Well, your discussion about the religion cases couldn’t have come at a better time. Because that old 9th Circuit Court of Appeals has gone and made tomorrow’s decision on vouchers into fodder for page A-17. They’ve gone and found the Pledge of Allegiance unconstitutional. They say that forcing atheist public school kids to stand around uncomfortably while all those coercive religious hooligans recite the pledge is a violation of the Establishment Clause of the First Amendment.
Here’s where you really do need to admire their chutzpah (and I use that word in its non-endorsing, secular sense): They know the Supreme Court thinks the use of the word “God” in the pledge is constitutionally permissible. They know this because members of the court have, while never having ruled squarely on this issue, said so. More than once. But the 9th Circuit dismisses that as “dicta” and drops it into a footnote.
Let me try to clarify what isn’t at issue: This case isn’t about students being forced to recite the pledge. The court found that to be unconstitutional in West Virginia v. Barnette(way back in 1943 before there was any mention of God in the pledge). This case simply concerns an atheist who argued (pro se, by the way) that his daughter shouldn’t be forced to hear her state-paid teacher and classmates acclaim in a public school that “ours is a nation under God.”
And while it seems pretty crazy, and while the high court and the 7th Circuit Court of Appeals have already said otherwise, you have to hand it to Judges Alfred Goodwin and the perennially goofy Stephen Reinhardt. They manage to make it look like they’re simply following those same religion cases you just pointed out were so correctly decided: Whether you use the Lemon test, the “endorsement” test, or the “coercion” test (and how you’d even know which test to use), it certainly does look like forcing a schoolchild to endure what sounds like the worship of God is no different than forcing a child to endure a moment of silent prayer; a prayer at graduation; or a student-led prayer at a football game, each of which has already been deemed an unconstitutional “Establishment” of religion by the state.
Now you have already said today what Judge Ferdinand Fernandez says in his partial dissent: that the Constitution should neither “discriminate for, nor discriminate against religion.” But this case falls smack into that line of cases about discriminating for religious speech. Which leaves us in the unfortunate position of ridiculing the decision (as I suppose we must) for its conviction that the words “under God” amount to a prayer, an endorsement, or religious proselytizing. Which they don’t. As Judge Fernandez puts it, listening quietly while others mumble these two words does not promote any one religion, will not create an evil theocracy in America, and has caused no great harm in over 200 years. Still, I must wonder why Sean Hannity is practically stroking out over this decision on Fox News as we speak and why all the religious groups in the country are going apoplectic. My guess is that the words “under God” do promote monotheism, and of course the effect of that isn’t just “de minimus,” as they say.
The real fact is that we live in a land that likes it that way. A little mandatory Judeo-Christian theism makes most of us happy. Period. And the 9th Circuit (or if need be, the Supreme Court) will definitely make sure we get that.
Corresponding with you has been one of the great pleasures of my career.