Over a year ago, I had to write an essay for a history subject I was doing about contemporary American society. Funnily enough, the subject was called Contemporary American Society. Anyway, the question I chose to write my research essay on was “Explain why the American public school is and has always been a site of social, cultural and political contestation”. Hmmm. I know what you’re thinking. You’re thinking, “Explain? How easy! Like, DER! It’s cos they’re fucking mental!” And yes, while that’s a sound argument, and well done on your articulation of it, just try stretching it to 2500 words and cloaking it in the guise of a ‘reasoned response’, okay? Stupid know-it-all. It takes skill, intellectual rigour, an open mind etc. So, obviously, I decided to tackle the question based on something I’d seen on NBC Today. A court decision had, back then, recently been handed down by the United States Court of Appeals for the Ninth District, in San Francisco, which basically said that having the words “under God” in the Pledge of Allegiance to the Flag - which is recited daily in US public schools - was unconstitutional. Der! But people went mental. Hellooo! Ca-ching! Did someone say “public schools”? Check. And, people are going mental [by which I of course mean taking part in “social, cultural and political contestation”] about them? Check. Oooh, I’m on a roll! This is all so contemporary. Okay, what else is there to this essay question? Ah yes. The “why?”….…. Oh fuck! That’s down to me! Sheeeit. But, phooey, who cares about that now? I’ll think about that later. Meanwhile, how good am I? Being all current and fresh, analysing history as it happens and stuff. I rock! So, needless to say, I wrote the essay, and focussed on the Pledge case to make my argument. And now, a bit over one-and-a-half years later, the US Supreme Court is finally hearing it [no, not a live recitation of my essay, you nongs. The case!] So I’ve decided to dust off my copy of the ONE essay I wrote about it, and designate myself an ‘expert’ on Newdow v. U.S. Congress [after all, if Ann Coulter or Bill O’Reilly can be sought out for comment about anything, based on their own ill-informed scratchings, then why not me? Not that you guys have strictly ‘sought me out’ per se, but… shut up!] Hah! I KNEW my Arts degree wouldn’t turn out to be a waste of time. Hmmm, actually, I went so freakin nuts over this ONE essay that I should probably amend that previous statement to “Hah! I KNEW my Arts degree [aborted] wouldn’t turn out to have been a waste of time.” Yeah. This post is gonna make it all worthwhile though.….….right?

Okay, let’s get my main point out of the way. The Supreme Court SHOULD uphold the decision made by the Ninth District court. They were right. “Under God” IS unconstitutional. Only read on if you want to hear me try to back that up [pretty much stealing every one of my supporting arguments from Judge Alfred T. Goodwin, who wrote the majority decision opinion of Newdow v. U.S. Congress]. Just letting you know, this bitch is gonna be long. But hey, YOU wanted an expert!

Ready class? Here we go. The First Amendment to the US Constitution reads, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof”. The first part, the “Congress shall make no law respecting the establishment of religion” bit, is usually known as the ‘Establishment Clause’. The second part, the “or prohibiting the free exercise thereof” bit, is usually known as the ‘Free Exercise Clause’. All together, the First Amendment installs the ideal that government should neither advance nor inhibit religion, that Americans have a fundamental right to religious freedom, and that such freedom requires the separation of church and state. Thus, the First Amendment precludes government “from passing laws that aid one religion, aid all religions, or prefer one religion over another”, and “from making adherence to a religion relevant in any way to a person’s standing in the political community”. Which means they can’t endorse religion, cos “endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community”. In short, government must be completely neutral towards religion.

Now, to the Pledge. It’s an “oath of loyalty to the US national emblem and to the nation it symbolizes” which was formulated specifically for students so that children would “be daily impressed with a true understanding of [America’s] way of life and its origins”. It is believed to unite Americans in patriotism. In 1942, Congress officially recognised the Pledge, which established their authority over it and over its use [which means they’re liable]. At the time, it read, “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one nation indivisible, with liberty and justice for all”. Not too shabby, eh? But Congress amended it in 1954, adding the contested words “under God” as a way to defy communism. Take that, commie bastards! We just broke our own rules to show you… something. It might be just plain wrong, but we’ll never admit it! You godless heathens! So, since 1954, the Pledge has read, “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”. See how that clangs? One nation under god indivisible? Seems immediately contradictory, no? Anyway, there’s the rub.

The words “under God” are intrusive and unnecessary in a pledge of patriotism. They establish an identification of patriotism with religion, and permit the idea that participation in American politics and society is conditional, which presents an impediment to some from fully identifying as authentically patriotic. That’s how it makes Michael Newdow feel anyway. He’s the emergency room doctor who believes that being required to listen to the Pledge - in its current form - daily harms his daughter, and so he went to court to do something about it. See, the Elk Grove Unified School District, which has jurisdiction over his daughter’s school, has a policy that “each elementary school class [shall] recite the pledge of allegiance to the flag each day”, which is pretty standard, by the way. Newdow took exception to the practice, and the Ninth District court agreed with him. On June 26th, 2002, the court handed down its decision. The judges had concluded, 2-1, that “the 1954 Act adding the words ‘under God’ to the Pledge and the [school district’s] policy and practice of teacher-led recitation of the pledge, with the added words included, violate the Establishment Clause” of the First Amendment, and are therefore unconstitutional. And it wasn’t glib about it either.

