To Pledge or Not To Pledge...

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BROOKS KRAFT/GAMMA FOR TIME

President Bush recites the pledge with school children in Washington, D.C.

For a hysterical moment, Alfred Goodwin replaced Osama Bin Laden as the most reviled man in America. The federal judge’s crime was to attack two of the 31 words that constitute the Pledge of Allegiance. Writing for the majority of a three-judge panel on the Ninth Circuit Court of Appeals, which has jurisdiction over nine western states including California, Goodwin held last week that the words under God were unconstitutional because they violated the separation of church and state required by the First Amendment. He was responding to a case brought by Sacramento, Calif. emergency-room physician Michael Newdow, an atheist who argued that his daughter’s rights were infringed when the phrase was included in the pledge at her school each morning. Goodwin reasoned that saying, "we are a nation ‘under God’ " is equivalent to saying "we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus’ or a nation ‘under no god.’ "

That’s when all hell broke loose. Newspapers and TV reports were filled with denunciations by average citizens and political commentators alike. In a display of bipartisanship not witnessed since the days immediately following Sept. 11, politicians from both parties called the decision "ridiculous," "unbelievable," "nuts." The Senate quickly passed a 99-0 bill endorsing the unexpurgated pledge. The House condemned the decision by a 416-3 vote. Perhaps deciding that retreat is the better part of valor, Goodwin stayed his decision even before an appeal was filed. The case is virtually certain to be heard by an 11-judge panel of the Ninth Circuit and virtually certain to be overturned either then or later by the Supreme Court.

Lost amidst all the flag-waving and God-avowing furor was the fact that Goodwin may have had a point. "As a matter of common sense, a court should struggle not to reach this result," says Jack Balkin, a professor at Yale Law School. "But the reasoning isn’t crazy. It’s technically correct." Vincent Blasi, a law professor at Columbia University and the University of Virginia, agreed. "If you’re being true to the idea that government must not take positions on religious questions, then the Ninth Circuit opinion is quite persuasive," he says. "There is a powerful desire by majorities to assert a religious identity for the country." That desire was strengthened by the terrorist attacks, as schools across the nation turned more openly to prayer for solace.

Goodwin was a victim of bad timing. The pledge, written by a socialist clergyman in 1892, has often served as a rallying cry in times of national crisis. During World War II, Congress officially recognized the pledge and changed its accompanying salute from an outstretched arm that resembled Hitler’s favored salute to the current right hand over the heart. In 1954, in the midst of the cold war against godless communism, President Eisenhower urged Congress to add the words under God to the oath to reaffirm "the transcendence of religious faith in America’s heritage and future." Now faced with a war of uncertain definition and length, the country has once again embraced the pledge as a talisman against harm.

But even in times of peace, Americans have grown accustomed to invoking God’s name in everything from the motto on their currency ("In God we trust") to the saying at the start of every Supreme Court session ("God save the United States and this honorable Court"). Yet while the word God has become omnipresent in the nation’s ceremonial language, it should be noted that when the Founding Fathers were crafting the Constitution, the blueprint for a bold new nation, they left it out.

With reporting by Sean Scully/Los Angeles