can't think of a single Court of Appeals decision in recent years that has generated as much discussion as the Ninth Circuit Court of Appeals' decision to prohibit the practice of saying the Pledge of Allegiance in public schools. The legal issue the case turns on is whether or not the use of the words "under God" in the Pledge is an unconstitutional governmental endorsement of religious belief, or whether it falls within a judicially-created exception to First Amendment Establishment Clause ("Congress shall make no law respecting an establishment of religion") doctrine that permits "ceremonial" governmental invocations of God, such as the use of "In God We Trust" on coins or the commencement of legislative sessions with a prayer. There has been much discussion of these issues, both when the original 3-judge panel opinion came down and now that the Court has denied a petition for further review by an 11-judge panel, setting the stage for petitions to the U.S. Supreme Court.

But what troubles me is that for many who argue that the Ninth Circuit was "wrong", the issue isn't that the Court did not follow statements made by the Supreme Court that the Pledge is Constitutional (the basis of Judge Ferdinand Fernandez's dissent from the original panel opinion), but that the decision "takes God out of the classroom", or "fails to recognize that America is a Christian nation", or some similar contention. This is usually backed up by some argument about how the First Amendment was never intended to create a "wall of separation" between church and state, as Thomas Jefferson once said it created, or how the framers of the Constitution all believed in God, or how the First Amendment was only intended to prohibit the formation of an official church, etc.

These arguments have been around awhile, and suffice to say, they are based on, at best, an incomplete understanding of history. (For instance, the understanding of a separation of church and state is taken not just from Jefferson's letter, but also from the Virginia Statute on Religious Freedom, which was the model for the First Amendment. The framers may have been religious, but they were mostly Deists, whose beliefs were quite a bit different than modern evangelical or mainstream Protestantism. While it was true that the Establishment Clause was originally thought to reach the issue of establishment of an official national church a la the Church of England, and the framers tolerated state establishments of religion, it is well accepted, by both liberals and conservatives, that the Fourteenth Amendment extended many of the protections of the Bill of Rights against state as well as federal actions; in the case of the Establishment Clause, this expanded the coverage of the clause beyond the framers' understanding. Also, the Establishment Clause has to be read in tandem with the Free Exercise Clause ("or abridging the free exercise thereof"), which certainly implies a scheme through which the government may neither advance nor inhibit religious belief.)

But whatever one thinks about the merits of such arguments, they in no way make the Ninth Circuit's decision "wrong", and the people who make them are more interested in bloviating about the supposed societal decline occasioned by the expansion of the reach of the Establishment Clause, and the purported failings of liberal jurists, then they are in constructively analyzing the merits of the decision. The Supreme Court, over Justice Scalia's vociferous objections, has rejected the conservative arguments that the Establishment Clause permits the government to endorse theism over atheism and Christianity over other faiths. That is settled law, at least from the Ninth Circuit's perspective. (Nor is it going to change at the Supreme Court level, actually.) The Ninth Circuit's decision is not "wrong" unless it is inconsistent with Supreme Court caselaw, or an incorrect interpretation of the high court's precedents. The Supreme Court has never held squarely that the Pledge is constitutional. However, they have noted several times that it might be. Such notations are called "obiter dicta", and are supposed to be highly persuasive, though not controlling, to a lower court. So the Ninth Circuit had to have a good reason to decline to follow them. The Court felt it had one, both because of the admitted theistic purpose of those who added "under God" to the pledge (it was added in 1954 to contrast us with the Godless Communists), and because the Supreme Court has made it quite clear that government is to be neutral, not only among faiths, but between religion and nonreligion. "Under God" is not neutral. I find the Ninth Circuit's analysis highly plausible; it is certainly not an unreasonable resolution of a conflict between what the Supreme Court has said in its dicta and what it has said in its holdings.

It is very likely that the Supreme Court will reverse the Ninth Circuit and make clear how important it is that lower courts follow its obiter dicta. I guess at that point, one might say that the Ninth Circuit was "wrong". But the criticism that the Ninth Circuit was "wrong" because it didn't endorse the right-wing view of the correct interpretation of the Establishment Clause is meritless demagoguery. The separation of church and state, at least in the sense of requiring government neutrality between religious and secular institutions, is settled law. And I, for one, am sick of hearing selective arguments about how that separation doesn't exist. It has no relevance to the question of whether the Ninth Circuit rightly decided the Pledge case.

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