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On June 26, the U.S. Court of Appeals for the Ninth Circuit struck again. This time, these judicial extremists have ruled that the Pledge of Allegiance is unconstitutional. Not surprising for that court, but it is an inevitable result of the judicial activism rampant throughout the federal bench.
First, the facts. Michael Newdow is a minister of atheism, ordained by the Universal Life Church. He says he will soon open his own church, the First Amendment Church of True Science, on the Internet. His daughter attends public elementary school in California. Under state law and school district policy, teachers begin each school day leading their students in the Pledge of Allegiance. They use the script first codified by Congress in 1942 and amended in 1954 by adding the words “under God.”
Mr. Newdow objects to these two words. He does not object to his daughter being compelled to say them, because participation in the pledge is voluntary. He objects that his daughter must “watch and listen” to the words said by her classmates. His daughter exercising her freedom not to participate renders others exercising their right to participate an “establishment of religion” forbidden by the First Amendment.
He argued that the 1954 statute adding the “G” word to the pledge is unconstitutional. He wanted a federal judge to order the president to “repeal” the pledge by removing the offending words. (Note to Mr. Newdow: Just like you can’t read the Constitution’s First Amendment, you can’t read its Articles I and II. The president cannot repeal a statute passed by Congress). He also wanted a federal judge to order Congress to remove the words. (Another note to Mr. Newdow: Read that Constitution some more, this time Article III – courts can’t order Congress to pass legislation).
The court’s first mistake was concluding that Mr. Newdow had legal standing to bring this lawsuit at all. To have standing, someone must have suffered a concrete, actual legal injury to a real legal right. It’s not enough that someone have a disagreement, a contrary opinion or a beef with something. Yet the court said that the “mere enactment of the 1954 Act … constitutes a religious recitation policy that interferes with Newdow’s right to direct the religious education of his daughter.”
Aside from the fact that the Constitution enumerates no such right, the fact that his daughter did not say the words of the Pledge shows the success, not the failure, of Mr. Newdow’s direction of her religious education. And besides, the 1954 statute simply added the “G” word to the Pledge. That statute, by itself, did not require that anyone – no class, no teacher, neither Christian nor atheist, no one at all – recite the Pledge. It is school district policy, not this 1954 statute, that requires teachers to lead recitation by those who wish to do so. So the statute Mr. Newdow attacks not only doesn’t violate his rights, it cannot.
The court concluded that “the statement that the United States is a nation ‘under God’ is an endorsement of religion.” I agree wholeheartedly, yet the court says this as if it’s somehow a problem. In fact, the court’s second mistake was to conclude that “the text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God.” So long as the government does not force anyone to express that belief, there’s nothing impermissible about such an endorsement whatsoever.
The Supreme Court itself endorses that position. I was in attendance in the Supreme Court on June 24 and June 27 when it handed down its final decisions. On both days, we were required to stand while the Marshal said “God save the United States and this honorable Court.” Though I took no opinion poll, I hardly think anyone thought a religion was being established or that in our respectful silence we suffered an injury to some legal right. I know I didn’t. (Wouldn’t Mr. Newdow blow an atheist gasket at seeing the Ten Commandments chiseled in stone not once, but twice, in the Supreme Court chamber?).
The Declaration of Independence is, with the Constitution, one of the “organic laws of the United States.” It endorses the same position, appealing to “the Laws of Nature and of Nature’s God” and asserting that we are “endowed by our Creator with certain unalienable rights.” It even concludes by “appealing to the Supreme Judge of the World.” Is the Declaration unconstitutional? The Constitution itself closes by identifying its signing as “in the Year of our Lord” 1787. It actually capitalizes the “L” word. Is the Constitution unconstitutional?
The court’s third mistake was its ridiculous assertion that students are in the “untenable position of choosing between participating in” the Pledge “or protesting.” Well, there is the option that Mr. Newdow’s daughter chose, not participating. That’s not the same as “protesting.” She did exactly what a voluntary policy allows and what, apparently, her father had taught her. She did not participate. That was her choice. She should not, however, have the right to prevent others from choosing the option of participating.
This isn’t the first time Mr. Newdow has gone to court attacking other people’s freedom of religious speech. The Sacramento Bee reports that Mr. Newdow filed suit against President Bush after Rev. Franklin Graham’s invocation at the 2000 presidential inauguration ceremony. When that suit got tossed out, Mr. Newdow then tried to sue Sen. Mitch McConnell, then-chairman of the committee in charge of the 2000 inaugural.
Judges are hijacking the culture, hijacking democracy, hijacking freedom itself. It’s no wonder the far-left wants to stop President Bush’s judicial appointments. So these judicial activists can continue running the country.