Pledge of Alligiance - Unconstitutional?

[Ramo]

Dino, what's the Court's criteria for "permissible ceremonial deism?"

[Lincoln]

Excerpt from the Supreme Court decision of 1892 (Holy Trinity v United States

But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. The commission to Christopher Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the grace of God, king and queen of Castile," etc., and recites that "it is hoped that by God's assistance some of the continents and islands in the [496] ocean will be discovered," etc. The first colonial grant, that made to Sir Walter Raleigh in 1584, was from "Elizabeth, by the grace of God, of England, France, and Ireland, queen, defender of the faith," etc.; and the grant authorizing him to enact statutes of the government of the proposed colony provided that "they be not against the true Christian faith now professed in the Church of England."

The first charter of Virginia, granted by King James I. in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: "We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of His Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to, their humble and well-intentioned Desires."

Language of similar import may be found in the subsequent charters of that colony from the same king, in 1609 and 1611; and the same is true of the various charters granted to the other colonies. In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant. The celebrated compact made by the pilgrims in the Mayflower, 1620, recites: "Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honor of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid."

The fundamental orders of Connecticut, under which a provisional government was instituted in 1638-39, commence with this declaration: "Forasmuch as it hath pleased the Almighty God by the wise disposition of his divine prudence [143 U.S. 457, 467] so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford, and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the Lands thereunto adjoining; And well knowing where a people are gathered together the word of {515} God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require; doe therefore associate and conjoin our selves to be as one Public State or Commonwealth; and doe, for our selves and our Successors and such as shall be adjoined to us at any time hereafter, enter into Combination and Confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus who we now profess, as also the discipline of the Churches, who according to the truth of the said gospel is now practiced amongst vs."

In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: "Because no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith, and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings of People, I do hereby grant and declare," etc.

Coming nearer to the present time, the declaration of independence recognizes the presence of the Divine in human affairs in these words: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." "We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare," etc.; "And for the [143 U.S. 457, 468] support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."

If we examine the constitutions of the various states, we find in them a constant recognition of religious obligations. Every constitution of every one of the 44 states contains language which, either directly or by clear implication, recognizes a profound reverence for religion, and an assumption that its influence in all human affairs is essential to the well-being of the community. This recognition may be in the preamble, such as is found in the constitution of Illinois, 1870: "We, the people of the state of Illinois, grateful to Almighty God for the civil, political, and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations," etc.

It may be only in the familiar requisition that all officers shall take an oath closing with the declaration, "so help me God." It may be in clauses like that of the constitution of Indiana, 1816, art. 11, §4: "The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed the most solemn appeal to God." Or in provisions such as are found in articles 36 and 37 of the declaration of the rights of the constitution of Maryland, (1867):

"That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty: wherefore, no person ought, by any law, to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace, or safety of the state, or shall infringe the laws of morality, or injure others in their natural, civil, or religious rights; nor ought any person to be compelled to frequent or maintain or contribute, unless on contract, to maintain any place of worship or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness or juror on account of his religious belief: provided, he [143 U.S. 457, 469] believes in the existence of God, and that, under his dispensation, such person will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come.

That no religious test ought ever to be required as a qualification for any office or profit or trust in this state, other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution." Or like that in articles 2 and 3 of part 1 of the constitution of Massachusetts, (1780 "It is the right as well as the duty of all men in society publicly, and at stated seasons, to worship the Supreme Being, the Great Creator and Preserver of the universe.

As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion, and morality: Therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provisions shall not be made voluntarily."

Or, as in sections 5 and 14 of article 7 of the constitution of Mississippi, (1832 "No person who denies the being of a God, or a future state of rewards and punishments, shall hold any office in the civil department of this state. ... Religion {516} morality, and knowledge being necessary to good government, the preservation of liberty, and the happiness of mankind, schools, and the means of education, shall forever be encouraged in this state." Or by article 22 of the constitution of Delaware, (1776,) which required all officers, besides an oath of allegiance, to make and subscribe the following declaration: "I, A.B., do profess [143 U.S. 457, 470] faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration."

Even the constitution of the United States, which is supposed to have little touch upon the private life of the individual, contains in the first amendment a declaration common to the constitutions of all the states, as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," etc., - and also provides in article 1, § 7, (a provision common to many constitutions,) that the executive shall have 10 days (Sundays excepted) within which to determine whether he will approve or veto a bill.

