On March 11, 2010, the Ninth Circuit Court of Appeals filed opinions in two separate cases that considered whether government-sponsored references to God violated the Establishment Clause of the United States Constitution. One was a challenge to the use of the phrase “In God We Trust” on United States currency. The other was a challenge to the inclusion of the phrase “under God” in the Pledge of Allegiance. In both cases, the court found that the references to God did not violate the Establishment Clause.
These rulings are interesting in a couple of different respects. First, the Ninth Circuit, headquartered in San Francisco, California, is considered to be one of the more “liberal” federal circuit courts. If the Ninth Circuit did not find the language in the Pledge to violate the Establishment Clause, it seems unlikely that any of the other circuits would. Second, the Ninth Circuit itself had previously ruled that the phrase “under God” in the Pledge did violate the Establishment Clause. In this article, we will examine these cases and their implication for our religious freedoms.
In 2002, many were stunned when an atheist named Michael Newdow succeeded in obtaining a ruling from the Ninth Circuit Court of Appeals that found that the phrase “under God” in the Pledge of Allegiance was unconstitutional as a violation of the Establishment Clause of the United States Constitution.¹ The Establishment Clause is a clause in the First Amendment to the United States Constitution that provides that Congress may not pass a law establishing one religion as the favored religion of the government. He had argued that a belief in God was forced upon his daughter when she and other children were led in reciting the Pledge of Allegiance at the beginning of the school day. The case was appealed to the United States Supreme Court, which reversed the decision of the Ninth Circuit. The Supreme Court’s ruling denied Dr. Newdow his requested injunction against the schools’ use of the Pledge, but not by saying that the reference to God in the Pledge was constitutional. Instead, the Court found that Dr. Newdow did not have standing to bring the challenge. A lack of standing means that a litigant is not directly involved in or impacted by the subject matter of the lawsuit, and therefore has no right to bring a challenge. If a party does not have standing, the court will not reach the merits of the case. In this case, the Court found Newdow did not have standing because he was not the custodial parent of his child.
Undaunted, Dr. Newdow found new plaintiffs to bring the action, and again challenged the constitutionality of the Pledge. He also brought a new action challenging the constitutionality of the national motto “In God We Trust” on the currency. The district court dismissed Newdow’s suit concerning the national motto, and he appealed to the Ninth Circuit.² The district court in Newdow’s new Pledge case, on the other hand, relied on the Ninth Circuit’s original decision in the first Newdow case, and ruled in his favor. This ruling was also again appealed to the Ninth Circuit.³ We will consider the Ninth Circuit decision in the Pledge case first.
While the Ninth Circuit acknowledged that it had considered the same issue before and come to a different conclusion, it did not distinguish the prior case or otherwise explain why it now reached a different conclusion.4 In considering whether the Pledge violated the Establishment Clause, the majority first discussed Congress’ own explanation for why the phrase “one nation under God” was added to the pledge. Two basic reasons were cited:
1) to underscore the political philosophy of the Founding Fathers that God granted certain inalienable rights to the people, which the government cannot take away; and
2) to add the note of importance which a Pledge to our Nation ought to have and which ceremonial references to God invoke.
The court also quoted from the Declaration of Independence, and noted that the Founding Fathers had stated that men “are endowed by their Creator with certain inalienable rights.” The court reasoned that the Founders themselves obviously did not see this statement as an endorsement of religion, but an acknowledgment of the “inalienable rights.” The court also noted Supreme Court precedent, which indicated that questioned government activity must be reviewed in context, without focusing solely on whether religious terms or symbols are used.
Newdow’s challenge was not simply to the language of the Pledge, but to a school district policy providing for the voluntary recitation of the pledge in compliance with a California state statute requiring patriotic activities to be conducted in the classroom. The court noted that the purpose of the recitation of the Pledge was to promote patriotism, and that the reference to God was incidental to that purpose, to impress the importance of the Pledge to those reciting it.
The court then applied the Lemon test, which provides that for a challenged activity to be constitutional it must 1) have a secular purpose, 2) have a principal or primary effect that neither advances nor inhibits religion, and 3) must not foster an excessive government entanglement with religion.¹ The court found that, focusing on the use of the questioned language, rather than the questioned words themselves, the language in the Pledge passed theLemon test.
