March 14, 2010


Oh, I'm sure He will be so pleased to know that He's not really a religious symbol:

The San Francisco Appeals court has ruled that "Under God" is not a prayer when used in the Pledge of Allegiance. In 2002, the court declared that the phrase was unconstitutional. The new 2-1 ruling from the Ninth U.S. Circuit Court of Appeals states it is a "recognition of our founders' political philosophy that a power greater than the government gives the people their inalienable rights [...] Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect."

In a separate 3-0 ruling, the "In God We Trust" was also found to be non-religious; the motto is patriotic and ceremonial.

The ruling itself is not so much an issue with me; I don't have a problem with saying "under God". But I do have an issue with Judge Carlos Bea's reasoning in his decision:

Bea wrote that the pledge is indeed a patriotic exercise, and the words "under God" must be viewed in that context.

"The pledge reflects many beliefs held by the founding fathers of this country -- the same men who authored the Establishment Clause -- including the belief that it is the people who should and do hold the power, not the government," Bea wrote. "They believed that the people derive their most important rights, not from the government, but from God."

Hold on there. Before one starts invoking "the Founding Fathers" in justifying the phrase "under God" in the Pledge of Allegiance, one might actually to do research into the Pledge. Like the fact that the Founding Fathers had nothing to do with the Pledge. It was written in 1892 (more than a 100 years after the founding of the country) by a Baptist minister, Francis Bellamy. It's a little disingenuous to claim the Founding Fathers as the authority on this, since none were alive when the pledge came to be. As it was originally written, it hardly had the patriotic or religious fervor that Bea ascribed:

I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all.(ref. Wikipedia)

It has gone through four iterations before coming to its current state. The phrase "under God" wasn't added, as many of you know, until 1954, and only then as some sort of strange pre-emptive move against communism, as if making schoolchildren say those words inoculated them against communist sympathies.

As for the Founding Fathers' endorsement of the rights of Americans are derived from God, well, that's a disputable statement as well.

The word "God" does not appear within the text of the Constitution of the United States. After spending three-and-a-half months debating and negotiating about what should go into the document that would govern the land, the framers drafted a constitution that is secular. The U.S. Constitution is often confused with the Declaration of Independence, and it's important to understand the difference.

The Declaration of Independence is seen as that document that established the new nation of the United States. It was written by Thomas Jefferson in 1776. It was signed by the Continental Congress and sent to King George III of England. It is a very eloquent document that is celebrated every July 4th, but it is not the law of the land. It is a statement of sentiments directed to King George III in reaction to unfair taxation. The U.S. Constitution was ratified on March 4, 1789 -- thirteen years after the signing of the Declaration of Independence.

The Declaration of Independence refers to "the Creator:"

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Declaration of Independence is not a legal document; it is not the U.S. Constitution. Foes of the principle of separation of church and state often refer to the word "Creator" in the Declaration of Independence as proof that the framers of the U.S. Constitution intended for the United States to be ruled by a sovereign being. Nothing could be further from the truth. The United States Constitution was written and ratified by elected officials representing a coalition of Enlightenment rationalists and evangelical Christians who were deeply concerned about entanglements between religion and government.

I'm sure it's not a surprise that Judge Carlos Bea is a Bush appointee to the 9th Circuit. That he was joined in his decision by Judge Dorothy Nelson was surprising, as she normally tends to rule with Judge Stephen Reinhardt, the lone dissenter (his 133-page dissent [.pdf--dissent begins on page 61] should tell you how strongly he felt about this). However, a former clerk for Judge Reinhardt suggests that she may have been nervous about the ramifications of siding with Reinhardt:

"She's a conciliator. She's not a bomb thrower," Hastings College of the Law professor Rory Little said of Nelson, who was dean of the University of Southern California Law School before she joined the court.

Adds (former Reinhardt clerk and current Stanford Law School professor Michele) Dauber: "It doesn't take a brain surgeon -- or a professor at Stanford -- to think Judge Nelson doesn't want Glenn Beck giving out her home address so people can go picket her house."

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