Posted 20:17 by Grote 0 comments

Dr. Ludd would be proud (or at least I hope he would)

On monday, the court threw out the Pledge of Allegiance case, due to the fact that the "father" (my quotes) in question had no legal custody of his daughter and therefore had no right to challenge the law. For now it's a dead issue. However it will, no doubt, be challeneged again and I personally would like to share my opinions on it. That, and I've been meaning to do it. Armed with a google search and my trusty Constitutional Law book (mine is the eighth edition) from my Senior year, I'll provide reasons/case law for "under God" to be upheld and struck down. Warning: I can get wordy, but I guess you'll have to cope or just skip the entire article. Also I'm not passing judgement only presenting the facts for my readers to debate and decide for themselves.

Argument for striking it down:
The most obvious reason to strike down "under God" is contained in the first amendment, applied to the States by the fourteenth amendment, where "Congress should make no law respecting an establishment of religion." The phrase "under God" establishes at least mono-deistic religion, that some agnostics or athestists might not have. In Lemon v. Kurtzman (1971) the (Supreme) Court established the "Lemon" tests. These three tests have been used to determine whether a law violates the establishment clause. First, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not foster an entanglement with religion. As the Court ruled in Wallace v. Jaffree (1985), "For even though a statute that is motivated, in part by a religious purpose, may satisfy the first criterion." The fact that the pledge was written without "under God" and then an act of Congress added those words in 1954, because of the fear of "godless communists" upon the urging of religious leaders. It should be noted, that the pledge was written in 1892 by a socialist, but I digress. Finally, in Engel v. Vitale (1962), Justice Black wrote "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." So, despite the best intentions of the government in 1954, the adding of the words "under God" should be struck out of the Pledge of Allegiance.

Argument for upholding the pledge:
While the First Amendment, does prohibit the establishment of religion, it also says that "Congress shall make no law prohibiting the free excercise thereof." Which means, if students, et al, were not required to say the pledge each day, and/or the phrase in question was optional, then it would be constitutional. In California, the state in which the complaintent resides, the law states that students may opt not to say the pledge. Secondly, in Everson v. Board of Education (1947), the Court ruled that "The establishment of religion clause of the First Amendment means that neither a state nor the Federal Government can set up a church." Also, regarding Wallace in an concurring opinion O'Connor wrote that the standards set in Lemon need to be reexamined and refined in order to make them more useful in achieving the underlying purpose of the First Amendment. The standards set there are extremely subjective. She also wrote that "the Court is reluctant to attribute Constitutional motives to public entities when a plausable secular purpose may be discerned from the enactment." In fact, the Court stated in Zorach v. Clauson (1952) that "some relationship between government and religious organizations are inevitable." For example, the Supreme Court, opens each session with "God save this honorable court". Not to mention Congress opens with a daily prayer, and every single presdient as willingly added "so help me God" to the end of the oath of office. The Court ruled on it in 1983, with Marsh v. Chambers, saying that "It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable." Also, in American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board (2002) the court of appeals ruled that as long as there was no direct reference to a scripture or specific religion, that the motto "With God, all things are possible" was constitutional. Since the Lemon test is at the very least ambigous in this situation and the pledge does not cite a specific religion or scripture, and the pledge does not establish a specific religion as it is being recited. The court must affirm the current law.


I've worked on this for the better part of three days. I hope, in the end that this makes sense and you've formed an opinion on it. Although, it's not surprising that the Court jumped at the chance not to rule on the issue. The Supreme Court, as a rule, does not like to make laws. Which is what it would do in this case. Overturning a SCOTUS decision, is nigh impossible but it has been done. To rule two words in the pledge of allegiance were unconstitutional would only serve to open a new can of worms about our money, a good number of state Mottos, and the way Congress opens each session; and that's just to name three.
For those who don't know, Dr. Ludd was my Constitutional Law teacher in college. All four exams I took in his classes were just as controversial as this issue.