JD Journal » establishment clause

Happy 4th of July!

joshua — Sat, 03 Jul 2010 00:02:58 +0000

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.

We all know the words, and most of us know that the words “under God” were not a part of the original pledge. But do you know that that isn’t the only way in which the pledge has changed since its inception? In light of this weekend’s celebration, it seems an appropriate time to brush up on the history, cultural, legislative and legal, of America’s oath.

The Pledge of Allegiance was the brainchild of a Baptist minister named Francis Bellamy, who wrote it to encourage the growth of civic pride in America’s youth. In addition to being a minister, Bellamy was a Christian Socialist, part of the liberal branch of Christianity that believes the principles of faith are interwoven with the philosophies behind socialism. In its original form the pledge read “I pledge allegiance to my Flag and to the Republic for which it stands, one nation indivisible, with liberty and justice for all.” A month after he published it, the pledge was said in public schools under a proclamation by President Benjamin Harrison. It was accompanied originally by a hand salute consisting of an outstretched arm and a flat palm, but after Germany adopted a similar salute President Franklin Roosevelt insisted on changing it to the familiar hand over the heart gesture, which Congress codified as part of the Flag Code in 1942.

The first change to the text of the Pledge came in 1923 when the words “my Flag” were replaced with “the flag of the United States”. The change was intended to help new immigrants shift their loyalty to their adopted country. One year later the words “of America” were tacked on.

Although not officially recognized as the national oath until Congress passed the Flag Code in 1942, the Supreme Court weighed in on it as early as 1940. In the first challenge brought against mandatory recitation of the Pledge of Allegiance, the Court held in Minersville School District v. Gobitis that students could be compelled to recite the oath, ruling against Jehovah’s Witnesses who claimed that the practice consisted of idolatry and violated their First Amendment rights. The case was short lived however, and in 1943 the Court reversed itself in West Virginia State Board of Education v. Barnette. In the latter case, the Court avoided the issue of religious freedom and ruled instead that the free speech clause prevented compulsory speech of this type for anyone. Writing for the majority, Justice Robert Jackson, who was recently held up as a role model by Elana Kagan in her confirmation hearings, said “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The final change to the Pledge came in 1954 with the addition of the words “under God”, although the Knight’s of Columbus and other groups began incorporating that language into their own recitations as early as 1951. Officially, the phrase was added by a joint resolution of Congress amending the Flag Code.

Controversy over the inclusion of God in the Pledge persists to this day. Last week a billboard erected by an atheist organization containing the phrase “One nation indivisible” was vandalized, with the words “under God” spray painted on to the sign. The Supreme Court has thus far avoided weighing in on the issue, however. The Court did consider a case brought in 2002 by Michael Nedow. Nedow’s daughter was taught the pledge in school, and he argued that it was a violation of the establishment clause. The 9th Circuit agreed and in 2004 the case made its way to the Supreme Court. Rather than rule on the merits, the Court said that Nedow lacked standing to raise the issue because he was not the custodial parent. Nedow, who continues to agitate for atheist causes like removing the phrase “In God we trust” from US currency, is also an attorney and continues to fight for his belief that the Pledge in its current form violates the establishment clause when taught in public schools. He suffered a reversal however in March of this year when the 9th Circuit again took up the issue in Newdow v. Rio Linda Union School District. This time, after examining a line of establishment clauses from the Supreme Court, the 9th Circuit held the pledge to be constitutional, saying “…we find the Pledge is one of allegiance to our Republic, not of allegiance to the God or to any religion. Furthermore, Congress’ ostensible and predominant purpose when it enacted and amended the Pledge over time was patriotic, not religious.”

Monterey Cross Cut Down by Vandals

joshua — Wed, 21 Oct 2009 17:27:37 +0000

A cross that has stood on Del Monte Beach in Monterey, California since 1969 has been cut down and left in the sand. The cross has been part of an ongoing dispute between the city and the local chapter of the ACLU, who see it as a violation of the establishment clause. The city contends that it is a historic marker, and not a religious symbol.

The cross was erected in 1969 in celebration of the city’s 200th anniversary, in the spot where Don Gaspar de Portola erected a wooden cross in 1769 as a beacon to a resupply ship from Mexico that was lost at sea.

At least three law firms have offered to represent the city in an legal challenges, should Monterey decide to restore the cross. Deborah Mail, the City Attorney, says she has been talking with the Pacific Justice Institute, which has offered free legal representation.

The situation with the Monterey cross differs from the cross at issue in Salazar v Buono, argued recently before the Supreme Court, because the cross in Monterey still sits on public lands. However if the Court sides with the government in Salazar, it provides a possible solution for the city in this case.

Salazar v Buono Argued Today at Supreme Court

joshua — Wed, 07 Oct 2009 19:03:57 +0000

The Court today heard arguments in Salazar v Buono, a highly anticipated establishment clause case. Many observers thought the Court might decide the case on standing, leaving the pricklier 1st amendment issue alone, but based on oral arguments that seems unlikely. The case was brought by a retired National Parks Service employee who objected to a cross on park lands that serves as a war memorial for World War One veterans. Although the cross was originally erected privately and continues to be maintained privately, it stood for years on land owned by the government. To protect it from 1st amendment claims made by the retired employee, Congress voted to sell a small patch of land, including the rock on which the cross stands, to the VFW. At issue now is whether or not doing so removed the establishment clause issue.

Idiot Judge Jails Woman for Wearing Muslim Head Covering in Court

Erik Even — Sat, 27 Dec 2008 17:00:59 +0000

A legal adviser for the American-Arab Anti-Discrimination Committee is demanding that a Georgia judge apologize for jailing a woman who refused to remove her hijab, the traditional Muslim head covering, in court.

Abed A. Ayoub writes:

The hijab is worn by millions of Muslim women in accordance with their belief in Islam. Some choose to wear a hijab, a symbol of modesty, while others do not…

In America, a majority of Muslim women who choose to wear a hijab cover only their hair, leaving the face visible for identification, as was the case with the woman sent to jail by [Judge Keith] Rollins.

Asking a Muslim woman to remove her hijab upon entering a courtroom is similar to asking a nun to remove her religious habit, a Jewish man to remove his yarmulke or a Sikh man to remove his turban.

Ayoub also makes the legal case that Rollins’ actions were unconstitutional.

Title III of the Civil Rights Act of 1964 prevents an individual from being deprived of or threatened with the loss of equal protection of the laws on account of race, color, religion or national origin by being denied equal use of any public facility. Denial of access to a courtroom based on religion is blatant discrimination.

Read the rest of the statement in the Atlanta Journal-Constitution.