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Tuesday, Jul. 02, 2002

The decision of the Ninth Circuit Court of Appeals last week regarding the Pledge of Allegiance has brought out some of the worst that America has to offer. The response of the public, the media, and our elected representatives has been an embarrassment of knee-jerk reactions, majoritarian triumphalism, and cheap expressions of hollow patriotism. Not only is it disappointing, it is inaccurate.

The decision itself bears little relationship to the radical manifesto that the press has reported. The decision did not forbid anyone from privately reciting the current pledge, "under God" included, and it reaffirmed the right of schools to lead children in the secular version of our pledge -- a version that predated the "under God" edition by over fifty years. The Ninth Circuit may have been correct in its decision, or it may have been wrong, but the insults to that court's integrity and reputation that have followed the decision are entirely unwarranted.

What the Case Was, and Was Not, About

The Ninth Circuit did not rule that "the Pledge of Allegiance is unconstitutional," despite the endless media reports to that effect. Rather, the Court's decision is only about the inclusion of the words "under God".

Under the Court's decision, every school in America remains free to lead our children in reciting a Pledge of Allegiance that reads: "I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one Nation, indivisible, with liberty and justice for all." In fact, that is how the pledge read for over fifty years, until President Eisenhower signed a special law that added the words "under God" in 1954.

Moreover, the Court's decision is only about including the words "under God" in the Pledge when public officials lead children in reciting it. Every private citizen is free to express religious and patriotic views however he wishes. This is a case about religious freedom - or, more precisely, the freedom not to be religious. It has nothing to do with constitutional limits on patriotism or free speech.

The Court's decision is perfectly clear about all this. The media has shamefully misreported this case.

Elected Representatives Have Made Matters Worse

Senator Robert Byrd has promised to "blackball" any judge who votes for the opinion -- a serious threat, since the decision may be revisited by the full Ninth Circuit. Speaker Dennis Hastert has suggested that the "liberal" Ninth Circuit deliberately reached out to make trouble and should be replaced with more "common sense" judges - also a serious threat, given the number of vacancies in the federal courts.

One of the most important elements in our system of checks and balances is the independent federal judiciary. Our Constitution goes to great lengths to ensure that judges will have the freedom to interpret the law without bowing to political pressure. It was that protection that permitted federal judges, for example, to desegregate our Nation's schools.

But our Constitution is not foolproof. When Senators threaten to "blackball" judges for unpopular opinions, or to block future nominees who express sympathy for those opinions, they are interfering with the process of judging in a basic and dangerous fashion. The proper response to a misguided ruling is an appeal to a higher court, not an appeal to base threats.

Perhaps there are opinions a judge might issue that would be so outrageous as to warrant immediate calls for "blackballing" or impeachment. A good-faith attempt to define the separation between Church and State, like that represented by the opinion of the Ninth Circuit, is not one of them. Our elected representatives do us a disservice when they suggest otherwise.

Majorities Should Exhibit Humility

Perhaps most upsetting has been the majoritarian triumphalism that has characterized the public's response to this case. The vast majority of Americans, we are told, "support the pledge." Perhaps a vast majority of Americans would even support keeping the words "under God" in the pledge, if the media reported this case accurately. But being part of a majority does not give one a moral license to disregard - indeed, steamroller - dissenting viewpoints.

Many parts of our Constitution, including the Religion Clauses, exist in part to protect minority beliefs. When a court issues an opinion that challenges a majority view, why can't it be an occasion for self-reflection, rather than outrage?

Belonging to a majority is a privilege. As the saying goes, there is safety in numbers. With that safety should come a measure of humility. Rather than triumphantly proclaiming that the Ninth Circuit's opinion is out of step with the beliefs of most Americans, the public should use the safety of their numbers to take a serious look at the claim that this parent has made on behalf of his daughter.

The American people are at their best when they tackle difficult issues and reaffirm their values by challenging their own assumptions. They are at their worst when they refuse to question their beliefs and rely on numbers to silence, rather than foster, debate.

After all the shouting ends and we turn down the volume, was the Ninth Circuit's decision correct? Tough question.

There is no doubt that the Constitution prohibits government from declaring one faith to be the official religion of our country. If the Pledge of Allegiance read "one Nation under Jesus Christ Our Lord," the endorsement of Christianity would be clear.

The more difficult question is whether the Constitution prohibits government from officially endorsing religion over non-religion. We know that the Constitution protects religious minorities. Does it also protect those who do not believe in God at all, or those whose beliefs are not fully formed, or those who simply do not wish to be involved in a public expression of faith?

If the answer is "no," and our government is free to make official endorsements of general religious belief, then the Ninth Circuit got it wrong. But we should consider the implications of that position. Could a State post signs around a government workplace saying "This is a God fearing office"? Could the federal government give flyers to food stamp recipients that say, "This assistance comes to you by the grace of God"?

Many Americans would, of course, feel alienated or excluded by such official statements of religious belief. That very feeling of alienation is part of what the Establishment Clause is meant to prevent.

And the "Under God" pledge goes further than the signs or flyers. When public school teachers lead students in reciting the pledge, it not only expresses a government position, it pressures children to join in.

If the answer, instead, is "yes" - the Constitution does forbid official endorsements of general religious belief, and not only endorsements of particular religions - then the Ninth Circuit faced a difficult issue: Does including "under God" in the pledge send children a message that they are not fully American if they do not believe in God and embrace God in public life? Or is the phrase merely an acknowledgement of the religious beliefs of most Americans, and not a statement of official orthodoxy?

The fact that it is young children who are led in this exercise makes the issue even more difficult. An adult is much better equipped than a child to understand the difference between an acknowledgement of religious belief and a statement about who belongs and who does not.

Indeed, we all understand - and remember - that most school children are particularly sensitive to being told that they're not part of the "in crowd." This is one of the reasons that the most difficult and important cases about the separation of Church and State have arisen in our public schools.

Whether the Ninth Circuit got it right or wrong, the Court's attempt to answer this difficult question was careful, measured and responsible. The public, the media, and our elected representatives all have much to learn from their example.

Tobias Barrington Wolff is a professor of Constitutional Law and Civil Procedure at U.C. Davis. His e-mail address is

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