Court Watch

Thursday, 6 March 2003

One Nation under God?

On February 28, the Ninth Circuit Court of Appeals upheld the earlier ruling of a panel of three judges that struck out the words "under God" from the Pledge of Allegiance, at least when recited in public schools in the nine Western states under their jurisdiction. The panel ruled 2-1 on June 26, 2002, that the phrase "under God" violated the Establishment Clause of the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion." When the three-judge panel issued its ruling last year, many public figures expressed outrage. Gov. Gray Davis of California promised to take "decisive action to overturn this decision." The U.S. Senate voted 99-0 to oppose the change to the Pledge. U.S. Attorney General John Ashcroft appealed the ruling to the whole Circuit Court, which declined to review the panel's ruling last Friday. After the most recent ruling, Ashcroft promised to appeal to the U.S. Supreme Court.

Nine of the Circuit's twenty-four judges dissented from the opinion, and six of these issued a written dissent. This dissent says, in part:

The majority continues to stand by its original error--that voluntary recitation of the Pledge of Allegiance in public school violates the establishment clause because, according to the two-judge panel majority, it is "a religious act." Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear.
The dissenting judges further stated their view that recitation of the Pledge is similar to reading the Declaration of Independence or the Constitution, both of which contain references to God.

Before commenting on the Ninth Circuit's ruling, which I believe to be correct from both theological and legal points of view (disclaimer: I'm not a lawyer), a brief history of the Pledge of Allegiance is in order. The original version of the Pledge was written in 1892 by Francis Bellamy, a pastor and editor (and a socialist!). The Pledge he composed was generic, designed for use by a citizen of any country:

I pledge allegiance to my Flag and the Republic for which it stands; one nation indivisible, with liberty and Justice for all.
On Flag Day (June 14) 1924, the words "the flag of the United States of America" were substituted for "my flag." The U.S. government officially recognized the Pledge in 1942. Finally, in 1954, Congress added the words "under God" to the pledge and made some other minor changes in wording and punctuation, and the present Pledge was born. It is interesting to note that the words "under God" were added at the time of the Red Scare, because some religious leaders were concerned that the Pledge sounded too much like pledges recited by "godless communists."

Although the dissenters from the Ninth Circuit ruling claim that common sense demonstrates that the recitation of the Pledge, with the phrase "under God," us not a religious act, the history of the Pledge's development suggests otherwise. The words "under God" were added for explicitly religious reasons in 1954, and from a legal perspective, it cannot be argued now that the words are not religious. From a theological perspective, the words are problematic whether they are construed in a religious sense or not. If they are religious, then the government is endorsing religion and thus violating the First Amendment and the principle of religious liberty. If the words are not religious, then Jews and Christians who recite the Pledge are violating the Third Commandment, "You shall not take the name of the Lord your God in vain" (Ex 20:7; Catholics consider it the Second Commandment).

The dissenters' contention that common sense and public and political reaction demonstrates that the current Pledge does not violate the Constitution is truly scary. Since when does majority opinion override the basic human right of freedom of religion? The whole purpose of the Bill of Rights is to protect the minority from the tyranny of the majority. Undoubtedly many of the 99 senators who expressed their outrage at the original ruling of the three-judge panel really believed that the ruling was wrong. Equally undoubtedly, there were others who decided that to oppose the ruling was unsafe politically, so they went along with their colleagues. Constitutional questions aside, voting on an issue might decide its legality, but it never decides its morality.

Finally, the dissenters' comparison of the Pledge to the Declaration of Independence or the Constitution is specious. No teacher or principal leads the class to recite the Declaration of Independence every morning when school begins, but they do begin the day by reciting the Pledge of Allegiance. From a historical and theological perspective, it must be remembered that many of this nation's founding fathers--including George Washington, Benjamin Franklin, and Thomas Jefferson, the primary author of the Declaration of Independence--were Deists, so when they used the term "God" in documents like the Constitution or Declaration, they had in mind something quite different that most traditional Christians. Therefore, appealing to these documents in support of the phrase "under God" in the Pledge is without merit.

The ruling of the Ninth Circuit will probably be taken up by the Supreme Court, whose record on deciding church-state cases is mixed at best, so supporters of the current pledge have every reason to expect the Ninth Circuit's ruling to be overturned. Despite the Supreme Court's ultimate decision, however, Christians need to base their view on sound theological principles, considered in light of the historical development of the Pledge.

