Even without Justice Scalia on the panel, the pressure on the Court to
reverse the 9th Circuit will be intense, and I cannot forget Justice
Stevens dissent in Texas v. Johnson, referring to the "intangible
dimension" of the case that would make normal First Amendment rules
inapplicable.
Nevertheless, it is my hope that the Court will, as it did in the flag
burning case, get it right and apply the text and purpose of the
Establishment Clause to find Congress's addition of the words "under
God" in 1954 unconstitutional.
First, while this case arises in a state context, the addition of the
words "under God" were made by a statute passed by Congress, the core
concern of the First Amendment.
Second, while adding such words may not directly "establish" religion,
the law is "respecting an establishment of religion." The law declares
that the official pledge of allegiance to the United States requires a
recognition that the nation is "under God," which logically requires an
affirmance that God exists and that the nation is subject to God's will
and law. In other words, to pledge allegiance to the United States in
the only way recognized by the United States, one must state that he/she
believes in God and believes that the nation is subject to God's law and
will. Were such a statement required as a qualification to any office
of the United States, it would almost assuredly violate the religious
test prohibition in Article VI. Thus, although we cannot require such a
statement of a candidate for national office, those who would uphold the
addition of the words "under God" in the pledge would require it from
anyone who wishes to pledge allegiance to the nation. To require a
person to confess to religious beliefs in order to pledge allegiance to
the nation is the essence of "establishment." Moreover, the allowance
of an "affirmation," in lieu of an "oath," to support the Constitution
in Article VI (the Constitutionally required pledge of allegiance), was
specifically included to allow such a pledge to be made without invoking
the name of the deity.
Third, the history of the addition of the words "under God" reveals the
intent of Congress to declare by law that there is an identity between
this nation's goals and ideals and the will of God, an identity more
recently expressed by Chief Justice Moore in Alabama in explaining his
reason for placing the 10 Commandments in the rotunda of the state
Supreme Court building. To declare such an identity by law is the
epitome of "establishment."
Anyone who wishes may say the words "under God" between "one nation" and
"indivisible," but for Congress to require those words as a condition to
pledging allegiance to the nation is unconstitutional.
Bill Funk
Lewis & Clark Law School
