Under No God But Their Own

By Marci Hamilton, FindLaw.com. Posted September 24, 2004.

Last week, the House Judiciary Committee voted to send the Pledge Protection Act to the full House, which is likely to take it up today. The Act – a bill that has many cosponsors – would deprive all federal courts, even the Supreme Court, of jurisdiction to hear constitutional challenges to the "under God" Pledge of Allegiance. This is only the latest attempt by Congress to force a pluralist society into a one-size-fits-all set of beliefs.

This is a remarkable violation of the separation of powers and the Establishment Clause. If the Act were to become law - and if it were, itself, to be upheld as constitutional - only state courts would be able to hear constitutional challenges to the Pledge.

We would therefore have a 50-state collection of views as to what the Free Exercise Clause, and the Establishment Clause, mean in this context. And that would be constitutional lunacy. Moreover, we would have Congress making its actions that involve compelled speech and religious viewpoint unreviewable!

The Impetus for the Act: Two Decisions on the "Under God" Phrase in the Pledge

The Act was introduced as a response to two high-profile decisions in a case involving the Pledge.

First, there was the federal decision by the U.S. Court of Appeals for the Ninth Circuit in Newdow v. Elk Grove United School District. There, the Ninth Circuit held that it is unconstitutional to require students to recite the phrase "under God" in the Pledge of Allegiance. This requirement, the Ninth Circuit reasoned, violates the Establishment Clause. (As I discussed in an earlier column, I believe the Ninth Circuit's ruling was correct.)

The Act may also have arisen from Congressional disappointment with the United States Supreme Court's ruling in Newdow. Rather than reaching the Establishment Clause issue, the Court held the plaintiff lacked standing - that is, the legal right – to bring the challenge.

The Supreme Court's ruling opened the way for another possible challenge to the "under God" pledge - one that, with a plaintiff who did have standing - could go all the way to the Supreme Court on the merits.

That, of course, is as it should be. The U.S. Supreme Court is properly the ultimate forum for questions concerning the interpretation of the U.S. Constitution. But the new Act would cut off that proper, time-honored path - and, as I have noted, it would leave Pledge issues to the state courts alone.

The Act Is A Grave Mistake - and a Case of Craven Political Pandering

The reason the Act is moving through Congress now is no mystery. Various polls showed that a majority of the American public believed that the phrase "under God" should stay in the Pledge of Allegiance. So now, in an election year, politicians are pandering to their constituents by supporting a bill that they can spin as one that would protect the Pledge.

Congress's actions are appalling. Of course, polls do not determine what laws should be laws. Far from it. Our elected representatives are supposed to be acting in the public good and according to constitutional principles, not led around by polling numbers. And if members of Congress looked to their constituents' deeper beliefs about the freedom of conscience and the freedom of speech, and to the good of the country, they would strongly oppose the Pledge Protection Act. There should be memorable oratory fighting this latest attempt to impose popular views on every American.

Americans do not support forcing children to choose between pledging allegiance to their country and being true to their religious beliefs. Nor do they support giving the government the power to force its citizens to recite any mantra, whether it is patriotic or not. The powers that be at the moment have covered over these fundamental beliefs with misleading blather about how this is a "Christian" nation, implying that Christians are the sole keeper of conscience and morals in the country.

Marci A. Hamilton is a Visiting Scholar at the Princeton Theological Seminary during the fall of 2004 and the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues can be found on this site. Her email address is hamilton02@aol.com.

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