The United States Constitution does not actually call for full “separation of church and state”, although Thomas Jefferson coined that phrase in reference to the religious clauses of the First Amendment. What the First Amendment says about religion is as follows…
On Thursday, March 11, the Ninth US District Court of Appeals ruled to uphold the phrase “under God” in the Pledge of Allegiance, as well as “In God We Trust” in United States currency. The former ruling overturned a decision made by the same court in 2002.
Atheist Michael Newdow brought forth the Pledge case on behalf of his daughter in 2000. He objected to his daughter being indoctrinated in religion by his Christian ex-wife, with whom he was engaged in a custody dispute, and filed the case on his daughter’s behalf because of the recitation of the Pledge of Allegiance in her school. The United States Supreme Court rejected the 2002 ruling from the Ninth District, stating that since Michael Newdow did not have custody of his daughter when the case was filed, he had no right to have filed it on her behalf. He filed his case again, and this time around the Ninth District did not rule in his favor.
Newdow was born into a Jewish family but not raised with religious beliefs. He is an ordained minister of the Universal Life Church, although that doesn’t mean much, because anyone with any beliefs and no particular training or education can be ordained at ULC almost immediately. He also founded an organization called First Amendment Church of True Science (FACTS), which seems to promote atheism as a religion and has as its main goal the strict separation of church and state. Along with the Pledge and currency cases, Newdow is also known for trying to prevent the phrase “So help me God” from being used by the Chief Justice during Barack Obama’s Presidential Inauguration. Newdow is both a medical doctor and a lawyer.
The United States Constitution does not actually call for full “separation of church and state”, although Thomas Jefferson coined that phrase in reference to the religious clauses of the First Amendment. What the First Amendment says about religion is as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The first of the two religion clauses is called the “Establishment Clause” and the second, the “Free Exercise Clause”. The former is generally believed to intend to prevent the formation of a national religion or the passage of federal law that prefers or promotes one religion over another. The latter clause bars legislation that interferes with religious practice. The religious clauses were placed in the Constitution in large part due to the historical origins and circumstances of many of the original white settlers of North America. Many of them came to North America in order to more freely practice religion than they were permitted in their home countries.
The Free Exercise Clause has actually been much more controversial over the years than the one at issue in the Newdow cases. It was first tested in 1878 in a case against a member of the Church of Latter Day Saints named George Reynolds who had been convicted of bigamy (polygamy) for marrying Amelia Jane Schofield while still married to Mary Ann Tuddenham. Polygamy was a common practice in the Utah Territory of members of the LDS church who held polygamy as a religious duty and part of their religious practice, and is still practiced, albeit illegally, by various individuals and groups of people all over the United States. Reynolds lost his case. The court referenced a letter of Thomas Jefferson which stated that the “legitimate powers of the government reach actions only, and not opinions.” The court felt that if it allowed polygamy as a religious practice, then eventually someone could argue that human sacrifice, or indeed any other action no matter how criminal, must also be allowed if one claimed it as a religious duty. The court thus decided that Congress could not legislate against opinion, but could legislate against actions, per Jefferson’s letter, even if they happened to be actions perceived as religious duties by some. That is, it decided that neutral laws could be passed and enforced even if the laws effectively outlawed what some citizens considered religious duties or religious rites. It did not consider the social merits or religious basis for polygamy.
This interpretation was upheld in 1990 in a case which had outlawed the use of peyote, despite its role in religious rituals of Native Americans. Supreme Court Justice Earl Warren had previously promoted the idea that states must exhibit a “compelling interest” to refuse to accommodate religious practice, but the peyote case undid much of his interpretation. Justice Warren’s interpretations, employing the legal concept of “strict scrutiny” were used in many cases, including one that ruled a woman who had lost her job when she refused to work on Saturdays, a holy day in her religion (Seventh Day Adventist), had a right to unemployment benefits, and also in a case that decided Amish parents had a right to pull their children out of compulsory education at the 8th grade, according to their religious beliefs. “Strict scrutiny” has three parts:
1. A law must be justified by a compelling governmental interest – something necessary or crucial, not just desirable.
2. The law must be narrowly tailored – not made so broad that it applies beyond cases where there would be a compelling governmental interest.
3. The law must be the least restrictive means for achieving that compelling governmental interest.
In 1993, the Religious Freedom Restoration Act (RFRA) attempted to restore the requirement of “strict scrutiny” as a standard in interpretation of the Free Exercise Clause, but it ultimately succeeded only in Federal statute and not state or local laws, as of 2006.
As for Newdow and the Establishment Clause, by attempting to establish atheism as a religion, Newdow is apparently trying to garner strength for his case that the phrases he has filed suit over promote one religion over another. Judge Carlos Bea wrote in the ruling that the Pledge of Allegiance phrase “Under God”, added by Congress in 1954 (in part as a McCarthy era reaction to fears over godless Communism), is not a prayer, which would be disallowed by the Bill of Rights, but instead, “a recognition of our founders’ political philosophy that a power greater than the government gives the people their inalienable rights. Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect.” According to the San Francisco Chronicle, “the dissenting judge, Stephen Reinhardt, said statements by members of Congress who added ‘under God’ to the pledge in 1954 show conclusively that it was intended to ‘indoctrinate our nation’s children with a state-held religious belief.'” The Court unanimously upheld the national motto “In God We Trust” as ceremonial or patriotic and not as establishing religion. Greg Katsas, who argued the case on the side of the US Government, was pleased with the rulings. “I think these two phrases encapsulate the philosophy on which the nation was founded,” he commented. “There is a religious aspect to saying ‘One nation under God,’ but it isn’t like a prayer. When someone says the pledge, they’re not praying to God, they’re pledging allegiance to the country, the flag, and the ideals of the country.”
Newdow’s response was disappointment. “The whole argument that ‘under God’ wasn’t placed into the pledge for religious purposes is bogus,” he said. “I hope people recognize this is not against God or people who believe in God. It’s about the government not treating people equally on the basis of their lawful religious views.” He said he plans to appeal the ruling. But he faces an uphill battle with public sentiment largely not on his side. In the words of newspaper columnist Wayne Laugesen, “The word ‘God’ is not comparable to an organization, a building, a philosophy or a religion. God, unlike an establishment of religion, is a concept to atheists and believers alike. The believer perceives God as the living creator of all. The atheist perceives God as an unfortunate fictional concept that causes war. Either way, this country was founded on respect for a higher power than man – an entity generically referred to as God in the English-speaking world. The laws of our land protect our right to revere or disavow God, but they do not protect us from hearing and seeing the term. Believer and non-believer alike make up one nation under God, because the first law of the land protects belief or disbelief in God, the right to talk about God, and the right to make God the highest authority in one’s life.”