Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The 9th Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of the pledge of allegiance in Michael Newdow's second challenge. See the full ruling here. Interestingly, the ruling relied primarily on the question of legislative intent. The majority opinion said:
We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge--its wording as a whole, the preamble to the statute, and this nation's history--demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activityAccordingly, we hold that California's statute requiring school districts to begin the school day with an "appropriate patriotic exercise" does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.
Now here's where it gets interesting. In 2002, the 9th Circuit had rejected a California law requiring teachers to say the pledge of allegiance and lead their students in it and they did so largely on the grounds that when Congress inserted "under God" into the pledge in 1954, they were clearly acting with the intent of proselytizing and convincing kids to believe in God. Of this there is simply no doubt.
In response to that ruling, however, Congress reenacted legislation for the pledge of allegiance that contained a list of supposedly non-religious, patriotic reasons for the pledge. And the majority in this case pointed to that document as evidence that the pledge of allegiance had a patriotic rather than religious purpose. Judge Reinhardt, the chief judge of the 9th circuit, dissented in the case and pretty much shredded the ridiculous pretense of the majority opinion:
[N]o judge familiar with the history of the Pledge could in good conscience believe, as today's majority purports to do, that the words "under God" were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one.... Nor could any judge ... seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.It is equally clear that no judge ... could legitimately rely on a 2002 "reaffirmation" to justify the incorporation of the words "under God" into the Pledge ... as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred.... In doing so [in 1954], we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.
Today's majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts.... [T]o the joy or relief ... of the two members of the majority, this court's willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.
If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular.... I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all.
Quite so.
Politics
Comments
I was hoping you'd get to this, Ed.
I have only read about the first third of the ruling, and it got my blood boiling.
Did you read this part the same way I did?
That's a nice out for the lawmakers, no? They can make up some lame 'secular' reason for putting a religiously based law into account, then smile and wink at the constituents and say they did it for jesus...They quote the entire 'findings of the congress of 2002. I'll have to hunt around for the links, but many of those 'findings' are based on bad, misleading, and outright wrong historical accounts that come from David Barton, and have been extensively debunked since then.
I'll have to get into the histrorical revisionism in this ruling later. I suspect and hope that Chris Rodda will have a better, more extensive analysis soon.
Posted by: FastLane | March 15, 2010 12:08 PM
I want that rant in bronze.
Posted by: D. C. Sessions | March 15, 2010 12:17 PM
That is some nice dissent there. I'm not very well versed in this subject, but I feel all serious judges and legal scholars know "...under God." is unconstitutional, but they don't want to be the ones to rule on it. They will gladly reach for any straws that congress throws them so that they aren't the ones to overturn it.
Posted by: penn | March 15, 2010 12:23 PM
Speaking as a teacher, it seems that the biggest problem with having kids recite the pledge is that we don't bother to teach what the words mean. Which turns a possible teaching moment into a wasted moment. And our schools can't really afford to be wasting their time.
If schools really wanted to do something 'patriotic' to open the school day, how about the Declaration of Independence (in stages, of course), the preamble to the Constitution, the Gettysburg Address, etc. With a few minutes of discussion as to why the day's piece actually mattered in our history?
If our country (not our flag) is actually worth pledging allegiance to, this is the way to demonstrate it.
Posted by: psweet | March 15, 2010 12:23 PM
I love how the ruling equates "patriotism" with a belief in God. I read that and I thought there must have been some mistake.
Posted by: FishyFred | March 15, 2010 12:30 PM
Are you joking? Judge Reinhold?
http://en.wikipedia.org/wiki/Judge_Reinhold
Are we in an episode of Mock Trial with J. Reinhold?
Though if an actor could actually write that dissent, I'd say put him on the bench.
Posted by: Flavin | March 15, 2010 12:33 PM
Judge Reinhold's dissent is spot-on with one quibble:
I'd argue that matters of faith were left to each individuals rather than the church, i.e., noting Madison's and many other founders' arguments regarding our reserved freedom of conscience right. Whether people exercised their right to associate within a church(es) is not of interest to the state.
It breaks my heart I'm quibbling about the dissent given that this is clearly the constitutional argument. The majority opinion is as fierce an example of avoidance as I've encountered in a federal court ruling.
Posted by: Michael Heath | March 15, 2010 12:34 PM
Can we turn it around?
If "under God" in the pledge has no religious consequence, does that mean that other mentions of deities by the state also have no religious consequence?
