We are now between 0 and 26 days away from the 9th Circuit Court of Appeals handing out a decision on 'under God' and 'In God We Trust'.
I expect that they will release their decision at the end of the month. One of the judges deciding this case, Stephen Reinhardt, voted that 'under God' violated the Constitution in 2002. He likely remembers the swarm of phone calls, emails, and even death threats from six years ago. These will give him good reason to argue for waiting until the very end of this year's session – June 30th – to release the decision.
However, I could be wrong.
I am nearly certain that the Court will decide that having children pledge allegiance to "one nation under God" violates the first amendment to the Constitution. As I said, Reinhardt already voted this way once, and his comments during oral arguments gave the impression that he has not changed his mind.
(See Newdow's Pledge Arguments Get New Recital Before 9th Circuit for an account of the oral arguments.)
I am also expecting Dorothy Nelson to vote that the Pledge in public schools is unconstitutional. During oral arguments (audio recording ) she asked a question that I think is highly significant. I hope that the answer she received would help to decide her vote, and that its importance will not be overlooked in the court’s decision.
She asked of the governments lawyers, "Would [the Pledge] be any less patriotic if 'under God' were removed?"
The government answered, "Not necessarily."
But this is a trap.
The government defends having students say the Pledge of Allegiance as a patriotic exercise. If the Pledge would be just as patriotic if the words 'under God' were removed, then having the words in the Pledge cannot be defended as a "patriotic exercise". If the words 'under God' are not in the Pledge for patriotic reasons, then why are they there? Religious reasons, perhaps?
But, what if the government had said that the Pledge would be less patriotic without the words 'under God'? This means that the Pledge is teaching children that patriotism requires supporting 'one nation under God', and those who do not support this concept are less patriotic than those who do. This is a case of the government impugning the patriotism of peaceful law-abiding citizens based on religious beliefs.
In other words, if the Pledge is a patriotic exercise, it says that belief in God is a part of patriotism – one cannot be a patriot without supporting 'one nation under God'. If, on the other hand, one admits that a person who does not support 'one nation under God' can still be a patriot, then pledging allegiance to 'one nation under God' is not a patriotic exercise.
Either this argument will make it into the court's opinion, or it will not. If it makes it into the Court's opinion, atheists and secularists need to be ready to defend it. They need to defend it not only in terms of a Constitutional prohibition on establishing religion, but in terms of a moral prohibition of the Government impugning the patriotism of its atheist and secularist citizens. We have to point out that, every once in a while, children actually learn the lessons they are taught in public schools, and, as a recent survey proves, far too many American children have learned the government’s lesson that atheists do not share their values.
If this argument does not make it into the Court's opinion, then we need to raise the issue loudly enough that people can hear the question outside of the small group that reads atheist blogs and discussion groups. We need to reach the ears of news anchors and talk-show hosts who can then ask, "Does the government have the right to teach young children that Americans who do not support 'one nation under God' are less patriotic than those who do?"
Defenders of the pledge will certainly seek ways out of this trap. One of the arguments they will use is that atheists do not have to say the Pledge. However, the fact that atheists do not have to say the pledge does not change its meaning. The fact that atheists do not have to say the Pledge does not change the fact that the Pledge says that Americans who do not support 'one nation under God' are less patriotic than those who do.
This topic came up in oral arguments.
When Bea inquired as to why a child couldn't simply leave the class during the Pledge – and thus avoid injury – Reinhardt brought up the inherent sigma as sufficient injury.
But it is more than 'inherent stigma'. The government's message that those who do not support 'one nation under God' are less patriotic than those who do is harm itself – even if the atheist stays in the room and pretends to say the Pledge. Having the student leave the room during the pledge adds significantly to the harm done, because it reinforces the message that those who do not support ‘one nation under God’ are not patriots. After all, why would a patriot have to leave the room during the Pledge of Allegiance?
To back up this argument, be ready to ask, "Doesn't the Pledge of Allegiance question the patriotism of anybody who does not support 'liberty and justice for all'? Doesn't the Pledge of Allegiance question the patriotism of anybody who does not support, 'one nation, indivisible'?” After they answer, "Yes", then add, "Doesn't the Pledge of Allegiance question the patriotism of anybody who does not support, 'one nation under God'?"
Clearly, it does. Or, if it does not, then the person defending ‘under God’ in the Pledge needs to defend why it does not. More importantly, they need to explain how the distinction is so obvious that a first grade student can understand the difference. Tell the defender to explain to you how it is obvious to a first grade student that the government is not trying to tell her that people who do not support ‘one nation under God’ are bad people?
I am hoping that the Court will make it easy for us to ask these questions by including this argument in their case. If it is there, I would like you, the reader, to be ready to exploit that opportunity by making sure to include this in the public debate. If the Court does not put this argument before the public, I will ask that you, the reader, make up for the deficiency by inserting the argument itself.