“Thoughts on Nature’s God, Inalienability and the Founding -Why the Pledge is Constitutional” A Nuanced View
"Thoughts on Nature’s God, Inalienability and the Founding -Why the Pledge is Constitutional" A Nuanced View
US District Court Historical Society
September 23, 2004
The intersection of religious faith and public life is a streetcorner where I hang out frequently. It fascinates me and has done for twenty-five years, since I followed Don Balmer and Jim Huffman around Lewis and Clark College and Law School, respectively, and bothered them with independant studies of the intersection. And then I went and pestered Mark Hatfield about it on Capital Hill for awhile, and then and went and bugged folks in the Oregon Legislature about it. Sometimes I bother our judges about it, but these days I usually just bug my wife and poor kids, and whoever will read what I write about it, or whatever audiences are subject captive to my rants. So you can thank Judge Landau for the next twenty minutes.
I have three points to make this afternoon: first the Pledge is not unconstitutional because it is a re-statement of core principles from our founding; second, that even under the Supreme Court’s caselaw the Pledge is constitutional; and third, I want to make some observations about our nation’s cognitive dissonance when it comes to questions of religion and the public square.
I. My first point is that the Pledge is not unconstitutional because it is an expression of a core principle of our nation’s founding, specifically that our liberties and freedoms are given to us by "nature and nature’s God", and not merely as a matter of social compact. The Pledge, seen in this light, is actually a statement of our core political, not religious, creed. How can recitation of a core founding principle be unconstitutional?
I cannot imagine, for example, that Mr Newdow would seriously contend that having his daughter read the preamble to the Declaration of Independence would be a problem: "I pledge allegiance to the flag….one nation, under the laws of nature and of nature’s God, with liberty and justice for all…." Would that pledge, quoting exactly the Declaration of Independence, be unconstitutional? Or for that matter, would any serious person think this pledge unconstitutional: "one nation, under these self-evident truths-- that all men are created equal and are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." I think we still believe in this notion of inalienablity. For example, as I listen to the campaign of the same sex marriage advocates on the upcoming Oregon ballot measure, I hear them say something relevant to my point: "we should not put civil rights up for a vote…" Now at one level this is simply erroneous as a matter of constitutional law and the inititative process. But as a matter of political philosophy they are saying something very true: that the rights of equality on which they rely are "certain inalienable rights"-that is those rights precede, supercede and stand above any mere vote of the political order, any mere renegotiation of the social contract. That we may disagree in a democracy with what those rights are, or how recognized in civil society, does not change the fact that lovers of liberty have died and continue to die for the proposition that our liberties are inherent and inalienable, though they maybe momentarily smothered by oppression here or elsewhere.
By definition, then, if we believe our rights inalienable-they cannot be taken away by any government on this earth-we surely acknowledge this core concept in the Declaration of Independence, and likewise in the pledge. It is a statement of our political beliefs-in 1776, 1789, 1954 or today. Therefore for a class of schoolchildren to recite this core foundational statement in order to satisfy the state requirement that the school day begin with appropriate patriotic exercises, is not and cannot be unconstitutional.
In a similar vein, I note that forty-seven of the fifty state constitutions mention God in the preamble-including California’s, which gratefully acknowledges God as the source of Californians’ political liberties. Again I wonder if anyone would seriously contend that it would violate the Establishment Clause to have Mr Newdow’s daughter’s class recite the preamble to the state constitution?
Surely the historic tensions that gave rise to the great idea of disestablishment in our Republic have not been so trivialized as to amount to mere word games-such as whether we say "one nation under God" or "one nation under the laws of nature and of nature’s God"?
Anyone who has ever spent ten minutes in American history knows that our heritage is inseparable from the a prevalent belief that there was a natural order to the universe, that novus ordo seclorem- the new order for the ages-- was not an accident. Our freedoms and obligations derive from this divinely written natural order. Or so the founders believed.
Quote from Washington’s First Inaguaral Address.
Quote from the Thanksgiving Day Proclamation
Quote from Jefferson’s Virginia Bill for Religious Liberty
No less a libertarian maverick than Justice William O Douglas made this prescient comment in Zorach v Clausen in 1952: "We are a religious people whose institutions presuppose a Supreme Being…" He was not making a religious, or an ecclesiastical statement, but rather a sociological, historical and philosophical observation about our political heritage.
I have quoted here briefly, of course, but could go on and on. The point is this: our founding and heritage have consistently demonstrated that we believe our political rights to be essential, inherent, inalienable, God-given, or at least above the political compact of the day. For the Elk Grove School District to ask its students to recite the Pledge, including the phrase: "one nation under God" is no more unconstitutional than to ask them to read the Declaration itself.
II. My second point is that, even apart from the commonsense historical argument I have just made, the pledge is constitutional even under the US Supreme Court’s Establishment Clause cases.