If so... wouldn't that mean the U.S. is not a "Christian Nation" by that reasoning?
Posted by: Ray Ingles | March 15, 2010 12:43 PM
GodDAMNit Flavin! I read "Judge Reinhold" in the post and immediately wanted to comment about Arrested Development! Do you think William Hung and the Hung Jury will perform? Oh, and just to nitpick because I'm obsessed with that show, it was actually Mock Trial with J. Reinhold, they didn't use his first name but I can't remember what hilarious reason they had for not using it.
Posted by: Rob Monkey | March 15, 2010 12:44 PM
Interesting...the ruling undermines the whole originalist legal doctrine, doesn't it? Think about it - the court is saying that the opinions and desires of the 1954 addition-writers are not as important as how today's Congress views those words.
Posted by: eric | March 15, 2010 12:53 PM
That's a good point, eric, although I'm sure the 'originalists could come up with some justification (aka mental gymnastics) to come to the conclusion they want.
I assume this case will be appealed (again)?
Posted by: FastLane | March 15, 2010 1:32 PM
Is there a difference between patriotism and nationalism?
Posted by: Kele | March 15, 2010 1:52 PM
Next step would be an en banc hearing by the Ninth; this was just a three-judge panel.
Posted by: D. C. Sessions | March 15, 2010 1:53 PM
I wanted to cheer after reading that. I don't normally get inspired very easily, but that really was pretty damn inspiring.
Posted by: Leni | March 15, 2010 1:57 PM
Are you joking? Judge Reinhold?
That's nothing. In the UK we have a senior judge with the surname Laws, and our most senior judge is Baron Judge.
Posted by: Ginger Yellow | March 15, 2010 1:58 PM
Haven't the Courts previously rejected just this type of reasoning? When a city wants to keep a cross, they just decide to call it a war memorial, but the courts said, "Sorry, not falling for it." And yet here they fell for it.
I say we institute mandatory bible reading and give a list of secular reasons for it.
1. Teaching kids to read.
2. Teaching kids Jewish history.
3. Teaching kids generally applicable moral lessons.
4. Teaching kids, in a non-sectarian way, about Western Civilization's Judeo-Christian heritage.
5. Teaching kids all the cool euphemisms for sexual matters (Song of Solomon for Sixth Graders!)
How many do we need before we fool the 9th Circuit?
Posted by: James Hanley | March 15, 2010 2:00 PM
Kele:
"Is there a difference between patriotism and nationalism?"
Yes. Patriotism is when we think that our country is awesome and awesomely exceptional and the best country in the world. Nationalism is when filthy foreigners think that about their miserable rathole, surrender monkey countries. Is that clear?
Posted by: democommie | March 15, 2010 2:02 PM
Sorry to burst everyone's bubble, but the judge in question is Stephen Reinhardt.
Posted by: Chuck | March 15, 2010 2:07 PM
Wow, now that's a burn...!
Posted by: James Sweet | March 15, 2010 2:25 PM
Chuck@18
This is what I get for not checking the source. Now I'm going to have William Hung singing "Mock Trial with J. Reinhold!" stuck in my head all day for nothing. And now you can too!
http://www.youtube.com/watch?v=_E7V8GEChjk
Re: Rob Monkey@9
If I remember correctly, the original name of the show was just Judge Reinhold, which they modeled on Judge Judy (whom Reinhold refers to as 'that guy'). But he didn't want to confuse people into thinking he was actually a judge, so he insisted the title be changed. I can't be sure short of pulling out the DVD, but that is at least two or three feet away from me, so screw it.
Posted by: Flavin | March 15, 2010 2:48 PM
Wrote this at HuffPo - sorry but cannot help repeating this makes me so fired up.
Here is my problem - putting aside separation issues:
The official references to god are wrong for several reasons. But to me the most egregious is that they commandeer places where some valid and useful civics could be enshrined.
We are a secular nation - a secular liberal democracy set up as a republic - our fundamental principles and law are established in our Constitution - that at an essential level is the "the law of the land" and nothing else is - not any religion's bible - not any religion's doctrine or dogma.
It is important that we recognize our basis - a basis that is by establishment secular. I say this not because I have no god belief - that is immaterial to the issue - but because the things that really bind us together - that define us as a nation and as a collective people in the world of nations - the things that count in our dealings and law making are not enshrined in our bibles but in our secular instruments of government.
So to me "under god, with liberty.." occupies space that should go to something like "under laws that ensure liberty.. "
And "In God We Trust" pushes out the more appropriate and practically real thing we need to recognize - "In Democracy We Trust".
