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VOL. 4, NO. 12 JULY 1, 2002

New Nonsense on the Ninth Circuit
In on of the most publicized decisions ever made by a federal circuit court, a panel of the renegade Ninth Circuit stunned the nation June 26th, 2002 with its outlawing of the Pledge of Allegiance. Diverting attention from significant U. S. Supreme Court decisions being simultaneously announced, the Ninth Circuit panel (voting 2-1) outraged public and politician, Republican and Democrat alike with its ruling in Newdow v. U.S. Congress (pdf file).

Nonsensical actions are nothing new for the activist/liberal Ninth Circuit, however. And as nonsensical as the Newdow decision is, it is possible only because of radical changes in our culture and a long line of nonsensical decisions made by the U. S. Supreme Court. We outline below the most germane decisions in which Newdow is rooted and conclude with preliminary comments about the difficulties these decisions present.


  • Minersville v. Gobitis—Upheld the compulsory flag salute against the Free Exercise claims of Jehovah's Witnesses; 
    Cantwell v. Connecticut-Declared that the Free Exercise Clause of the First Amendment (applicable only to the national government) was now applicable to state governments (i.e., the Free Exercise Clause was "nationalized"); Jehovah's witnesses did not have to secure a permit to solicit funds of public streets;

  • West Virginia State Board of Education v. Barnette—reversed Gobitis, overturning the compulsory flag salute law;

  • Everson v. Board of Education—The Pandora's Box of religious freedom jurisprudence, this case (1) inserted "separation of church and state" into the Establishment Clause of the First Amendment; and (2) simultaneously nationalized the Establishment Clause; previously existing only as a metaphor in a Jeffersonian letter to Danbury Baptists in 1803, this infamous separation doctrine is the taproot from which has sprung the bulk of pernicious constitutional rulings in various areas of law since 1947;

    Engel v. Vitale—the first big public school/religion case; invalidated a state-written prayer (its only distinctive feature being the recognition of one Supreme Being) to be said voluntarily at the beginning of a school day; held to violate the Establishment Clause;

  • Lemon v. Kurtzman—Landmark case defining "establishment of religion" according to a "three-pronged test"-a law is constitutional only if it (1) has a "secular purpose;" (2) does not have the "primary effect" of advancing or inhibiting religion;" (3) does not create "excessive entanglement" of government with religion; this test, joined with the "wall of separation" concept, remain the cornerstones of religious freedom jurisprudence;

  • Lee v. Weismanstruck down invocations and benedictions at official public school graduation ceremonies as violated of the Establishment Clause; introduced the theory of "psychological coercion" to counter the school's claim that students need not participate in the challenged activities;

  • Santa Fe Independent School District v. Jane Doe—overturned a school district practice of having student-led prayer prior to football games; prayers held to violate the Establishment Clause.


    The activist/liberal doctrines central to these and similar decisions have created constitutional and cultural carnage in America. A few of the most virulent consequences of this liberal/activist assault on the Constitution are noted below:

    • The "wall of separation" concept has no support in the constitutional text, constitutional history, constitutional theory, English Common Law, or American precedents prior to 1947. Furthermore, it is an oxymoron because the complete separation of "church and state" is impossible-religious views and values and legal views and values are inevitably and inseparably related. Since this taproot of contemporary religion clause jurisprudence is a rotten root, the cases it has spawned are no better. "Separating" Christianity from the public square creates not neutrality, but the menacing opportunity for anti-Christian values to conquer American law and culture.

    • The "Lemon test" likewise has no more valid support than the "separation" theory; and the test brings nothing but confusion and subjectivism to constitutional interpretation, as it can be defined in any manner preferred by a judge. The Constitution becomes only so much putty in the hands of an activist/liberal judge.

    • The Free Exercise Clause has been forced into a position antithetical to the Establishment Clause so that irreconcilable conflicts between the two clauses constantly explode. Federal judges then have to reconcile these conflicts, and Free Exercise has become the abused step-child of the religion guarantees. Orthodox forces virtually never win free exercise claims before federal judges-especially the higher levels of judges.

    Analyzing the Newdow decision in the light of these difficulties poses some interesting questions. The U. S. Supreme Court has ruled that Secular Humanism and other thought systems which do not believe in God are "religions" (Torcaso v. Watkins, 1961). Therefore, if "under God" in the Pledge renders it "too religious" (i.e., too orthodox), don't government prohibitions on voluntarily participation in the Pledge:

    • constitute government establishment of secularistic religions?
    • violate the Lemon test, at least re: prongs #2 and #3?
    • abridge the Free Exercise rights of students who view the Pledge as important and wish to join with like-minded classmates in a voluntary expression of their religion and patriotism?

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