Federal Appeals Court In San Francisco Upholds Constitutionality Of The Use Of "Under God" In The Pledge And "In God We Trust" On Money

The AP reports that a "federal appeals court in San Francisco upheld the use of the words 'under God' in the Pledge of Allegiance and 'In God We Trust' on U.S. currency, rejecting arguments on Thursday that the phrases violate the" Establishment Clause. The AP writes that the "9th U.S. Circuit Court of Appeals panel rejected two legal challenges by Sacramento atheist Michael Newdow, who claimed the references to God disrespect his religious beliefs... The same court ruled in Newdow's favor in 2002 after he sued his daughter's school district for having students recite the pledge at school. That lawsuit reached the U.S. Supreme Court in 2004, but the high court ruled that Newdow lacked the legal standing to file the suit because he didn't have custody of his daughter, on whose behalf he brought the case. So Newdow, who is a doctor and lawyer, filed an identical challenge on behalf of other parents who objected to the recitation of the pledge at school. In 2005, a federal judge in Sacramento decided in Newdow's favor, ruling that the pledge was unconstitutional... In a separate 3-0 ruling Thursday, the appeals court upheld the inscription of the national motto 'In God We Trust' on coins and currency, saying that the phrase is ceremonial and patriotic, not religious."

"The Pledge is constitutional," Judge Carlos Bea wrote for the majority in the 2-1 ruling. "The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded."

I applaud the Court's decision and its return from the edge of madness to sanity in declaring that "under God" in the Pledge of Allegiance and "In God We Trust" on U.S. currency is constitutional. But the reasoning as provided by the Associated Press that "the phrase is ceremonial and patriotic, not religious" is nothing short of ridiculous. It is the sort of reasoning that forces courts, regardless of reality, to declare what they wish to uphold non-religious and what they wish to strike down religious. I only wish courts would return to jurisprudence that reflects the original meaning of the First Amendment's Establishment Clause. Justice William Rehnquist explained in his very important 1985 dissent in Wallace v. Jaffree that "it seems indisputable from... [James] Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion." Madison is the "Father of the Bill of Rights" because he is largely responsible for the first ten amendments to the Constitution. The Annals of Congress, formally known as The Debates and Proceedings in the Congress of the United States, spans from 1789 to 1824 as it covers the 1st Congress through the first session of the 18th Congress. The Annals quote James Madison as having apprehended the words of the First Amendment to mean simply that "that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Harvard Law Professor Laurence Tribe states that "[a] growing body of evidence suggests that the Framers principally intended the Establishment of Religion Clause to perform two functions: to protect state religious establishments from national displacement, and to prevent the national government from aiding some, but not all, religions." Using Madison's simple test from the Annals, Establishment Clause jurisprudence should be very simple, and "Under God" and "In God We Trust" would clearly be constitutional. As Rehnquist succintly put it in his dissenting opinion, "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history."

Justice Clarence Thomas correctly said in his 2005 concurrence in Van Orden v. Perry, one of the Ten Commandment monument cases, that "[m]uch, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application."

Further, Justice Antonin Scalia wittingly noted in his 1992 concurrence in Lamb's Chapel v. Center Moriches Union Free School District: "What a strange notion, that a Constitution which itself gives 'religion in general' preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general." He further wrote in his Lee v. Weisman dissent that "[o]ur religion clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long accepted constitutional traditions."

As a Supreme Court majority itself in the 1952 case of Zorach v. Clauson declared, "We are a religious people whose institutions presuppose a Supreme Being." Tweet