In order to get its desired result in declaring the use of 'under God' in the Pledge of Allegiance Constitutional, the appellate court majority decided to pull a rhetorical trick.
First, it decided that the whole case hinged on the first prong of the Lemon test. This test stated that, (1) the challenged governmental action must have a secular purpose.. Second, it needed to show that the primary purpose of the law had a secular purpose.
So, first, the majority said,
Next, we turn to the hotly contested issue in this case, whether Congress' purpose in enacting the Pledge of Allegiance was predominantly patriotic or religious.
Then it asserted that:
In contending the Pledge is an unconstitutional religius exercise, plaintiffs erroneously fixate solely on the words "under God" and disregard the context in which those words appear. . . . the dissent would have to ignore the wording of the Pledge as a whole to focus only on one portion of the Pledge, the portion the plainitiffs find objectionable.
According to the majority, the purpose of the Pledge of Allegiance on the whole is patriotic. This is a secular purpose. Therefore, the Pledge of Allegiance is constitutional.
The trick here was to find a context so broad that the religious bigotry contained in the act of adding 'under God' can be buried in that larger context. The majority decided to look at the Pledge as a whole, its entire history, and in fact the history of the country from its very beginning, to get a context so large that it can honestly declare that religious bigotry was not the sole or primary objective of that whole context.
Of course, using this line of reasoning, Congress could have added the term 'white' so that school children were taught each day to pledge allegiance to 'one white nation', and the court would have to conclude that this was not racist.
Again, reverting to a hypothetical case of Congress establishing a pledge of allegiance to 'one white nation', the reasoning of the majority would go as follows.
In contending the Pledge is an unconstitutional religius exercise, plaintiffs erroneously fixate solely on the words "white" and disregard the context in which those words appear. . . . the dissent would have to ignore the wording of the Pledge as a whole to focus only on one portion of the Pledge, the portion the plainitiffs find objectionable.
The majority, in this case, would have to argue that it would be wrong for African-Americans to focus solely on the word 'white' - the term that they find objectionable. It would have to say that African-Americans and to think of the Pledge as a whole. That, in this context, a pledge of allegiance to 'one white nation' is patriotic and is not at all an act or expression of religious bigotry.
In fact, the majority in this case would have to be thought of as chastising African-Americans for their narrow-minded conceit in thinking that by adding the term 'white' to the Pledge that Congress had turned the act of reciting the Pledge into an act of racist bigotry. Any African-American who dared to suggest that such a move was racist would be guilty of erroneously focusing only on the words they find offensive.
On logical terms, this form of rebuttal is known as a reductio ad absurdum. It aims to show that the argument that is being assessed is invalid because the same line of reasoning applied to an equivalent set of premises yields an absurd conclusion.
The 'logic' used to chastise atheists for focusing solely on the terms 'under God' in declaring that by inserting these words Congress turned the pledge into an act and expression of religious bigotry would also prove that Congress could add the term 'white' and not turn the Pledge into an act of racial bigotry.
The absurd conclusions that can be drawn from this type of reasoning demonstrates that the reasoning is flawed.
We can also add to the fact that opinions, once published, become precidents for further law.
If this opinion is accepted, and not overturned by the Supreme Court, it means that it is now a matter of law, that Congress may add the term 'white' to the Pledge without making it an act of and expression of racial bigotry in violation of civil rights laws.
There is now no Constitutional protection against such a change, because the majority in the 9th Circuit Court of Appeals has given a published decision that states that even after adding the word 'white', the courts must conclude that the primary purpose of the Pledge is patriotic, and that it therefore cannot be considered an act of racial, or of religious, bigotry.