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Comm., 11 Serg. & R. 394, 400, it was decided that, "Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; ... not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men."

And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor KENT, the great commentator on American law, speaking as chief justice of the supreme court of New York, said: "The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of those doctrines in not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. ... The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious [143 U.S. 457, 471] subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right.

Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors."

And in the famous case of Vidal v. Girard's Ex'rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provisions for the creation of a college into which no minister should be permitted to enter, observed: "it is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania."

If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe.

These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?

[DinoDoc]

Ramo: Beats me. I was just passing along information when I posted the article. If you want, I can ask one of my profs for the info.

[DinoDoc]

Lincoln: 1) What were the issues in the case? I'd like to know before I read it bercause the excerpt is a little long.

2) Do you know if it is still current law?

[Lincoln]

The issue at hand was whether it was lawful to restrict a church from hiring a foreign minister in violation of a law which was designed to encourage the employment of US citizens. The court was affirming that freedom of religion was elevated above the lesser laws.

[Lincoln]

Is it "current law"? Yes, unless you believe that lawyers can overule history. Some think they have so the subject is debatable.

[Lincoln]

Here is a better discription of the case:

This case provides a good starting point [he lists this case first in his chapter on earlier court cases], for it cites several of the earlier cases. This case centered on an 1885 federal law concerning immigration which declared:

It shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever ... to in any way assist or encourage the importation .. . of any alien or . ..foreigners, into the United States . . . under contract or agreement . . . to perform labor or service of any kind. '

Two years later, in 1887, the Church of the Holy Trinity in New York employed a clergyman from England as its pastor. That employment was challenged by the United States Attorney General's office as a violation of the law. The case eventually reached the Supreme Court.

The first half of the Court's decision dealt with what it termed "absurd" application of laws. The Court was not saying that the legislation was absurd, for in the early years the Court rarely criticized the legislature since it was the voice of the people. "Absurd" referred to cases where an interpretation by the letter of the law and not by the spirit or intent of its framers would lead to absurd results.

The Court examined the Congressional records of the hearings surrounding this legislation and established, from the legislators' own testimony, that the law was enacted solely to preclude an influx of cheap and unskilled labor for work on the railroads. Although the church's alleged violation was certainly within the letter of the law, it was not within its spirit. The Court concluded that only an "absurd" application of the Constitution would allow a restriction on Christianity:

[Guynemer]

And exactly how does returning the Pledge to its original state constitute "a restriction on Christianity"?

[Lincoln]

It doesn't. But the point is, that the phrase "under God" is not unlawful.

[Guynemer]

And how exactly does that follow?

Jeez, you'd think, pre-1954, our society was crumbling because the kids didn't say "under God" during the Pledge...

[DinoDoc]

Guy: That's no more ridiculous than the view that kids saying "Under God" is going to turn them into fundamentalist Christians.

[Lincoln]

I remember when those words were inserted into the pledge. I was 6 at the time. In that day and age shortly after WW2 it was really not a problem and I think most people did not think much of it one way or another. The first prayer or Bible reading case in public schools came up in the mid 50's. Then the uproar started and it has continued to this day.

I think that now days it is too late to have a so called Christian nation. But it would be better to change the Constitution than pretend that it says something it does not. As the court said, only an absurd twisting of the intent of established law could lead to what we have today.

[Imran Siddiqui]

If England had freedom of religion, persecution would've been a non-issue. Period.

It's quite simple, really. Why fear religious persecution due to a state church if you already Constitutionally guarantee freedom of religion?

Tell that to some Muslims living in the US. Especially those in Oklahoma before it was found out the bomber was a white male. Freedom of religion doesn't mean persecution is eliminated, it just means that government is no supposed to do it.

[Ramo]

Freedom of religion means no public religious persecution. That's a definition.

The reason Moslems are persecuted is because there isn't complete religious freedom here.

Again, saying "x is the state religion" is a powerless measure by itself. On the other hand, persecuting people of certain religions (prohibited by the freedom of religion clause) or giving preferential treatment to certain religions (prohibited by the establishment clause) actually mean something.

[Imran Siddiqui]

Freedom of religion means no public religious persecution. That's a definition.

The reason Moslems are persecuted is because there isn't complete religious freedom here.

Then there is no where that exists where there is complete religious freedom. So lets talk about places that exist rather than la-la land .