I say the above not because I AM an atheist - but because I feel we obscure real important points by these vacuous and inappropriately presumptuous slogans.
Posted by: ConcernedJoe | March 15, 2010 2:59 PM
Uh, yeah. That would be Judge Reinhardt. Brain fart. Must have been something I read.
Posted by: Ed Brayton | March 15, 2010 3:06 PM
ConcernedJoe @ 21 - great point.
psweet @ 4 also has a great point regarding expenditures in redundant rhetorical rituals that are lost opportunities for authentic lessons in principles and values.
Posted by: Michael Heath | March 15, 2010 3:12 PM
Flavin, I bow to your superior AD knowledge! Thanks for the link, I had to check and make sure my memory of that awesome TV moment was accurate.
Well better get back to the grind, the Blue Man Group might be calling me to perform. Good thing I "blue" myself earlier . . .
Posted by: Rob Monkey | March 15, 2010 3:40 PM
Posted by: James Hanley | March 15, 2010 4:11 PM
I was amazed to see the majority arguing (correctly) that Jefferson's reference to the Creator in the DOI served a primarily secular purpose - namely, removing individual rights from governmental authority. But what was less amazing was that they used it in a completely disingenuous way, by arguing that "Under God" serves exactly the same purpose (to draw a sharp distinction between limited government and totalitarian rule).
For sheer ballsiness, though, I give the prize to:
What an amazing claim to make in a case that actually centers on the indoctrination of children!
Posted by: Scott Hanley | March 15, 2010 4:11 PM
I would have to disagree with your quibble. The Knights of Columbus who launched the campaign (or are at least willing to take credit) to have the phrase added to the pledge made it very clear what their motivations entailed:
...a patriotic American should be a person of religious faith and one who opposed communism, socialism, secularism, deism, agnosticism, and atheism. [emphasis added]
During the discussion and debate of the proposed legislation, it's congressional supporters made it very clear that they wanted to differentiate the United States as a "Christian nation," further shattering the argument that this was a benign Madisonian attempt to establish a vague individual reference to whatever creator one might believe in. From beginning to end this was intended as a promotion of Christian beliefs at the expense of non-Christians and non-believers.
Add to that, and this isn't really part of my disagreement with you , today's court has the option of using the Lemon Test to gauge a piece of legislation's constitutionality partially based on intent. This one fails on the first prong (secular legislative purpose), based on the language of the initial sponsors, fails on the second prong (advancing/hindering religion), and is, at best, iffy on the third prong (excessive entanglement). Congress can, and did, pretend that this is an historic reference, but the reality is available in black and white.
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Unless the hearing overturns this ruling, the case is rather likely dead. The Supreme Court has been looking for a way to dodge this issue for a decade. With its current composition, even if they agreed to hear the case, odds are good the ruling would be 5-4 against Newdow using the same dumbass bogus reasoning IE congress says it isn't religious so it isn't.
Posted by: dogmeatib | March 15, 2010 4:21 PM
Awww, ain't that sweet - it's always patriotism isn't it? Or is it nationalism and fundamentalism creeping in? Wait for the next constitutional pledge which includes "Praise Jesus!" You've really got to hand it to the people who shoehorned god into the pledge; they sure knew how to exploit the mob fear of that era.
Posted by: MadScientist | March 15, 2010 4:53 PM
dogmeatib @ 27 - I think you misunderstood my point given your point only helps buttress my point rather than rebutting it. Your argument makes sense when describing the motivation of those who got 'under God' included in the Pledge, however I wasn't addressing those people or their motivations. I was instead criticizing the dissenting judge's framing as ahistorical and unconstitutional as well.
The dissenting judge was arguing matters of faith be left to churches. The federal government has no power to assign such matters to a church or churches in general. Instead the Constitution explicitly leaves this up to the people individually, who have every association right required to be a submissive sheep to a church's admonitions requiring faith. My point is a bit pedantic, but I think critical given that Madison and a few others were clear that such rights were also not endowed by churches either, but instead were a freedom of conscience right held by individuals.
Posted by: Michael Heath | March 15, 2010 6:38 PM
Watch what happens when some teacher substitutes "satan [1]" for "god" in this. The ensuing shitstorm will put paid to the "secular purpose" fig leaf in a hurry.
[1] Or "Allah," or ...
