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Poisoning the Well

On June 26th, 2002, The Court of Appeals of the Ninth Circuit released an opinion which caused one of the loudest uproars in recent memory among both the American citizenry and nation’s politicians. In Newdow v U.S. Congress[1], the court struck down a 1954 act adding the words “under God” to the Pledge of Allegiance. Judge Alfred Goodwin wrote the opinion for the court. The opinion is a clear, well-structured, well-reasoned and rhetoric-free piece of writing accessible, I believe, to the majority of Americans and certainly to the majority of lawmakers.

However, the responses by the media, politicians, and many Americans have been full of inaccuracies and misrepresentations. The language the press has chosen to describe the decision has been antagonistic to Newdow, the Ninth Circuit, and those who agree with the opinion.

The inaccuracies and misrepresentations fall into several groups. First, many authors misrepresent what the effects of the decision will be. For instance, it has been claimed that the Ninth Circuit’s opinion declares the Pledge of Allegiance unconstitutional. Kate Snow of CNN says,

Hours after a federal appeals court Wednesday declared the Pledge of Allegiance unconstitutional, the Republican political machine in Washington geared up to fight the decision.[2]

The Associated Press also makes the same mistake, writing that the court banned the Pledge with the headline “U.S. Wants Pledge Ban Overturned.”[3]

Even worse, however, is the way conservative columnists and organizations have framed the Ninth Circuit’s decision. Gary Aldrich, in his piece “Domestic Enemies of Liberty,” writes that the opinion ruled that Americans can “no longer use the phrase ‘under God’ when reciting the Pledge of Allegiance.” Then he writes, “[t]hink for a moment about the depth of hatred this man must have for those of us who believe in God.”[4]

The American Family Association has this to say on one of its websites, wepledge.com:

Because of one atheist and two radical, liberal judges, in the future our children may not be able to recite the Pledge of Allegiance in school!. . .all it will take is FIVE JUDGES of the Supreme Court voting to make it illegal for school children to recite the Pledge of Allegiance! PERMANENTLY!! FOREVER!![5]

The Newdow decision, if it stands, does not declare the Pledge unconstitutional; neither does it ban the Pledge, and it most certainly does not make it so that no one can say the Pledge, with or without “under God” in it, in the future. The decision merely reverts the Pledge back to its pre-1954 state, which was the same as the current Pledge but without the words “under God.” The further claim that it will be illegal for school children to recite the Pledge even with “under God” is so far wrong it is difficult to believe the writers could say this without being intentionally deceptive.

However, the reasoning of Aldrich and the American Family Association should be familiar. After
Engel v. Vitale[6], the Supreme Court decision which declared it unconstitutional for the state to require a prayer to be recited in a public school, people have been referring to that decision as the decision that “banned” prayer in public schools. Engel v. Vitale did nothing of the sort, but that does not stop many from thinking that it did.

Also, note Aldrich’s assertion that the crafter of the opinion has some kind of hatred for religious people. There is no support for this in the text of Newdow, and it is dishonest of Aldrich to imply that he hates the religious. Further, by including Goodwin in this piece, Aldrich includes Judge Goodwin as a “Domestic Enem[y] of Liberty” and a “homegrown anti-patriot.”

Pat Buchanan has some misrepresentations of his own. In response to the idea that “under God” in the Pledge violates the Establishment Clause, he asks:

What religion did Congress establish with the words ‘under God’? Catholicism? Methodism? The judges do not say. They only say that since ‘under God’ is not neutral about religion, it violates separation of church and state.[7]

The judges do say, however. The court refers to monotheism many times in the decision when referring to the word “God” in the pledge. It is the court’s opinion that the phrase “one Nation under God” essentially establishes a monotheistic “religious orthodoxy” that is impermissible under the First Amendment. Has Mr. Buchanan read the decision?