Perhaps a personal anecdote will illustrate what I mean. I used to be a member of a bilingual (Spanish-English) church, and we had many Mexican children attend our Vacation Bible School every summer. We even had a staff member who was a Mexican citizen. The traditional VBS service began with those present reciting the Pledge of Allegiance to the American Flag, the Christian Flag, and the Bible (in that order!). I wondered what my friend thought about pledging allegiance to a flag--that is, a country--that was not his own. He said that since the children were looking at him, he said the words, but he didn't really mean it. The tables were turned when we took our show south of the border later that summer, and I was expected to say the pledge of allegiance to the Mexican flag. Like my friend, I mouthed the words, but I wasn't sincere. When I was living in South Africa, a colleague joked about the fact that many American churches have U.S. flags in them. "I thought you believed in separation of church and state!" he said. I believe that pledging allegiance to the flag of my country is a legitimate exercise (although doing so does not imply absolute obedience to the state), but I do not think it should be done in church, since our ultimate allegiance should be to a higher power. Similarly, I think it's right for children to learn to be good citizens, and saying the Pledge of Allegiance is one way of teaching respect for the law (but what should children in our schools who are not U.S. citizens do?), but I don't believe that the Pledge they recite should include religious statements that are both irrelevant to citizenship (non-religious people can be excellent citizens) and contrary to my understanding of the doctrine of religious liberty.

Tossing Out the Eighth

Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishments inflicted. [Eighth Amendment to the U.S. Constitution]

The U.S. Supreme Court on Wednesday, March 5, upheld the California "Three Strikes and You're Out" statute, refusing to reduce the sentences of 25 years to life given to one man whose third felony conviction involved stealing golf clubs and to another whose third felony was shoplifting nine videotapes. The decision of the Rehnquist Court in this case is mind-boggling. The case was decided 5-4, with the usual suspects--Rehnquist, Scalia, Thomas, O'Connor, and Kennedy--comprising the majority. O'Connor, writing for the majority, noted that the Court has a long-standing tradition of deferring to the states. "We do not sit as a 'superlegislature' to second-guess these policy choices," she said.

It is true that the current Supreme Court regularly defers to the states (except in the exceptional case of Gore v. Bush, where they had a stake in the outcome and so made a "one-time" exception to their normal policy), but in so doing they are abrogating their responsibility as the highest court in the land. What if the Court in 1954 had considered the Jim Crow laws of several states more important than the rights of African Americans to receive a decent education (Brown v. Board of Education)? What if the Court in 1962 and 1963 had allowed state laws that dictated prayer in the classroom to stand? In the 1857 Dred Scott decision, perhaps the nadir of Supreme Court jurisprudence, the Court refused to give a slave his freedom, even though he had lived for years in non-slave territories; the "justices" belied their name and upheld an unjust law rather than overturn it, as was their prerogative.

When state legislatures write laws that are not only grossly unjust but also fly in the face of the U.S. Constitution, it is the Supreme Court's duty to support the rights of citizens who oppose those laws. In a dissent from the March 5 ruling, Justice David Souter wrote, "If Andrade's [the man who stole videotapes] sentence is not grossly disproportionate, the principle has no meaning." People convicted of their first rape, or manslaughter, or armed robbery, or assault with a deadly weapon, regularly receive lighter sentences in California than these two petty criminals. The sentences imposed by the California courts, in accordance with the Three Strikes law, are the very definition of "cruel and unusual punishment" supposedly prohibited by the Eighth Amendment. They fly in the face of common sense, they will cost the state hundreds of thousands of dollars to incarcerate these two men, and, worst of all from a theological perspective, they are patently unjust.

The Old Testament punishments that are prescribed for various offenses are often harsh, and I certainly do not advocate their adoption in modern society (particularly capital offenses and laws related to the treatment of women and slaves). However, one can see a certain logic tying crimes and punishments together in the various Hebrew law codes. In particular, crimes against people are judged more harshly than crimes against property. A person convicted of simple theft is required to return the stolen goods plus pay a penalty of twenty percent (see Lev 6:1-7). While one can argue that repeat offenders should be judged more harshly than those who have committed their first crime, the principle of justice dictates that excessive punishment must be avoided. Perhaps it would be appropriate for a repeat offender who stole a set of golf clubs or a few videotapes to serve a year or two in jail, but he should not serve more than a rapist or armed robber, even if the latter is a first offense. Christians should be influenced by the teachings of Jesus, who taught that his disciples should observe both justice and mercy (Matt 23:23).

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