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Supreme Court turns down latest attempt to dereligionize American oath.
BY STEVE WEATHERBE
WASHINGTON — God was put into the Pledge of Allegiance in 1954 at the urging of the Knights of Columbus. So when Michael Newdow sought Supreme Court standing to remove the Almighty, the Knights girded for legal battle — and won.
“We are very happy,” said Knights’ vice president Patrick Korten. “This is a victory for human rights.”
The Supreme Court decided June 13 simply not to consider an appeal by Newdow of a New Hampshire case he has argued in before the First Circuit Court of Appeals for parents objecting to their children being forced to witness classmates saying the pledge. The Knights decided to join in the case as a co-defendant.
Newdow, who first gained prominence when he won an initial ruling in the Ninth Circuit in 2004 on behalf of his own children, only to lose in the Supreme Court, is president of the First Atheist Church of True Science. “It’s not surprising,” Newdow said about the defeat. “We’ll keep trying.”
The Freedom From Religion Foundation, which was a co-plaintiff with the parents in the case, also promised to carry on the fight to remove religion from public life.
“We have other cases we are working on, and we are waiting for the composition of the Supreme Court to change,” said the foundation’s president, Annie Laurie Gaylor.
Until 1954, the pledge said by schoolchildren each morning across America stated: “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation indivisible, with liberty and justice for all.”
Article of Faith?
But a strong lobbying effort that year by the Knights of Columbus, the international Catholic fraternity headquartered in New Haven, Conn., produced near unanimous support in Congress for a law inserting “under God” after “one nation.”
The argument all along by the Freedom From Religion Foundation and Newdow has been that the reference to God violates the Constitution’s Establishment Clause by coercing children to participate in a statement of religious faith.
“The phrase is a lie,” said Gaylor. “The U.S. is not one nation under God. It is a secular republic. There is no mention of God in the Constitution.”
But the phrase’s defenders claim, in Korten’s words, that “the words ‘under God’ do not impose a state religion, but instead express the belief that there are fundamental rights that come before the state which the state is bound to defend but cannot remove.”
And so far, apart from the initial 2004 loss, the courts have always agreed with this argument.
Korten says Newdow has tried to use the Knights’ affiliation with the Catholic Church to prove that the phrase is an expression of faith. And this gave the Knights pause when they pondered whether to participate in the New Hampshire case.
“But then [in 1954] and now, the Knights have argued that the phrase is about how our basic rights are unalienable,” Korten said. “And I searched through volumes of our files and never found any reference to it being an expression of faith.”
More tellingly, he adds, Newdow has never been able to come up with any evidence to that effect either.
“This came up in the throes of the Cold War,” Korten explained. “The Knights argued for the phrase because it would emphasize how the United States differed from Communist regimes, which believe that the state grants rights and can take them away.”
Eric Rassbach, litigation director for the Becket Fund, calls Newdow’s efforts to remove “under God” a “quixotic quest that gets more quixotic with every failure.”
But the Freedom From Religion Foundation’s Gaylor, calling the recent contrary decisions “an affront to nonbelievers and an injustice for everyone,” said neither her organization nor Newdow will stop. “We are going to look for cases to bring in other circuits. And we will wait for a slight change in the composition of the Supreme Court. For now, we are stuck with a 5-4 bloc [opposed to our goals.]”
Gaylor argues that the pledge is inherently coercive, especially for elementary-school children, even though schools are prohibited by a 1940s’ Supreme Court ruling from requiring any student to participate.
“If young students stay sitting or stay silent when everyone else is standing and reciting, there’s a stigma,” Gaylor said. “There’s embarrassment.”
‘So Help Me God’
But Rassbach counters that the courts have required a “much higher standard for what constitutes coercion than a twinge of discomfort.”
Gaylor also uses the argument that religion is something the parents should be teaching. By holding the pledge ceremony daily in each classroom, the state is intruding on parental rights.
But Korten says that argument depends on the pledge being seen as a statement of faith, and not what the courts have ruled that it really is — a statement that life, liberty and the pursuit of happiness, as well as freedom of speech, thought, assembly and religion are above the state.
Newdow has other irons in the fire: He is fighting against religious content in the ceremony for inaugurating U.S. presidents, including the phrase “So help me God.”
Rassbach commented: “Really they [the Foundation for Freedom From Religion] don’t just want separation of church and state. They want an end of religion. They think it is ugly and horrible.”
But the Establishment Clause, Rassbach insisted, “does not put religion under quarantine. It forbids the federal government from selecting bishops or establishing a religion — but not from making any mention of religion in public life.”
Register correspondent Steve Weatherbe writes from Victoria, British Columbia.