Michael Newdow is a Great American

I've been reading the Order issued yesterday in Newdow v. U.S. Congress, et. al., the Reverend Doctor Michael Newdow, Esquire's (really!) latest attempt to actually enforce the establishment clause of the First Amendment.

Let's review, shall we? The First Amendment, as it speaks to religion, says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The second clause, "...prohibiting the free exercise thereof...", is known as the free exercise clause. The first clause, "...respecting an establishment of religion..." is known as the establishment clause.

When I pull my Constitutional Law hornbook (I have the Fifth Edition; Amazon lists the Seventh) down from the shelf and turn to Section 17.3, "The Establishment Clause--Introduction," I am reminded that:

The establishment clause applies to both the federal and local governments. It is a prohibition of government sponsorship of religion which requires that government neither aid nor formally establish a religion. While at its inception the clause might not have been intended to prohibit governmental aid to all religions, the accepted view today is that it also prohibits a preference for religion over non-religion.
* * *
When a law is challenged under the establishment clause it must pass a three-part test, although the meaning and usefulness of this test has been attacked by Justices and scholars. First, the law must have a secular purpose. Second, it must have a primary secular effect. Third, it must not involve the government in an excessive entanglement with religion. When the potentiality for excessive entanglement must be determined another three part test is employed. The degree of entanglement is estimated by evaluating: (1) the character and purpose of the religious institution to be benefited, (2) the nature of the aid, and (3) the resulting relationship between the government and religious authorities. Additionally (although this may be considered a part of the entanglement test) the law must not create an excessive degree of political division along religious lines. (p. 1223)

Now how does the Pledge of Allegiance get us to tests used to determine whether a law violates the establishment clause? Well, see 4 U.S.C. s.4, "Pledge of allegiance to the flag; manner of delivery":

The Pledge of Allegiance to the Flag: ''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.'', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.

The Pledge of Allegiance, as originally written, did not contain "under God." See yesterday's Northern District of California opinion, pp. 3-4; the Pledge was enacted by Congress without "Under God" in 1942 and amended in 1954.

Now how does b) apply to c)? Allow me to quote a fellow named Richard Land, who called yesterday's ruling “absurd.” He went on to say,

It shows the degree to which some federal judges carry their hostility to the religious heritage of our nation. What’s next? Taking ‘In God We Trust’ off of our money? If the Ninth Circuit Court of Appeals does not strike down this ludicrous ruling, the U.S. Supreme Court undoubtedly will, particularly with John Roberts as chief justice. If, for some unfathomable reason, the Supreme Court were to uphold this California federal judge’s decision, I predict you will see the fastest ratification of an amendment to the Constitution in our nation’s history. Congress and state legislatures will rush to compete with each other to see who can most quickly ratify an amendment that will guarantee the constitutionality of the Pledge of Allegiance. Nine out of 10 Americans disagree with this ruling; you cannot subvert the will of 90 percent of Americans forever.

Who is Richard Land? President of the Southern Baptist Ethics & Religious Liberty Commission.

Newdow is no fool; he understands, what James Madison wrote in his "Memorial and Remonstrance against Religious Assessments" in 1785: "Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?"

As Newdow put it,

All [the Supreme Court] has to do is put the pledge as it was before, and say that we are one nation, indivisible, instead of dividing us on religious basis. Imagine every morning if the teachers had the children stand up, place their hands over their hearts, and say, 'We are one nation that denies God exists. I think that everybody would not be sitting here saying, 'Oh, what harm is that.' They'd be furious. And that's exactly what goes on against atheists. And it shouldn't.

Make no mistake, the Pledge as it currently exists violates the establishment clause. If you don't believe this, just consider Newdow's gedankenexperiment. How do you think that that 90% of people Land mentions would feel about Newdow's alternative version of the Pledge?