First amendment interpretation flawed in pledge case |

First amendment interpretation flawed in pledge case

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances. (First Amendment, enacted 1791).

As this column has often opined, the First Amendment is “overrated.” In the areas of religious expression and freedom of speech, the First Amendment has been interpreted in ways unfamiliar to its authors and far beyond their intent.


Take the recent San Francisco based U.S. Court of Appeals decision that the words “under God” are unconstitutional and inappropriate for school children in their morning ceremony. The Court wrote:

“A profession that we are a nation ‘under God” is identical, for

Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.”


As we all know from following the Pledge of Allegiance case, the words “under God” violate the principle of separation of church and state. Wait a minute, where’s the separation of church and state language in the First Amendment? It isn’t there.

The intent of Congress in enacting the First Amendment was to prohibit state support for an official church, like the “established” church in England at the time, the Anglican Church.

Do the words “under God” establish a religion or prohibit the free exercise thereof? No. And that should be the question.

But through a series of Supreme Court holdings, the so-called Establishment Clause in the First Amendment has been interpreted to bar any government action that “advances,” “sponsors,” “coerces” or “endorses” religious faith. Church and state must be independent and separate, no matter how de minimus the connection.

That’s why we don’t see cr?ches at public facilities, or crosses on public land. That’s why public school kids are denied the opportunity to say prayers in school or at graduation ceremonies.


Here are some excerpts from the dissenting Judge in the Pledge case:

We should recognize that [the Establishment clauses] were not designed to drive religious expression out of public thought; they were written to avoid discrimination. Such phrases as ‘In God We Trust,’ or ‘under God’ have no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity.

We will soon find ourselves prohibited from using our album of patriotic songs in many public settings. ‘God Bless America’ and ‘America The

Beautiful’ . . . . And currency beware! . . .

In short, I cannot accept the eliding of the simple phrase ‘under God’ from our Pledge of Allegiance, when it is obvious that its tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimus.”


My personal indignation about removing “under God” was a bit tempered when I learned that Congress added the phrase to the Pledge of Allegiance in 1954. The words apparently were inserted as a statement against the godless communists — at the height of the Cold War.


The Pledge case will be appealed to the full panel of the federal 9th

Circuit or to the U.S. Supreme Court. The 9th Circuit Court of Appeals, which governs the western states, is considered the most liberal in the federal judiciary. It is certainly the most overturned by the Supreme


I would have put my money on the Supreme Court invalidating Congress’ 1954 decision to insert “under God” into the Pledge; however, last week the Court in a 5-4 decision, upheld a school voucher program, which was claimed to be pro-religion as public school kids may receive a $2,500-a-year stipend to attend the private school of their choice, which by-and-large would mean a Catholic school.

In other words, at least five Supreme Court Justices felt the voucher program was neutral toward religion. Whether they can reach the same conclusion on the Pledge case remains to be seen.


If “under God” violates the First Amendment of government sponsorship of religion, removing “In God We Trust” from our coins will be the next target.

Let’s play this out. If it is illegal to include ‘under God’ in the Pledge it is probably illegal to own coins with “In God We Trust.” We all go to


I am betting that the Pledge of Allegiance as we have recited it since we were little kids, will stay the same.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission.

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