After reading some of the online comments on the Pledge of Allegiance case this week, I offer some casual thoughts on the words “under God” in the Pledge. I am not analyzing recent Court jurisprudence, and am addressing only the establishment clause issue (which is how Newdow was previously presented to the Supreme Court), not any free exercise or free speech claims:
1. Although I am a fervent atheist, I wouldn't call my belief a religion.
2. The words "under God" have no business being in the Pledge of Allegiance, no matter how religious the country currently is or was.
3. I wish that the Senate didn’t have a chaplain, but this has been held constitutional, as have military chaplains.
4. If the Supreme Court were not so confused, the Pledge of Allegiance case would be an easy one on establishment grounds. First, it does not involve a statute of Congress respecting the establishment of a state religion. Second, even if one were to extend this part of the first amendment to the state of California’s statutes, still California has not enacted a state religion, nor has it passed a statute respecting the establishment of religion.
5. One shouldn’t confuse what should or shouldn't be in the Pledge with the question whether mandating the Pledge enacts a state religion. It obviously doesn’t. Therefore, the establishment clause should not prohibit the words "under God" in the pledge. Again, this is not an analysis of how the Court usually approaches establishment clause cases.
6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.
7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.
8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.
10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the "eternal separation of Church and State." In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.
11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.
12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.