A little less than two weeks ago the Ninth Circuit Court of Appeals in San Francisco declared in a two to one decision that the words "under God" inserted into the Pledge of Allegiance in 1954 by congress made the Pledge unconstitutional.
Since that time, an out cry from various groups and from individuals that condemn that action has taken up much of the opinion page in many newspapers and much of the time on talk radio and television shows in the land. Locally the opinions of people in Carbon County follow the trend across the nation, with over 90 percent of those that have voted on our on-line website poll feel that the words should remain. Unlike most polls that usually show a three to five percent no opinion" mark, this poll has shown a less than one percent "no opinion." About eight percent of those voting have said the words should not be in the Pledge.
Most people just cannot believe that a court, meant to uphold American ideals would do such a thing. Over this decision, people have bashed the courts, and in particular the two judges, Alfred Goodman, the presiding judge who wrote the majority opinion, and Stephen Reinhardt the other of the three that concurred with him on the decision. Many are hailing Ferdinand Fenandez, the dissenting judge in the case, as a hero.
This is a difficult issue to stand back from and to try to evaluate neutrally. First of all it involves God, a concept, regardless of ones religion or ones concept of a supreme being, that is tied dearly to an individuals identity as well as that of the countries.
Secondly, it involves tradition; a tradition every single war baby, baby boomer and generation Xer has been involved with their whole life. For most of us, it would almost be impossible to recite the Pledge without using the words in question. The decision also brings up the fact that if these words are unconstitutional, we may also have to stop singing America the Beautiful and God Bless America; we may have to change the words on our money; and we may also have to realize that the oaths that people take before going on the witness stand and before taking public office, should not be permitted in their present form either.
Obviously the emotion cannot and will not be removed from this issue. But while most people are passionate about it, few of them have read the actual decision, know about the actual case or have tried to learn why the court did what it did.
First of all, courts do not operate in a vacuum. While they often do not consider public opinion (and should not based on the fact they were set up the way they were to eliminate that pressure, unlike the legislative and administrative branches of the government). However, they do have pressures and much of it come from what courts have done in the past. It's a concept called precedent.
If you watch any kind of law show on television, you know that TV lawyers are always spouting off other cases where similar, or issue connected cases were tried and decisions were made. They often base their arguments on the precedents set by other courts. That happens in real court rooms too.
During the year,s some litmus tests have been devised by courts, particularly by the United States Supreme Court about the constitutionality of certain cases.
The tests, established during certain cases of record, are often used when a similar question comes up.
In the civil case, plaintiff Michael Newdowsaid his daughter, while not forced to recite the Pledge (which was ruled unconstitutional in the 1940s in a case concerning Jehovah Witness rights), had to hear it be recited in her classroom by other students.
And more importantly, the plaintiff's lawyers argued that the other students were led by a state employee (the teacher) in uttering the words.
Newdow, who is an atheist, claims injury because his daughter is compelled to "watch and listen as her state employed teacher in tier state run school leads her classmates in a ritual proclaiming that there is a God" and that the United States is "one nation under God."
His lawyers argued that Newdow's standing as a parent allows him to challenge a practice that interferes with his right to direct the religious education of his daughter.
Simple as that single issue seems, the court had to deal with many issues in their 28 page decision.
The federal court judges had to deal with who the proper defendants in the case were and what action could be taken by the palintiff.
Newdow initially named everyone from Bill Clinton, president when the plaintiff originally filed the civil case, to the Sacramento School District, where his daughter may be attending, as defendants.
The judges decided that the president could not be a defendant in the case, regardless of who he is, based on the fact the president has no power to repeal the words from the Pledge.
The federal court judges also decided that the U.S. Congress could not be directed by the court to change the words, any more than they could the president.
The court also decided that the Sacramento School District could not be included in the lawsuit because Newdow presently, or in the past, had nothing to do with the members.
Just because his daughter might attend that district in coming years gave him no standing to file suit against the board members.
The suit basically came down to a matter of Newdow vs. Elk Grove Unified School District.
Once the issues were settled, the case came down to whether the Pledge violated the Establishment clause or the part of the First Amendment that reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
It was the use of precedents and tests of the clause that brought the court to the decision.