The press has also been irresponsible with the language it has been using with reference to Newdow. Even in noneditorial settings, language that is used shows implicit support for “under God.” While the Justice department, an opponent of the ruling, is “trying to rescue the words ‘under God’ from court assault,”[8] (Associated Press) President George W. Bush “offer[s] a robust defense of the Pledge of Allegiance”[9] (FOX News). The words “rescue” and “robust” on the side of the opponents of the decision can be contrasted with “assault” by the court that issued this decision. Clearly the choices of language used in these two examples are implicitly opposed to the ruling, and other examples can be found in other news reports. Millions of people depend on these news agencies, and words that are chosen have a subtle effect on their readers.

The American Family Association, in addition to the misrepresentation noted above, is evidently not above lying to assassinate the characters of the judges. While stating the purpose of their website, wepledge.com, they have the following to say:

Reinhardt overturned [a referendum on physician-assisted suicide] and wrote this scathing condemnation of God-fearing people: ‘Those with strong moral or religious convictions … are not free to force their views, their religious convictions, or their philosophies on all of the members of the democratic society.’ In other words, Judge Reinhardt thinks that people with strong moral and religious views should not be allowed to vote on matters such as assisted suicide. In one stroke of the pen, he overruled the will of the people of Washington, nullified the vote of people of faith, and ruled that the only people allowed to participate in our democracy should be those without ‘strong moral or religious convictions.'”[10]

This quote is not explicitly cited, but thanks to the Internet, one can look up the opinion in which Reinhardt allegedly said this. Upon finding the decision, however, we find that Reinhardt said something very different:

We also acknowledge that judicial acceptance of physician-assisted suicide would cause many sincere persons with strong moral or religious convictions great distress.

And then, several pages later, Reinhardt says:

Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths.[11]

Not only do they grossly misquote Reinhardt, the American Family Association transforms this, without justification, into a claim that Reinhardt ruled that “the only people allowed to participate in our democracy should be those without ‘strong moral or religious convictions.'” There is no mention about his reasoning in
Newdow. It is simple character assassination using an inaccurate quote and misrepresenting the meaning behind the quote.

On the same site that hosts these misrepresentations, the American Family Association has managed to get, as of this writing, 194,982 “signatures” on their web petition to pass an amendment to add the Pledge of Allegiance, including “under God,” to the constitution. This is not a small movement.

Among the worst offenders, however, have been politicians. Senator Robert Byrd, D-West Virginia, said “I hope the Senate will waste no time in throwing this back in the face of this stupid judge. Stupid, that’s what he is.”[12] Speaker of the House Dennis Hastert had this to say:

Of course, we are one nation, under God. The Pledge of Allegiance is a patriotic salute that brings people of all faiths together to share in the American spirit.[13]

Hastert here commits the logical fallacy called bifurcation. In saying that the Pledge is a “patriotic salute,” he implies that it is not also religious in nature, a common claim by those defending “under God” and “In God We Trust.” However, it can be both patriotic and religious. And, apparently, he had not read the opinion; one of the issues it dealt with was that although many faiths are represented by “under God,” certainly not “all faiths” are, as Hastert claims, and it certainly doesn’t include millions of Americans with no faith, like Michael Newdow, the plaintiff.

President George W. Bush called the decision “ridiculous,” and “out of step with the traditions and history of America,”[14] not exactly the kind of comments one would expect to hear in a vigorous debate about the merits of the court’s legal reasoning.

Tom Daschle, the majority leader of the Senate, said “[t]his decision is nuts.” Senate minority leader Trent Lott called Newdow “an incorrect ruling and a stupid ruling.”[15] Together, Daschle and Lott pushed an Act, S. 2690[16], through the Senate condemning the ruling, which was then signed by 99 Senators. Besides having several glaring inaccuracies (such as getting wrong where the Mayflower compact was signed and splicing together some quotes by Thomas Jefferson), nowhere in this Act is the reasoning behind Newdow dealt with.