There are three tests set forth by the Supreme Court for evaluating alleged Establishment Clause violations. They are (1) the Lemon test, (2) the endorsement test, and (3) the coercion test. A majority of the sitting judges on the Ninth District court found that “both the policy and the Act fail the Lemon test as well as the endorsement and coercion tests”. They applied all three to the case, see. The 1954 Act failed the Lemon test because “it had no secular purpose”. This is backed up by history. When Eisehower signed the addition of “under God” to the pledge into law, he actually crowed “From this day forward, the millions of our school children will daily proclaim… the dedication of our nation and our people to the Almighty”. Which pretty much shows that the purpose of amending the Pledge to include the words “under God” had no secular purpose. FAIL! The Act also failed the endorsement test, by the judges’ reckoning. Government is meant to be neutral, but “under God” is an affirmation of a belief in god and a recognition of his guidance. If you’re not won over by that argument, then consider this nice bit of clarification from Judge Alfred T. Goodwin himself. He says, “if ‘under no god’ would entail a discouragement of religion and religious belief, then ‘under God’ must also be unconstitutional” because it is an ENDORSEMENT of religion or religious belief. So, FAIL! The coercion test is concerned with context, and the Ninth District court found that both the 1954 Act, and the school district’s policy of reciting the pledge in that form, failed the coercion test. They argued that in classroom situations, with a teacher leading, there was “impermissible pressure on students to participate in, or at least show respect during” the Pledge. In reference to the Act itself, they argued that “the phrase ‘one nation under God’ in the context of the Pledge is normative” rather than descriptive, putting pressure on students to either align themselves or be set apart on a religious basis. The mere fact of hearing “one nation under God” every day “has a coercive effect”. Which is not cool. FAIL!

Now, for the sake of even-handedness, here are some of the arguments opposing the Ninth District court’s take on things. The federal defendants in the case argued that the Pledge “must be considered as a whole when assessing whether it has a secular purpose”. They also argued that “under God” is a statement which, when “taken within its context in the pledge, is devoid of any significant religious content, and therefore constitutional”. Huh? The statement "under GOD" is devoid of significant religious content? I don’t get it. The court thought that was bull anyway, especially considering that the problematic words were SPECIFICALLY INSERTED long after the pledge ‘as a whole’ was formulated. Take that, suckers! The dissenting judge, Judge Ferdinand F. Fernandez, argued that the Constitution’s religion clauses “were not designed to drive religious expression out of public thought”. But, dude, according to Barbara B. Gaddy, who wrote a book called School Wars, neither did the Free Exercise Clause ever mean “that a majority can use the machinery of the State to practice their belief”. And the Pledge is State machinery, baby. Other people cited the fact that the Supreme Court has made it clear in previous decisions that atheists cannot legally be compelled to recite those words, to argue that “there is no harm done because the student is not compelled to recite the Pledge”. They see it as perfectly constitutional as long as nonbelievers are allowed to remain silent during the “under God” bit. Cos, in abstaining from uttering the words “under god”, nonbelievers’ rights are not infringed upon, nor does their abstention limit the religious freedom of others who may wish to exercise their right to pledge allegiance to god every day. But this argument ignores the wider effect that a phrase such as “under God” being in a civic statement has. When the government enacts, endorses and encourages participation in a civic exercise that is religiously skewed, it establishes that certain religious perspectives form part of the normative character of proper citizenry, and that is a no-no.

The ruling could hardly have caused more outrage, sometimes described as “patriotic outrage”, and sometimes as “an astonishing onslaught of demagoguery as politicians rush to affirm the centrality of God and his wisdom in the affairs of our nation”. Hee hee, I like the second one better. But people really were being cunts, and saying all this shit about the decision. However, at no point did any of them explain in any detail where the decision errs. Which seems a little lax. Instead, stuff like the following happened. The Senate passed a resolution 99-0 expressing support for the Pledge of Allegiance [which I now realise implicates John Kerry. Dude, how could you be such a dumbass?] A statement was issued from the White House, saying “It is the view of the White House that this was the wrong decision, and the Department of Justice is now evaluating how to seek redress”. Aaaaagggh! How can you possibly say that? Newdow is the one seeking redress you gits! He’s just trying to restore the Pledge to its pre-1954 version. Other brilliant arguments were advanced, such as “the decision is poorly thought out” [which is just not true], or “obviously, the liberal court in San Francisco has gotten this one wrong. Of course we are one nation under God” [which is just as plainly NOT TRUE!]. There were appeals to “common sense” or to “the definitive character of the American way of life” [whatever that means], and sometimes, people said dumb shit that just proved the court’s point. Like, saying that mentioning God “should offend no one who is proud to be a citizen of the United States” does no more than confirm that an ideological norm connecting God with America has been ‘established’. Unnnn! Some said that a “ceremonial reference to God” doesn’t endanger the integrity of public institutions. Actually, I’m being too kind. What they actually did was list all the public institutions that have references to god in them and then got hysterical and said things like “What’s next? Are we going to remove ‘in God we trust’ from out money? From our MONEY!” Anyway, to discount a court ruling by saying “this decision will not sit well with the American people” is to claim only that the majority doesn’t recognise that a problem exists for a minority living under the same conditions, which is precisely why this frickin stuff is in the Constitution in the first place, and why ‘activist judges’ are the ones who make sure it gets adhered to. For fuck's sake, the Bill of Rights was designed precisely to protect freedom of conscience from officials or majorities of any kind! The Newdow v. U.S. Congress decision wasn’t an “assault on God”. Rather, it was the first time in a long while that the rights of those who do not accept the majority’s religious beliefs have been vindicated. Just read the frickin decision, you twats. It proves its point exhaustively.

In conclusion, the Pledge of Allegiance, in its current form, fails to pass every Establishment Clause test which has been used by the Supreme Court in recent years. So I don’t see how the Supreme Court could now do anything other than uphold the Ninth District court’s decision, thus requiring Congress to remove "under God" from the Pledge. But we shall see.