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VOL. 8, NO. 8June 15, 2006
Protecting the Pledge: The Pledge Protection Act
By Virginia Armstrong, Ph.D., National Chairman

Bouncing around like a judicial ping-pong ball among the federal courts is our Pledge of Allegiance, with opponents focusing on the phrase "under God" in the Pledge. The precipitator of this activity has been atheist Michael Newdow. In the first round of litigation, The U. S. Supreme Court in 2004 refused to hear the Pledge's defenders asking for relief from the Ninth Circuit's decision, where a three-judge panel in 2003 voted 2-1 to throw out the Pledge. On a petition for re-hearing, six sensible judges in the Ninth Circuit voted for the rehearing, but were out-voted by a larger group of Ninth Circuit members. The U. S. Supreme Court refused to hear the case because Newdow lacked "standing to sue." Undaunted, anti-Pledge forces have now won another victory in a federal district court and are headed back to review by the Nasty Ninth.

Meanwhile, pro-Pledge advocates and their representatives in Congress are pushing for passage of the "Pledge Protection Act" (S.1046, H.R. 2389). This straightforward bill would remove from federal court jurisdiction the power to hear and decide challenges to the Pledge, and is quite within Congress's power to determine federal court jurisdiction under Article III of the Constitution.

In the first round of litigation, the Sensible Six on the Ninth Circuit made several forceful arguments supporting the Pledge. These arguments make a compelling case for passage of the Pledge Protection Act.

  1. Newdow claimed that he was offended by "under God" in the Pledge. But, responded the Sensible Six, "[in] a society as diverse as ours, . . . almost every cultural practice is bound to offend someone's sensibilities. The original two pro-Newdow judges afforded Newdow "the right to impose his view on others, . . . [and gave him] a right to be fastidiously intolerant and self-indulgent." His alleged feelings of "discomfort and isolation" are therefore "simply shifted . . . from one group [i.e., atheists] to another [i.e., the 87% of Americans who support the phrase 'under God']."

  2. The Pledge is an act of patriotism. Several U. S. Supreme Court decisions explicitly refer to the Pledge as constitutional. The rejection of "under God" "precipitates 'a war with our national tradition,'" argued the Sensible Six. Indeed, judicial invalidation of the Pledge would foster — perhaps require — the invalidation of the National Motto and National Anthem, as well as numerous other documents and civic statements acknowledging God in our national life.

  3. Acknowledgements of God do not per se violate the Constitution. In a 1992 Seventh Circuit opinion upholding the Pledge with "under God" in it, Judge Manion wrote that "a civic reference to God does not become permissible . . . only when . . . it is sapped of religious significance." "[W]e need not drain the meaning from the reference [to God in the Pledge] to reach this conclusion."

  4. The Ninth Circuit's voiding of the Pledge is itself a violation of the Establishment Clause. As the Sensible Six observed, the anti-Pledge ruling of their colleagues, "confer[red] a favored status on atheism in our public life. . . . . The silence the majority commands is not neutral . . . . The absolute prohibition on any mention of God in our schools creates a bias against religion. . . . . One wonders, then, does atheism become the default religion protected by the Establishment Clause?"

  5. The continued inclusion of "under God" in the Pledge in no way suppresses anyone's religious beliefs or threatens the "pluralism" to which the Newdows of America profess such fervent allegiance. The phrase "under God" was added to the Pledge in 1954. During these 50 years that Americans have been reciting "under God," America has simultaneously experienced the greatest explosion of "diversity" and "pluralism" in its history.


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