Posted by: D. C. Sessions | March 15, 2010 7:24 PM
The problem is, the actions of Congress, state legislatures, and local school districts in implementing the various laws regarding the pledge have stepped way over the line from personal, individual questions of faith, association, etc., this is the point that I think the judge was making. I see this statement quite clearly making that point:
I disagree with your emphasis on the church part, I think the emphasis should be on the secular matters for the state. You could replace church with individual, which I think would correct your quibble(?), but I think that would disrupt the judge's intent and clarity. From my perspective he is arguing that the church (advocates of religion) has(have) crossed over the line in the initial promotion of the pledge, they have solidified that breech in 2002, and have done so again with this ruling.
Posted by: dogmeatib | March 15, 2010 8:06 PM
dogmeatib asks me:
Exactly, he got half of the principle wrong that he was referencing. I made this pedantic point because it was one where Madison was also pedantic, I think for good reason. In fact I learned this lesson studying him.
The reason I brought up the judge's sloppy rhetoric is because most Americans, including many school administrators where these issues are especially sensitive, still do not understand what I think is a very simple concept but instead is one of the most frequently misunderstood concepts in the public square. In this case the judge is referencing where the line is drawn regarding powers, but then crosses that line by inferring a power to churches which in no way exists in terms of grant by the state but instead only unless an individual cedes his or her right to them, which is completely independent of any involvement from the state. He should have mentioned the limitations of power to the state, which he did correctly, and then noted the rights of the individual, where he instead defectively noted the powers of the church.
We'd all be better off if we kept our language crisp and distinct when it comes to referencing powers, their abuse, and rights. If more of understood this concept, and I'm certainly not insinuating you don't, perhaps there'd be more public support for getting the government out of religious jingiosm.
Posted by: Michael Heath | March 15, 2010 8:25 PM
Wrong - patriotism manifests itself when one loves one's country enough to speak up and criticize it when necessary, possibly subjecting yourself to abuse from the practitioners of nationalism, who believe themselves superior to others based on what country they live in. Patriotism is good, nationalism is bad.
Posted by: peter | March 15, 2010 8:58 PM
Re: Peter @33. I think you'd agree with the famous saying of Carl Schurz (U.S. Senator and Secretary of the Interior, late 1800s).
That's my type of patriotism. Anything else is just jingoistic nationalism, and to be despised.
Posted by: James Hanley | March 15, 2010 9:08 PM
OK, I just did a quick read of the dissent, and here's my take on it. It's not just a rebuttal of the majority, but an attack on Scalia's "ceremonial deism" argument. I don't know how much of the dissent material was handed to the judge in the plaintiff's briefs, but he's clearly trying to give them as much help as future appellants as he can. He's writing to Kennedy and Sotomayor and maybe Roberts.
It's masterful, but probably futile.
Posted by: James Hanley | March 15, 2010 9:22 PM
Re: James Hanley @34
As Ed would say, "Nails and heads."
Posted by: Satcomguy | March 15, 2010 11:19 PM
The majority did something very sneaky that allowed them to write the opinion they did.
The majority asked whether the pledge AS A WHOLE is religious. I agree with them, it's not. The pledge is patriotic, and one line is religious.
If the pledge was written from scratch with the words "under God" in there, it would probably be constitutional. Courts only strike down acts of Congress if they have a primary purpose of advancing religion. The majority effectively pretended that this is what happened.
The majority did not ask whether the 1954 amendment adding "under God" was religious. The majority argued that Newdow lacked standing to challenge that amendment because Congress does not require anyone to say the pledge. California requires its students to say the pledge, and California never changed it's law. Students just say the pledge---however it happens to be written at the moment.
This allowed the majority to focus ONLY on the pledge AS A WHOLE, and ignore the specific insertion of the phrase "under God."
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Majority: What forest? I don't see any forest here. I just see rows and rows of trees.
Posted by: Chris Bell | March 16, 2010 12:05 PM
@Chris Bell #37:
Not according to the SCOTUS reasoning referred to in the dissent, at 3938-9; Reinhardt points out that:
Posted by: Robin Levett | March 16, 2010 4:52 PM
Robin,
First, you'd have to accept that the pledge is coercion.
Second, note that the key phrase in the quote --- "A religious component included in a secular exercise, whether or not a patriotic one, is subject to the same coercion rules as is any other religious practice to which public school students are subjected" --- does not have a citation. I don't think you can get that proposition from the cases cited earlier either.
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The Supreme Court has fairly consistently said that we should look at the activity as a whole when deciding if it is primarily motivated by a religious purpose. If the pledge were created from scratch with the words "under God" already inserted, I think it is much more likely to be constitutional.
