Logically Speaking, the 9th Circuit Doesn't Exist
An email conversation about the news of the day.
June 26 2002 6:31 PM

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Dear Dahlia,

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This pledge firestorm is all about logic versus experience.

Here's what I can glean from the opinion. A California parent, Michael Newdow, brought the suit arguing that the policy and practice in his daughter's public school of teacher-led recital of the pledge, with the "under God" phrase included, violated the Establishment Clause. Although his daughter was not required to recite the pledge herself, he argued, and a three-judge panel of the 9th Circuit agreed, that the recitation itself in her classroom violated the Establishment Clause. The court went one step further and actually declared that the 1954 addition of these words to the pledge was itself unconstitutional, apart from its use in the public school classroom. (It's hard to see how there is really standing on Newdow's part to make that last claim, but that sort of legal nicety seldom stops the 9th Circuit.)

So what are we to make of this? I think that the decision is, on balance, regrettable, but before I join the pounding on the 9th Circuit, let me say what there is to be said for the decision. There is no doubt that a religious idea is being endorsed here by the government. And that the endorsement of religion was the very reason for adding this phrase to the pledge in 1954.  The sheer logic of the court's school prayer cases admittedly extends to this use of "God" as part of a government program.

And one may also say for the 9th Circuit that many attempts to defend "under God" have their logical problems. Take, for example, Justice Brennan's defense of invocations like this and "God save this Honorable Court." He said that such rote recitations over time lose their religious meaning and basically become just background noise. But, defenders of the 9th Circuit respond, "From whose perspective are we measuring the loss of religious meaning? Religious content fades into the background a lot more easily for majority adherents than it does for religious minorities (and especially for newcomers to our land) for whom 'under God' may be a lot more salient." And it troubles one friend to excuse official repetition of religious phrases on the ground that rote repetition deprives those phrases of any real religious content. "Isn't that kind of loss of religious meaning one reason why the Establishment Clause tells government to leave religion alone?" she asks.

So as a matter of logic, there is something to be said for the 9th Circuit panel's conclusion. If we really believe that private religious activity is to be protected and government religious activity to be prohibited, this sure looks like government religious activity—a program composed and instituted by an act of Congress is hardly private speech.

But it nonetheless seems to me to be an unwise decision. What the 9th Circuit panel fails to recognize is the very important proposition that every principle has its stopping point, beyond which it simply does not have enough force to carry the day. You can use Latin and call the inclusion of "under God" de minimis. Or you can get to the same place by using common sense and saying that this is not a big enough deal to make a federal case over. And that's what should have been done.

The best e-mail I got this afternoon came from a young colleague who humorously points out the complete constitutional gridlock that results if you treat minor passing references to God as rendering government acts unconstitutional. Article VII of the Constitution itself—which makes the document operative as a proposal for ratification—concludes "done in Convention … the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven … ." If "Year of Our Lord," like "under God," can make something unconstitutional, then the Constitution itself is unconstitutional and the court's decision a nullity. In fact, without the Constitution, the 9th Circuit doesn't legally exist. So we are in a logical trap!

Putting humor aside, I think a decision like this can do some harm. It threatens to bring ridicule on a very important proposition—that government has no business either advancing or inhibiting religion and no business either endorsing or disparaging religious beliefs—by stretching that proposition to its extreme limits. This decision will be a move to the head of the Parade of Horribles, now marching through downtown San Francisco, and will be cited by those who would seek to amend the Constitution to permit active government promotion of religion. I expect the full 9th Circuit, which has the power to reverse this panel, will do so quickly and let this decision, logical to a fault that it is, quietly fade away.

Regards,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

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