Senator Bond of Missouri, in his criticism of the ruling, made a comment that would be funny if it weren’t for the fact that it shows his ignorance of the Constitution. Bond asked, “What’s next? Will the courts now strip ‘so help me God’ from the pledge taken by new presidents?”[17] The Presidential Oath is specified in Article II, section 1 of the United States Constitution as,

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.[18]

The phrase “so help me God” does not appear in the Presidential Oath. In fact, there is no mention of “God” anywhere in the Constitution, but Senator Bond is evidently unaware of this fact.

In contrast to the comments Senators have made on the floor and to news agencies, the United States Senate Republican Policy Committee (RPC) examines the case in light of precedent and rejects the argument that “the two judges who made the decision are fools.” In fact they find that “one of the better [explanations of the decision] is that the court was just following the path of precedent laid down by the Supreme Court.”[19] Why the drastic difference? Why would both Republicans and Democrats use such derogatory language to deride the judges, when it is admitted by even the RPC that the Ninth Circuit was simply following precedent? It seems like politicians are ignoring the real issues for political gain at the expense the judges who made the ruling and anyone who agrees with them.

After Newdow a common argument has been used against the opinion by politicians, columnists, and many other Americans. It goes something like this:

The reasoning in Newdow would make X unconstitutional also. X should not be unconstitutional. Therefore, the reasoning in Newdow is flawed.

The National Motto, “In God We Trust,” which appears on U.S. currency, and patriotic songs that mention God are commonly used in arguments like this. There are several problems with this argument. One, it assumes that X is constitutional, without providing any test or justification by which one can show this. The Newdow opinion used tests previously employed by the Supreme Court to determine the constitutionality of the 1954 Act. The reasoning is almost never mentioned, and never directly challenged. Second, patriotic songs do not have their words dictated by law. In contrast, the 1954 Act amending the Pledge dictated that “under God” will be in the Pledge of Allegiance. There is a huge legal difference.

The public debate about Newdow v. U.S. Congress is of very low quality. Politicians, the media, columnists, and the public all seem to either have severe misunderstandings of the issues that Newdow confronts us with, or in some cases appear to deliberately twist the facts. The decision of the court in Newdow was exceptionally clear, concise, and rationally argued. Whether or not one agrees with the decision, the opinion deserves to be directly challenged in the same manner. Until the public debate becomes more rational, we cannot hope to have anything good come out of it.


[1] Newdow v. U.S. Congress

[2] “Republicans seize on Pledge decision” (referenced 8/12/2002)

[3] “U.S. Wants Pledge Ban Overturned” (referenced 8/12/2002)

[4] Gary Aldrich, “Domestic Enemies of Liberty” (referenced 8/12/2002)

[5] American Family Association (referenced 8/12/2002)

[6] Engel v. Vitale

[7] Pat Buchanan, “Time for a Little Rebellion” (referenced 8/12/2002)

[8] “U.S. Wants Pledge Ban Overturned” (referenced 8/12/2002)

[9] “Bush Offers Robust Defense of Pledge” (referenced 8/13/2002)

[10] American Family Association (referenced 8/13/2002)

[11] Compassion in Dying v. Washington (referenced 8/13/02)

[12] “Senators call Pledge decision ‘stupid’” (referenced 8/13/2002)

[13] “Senators call Pledge decision ‘stupid’” (referenced 8/13/2002)

[14] “Judge Puts Pledge Decision on Hold” (referenced 8/13/2002)

[15] Both quotes come from “Senators call Pledge decision ‘stupid’” (referenced 8/13/2002)

[16] “Act to reaffirm the reference to one Nation under God in the Pledge of Allegiance,”
S. 2690, can be found by searching
for S.2690

[17] “Judge Puts Pledge Decision on Hold” (referenced 8/13/2002)

[18] Constitution of the United States of America, as found at (referenced 8/13/2002)

[19] United States Senate Republican Policy Committee, “Was the Ninth Circuit Off Base–Or Merely Following the Course of Precedent?

Copyright 2002, Richard Morey, This electronic version copyright 2002, Internet Infidels, Inc.