The best thing that can be said about the federal appeals court ruling declaring the Pledge of Allegiance unconstitutional is that it won't last long, by God.
The three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco may as well have written its 2-1 decision on a clay pigeon because inevitably and deservedly it will be shot down, if not by the full appellate court then certainly by the U.S. Supreme Court. In fact, it's already on hold.
Whether all Americans believe in a supreme being, acknowledgement of God is so deeply ingrained in our public discourse that to renounce use of the expression at this point seems hopelessly out of touch with reality.
“In God we trust” has been the official motto of our country since 1957. The phrase has appeared on our coins and currency since the Civil War. The President swears “So help me God” to conclude the traditional oath of office. Congress opens its sessions with prayers mentioning the deity.
Congress added the words “under God” to the pledge in 1954. But 11 years earlier, in 1943, the U.S. Supreme Court ruled that no one can be required to recite the pledge, or even salute the flag, if doing so would violate the individual conscience.
One constitutional expert points out that the appellate ruling might be seen as a logical extension of legal attempts to maintain a wall between church and state but quickly adds that “courts have always had a sort of no harm, no foul exception.”
The pledge's reference to “one nation, under God” would seem to be one of those exceptions.
Michael Newdow, an avowed atheist from Sacramento, Calif., claimed that his daughter was harmed by “the government imparting its religious views on American citizens” when the pledge was recited in school. Mr. Newdow, of course, has a right to his view and to take it to court, no matter how unpopular. He won this round, but we predict that he won't make it past the next rung of the legal ladder.
Perhaps it is not surprising that the ruling came out of the 9th Circuit Court of Appeals, considered the most liberal federal appeals court in the country, and for now it only applies to the nine western-most states. But a Supreme Court resolution is all but assured because the 9th's ruling flies in the face of a decision by the 7th Circuit Court of Appeals, in Chicago, which upheld the pledge.
Against the backdrop of patriotic and religious revival spurred by the Sept. 11 terrorist attacks, the case has provoked an emotional furor across the political spectrum. Some in Congress are even talking about an amendment to “put God in the Constitution.”
It must be remembered that the Constitution, by virtue of the First Amendment, already guarantees freedom of religion, as long as the government doesn't say which one. That's not the same as an airtight guarantee of freedom from religion, no matter what two federal judges in San Francisco say.