PATITION
FOR REDRESS OF GREVENCES
(A
Draft in Progress)
The
Issue of “under God” and the Pledge of Allegiance
Background
The events of the
recent Pledge of Allegiance controversy are now history, but the issues are far
from ultimately settled. To recap, the
Ninth Circuit Court of Appeals ruled that the current form of the Pledge is an
unconstitutional endorsement of religion.
The court stayed the ruling for several months pending a Justice
Department appeal under President George Bush.
The appeal failed scrutiny and the ruling went into effect in all states
under the Ninth Circuit Court’s jurisdiction.
It was a momentary victory for religious neutrality in government and
thus for civil justice, but only precursor to the Supreme Court taking up the
issue. Theocracy minded social
conservatives rapidly marshaled their forces in anticipation of that event (article). The
level of judicial review was higher, but the underlying issues were essentially
the same as the previous round of litigation.
As it turned out,
the Supreme Court nullified the Ninth Circuit Court decision by ruling that
Mike Newdow, the case’s originator, lacked sufficient standing to bring the
suit. In other words, the Supreme Court
used the standing issue to dispose of the case without formally ruling on the
constitutionality of the pledge itself. Aside from standing, Newdow’s case
against the pledge was exceptionally sound. Sometime in the future, the issue
will show up in court again, but with standing not in jeopardy. Although not formally reviewed by the Supreme
Court, the Justice Department’s argument against the Ninth Circuit Court ruling
was much the same as their original. The
details of the case as presented to the Ninth Circuit Court remain informative
about the legal and ideological strategies used to defend the existing
pledge. For the same reasons, Judge
Fernandez’s dissenting opinion in the text of the Ninth Circuit Court ruling
also remains instructive.
Of course, my
opinion has no formal currency. Still
from the viewpoint of a common citizen who has read the Constitution, it seems
clear that the defenders of the pledge offer little more than political spin
and twist versus anything constitutionally valid. The insidious strain of obfuscation that ran
through both the dissenting opinion of Judge Fernandez and the Justice
Department’s appeal was amazing. Both
the political and so-called “legal” arguments used to prop up the “under God”
pledge, are flawed.
To begin, the underlying
issue of proving “personal injury” in a legally admissible sense is a bit
aggravating from the standpoint of my own life experience. I was born in 1944
and subsequently schooled under Francis Bellamy’s religiously neutral pledge
and the motto E Pluribus Unum. Then the
period 1954 through 1957 came along and saw both trampled under in the service
of “religious heritage” and pretenses to “ceremonial deism”. To the best of my memory, I recited the new
pledge along with everyone else. Just
the same, I always felt alienated by it, even though I did not then fully grasp
why. Now, nearly fifty years later,
it’s difficult to attend any public function that includes recitation of the
current Pledge without experiencing considerable discomfort. It offends me not just on Constitutional
grounds, but also on historical and existential grounds. I abhor having to stand by and suck it up in
silence in the face of a government-sanctioned supplication under a
monotheistic overlord. I consider the
present pledge slander against the Constitution and the better judgment of
history. These days I think very strongly that I would break the peace (the
silence) against it in any situation where I faced its imposition. I suppose
this narrative is my way of formally breaking that silence. It is in my view a tangible condition of marginalization
over a core ceremonial expression of citizenship. Is it not also then a mark of personal
injury? It’s a decisive question as
some of the core legal requirements for bringing suit against the pledge turn
on the problem of establishing personal injury in legal fact. Some may say that I inflect injury on myself
because I have the same “choice” as everyone else. That is, knuckle under and take the Pledge,
be silent, or leave the premises. As
convenient as that argument may be to the social conservative status quo, it’s
still profoundly wrong, as this narrative will show as it progresses.
Newdow
is not the only one carrying a legacy of suffering over the wording of the
pledge. This point requires
emphasis. The pro-pledge agenda, both
legal and political, was to paint the case as “just one man’s” self servant
dissent. This insidious rhetorical spin
was evident even in the text of the Supreme Court’s majority opinion against
Newdow’s standing (Justice Stevens writing).
