Kicking God Further Out the Door

September 15, 2005

U.S. District Judge Lawrence Karlton’s decision that a California “school district’s policy and practice of teacher-led recitation of the Pledge violates the Establishment Clause,” provides a timely illustration of judicial activism at work.

Just to be clear, I’m not here accusing Judge Karlton himself of activism. He determined that he is required by the previous holding of the 9th Circuit Court of Appeals in the Newdow case to enjoin the district from the practice.

He ruled that while the Supreme Court reversed the 9th Circuit in Newdow, it did so on technical grounds (“standing”) and its substantive holding (forbidding the teacher-led Pledge) still stands. I suspect it may later be determined that Judge Karlton is way off in his legal analysis, but if he is correct, then he was not engaging in judicial activism by following binding precedent (again, assuming it is binding) from a superior court.

This case, however, does highlight the judicial activism of the 9th Circuit Court of Appeals and the United States Supreme Court in their Establishment Clause jurisprudence.

The Supreme Court has primarily mucked up the law in this area (Establishment Clause). The 9th Circuit is even worse, but without the original activism of the Supreme Court, the 9th Circuit would have had nothing to hang its hat on in the Newdow case.

If the Court had, through the years, construed the Establishment Clause in accordance with the original understanding of the Framers, these pledge cases — and similar cases — would never have gotten off the ground.

The Establishment Clause was designed to prohibit the Establishment of a national religion or a national church. It was not intended to erect a “wall of separation” between church and state, nor prohibit all endorsements of religion by the federal government. And it was emphatically not intended to force government to be neutral between theism and atheism.

One may believe, as a policy matter, that a government-supported school should not favor one religion over another or one Christian denomination over others. But policy preferences are a separate issue from what the Constitution requires or forbids.

Like it or not, the Constitution, rightly interpreted, allows the federal government (and the states) to “encourage” the Christian religion. As Supreme Court Justice Joseph Story (1779-1845) wrote, “Probably, at the time of the adoption of the Constitution … the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship.”

From the beginning of our constitutional history, the government has honored the God of the Bible, from congressional chaplains, to national days of prayer, to opening prayers in the Supreme Court, to Congress’s authorization in 1800 — when the seat of government moved to Washington, D.C. — for the Capitol building also to serve as a church building.

The Establishment Clause, like the Free Exercise Clause, was supposed to guarantee, not restrict religious freedom. But the Supreme Court, in its activist distortions, has largely turned the clause into a weapon against religion liberties, and lower courts have followed suit, and worse.

In the Pledge cases, the argument is that when a public school teacher leads the students in reciting the Pledge, which includes the words “under God,” the government is endorsing (establishing) religion. And, to the objection that students may choose not to participate, the anti-pledgers say, “Students are virtually coerced by peer pressure to participate. They will feel offended or uncomfortable if they don’t.”

The Supreme Court, if it hears this case, may hold that the thrust of the Pledge is patriotic and secular, and that “under God,” is therefore incidental and not the establishment of religion. But the Court should never have to base its decision on such nuance in this area.

The Establishment Clause was never intended to apply to such removed, indirect nods toward religion. And it does not guarantee our right not to be offended or made to feel uncomfortable.

But more importantly, it was not intended to be used as a sword against the free exercise of religion. By going out of its way to find Establishment Clause violations on such tenuous grounds, the Court deprives students who want to recite the Pledge of their free exercise rights. In this way, the religion clauses are turned on their heads to achieve a result entirely opposite from that intended by the Framers.

If the Pledge’s opponents ultimately prevail, the government will not be adopting a neutral stance toward religion, but one that prefers atheism — kicking God further out the door.

Beware of those who speciously champion the mythical separation of church and state in the name of religious liberty. All too often the result of their advocacy is the suppression, not the expansion of religious liberties.