The Lemon Test and the Pledge. First or Second Prong?

In reading through the opinion on Newdow vs. Rio Linda, I note that I have a significantly different tact on the issue of 'under God' in the Pledge of Allegiance than that which is commonly taken. This difference can be understood in the application of the Lemon Test - a commonly used (but controversial) way of evaluating the constitutionality of a statute involving religion.

Under the Lemon test, to be constitutional (1) the challenged governmental action must have a secular purpose; (2) 'its principle or primary effect must be one that neither advances nor inhibits religion'; and (3) it 'must not foster an excessive government entanglement with religion."

The Court quickly goes through two of these prongs. It quickly asserts that the relevant statutes do not create an excessive government entanglement with religion. It then, in one quick paragraph, asserts that the principle or primary effect of the Pledge is neither to advance nor inhibit religion. Thus, it passes quickly over the second and third prongs of the Lemon test.

Finally, it settles down to address what it considers the core issue:

Next, we turn to the hotly contested issue in this case, whether Congress' purpose of enacting the Pledge of Allegiance was predominantly patriotic or religious.

First, my objections have nothing to do with whether Congress' purpose for enacting the Pledge was predominantly patriotic or religious. My interest and my arguments concern the issue that the court glosses over with scarcely a comment - that the effect of the pledge is to advance theism and inhibit atheism.

Specifically, I argue that the effect of adding 'under God' to the pledge is substantially the same as the effect we could expect to find if congress added the word 'white' to the Pledge of Allegiance to create a pledge to 'one white nation'. In just the same way that we can expect the latter amendment to have the effect of expressing and promoting racial bigotry, we can expect the amendment actually made to have the effect of expressing and promoting religious bigotry.

I have pointed out that we see this effect in the fact that the Pledge and the Motto contribute to a social filter that is 99.9% effective at keeping open and honest atheists out of public office. We see it in polls where substantial majority express the attitude that atheists do not share American values and are the types of people they would least want their child to marry. We see it in polls whereby a majority of Americans declare that they would vote for an otherwise qualified atheist candidate and where politicians state that we need common-sense judges who realize that our rights come from God and who will appoint no other type of candidate.

While I hold that it is absolutely absurd to try to argue that a congress passed a law to have children pledge allegiance to 'one white nation' without having any racist intent or purpose to that law, ultimately the question of the intent or purpose of the legislators is of little interest.

If a legislator intends a racist result but proposes methods that are not effect, they are as much concern to me as the person who intends to rob a ban by teleporting by thought the money out of the vault and onto his kitchen table. Such a person is pathetic, not dangerous.

At the same time, even if the intent of a particular piece of legislation were not to promote racism and bigotry, but that was a dominant effect, I would argue that this alone provides good reason to challenge and, ultimately, to remove that law.

Don't get me wrong - the person who intends but fails to rob a bank, like the person who intends but fails to promote racism and bigotry, are not morally neutral people. They are evil, and deserve our moral condemnation. However, in deciding which of the many things that deserve condemnation we should focus on this week, those that cause genuine harm deserve more attention than those who are foolish and ineffective.

And if legislation is shown to unintentionally promote racism and bigotry, it is still the case that all people of good intention would turn their attention against this law as soon as these effects are made known.

Well, it is or should be known that effect of adding 'under God' to the Pledge would have on those who do not believe in God are likely the same as the effect of adding 'white' to the pledge would have on those who are not white. Furthermore, since these effects are prejudicial and discriminatory and of a type that the constitution, the law, and good moral conscience would condemn, it is something that any good person would seek to change.

Except, as I said, it is as laughable to believe that those who added 'under God' and who defend it are as ignorant of its bigoted content and effects as it would be to suggest that 'white' could be added to the Pledge by people who were not already strongly racist. So the question of how such a discover would play out on the conscience of a person of good moral character is rendered moot at the outset.