God as Tea Partier: Judges Defend the Pledge of Allegiance

If you asked 1,000 people to list the attributes of the Almighty, how many would include "proponent of limited government"? But that was the top of the list last week for two California federal judges.

Michael Newdow is a California atheist who gets his jollies watching federal courts stand on their heads to deny that the concept of God's sovereignty is essentially religious.

That may overstate the case a smidge. Newdow is a California atheist. And he's spent more than a decade peppering the federal courts with challenges to the phrases "under God" in the Pledge of Allegiance and "In God We Trust" on American currency. He wins some and he loses some -- mostly and ultimately losing.

The most recent round produced an opinion last week by California's Ninth Circuit. That is the same court where two members of a three-judge panel agreed with Newdow in 2002 that the daily schoolhouse recitation of the pledge violated the Constitutional prohibition against government-established religion.

That opinion was eventually tossed by the U.S. Supreme Court for procedural reasons. Newdow crafted a new case that answered the justices' objections and filed again. The latest panel included one judge who sided with Newdow last time and two new judges who both voted against him this time.

This may bring an end to the suit, since several other circuits have ruled similarly and the Supreme Court may feel it need not weigh in. But what struck me, as it did in 2002, is how the California judges justify their positions.

Those who oppose Newdow ruled that the invocation of God has no significant religious effect -- "de minimis" -- or that it is not essentially religious in nature. On the other hand, the judges who side with Newdow (and against the pledge) find themselves making a case for the importance of religious language and of the special and sacred concept of the authority of a single deity.

Here are a couple of examples of language from the 2002 ruling, written by Judge Alfred T. Goodwin with the concurrence of Judge Stephen Reinhardt:

"To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and -- since 1954 -- monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. 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."

Judge Ferdinand F. Fernandez wrote the dissent:

"Such phrases as 'In God We Trust,' or 'under God' have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. Those expressions have not caused any real harm of that sort over the years since 1791, and are not likely to do so in the future. As I see it, that is not because they are drained of meaning. Rather, as I have already indicated, it is because their tendency to establish religion (or affect its exercise) is exiguous."

(That last $10 word means "meager," or "extremely scanty.")

Jump to 2010 and last week's ruling. The majority opinion was written by Judge Carlos T. Bea, with Judge Dorothy W. Nelson concurring:

"The words 'under God' were added as a description of 'one Nation' primarily to reinforce the idea that our nation is founded upon the concept of a limited government, in stark contrast to the unlimited power exercised by communist forms of government. In adding the words 'under God' to the Pledge, Congress reinforced the belief that our nation was one of individual liberties granted to the people directly by a higher power."

(Not to get all Jon Stewart, here, but if the limit to be set on government is that it is not to be as powerful as the Creator of the universe, then President Obama and company have a ways to go.)

The dissent was written by Reinhardt:

"History leaves no doubt that Congress inserted the words 'under God' in the Pledge of Allegiance in order to inculcate in America's youth a belief in religion, and specifically a belief in God. . . .

"If the plain meaning of the words 'under God' were not enough to demonstrate beyond any doubt that the majority's contention borders on the irrational, and that the term is predominantly, if not entirely, religious in both meaning and purpose, the overwhelmingly religious intent of the legislators who added the phrase to the Pledge, as shown by the unanimous statements to that effect in the Congressional Record, would remove any possible doubt from the mind of any objective person."

The basic history cannot be contested. The original version was written by Francis Bellamy in 1892: "I pledge allegiance, to my flag, and to the Republic for which it stands, one Nation indivisible, with Liberty and Justice for all."

Congress didn't make it official until 1942, tweaking the wording a bit by replacing "my flag" with "the flag of the United States of America." The phrase "under God" was added in 1954, during the heart of the Cold War, by members of Congress who wanted to draw a contrast with the communists.

Was that patriotic purpose also unconstitutionally religious? The Establishment Clause of the First Amendment is brief: "Congress shall make no law respecting an establishment of religion . . ." The courts, up to and including the Supreme Court, have said that clause places sharp limits on religious language and expression by all levels of government.

But the modern version of the Pledge (and the motto on the money) have withstood repeated legal attacks. Leading to explanations like this one by Bea:

"We find the Pledge is one of allegiance to our Republic, not of allegiance to the God [sic] or to any religion. Furthermore, Congress' ostensible and predominant purpose when it enacted and amended the Pledge over time was patriotic, not religious."

One reaction to last week's ruling was written by Dr. Albert Mohler, president of the Southern Baptist Theological Seminary. While Mohler cheered the direction of the ruling, he sounded a note of caution:

"The court is arguing that the phrases in question are not really theological statements at all, presumably because if the court found theological significance in the phrases it would have been led to rule otherwise.

"This legal logic is recognizable, but so is the theological dimension of all this. The court has ruled, in effect, that the language of these contested phrases represents what is rightly called 'civil religion.' In essence, civil religion is the mass religion that serves the purposes of the state and the culture as a unifying force -- a rather bland and diffused religiosity -- an innocuous theology with little specificity. Christians must never confuse civil religion with the real thing."

Another reaction was written by Rabbi Brad Hirschfield, president of the National Jewish Center for Learning and Leadership. Like Mohler, Hirschfield applauded the majority opinion:

"Without creating what Tocqueville called a 'tyranny of the majority,' I think we can recognize the broadly religious views central to many of our nation's founders and of the fact that an overwhelming percentage of Americans today continue to affirm their belief in some higher power. And that is what the words 'under God' affirm. . . .

"Used that way, there is no Christian God, no Jewish God, no Muslim God, etc. There need not be any God at all for one to meaningfully speak of God in that way. In effect, reciting the Pledge this way serves as a profound public education project whose end result would be to break down many of the ugliest forms of religious bigotry and spiritual hubris which threaten our public culture."

Really? One can affirm God without worrying about whether there is a God? I asked Hirschfield whether that didn't damage the very foundation of faith by denying the importance of a central tenet of some religions. His reply:

"The court did not deny the importance of religiosity. They simply extended the range of authentic use of God language to include a values-based position independent of any particular religion. They made God 'bigger' and that is always a good thing. Not to mention that in so doing, they reminded the nation that God is never a wholly owned subsidiary of any group or tradition. That too is a massive public service given the amount of damage done by those who think that God is, and that they are the owners."

Taoism is a religion that does not specify any kind of god. The Tao, usually translated as the Way, is a sort of moral flow that people can either go with -- to their benefit -- or battle in futility. One of the central texts of Taoism is the Lao Tzu, the opening lines of which can be understood as:

The Way that can be described by words is not the entire Way.

Which may be a fancy way of saying that the language of law is a poor tool to handle the infinite.