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Author's Note: This article was written a few years ago when the Pledge of Allegiance case was headed to the Supreme Court, where a lower-court decision was overturned on procedural grounds of standing to sue rather than on constitutional state-religion arguments. No American newspaper would publish it, although many had published arguments against the initial decision. With the plaintiff reportedly retooling his case, the argument will be before us again, where the Supreme Court judges will have to rule one way or other. So this article will revisit the issues.===============================================
ADMINSTRATION & PRESS GET IT WRONG ON 'GOD'
AMERICANS GENERALLY have high and almost-reverence esteem for our Founding Fathers and the miracle they produced to start this nation on its path of democratic freedoms. But that is not always evident in many areas of public discourse, including the nation's news media and its governments.
Distasteful to those of us who spent many years as intelligence operatives for the United States to defend the nation's freedoms is the misinformation about those freedoms doled from many sources. A recent ruling from the 9th Circuit Court of Appeals striking down the words "under God" in the Pledge of Allegiance caused such misinformation and much contention among Americans and will undoubtedly cause much more now that the US Supreme Court has scheduled it for review, which the Justice Department requested with an April 30, 2003, petition to the court.
The government's petition was based on misreading the Constitution and court rulings.
"Whatever else the establishment clause (of the First Amendment) may prohibit, this court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation and character of this nation," said the Justice Department brief.
"That is what the Pledge of Allegiance does. The pledge is therefore constitutional," the petition added.
In reporting the government's petition, the Associated Press misread the Constitution with its statement that, "The Constitution says the government may not establish religion." The Denver Post claimed the decision was "misguided" and The Arizona Republic of Phoenix asked for divine help preserving government involvement in religion.
The government is wrong, because that is not what the Pledge does. The AP is wrong because that is not what the Constitution says. The two newspapers don't know what they are writing about.
Another common error is saying that the practice of adding "under God" to the Pledge began in 1954. The words "under God" crept into the Pledge during the nation's involvement in World War II. But they were inserted informally and voluntarily.
The constitutional problem the appeals court saw occurred when Congress passed, and President Dwight Eisenhower signed, the law re-adding the words in 1954.
Many people are able to find mentions of "our Lord" in the dating of the Constitution and of "Nature's God" and "Creator" in the Declaration of Independence and that the Supreme Court opens its sessions by invoking God's blessing to support their belief that there's nothing wrong with mixing politics and religion. The Phoenix newspaper prided itself on those "discoveries." The question to those observations has to be, "So what?"
While most people seem able to find those religious references, they, and the newspapers, apparently couldn't find the mention that, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof" in the First Amendment. The word "establishment" may be the most misunderstood word in the Constitution. That word is not the verb "establish," as the AP used it; it is a noun meaning "something established." Or perhaps the word "of" is misunderstood. In the phrase "the city of Washington" it means "which is" or in the phrase "that dog of mine" it denotes possession.
That means "an establishment of religion" is anything established by, or belonging to, religion; including religion itself.
Church was established by religion so it is "an establishment of religion" just as is a synagogue or a mosque. Prayer, baptism, Heaven were all established by religion so they are "establishments of religion." The Bible, Koran and Talmud are all "establishments of religion" as are Christmas, Ramadan, Hanukkah and Easter.
The concept of a spiritual being, whether called God, Yahweh, Allah or Jehovah was established by religion ~ it was not established by science, by literature, by entertainment, by journalism, by government or by any other institution ~ so it is "an establishment of religion" which the Constitution specifically and clearly says may not be subject to law, neither for nor against.
The problem with the words "under God" in the Pledge of Allegiance is that they were put there by law. That creates five constitutional issues that most conservative and right-leaning individuals and institutions ~ including newspapers ~ can't seem to grasp.
1) The law concerns "an establishment of religion" which the First Amendment prohibits.
2) The law directing Americans to utter a religious expression, what words to use ("under God") where to say it (after "one nation") and when to say it (while expressing loyalty to the nation) infringes on "free exercise" of religion, which the First Amendment prohibits.
3) A law telling Americans to utter any words is regulation of speech, clearly prohibited by the First Amendment.
4) Article I, Section 8, paragraph 18, states that all laws are to be "necessary and proper." There is no evidence that the 1954 law is necessary.
5) The same paragraph states that laws are to be based on powers vested by the Constitution in the "Government of the United States, or in any Department or Officer thereof." No such power for this law can be detected, neither enumerated or implied.
It matters little that the law is benign and involves only two words. The Constitution doesn't recognize a difference between a major law and a minor law, nor does it recognize a law proscribing dire punishments or no punishment; it clearly says "no law."
And it doesn't matter that the court invokes God's blessing; that practice doesn't involve law. It doesn't matter that "our Lord" is mentioned in the dating of the Constitution; that doesn't override the "no law" provision. And it doesn't matter what the Declaration of Independence says because it is not law. Article VI, paragraph 2, firmly establishes the Constitution, federal laws and US treaties as "the supreme Law of the Land."
What doesn't seem to be widely understood is that the appellate court's ruling wasn't to get God out of America, as many persons often claim, it is to get government out of religion, leaving a pure freedom of religion. And Americans can say the Pledge of Allegiance as they wish; they shouldn't have Congress telling them by law what words to add to the Pledge.
It's sad that an administration that questions the patriotism and loyalty of any American who criticizes President Bush, or who opposed his war against Iraq, now offers an anti-Constitution position in a petition to the nation's highest court.