If Newdow can't challenge the specific act of adding "under God," then his case is in deep doo-doo.
Posted by: Chris Bell | March 16, 2010 5:40 PM
One thing that's so annoying about this is that any logical and proper-thinking religious person ought to be against including "One nation, under God." Why? Because it is taking what is God's for oneself.
It's like my saying that my blog is Ed's favorite blog of all time. But no, I don't get to say that. Ed is the one who gets to say that, not me.
Similarly, the US can't unilaterally decide that we are "under God." Only God knows, and we usurp his authority when we say so.
Posted by: Ahcuah | March 16, 2010 6:47 PM
If they ought to be against that, they ought doubly to be against preserving it on the grounds that it's just a ceremonial phrase devoid of religious meaning.
It's an argument that if offered sincerely ought to offend believers by telling them all this 'God' talk of their is meaningless blather, and if offered insincerely ought to offend them by advancing outright lies in the name of their religion.
Posted by: DaveL | March 16, 2010 6:57 PM
Someone brought this up in a discussion elsewhere, and it threw up a proverbial red flag:
The decision cites (Page 7 of the PDF, ref. pg 3875): The Declaration of Independence, 1 U.S.C. § XLIII (1776)
The quote immediately before that is from the start of the second paragraph of the DoI. Not sure what that reference is to, though. A Google search for "1 U.S.C. § XLIII" turned up nothing but links to the citation in this decision.
It smells fishy. The DoI is the only founding document with a reference to a Creator god. But of course, it is not part of the law of the USA, unlike the Constitution, which does not refer to any god. When I saw the U.S.C. cite, my first thought was that it was in recent years tacked onto Title 1 of the U.S.C. in order to try and rebut this particular argument ("Hey look, now the DoI is officially part of US Law, you god-hating pagan!").
The Wiki on Title 1 of the United States Code didn't have anything.
I'm not a lawyer, so I really don't know. Is there some other possible reference that it could be? Makes me wonder if the clerk who wrote the decision, or one of the two judges, provided that to lend a bit of credibility to their argument, after basically claiming that only the 'official' documents count for determing what's ok or not, and the DoI really isn't part of the founding of the government, regardless of how important it is to the founding of the country in general.
I would think in a decision like this, that they know is controversial and will be widely read, they would be very careful and double check their citations, or am I missing something?
Posted by: FastLane | March 17, 2010 6:56 AM
@Chris Bell #39:
It's difficult to see how, on the basis of Lee v Weisman and the cases there discussed, there could be any contrary argument:
The majority here did not find no coercion - they found that the students were not coerced into joining in prayer and acknowledged that if the pledge were objectionable as religious, that coercion would be improper:
You then said:
I can and do - from Lee. The issue in Lee was whether the continuation of the inclusion of prayer in the graduation ceremony - it had been included for so many years that there is nor reference to any change to its inclusion - was improper.
If your argument:
were correct, then Lee could only have been decided one way. The ceremony is the crowning ceremony of an American schoolchild's school life; it is of huge secular significance - no argument that it is primarily a religious ceremony would stand a chance - and yet the inclusion of only 2 minutes prayer is improper.
It is important to remember that the prayer wasn't a new initiative; so far as the judgment was concerned, it was traditional to offer prayers at graduation ceremonies. It was the continued presence of prayer in the running order, and not its addition thereto, that was the offence.
There was a de minimis argument put, but it was soundly rejected:
Posted by: Robin Levett | March 17, 2010 8:48 AM
Excellent analysis Robin, and it shows even more how convoluted this decision was.
Posted by: FastLane | March 17, 2010 10:12 AM
The Pledge is NOT California state law. The law simply requires school districts to begin the school day with an "appropriate patriotic exercise". It adds that the Pledge satisfies that requirement, but it states it in no way exclusively.
Here's the opportunity folks. Districts can make the decision themselves to begin the school day with ANYTHING they want that could be defined as a patriotic exercise. The list of options is endless. Parents and others who pay for the schools with their property taxes, should join me and not let districts stay stuck on an incomprehensible, robotic Pledge, when their are so many other options that better satisfy the law.
BTW, if it is really a Pledge, is it only good for 24 hours? How about we just have every student sign a copy - would blood work? - and file it away in case anyone questions their patriotism?
More about the Pledge at:
http://members.cox.net/patriotismforall/
Posted by: Hifi | March 17, 2010 8:38 PM