Earlier this week the United States Supreme Court agreed to review the
Ninth Circuit's decision that struck down the recital of the Pledge of
Allegiance in California's public schools. At issue were the words "under
God" in the Pledge, the inclusion of which the three-judge panel felt
amounted to California establishing religion. Here's hoping the Supremes
will take this case not only as another opportunity to reverse the Ninth
Circuit - a frequent happening, that -- but also to inject some common
sense and accurate history into the church/state discussion. Because from
where I'm sitting, there's little of either.

Earlier this week the United States Supreme Court agreed to review the =
Ninth Circuit's decision that struck down the recital of the Pledge of =
Allegiance in California=92s public schools. At issue were the words =

God=94 in the Pledge, the inclusion of which the three-judge panel =

amounted to California establishing religion. Here's hoping the =

will take this case not only as another opportunity to reverse the =

Circuit =96 a frequent happening, that -- but also to inject some =

sense and accurate history into the church/state discussion. Because =

where I'm sitting, there's little of either.=20

Earlier this week the United States Supreme Court agreed to review the
Ninth Circuit's decision that struck down the recital of the Pledge of
Allegiance in California’s public schools. At issue were the words “under
God” in the Pledge, the inclusion of which the three-judge panel felt
amounted to California establishing religion.

Here's hoping the Supremes
will take this case not only as another opportunity to reverse the Ninth
Circuit – a frequent happening, that -- but also to inject some common
sense and accurate history into the church/state discussion.

The case has been the subject of an intense national debate. A district
court in Sacramento initially dismissed the lawsuit brought by an atheist,
Michael A. Newdow, who did not want his daughter exposed daily in her
elementary school classroom to "a ritual proclaiming that there is a God."
A three-member panel of the Ninth Circuit overturned that decision, first
ruling in June that the words "under God” made the pledge itself
unconstitutional.

Earlier this week the United States Supreme Court agreed to review the
Ninth Circuit's decision that struck down the recital of the Pledge of
Allegiance in California's public schools. At issue were the words "under
God" in the Pledge, the inclusion of which the three-judge panel felt
amounted to California establishing religion. Here's hoping the Supremes
will take this case not only as another opportunity to reverse the Ninth
Circuit - a frequent happening, that -- but also to inject some common
sense and accurate history into the church/state discussion. Because from
where I'm sitting, there's little of either.

The case has been the subject of an intense national debate. A district
court in Sacramento initially dismissed the lawsuit brought by an atheist,
Michael A. Newdow, who did not want his daughter exposed daily in her
elementary school classroom to "a ritual proclaiming that there is a God."
A three-member panel of the Ninth Circuit overturned that decision, first
ruling in June that the words "under God" made the pledge itself
unconstitutional. Earlier this year, the court tempered its ruling by
confining it to the public school context, invalidating school policies
that require teachers to lead willing students in the Pledge.

The Ninth Circuit's aversion to "under God" didn't come from whole cloth.
Left-leaning jurists have been building a wall between church and state
since the days of the Warren Court. Inspired by the spirits of Thomas
Jefferson and James Madison, the Supreme Court began its modern day

against religion in 1962 when it struck down a state-composed non-
denominational classroom prayer (Engel v. Vitale). It later extended that
ruling to ban daily classroom readings of The Bible (Abington School Dist.
V. Schempp (1963)) and to strike down an Alabama statute that authorized a
one-minute silent period at the start of each day to be used for

or prayer (Wallace v. Jaffree (1985)). These practices were all voluntary,
and were all invalidated even though the First Amendment says the
government may not prohibit "the free exercise" of religion. The basis:

Jeffersonian proposition that, although it didn't say so, the First
Amendment was intended to erect a wall between church and state.

