Until
Wednesday the phrase "America Under Attack" would most certainly
have been used to describe the war on terror. Now it can be used to
describe the actions of the 9th Circuit Court of Appeals in
California.
There, two old men from San Francisco - both in their 70s -
decided that nine Western states can no longer recite the Pledge of
Allegiance in schools because the words "under God" in the pledge
violate the Constitution's clause barring establishment of
religion.
This ruling (
Newdow v. U.S. Congress) will not stand. It is in
direct opposition to written documents of America's founding, and
provides further evidence of unelected judges trying to take over
the country by usurping policymaking authority. (It is also in
conflict with the 7th Circuit in Chicago).
The fundamental question is what the First Amendment's
Establishment Clause means, and it shows how far we've come from
the Founding.
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof..." is clearly
written to guard against the establishment of a state-sponsored
religion. The Founders didn't want America to be a Protestant
state.
Remember the Pilgrims came from church repression.
But the court has moved from conventional understanding of the
antiestablishment clause to reading it as an anti-religion
clause.
Essentially the court has developed this idea of a coercive
environment: Little Suzy is gravely affected when others around her
say the pledge, including the phrase, "one nation...under God."
However the law doesn't normally condition ones behavior on how
it will affect others around them. Instead, we are told to avert
our eyes and turn our heads away from something we find
objectionable.
In Cohen v. California, the Court found that the words
"F--k the Draft" on the back of a war protester's jacket, worn in a
public place, were constitutionally protected speech. The rights of
unwilling viewers by do not outweigh the speakers. Furthermore, the
Court explained that a viewer, after becoming aware that the
message was offensive, could avert their eyes and avoid further
contact with the "speech."
While some would view this as a great moment for teaching
tolerance and diversity, we are instead relegated to bad sociology.
Religion should be a more highly protected value, not a lower
protected value. At the very least it deserves equal
protection.
Equally disheartening is the partial dissension in the
Newdow case, where the judge wrote that the use of "one
Nation under God" is ok, because its use has "drained [it] of
meaning."
But it does have meaning. In
The Declaration of Independence the Founders write:
When in the Course of human events, it becomes necessary for one
people to dissolve the political bands which have connected them
with another, and to assume among the Powers of the earth, the
separate and equal station to which the Laws of Nature and of
Nature's God entitle them, a decent respect to the opinions of
mankind requires that they should declare the causes which impel
them to the separation.
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty, and
the pursuit of Happiness.
....
We, therefore, the Representatives of the United States of America,
in General Congress, assembled, appealing to the Supreme Judge
of the world for the rectitude of our intentions, do, in the
name, and by authority of the good People of these Colonies,
solemnly publish and declare, That these United Colonies are, and
of Right ought to be Free and Independent States;
....
And for the support of this Declaration, with a firm reliance on
the Protection of Divine Providence, we mutually pledge to each
other our Lives, our Fortunes and our sacred Honor.