A federal district court in San Francisco has held that the inclusion of "under God" in the Pledge of Allegiance is a violation of the Constitution's Establishment Clause. This is news, because some might have thought that after Michael Newdow's case at the United States Supreme Court in 2004 fizzled out on standing issues, the issue might go away. In fact, Newdow re-filed in federal court and was the lead plaintiff in the new case, Newdow v. Congress of the U.S.A. Similar lawsuits are underway in other courts around the country, so this is a First-Amendment issue that is here to stay.

Newdow, an avowed atheist, filed on behalf of himself, his daughter, and two other atheist families. Their objection can be stated very succinctly: They feel like they are outsiders in the community, because the children's days start with the Pledge of Allegiance with "under God" and because school board meetings began with it as well.

The court addressed whether Newdow had "standing" (in other words, whether he could bring the lawsuit himself) and found that he did not, in effect, cutting him out of the case. But the other two families were found to have standing and therefore the court was forced to address the constitutional issue.

In Newdow's previous case, the Ninth Circuit had held that the Pledge was unconstitutional in the classroom, and the new decision treats that decision as binding. There will be much esoteric legal debate on the question whether the prior decision should control, but that is for another web blog. The bottom line is that the decision holds the Pledge, as recited by the children, unconstitutional.

Suffice it to say that Judge Karlton does not appear to be a fan of the prior decision; he is certainly not an admirer of the Supreme Court's Establishment Clause jurisprudence in the recent Ten Commandments cases, which he gratuitously attacks in a footnote as "standardless" and depending on the "shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyards without guidance."

Judge Karlton also addressed the parents' claims that the recitation of the Pledge at the beginning of school board meetings violated the separation of church and state. He had very little patience for this line of argument, and ruled essentially that only children get the benefit of a concern for "outsider" status. Since they were adults, the government's use of "under God" did not, and apparently should not, affect them one way or the other.

Setting aside Judge Karlton's grandstanding in the midst of an opinion that he knew would be reviewed closely and widely, it is worthwhile to take a moment to step back and take in what is happening with this and the other Pledge cases. When the Ninth Circuit first ruled that the Pledge was unconstitutional, people from across the country, including our elected representatives in Congress, reacted reflexively. How could anyone alter the Pledge of Allegiance, they wanted to know, when it was such a tradition? Moreover, how could anyone disagree that this was a Christian country, or at least a monotheistic, country? On this reasoning, "under God" is simply descriptive.

Why arguments against the Pledge have bite
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  • Why I'm Against the Pledge
  • Beliefnet's Pledge of Allegiance coverage
  • This was certainly Justice Scalia's and the late Chief Justice Rehnquist's tack in a public statement soon after the Ninth Circuit's decision (a statement that later led to Scalia's having to recuse himself in Newdow I).

    There was a collective sense, captured by pollsters, that Newdow was an annoying fly who was ruining an otherwise very good picnic. If he could be slapped away, he might go away for good. So the Supreme Court ruled he lacked standing, and everyone moved on with their lives.

    Apparently, that was a severe underestimation of Newdow, but it is also a trivialization of the arguments he and other plaintiffs have raised against the Pledge, which turn out to have more bite than might appear at first blush.

    The argument against the Pledge is not just a matter of pique on the part of Mr. Newdow. And he's not alone, as the other pending lawsuits prove. There is a message here that needs to be heeded, in no small part, because it is not going to vanish by wishing it away.

    Judge Karlton had little patience for the claim, but the atheist parents are saying that they are feeling excluded from the public life of the nation-they cannot even attend a school board meeting without being reminded that the majority have a different, opposite, set of beliefs.

    Imagine, as a Christian, finding out your child is reciting a Pledge that included the phrase "not under God." What would you do? It's obvious-you would demand the phrase be excluded.

    For some, "not under God" is quite literally an inconceivable statement, but it is in fact what many bona fide American citizens believe. It should bother believers and nonbelievers alike that repetitive, intentionally chosen government speech is alienating any segment of the public, because of their religious beliefs or lack thereof.

    The Pledge cases challenge the United States to come to terms with a problem of its own making-extraordinary religious diversity. Believers of all faiths have been welcomed to these shores since the country's inception, and a fervent conviction exists in constitutional law and among the people that a person may believe whatever he chooses (no matter how mainstream or marginal).

    To treat the Pledge as though it is just a mirror of the country's values at the time of the framing or in the 21st century is to misapprehend where this country now stands in the pantheon of free nations. It is a country that has not merely tolerated but fostered a wide diversity of belief and a sense of entitlement to believe whatever one chooses. It is far too late to identify an "American" religion.

    Ironically, in light of the debate over the Pledge, what is most American about religion is a drive to schism-one denomination after another has divided, reunited, and divided again, while off-shoots have gone on to be wholly independent. There never has been and never will be unanimity on religious belief. If one can keep one's focus on this American reality, the drive to keep "under God" in the Pledge of Allegiance starts to look more like a power grab and less like a principled stance on the essence of what it means to be American.

    What is being lost in this debate is that the school districts have options.

    The Pledge is recited in California, because state law requires a "patriotic" observance by students. There is no stipulation for the Pledge to contain or exclude "under God." The school districts have the option of altering the Pledge to make it more inclusive. Or, better yet, they could just as easily lead students in singing "The Star-Spangled Banner," and leave religious division and intolerance behind. This sort of neutral, middle ground, though, is unlikely as the school districts are now being assisted in the litigation by the Becket Fund, an organization dedicated to furthering the interests of religious entities.

    It will be up to the school districts to explain to their taxpayers and the courts why they must have "under God" as part of their patriotic observance-not as easy to defend as it might have seemed the first time around.

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