Now the good news is that I am not going to drag you through a seminar on the Establishment Clause caselaw; if such a thing were indeed possible it would take a far superior intelligence than mine to sort it out. Reading Supreme Court cases on church-state law over the last twenty five years I always get a case of the dry grins: it reminds me of watching a committee of folks trying to break down and then rebuild an old automobile engine-without a plan and without noting who on the committee is doing what at any given time: you end up with a mess, auto parts strewn all about, nine different opinions of how they got there and how to put it together again. Meanwhile, the rest of us are standing out in the rain needing a ride. Friends, it looks to me like we could be here a while. Maybe we should walk.
But I need hit only a few highlights to demonstrate my point:
First, under what is still, I think, the basic analysis-Lemon v Kurtzman-the pledge is not unconstitutional because there is a secular purpose, secular effect, and there is no ongoing organizational entanglement between religious and governmental institutions. Indeed, keeping in mind the historical framework I set out above, it is next to impossible to say with a straight face that the Pledge has a "religious purpose" or has a "religious effect" -both the purpose and effect are as statements of political heritage and political creed, not religious or sectarian belief. (That some of the sponsors of the "under God" phrase may have had subjectively religious motivations or even placed such sentiments in the legislative record does not mean that the objective purpose-which is what Lemon seeks-is religious).
And so it is that the Ninth Circuit’s application of the Lemon test is so simplistic as to defy comprehension: in their myopic view if it has the word God in it must be a core religious or sectarian exercise and therefore unconstitutional. This conclusion ignores common sense and misapplies the Lemon test.
Now, don’t get me wrong-there are all sorts of problems with Lemon, as scholars and Justices-most notably Justice O’Connor-have noted for at least a decade. Lemon is a lemon. But even under its near-antiseptic approach toward religion in public life, the Pledge is not unconstituional. "We are a religious people whose institutions presuppose-that is to say, assume, refer to and acknowledge-a Supreme Being." The Pledge-like the Declaration, Thanksgiving, Congressional invocations or other "institutions"-- presupposes, not preaches, the existence of God.
Second, even under Justice O’Connor’s more fluid analysis of the Establishment Clause, she concludes the Pledge is not unconstitutional. The four factors she applies to her analysis in this case are 1.) what she calls the "history and ubiquity" of our national tradition of "ceremonial deism"-which is just what it sounds like; 2.) the absence of any element of worship or prayer in reciting the Pledge. Under this factor this case is decidedly different from, say the graduation prayer cases (Lee), which after all deal with an "explicit religious exercise"-a prayer; 3.) absence of any reference-"endorsement", to use her favorite phrase-to one particular religion; and 4.) the fact that the Pledge, in her view, has "minimal religious content". In my view it has none.
Third, both the Chief Justice and Justice O’Connor place heavy emphasis on the fact that there is no legal coercion of Mr Newdow’s daughter-she is not required to participate. That is a critical fact under Establishment Clause jurisprudence, no matter whose analysis.
Since W Va v Barnette held that Jehovah’s Witnesses had a religious liberty right to refrain from saying the pledge, children have been allowed to opt out. About this I have two thoughts to offer. First, it is manifestly a correct holding in any diverse nation, especially one which began with such a strong thread of religious dissent from British Establishment orthodoxy.
In fact, as a practicing Christian-and believe me I need a lot of practice-- I went years without saying the pledge, as I worked out for myself theologically what it meant to promise my "allegiance" to the American flag. It was only after I began to grasp the New Testament’s wisdom about "rendering to Caesar and to God what belongs to each"- that I began to understand where those lines lay for me, and I began to feel that by pledging my allegiance as a citizen I was not pledging my soul. So Mr Newdow I say to you that if California was requiring your daughter to say the Pledge, not only would I have supported your case but would have volunteered for it.
But that is not the situation. And so the second thought I have is this: when did the right of dissent springing from the Free Exercise Clause become the right to censor disguised as an Establishment Clause claim? Justice O’Connor puts it this way: "The Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree. It would betray its own principles if it did; no robust democracy insulates its citizens from views that they might find novel or even inflammatory." Chief Justice Rehnquist likewise refuses to give to Mr Newdow what he calls "a heckler’s veto." Even in the context of schoolchildren and inevitable social and peer pressure, what would we say if a parent sought to stop the Pledge if, as the Chief Justice observed, they had a sincere, even religious, belief, that our nation does not offer "liberty and justice for all"?
This preference for censorship in the public square, whether from the Left or the Right, is truly a puzzle to me. It seems so inconsistent with the notion of diversity of opinion and belief. An example from my days in the Oregon Legislature shows what I mean. We used to begin each session of the House with a prayer; now I must say quickly before Barry Lynn and the separation police show up, that such prayers are specifically assumed in Article 1 ss 5 of the Oregon Constitution, so they cannot very well be unconstitutional as a matter of state law. So we had prayers. All kinds of prayers. Except sometimes we didn’t. There might be a traditional prayer by a rabbi, or by some Protestant or Catholic person of the cloth, or a Muslim cleric; but there might also be a Sufi poem, or a Hindu reading, or a Native American song; or, many times, I remember, thoughtful secular readings, including one I especially remember by James DePriest. The point is the thing was a rich tapestry of the best that is Oregon. A spiritual tapestry.