This was in spite of the substantial number of private citizens,
religious organizations, and civil liberty groups who submitted legal briefs or
otherwise stood up in support of Newdow’s cause (briefs). In spite of fifty years of indoctrination to
the contrary, more than just a few citizens do realize the “under God” pledge
is an unconstitutional endorsement of religion.
Recent polls show that the number willing to come out and say as much exceed
more than 10 percent of the population.
That is not exactly inconsequential where the rule of law is concerned.
Our views about religion and other matters are very diverse. We nevertheless share the common goal of
having the current pledge stricken from government statute. The cause is just
and our numbers grow.
For the last half-century we have been
denied the voice in Washington and the national media that our views clearly
deserve. Like me, most people have
little desire for notoriety and alone lack the requisite courage and facility
to effectively stand up to it. Still,
the issues are real, personal, and profound regarding the ideological state of
the Nation and the solvency of the Constitution. Consequently, an element of duty intervenes that
is difficult if not impossible to deny.
There is little recourse but to seek the ground of
class action, hoping that others will step forward and unite in a focused and
sustained movement to have our constitutionally guaranteed protections against
government imposed religious test enforced.
Anyway, these are the first notable
things I have to say, although not necessarily the most significant. The rest of this narrative amounts to a
detailed analysis of the arguments formally and informally employed to defend
the current pledge. Interwoven with this
is a justification for challenging the legitimacy of its “under God”
phraseology. I am not a lawyer. Still, I can lay claim to some reasoning
ability and the issues involved are the turf of every citizen. Forewarned is forearmed, the following is a
tedious traverse of familiar ground, but no other way really exists to bring
the important issues to the surface. The
Justice Department appeal is a significant example of the legal and political
forces at work against the solvency of both the Sixth Article and the First
Amendment and our sacred civil liberties under them. This present document is somewhat wordy but
not without purpose as the focus sharpens to a diamond-hard point at the
bottom. In the hope of capturing and
keeping your attention, either pro or con, I will tell you now in part what I
will tell you in the end.
On the very top the overarching issues in the
“under God” pledge controversy, are (1) existential, (2) historical, and (3)
one of the limits of Judicial and congressional authority. First, there is the primary issue of whether
there is a single all-powerful Supreme Being in the first place. Clearly not all citizens in this nation
agree. However, regarding evidence and
authority, not even the Supreme Court has the right to decide one way or the
other. Second, even if it were provable
that such a being exists, which it is not, there would still be the further
issue of whether the deity “God”, versus some other deity, is in fact that
being. Clearly not all citizens agree on
the issue and equally as clearly, not even the Supreme Court has the right to
decide one way or the other. Therefore,
they have no legitimate authority to sanction a transcendent status for one
deity or religious ideology over any other.
The more detailed crucible is the
monotheistic proposition that our nation “was founded on a fundamental belief
in God” and the historical evidence for or against that proposition. Undoubtedly, belief in a deity called “God”
was part of the “religious heritage” imported from the old world and thus
embraced by some of the people during the founding days of the nation. Still, no matter how much the “facts” of
“religious heritage” are bandied around, the historical evidence does not
confirm that all of the founders either believed in “God” the biblical deity or
even in the monotheistic notion of a singular supreme being. As per specific instance, careful examination
of the Declaration of Independence shows no mention of the biblical deity, or a
singular deity or of the new Nation’s dependence on a belief in one. In contradiction, the one inclusive belief
residing at the heart of the Declaration of Independence is a fundamental
belief in basic human rights such as are embodied in the ideals of liberty and
equality. However, the single most
decisive historical evidence is the Constitution itself. Nowhere within is there any reference to a
deity called “God”. On this basis alone,
the notion that our Nation was “founded on a fundamental belief in “God” is
clearly and unequivocally invalid.
PART TWO
Overview