What a bill of goods. As M. Stanton Evans detailed in his excellent 1994
book "The Theme Is Freedom: Religion, Politics, and the American
Tradition," before, during, and after they ratified the Constitution, the
state legislatures and Congress acted like a wall between church and state
was the last thing on their collective mind. Official state churches were
the rage in colonial times, with no fewer than nine of the colonies having
state religions as late as 1775. They gradually fell out of favor over the
next several years, but in 1789, the year of the Constitutional

the three New England states still had official religions, and most of the
other states still retained some official sanctions for religious belief.
South Carolina's constitution, for example, deemed "the Christian
Protestant religion" to be "the established religion of the state" and

that no religious society could be deemed a church unless it agreed, inter
alia, that "the Christian religion is the true religion." The Maryland
Constitution decreed "a general and equal tax for the support of the
Christian religion." New Jersey expressed the idea by saying "no

inhabitant of this colony shall be denied the enjoyment of any civil
right." In 1780, Massachusetts authorized a special levy to support

Protestant teachers of piety, religion and morality." New Hampshire later
adopted that formula - verbatim.

State involvement with religion didn't vanish with ratification. Until
1826, you had to be a Christian to hold public office in Maryland. North
Carolina required elected officials to be Protestant until 1835, when it
said any type of Christian would do. Massachusetts didn't abolish its
established church until 1833. New Jersey didn't allow Roman Catholics to
hold office until 1844. New Hampshire didn't abandon its requirement that
one had to be a Protestant to serve in the legislature until 1877.

Congress didn't ditch religion, either. After it ratified the Bill of
Rights, Congress retained its Chaplain (a position created in 1774) and
continued to open its proceedings with a prayer. And - here's a biggie --
the very day after it passed the Bill of Rights in 1789, the House of
Representatives passed a resolution calling for a day of national prayer
and thanksgiving. The resolution thanked the "Almighty God" for allowing
the United States the opportunity to establish a constitutional

An also-grateful-to-God President George Washington issued a proclamation
designating that day, now known as Thanksgiving. See the problem? If the
First Amendment really meant to establish a separation of church and

then Congress, the states and George Washington violated it - and kept on
violating it -- right after its inception.

Logically, that's nonsense. Truth is, the men who passed the Bill of

intended for the Establishment Clause to speak not to what the states

say about religion vis-à-vis the people, but what Congress could do vis-à-
vis the states. We know that because, after much deliberation, that's how
they wrote it: "Congress shall make no law respecting the establishment of
religion." (Italics mine.) And we know it because, in introducing a set of
amendments to the Constitution in June 1789, including one speaking to the
establishment of religion, Madison said as much. To wit: when Roger

suggested to Madison that the Establishment Clause was unnecessary because
of the Tenth Amendment, which reserved all powers not expressly granted to
the federal government to the states, Madison explained that

he apprehended the meaning of the words to be, that Congress shall not
establish a religion and enforce the legal observation of it by law, nor
compel men to worship God in any manner contrary to their conscience.
Whether the words are necessary or not, he did not mean to say, but they
had been required by some of the state conventions, who seemed to

an opinion that (under the "necessary and proper" clause) . . . Congress .
. . might infringe the rights of conscience and establish a national
religion; to prevent these effects he presumed the amendment was intended,
and he thought it as well expressed as the nature of language would admit.

(Italics in Stanton's version.) Translation: Madison introduced the
language because others in the state conventions wanted it; he did so on
their behalf; and its intent was merely to prohibit Congress from
interfering with the states' prerogatives on the subject of religion by
setting up a national one. Madison should have listened to Sherman

suffice it to say, never in the history of man has such a clarifier

such havoc.

But straightforward as it was, the Establishment Clause hasn't aged well.
Since the Fourteenth Amendment was ratified after the Civil War to
guarantee equal protection and due process to blacks, the Supreme Court

extended it to make almost all of the Bill of Rights' guarantees

to the states. Of course nowhere in the Fourteenth- or any of the other
Civil War amendments does it say "the Bill of Rights shall now be
applicable to the states," but in most matters, particularly in areas of
individual rights, binding state governments to the same set of rules as
the federal government made good sense. But in 1947, the Court made the
Establishment Clause binding on the states. The irony: the provision
originally offered on behalf of the states to protect their prerogatives

matters of religion now prohibited them.

Nicholas G. Jenkins
Founder and Chief Executive Officer
The Fence
www.thefence.com