But of course, according to the censorship idea, because I as a Christian might be religiously offended by the agnostic radicalism of a reading from George Bernard Shaw or some Marxist poet, I would have the right to an injunction to shut the whole thing down. This is simply nonsense as a matter of constitutional law, Establishment Clause or any other clause. It would take a colorful cultural pallette and smear it all into an Orwellian brown.
Moving on, time does not allow me to go very far into Justice Clarence Thomas’ concurring opinion, but I think he raises a fair question. In light of the origins of the Establishment Clause-as a matter of history best understood, he suggests, as a federalism provision--how much sense does it actually make to continue to apply it equally to the states? He notes that the purpose of the Clause was initially to keep the federal government from disestablishing the state churches and he asks how we have come so far that now the thing is being used to keep state and local governments from accomodating the religious beliefs of their citizens in the public square? Now, he notes that he believes the Free Exercise Clause was properly applied to the states, and that all state constitutions have provisions for religious conscience and liberty, so I doubt very much that Justice Thomas wants to usher in an American rack and inquisition. But purely as a matter of intellectual honesty, I challenge you to read and grapple with what he says.
III. My third and last point this afternoon concerns what I call our national bipolar disorder about religion and public life. We are like nothing so much as an unbalanced mind: sometimes we are high and happy that people of all faiths and creeds fill our land, but then, suddenly without warning, we slump and grump and see religious bogeymen around every corner just waiting to poison our Republic, and we paw at the air and howl at the moon.
Now, to be fair, some of this inherent tension was present at the founding and was encoded into the First Amendment: there were at least three schools of thought held by the Framers concerning church and state, not all of them friendly to sectarian religion; and the Establishment Clause and the Free Exercise Clause do seem to hold different, and perhaps not always congruent, concerns.
But even apart from the inherent tensions in our initial church-state experiment, sometime in the last two thirds of the 20th Century there was a sea change: the chattering classes and political establishment-including the Supreme Court-- began to believe that our Republic would be better off if religion remained a private thing, if we kept the public square sanitized from any infection by religious belief whatsoever. This shift was more than helped by the Supreme Court’s caselaw. Here are just a few examples of what I mean:
*The Supreme Court decided, with no analysis or precedent and no historical support, that the Establishment Clause was intended to prevent governmental preference, not just for one sectarian religion as over against another, but for religion as against nonreligion. This was a profound shift, one that confounds our history and produces analytical fits.
*Or, at the same time as the Court was tightening the noose around the neck of public religion, it was getting sloppy in its Free Exercise jurisprudence, even to the point of saying that "secular humanism" could constitute a religion for purposes of conscientious objection from the military. How in the world can we have differing definitions of "religion" within the First Amendment?
* The panic about religion in the public schools became so great that we rewrote history, and an entire generation of schoolchildren grew up learning nothing about an entire chunk of our social history. I once read this in an elementary school textbook, for example: that the Pilgrims were people who travelled a long way for personal reasons. I also heard that Martin Luther King Jr was a man of great conscience-not great faith, mind you. More fruit of the censorship tree.
*Or I frequently hear even serious people argue that for people of religious faith to organize politically, or push legislation, or in any other way bring their faith to the public square, somehow violates this new rule that religion must stay private. As if the Establishment Clause means that somehow people of faith have less of a constitutional right to bring their most deeply held beliefs into the public arena than, say, environmentalists do, or libertarians, or secularists of any stripe.
*Indeed, the same day that the Ninth Circuit, applying the Supreme Court’s Lemon test, gave Mr Newdow his temporary victory, the High Court itself upheld an Ohio educational voucher program-including private and religious schools, the Court reasoning that simply allowing parents a choice is not an establishment of religion. So federal dollars may not discriminate based on the religious content of the schools they pay for, but they may be used to gag public schoolchildren from reciting the Pledge because it contains the word "God." Go figure.
Let me spring off this unbalance in our collective consciousness for my conclusion. The questions surrounding church and state are important ones, with a storied history going back to the pens of Madison and Jefferson, Benjamin Rush and George Washington, and others on this continent before them. By noting our national bipolar condition, I do not say that there is not value in the tension and the dialogue, the high and the low. . Quite to the contrary: for example, I think the ideas and issues wrapped up in Pres Bush’s faith based initiative are profound, and high stakes: is it good for society? For the Republic? For the Churches?
These are all good questions, ones that deserve our time and energy and attention. There are others just as alive-school vouchers, or medical ethics and end of life decisions, or any host of others. But, frankly, when I consider the moment of those questions, and then I turn and consider the Pledge controversy-as important as it is for the parties and as emotional as it maybe for millions of Americans-I cannot help but shake my head at all the hoopla. I am reminded of the old adage: "don’t make a federal case out of it."
I for one think the Pledge is constitutional.
