15 Sep 2005 Group Says Judge Who Ruled Pledge of Allegiance Unconstitutional Ignored Established Guidance from the Supreme Court on Ceremonial References to God

Members of the black leadership network Project 21 condemn Wednesday’s ruling by a federal judge holding that the recitation of the Pledge of Allegiance, with its reference to God, in a public school is unconstitutional.

Project 21 members say the decision in the case of Newdow v. Congress of the U.S., handed down during the Senate confirmation hearings for Judge John Roberts, serves as a timely reminder of the importance of jurists who adhere to a strict originalist interpretation of the Constitution.

“This is yet another in a series of attacks on the religious traditions on which our nation was founded,” said Project 21 member Kevin Martin.  “For far too long, the liberals have used our courts as a way to create rules they cannot achieve popularly through an elected, representative legislature.  If anything is unconstitutional, it is this vicious display of judicial activism.”

The ruling, made by U.S. District Court Judge Lawrence Karlton, appointed by President Carter in 1979, stated that the Pledge’s reference to “one nation under God” is a violation of public school children’s right to be “free from a coercive requirement to affirm God.”  As a result, a restraining order against mandating the recitation of the Pledge of Allegiance is being issued to the three California school districts in which the lawsuit’s plaintiffs reside.

Judge Karlton cited judicial precedent, saying the “Ninth Circuit has held that the school policy mandating the pledge is unconstitutional.”  The U.S. Supreme Court dismissed the Ninth Circuit’s ruling last year for reasons unrelated to the core constitutional issues, although all of the justices who expressed a position on the core issue (3), held the reference to be constitutional.

Then-Chief Justice William Rehnquist, for example, wrote: “On the merits, I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words ‘under God,’ does not violate the Establishment Clause of the First Amendment … The phrase ‘under God’ in the pledge seems, as a historical matter, to sum up the attitude of the nation’s leaders, and to manifest itself in many of our public observances.  Examples of patriotic invocations of God and official acknowledgments of religion’s role in our nation’s history abound.”

In 1992, the Seventh Circuit addressed essentially the same question addressed by the Ninth Circuit and by Judge Karlton in the Newdow cases, but reached a different conclusion, ruling that ceremonial invocations of God do not constitute an establishment of religion.  In that case, Sherman v. Community Consolidated School District 21 of Wheeling Township, the Seventh Circuit cited decisions of the U.S. Supreme Court, including opinions by Justice William Brennan, widely regarded as a liberal, in upholding the Constitutionality of the Pledge.

In a concurring opinion in 1963’s Abington School District v. Schempp, which outlawed Bible reading as part of a public education curriculum, Brennan had written, “[W]e have simply interwoven the motto [In God We Trust] so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits.  This general principle might also serve to insulate the various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been their origins, no longer have a religious purpose or meaning.  The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded “under God.”  Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.”

In 1984’s Lynch v. Donnelly, Brennan wrote: “…We have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture.  While I remain uncertain about these questions, I would suggest that such practices as the designation of “In God We Trust” as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as a form a “ceremonial deism,” protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.  Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases.  The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning.”

“It is nearly impossible to think of a better example, at a more appropriate time, that proves to the public at large why America needs originalists on our courts,” said Project 21 member Mychal Massie of Judge Karlton’s ruling.  “Liberal senators are trying to portray conservative beliefs and values as out of the mainstream, but this decision provides unambiguous proof as to which side of the aisle is seeking to deprive Americans of their traditions.”

For more information, contact David Almasiat (202) 507-6398 x11or [email protected], or visit Project 21’s website at http://www.project21.org/P21Index.html. New Visions Commentaries can be found at https://nationalcenter.org/P21NewVisions.html.