Ed Vitagliano

AFA Journal news editor

August 2002 – The 9th Circuit U.S. Court of Appeals’ recent ruling that the words “under God” in the Pledge of Allegiance are unconstitutional has generated outrage from all political quarters.

That is as it should be. After all, clear-thinking adults can’t possibly imagine what could be wrong with allowing children to recite words with which the majority of us strongly agree.

However, the real story is that the 9th Circuit merely followed the reasoning of some of the U.S. Supreme Court’s past decisions. Ever since the nation’s highest panel of justices erected the “wall of separation” between church and state some 50 years ago, it has become increasingly clear that this day would come – when even the words “under God” in the Pledge of Allegiance could be stricken from the public square.

This is the truly frightening aspect of the 9th Circuit’s decision. It was not an isolated abuse of judicial power by activist judges who were intent on creating a new understanding of the First Amendment. Rather, the 9th Circuit was standing on the shoulders of the U.S. Supreme Court and merely adding another brick in the wall – a wall that the founders of our republic never intended to be built.

The Supreme Court’s attitude has been that government must never endorse religion – even in a general sense – because it may offend the sensibilities of those who might disagree. For example, in Wallace v. Jaffrey, (1985) the high court said: “Direct government action endorsing religion or a particular religious belief is invalid … because it sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

This judicial principle attempts to honor the diversity of religious beliefs among us by attempting to create and maintain a religious vacuum in the public square. Brian Fahling, Senior Trial Attorney for the AFA Center for Law & Policy, calls this the “someone’s feelings could be hurt” legal test.

“This was created by the Supreme Court to remove religion from the public square. Personal angst, like the sword of Damocles, hangs precariously over more than two hundred years of American history,” he said. “This is not a principle of law, it is judicial silliness on steroids.”

Fahling argues that such “tests” underscore how far the Court has strayed “from the quite uncomplicated and historically unassailable proposition that the Establishment Clause [of the First Amendment] was intended to prohibit the establishment of a national religion, not religion in general.”

This has been the heavy-handed emphasis of the Supreme Court for more than 50 years – that religion in general can receive no support from the government. A USA Today editorial made precisely this point following the 9th Circuit decision. While it admitted that “acknowledging the deity is at the core of the nation’s heritage,” USA Today said it was also proper – from a constitutional perspective – “to prevent the outright government promotion of religion.”

This view of religion was alien to our founding fathers, who saw religious belief as the conscience of the republic. John Adams, signer of the Declaration of Independence and second president of the United States, observed, “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge would break the strongest cords of our Constitution as a gale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The ruling by the 9th Circuit may be overturned in the near future, but even if it is, its decision is merely the logical conclusion of the train of thought begun by the U.S. Supreme Court a half-century ago.

The answer to the problems created by the high court is the election of a president who will appoint men and women to the bench who will keep the faith with the Constitution they are sworn to uphold, and the election to the Senate of individuals who will not obstruct the appointments.

Otherwise the fear is that, if it doesn’t fall now, one day the sword of Damocles will fall.