One judge of the three-judge panel disagreed, and filed a dissenting opinion. The dissent focused on the fact that the words “under God” were not in the original Pledge, and had been added in 1954. The dissent argued that while the Pledge as a whole might be fine, Congress’ act of adding “under God” did not pass theLemon test, and should be invalidated on those grounds. The dissent also argued that the inclusion of these words was tantamount to an endorsement of monotheistic religion, and violated the Endorsement Test, which basically says that government action cannot have the effect of endorsing one religion over another.
In the case challenging the inclusion of the national motto “In God We Trust” on our national currency, Dr. Newdow argued that this motto violated the Establishment Clause. He argued that the motto “unconstitutionally places the government’s imprimatur on a belief in a monotheistic God.” Although the Ninth Circuit had ruled already back in 1970 that the national motto does not constitute an establishment of religion, Newdow argued that subsequent Supreme Court decisions and the Religious Freedom Restoration Act of 1993 (RFRA) required a different outcome.
The majority ruled that the same reasoning from 1970 held true today, quoting:
It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a government sponsorship of a religious exercise.
With regard to the RFRA claim, the majority noted that Newdow admitted that his claim was dependent on his contention that the motto represents a religious dogma and constitutes government sponsorship of religion. Since the court maintained the motto was merely of patriotic or ceremonial character, this claim also failed. Judge Reinhardt filed a concurring opinion, noting that since the decision in the Pledge case, Newdow v. Rio Linda USD, was now binding precedent, he had to concur in the outcome.
At first blush, it would seem that these decisions are somewhat of a victory for believers. For years, an ever rising tide of jurisprudence seems to have been slowly erasing any reference to God from our public discourse. For example, the story of creation can no longer be taught in public schools. Instead, it is replaced with the teaching of the theory of evolution, which directly contradicts the biblical account. Any decision that even allows for an acknowledgment of the existence of God seems like an improvement.
However, the reasoning under which the references to God were allowed to stand are troublesome. With regard to the Pledge, the reasoning was basically that the phrase “under God” was allowed to stand because it promotes patriotism, ceremoniously impresses the importance of the Pledge, and brings to mind the Founders’ belief in the rights of man. It is true that God in His wisdom established this country as a place where His people could enjoy magnificent religious freedom, free from government intervention in the affairs of the church, and with tremendous freedom to assemble to worship Him. But the words “under God” in the Pledge should remind us that this nation was formed in subjection to a sovereign God, and that we owe our allegiance first of all to Him. Similarly, the words “In God We Trust” should remind us of exactly that. Especially on our national currency, the phrase should remind us that we place our trust in God to provide our needs, and not in any amount of money that we or anyone else may accumulate.
The difficulty with the court’s ruling is that it allowed the references to God to stand by saying that they were meaningless, only of “ceremonial or patriotic character.” The reference to God in the Pledge, in the view of the court, seems to be merely for emphasis, almost like the situation when individuals take God’s name in vain to emphasize a point.
If our references to our heavenly Father in public discourse are allowed only if the focus is on the “rights” of man while invoking God’s name for emphasis, we would do better not to make such references at all. On the positive side, in an age when churches apostatize and become increasingly focused on man rather than God, we can be thankful that the law still takes great efforts to ensure that no one religion is given priority over others.
While we may not be able to use public office or institutions to voice our faith, we are still allowed to do so in the private sector. At the same time, those who disagree with us on religious grounds are similarly not allowed to use public office or institutions to limit the private expressions of our faith. The government is a very poor medium through which to spread the gospel anyway, so we can be thankful that we are freely allowed to do so privately, for as long as the Lord guides the rulers of our country to maintain this “right.”
As has been pointed out previously in articles under this rubric, the trend instead seems to be to use indirect attacks to limit our ability to proclaim the truth of Scripture. In the September 15, 2009 article, we pointed out measures such as the “anti-bullying” laws, which keep schools from saying things against “sexual orientation” that might harm a student’s education. The First Amendment protections for the Free Exercise and against the Establishment of Religion are still the best line of legal defense against encroachment by such legislation on our freedom to state scriptural truths. From this perspective, it is good that the courts do not allow substantive use of religious or anti-religious tenets in the public realm.
¹ Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002).
² Newdow v. Lefevre, 9th Cir., March 11, 2010.
³ Newdow v. Rio Linda USD, 9th Cir., March 11, 2010.
4 It should be noted that decisions of the federal courts of appeals are typically made by three judge panels which change from case to case, and Judge Reinhardt, who filed a lengthy dissenting opinion, was the only judge who sat on the original panel.
5 Lemon v. Kurtzman, 403 U.S. 602 (1971)