Congress' patriotism swells

July 01, 2002|By Jules Witcover

WASHINGTON -- The nation can be truly grateful that no member of Congress was trampled to death in the stampede to disavow the declaration of a federal appeals court that the words "under God" in the Pledge of Allegiance to the flag are unconstitutional.

A horde from the House of Representatives lined up on the steps of that hallowed chamber to recite the pledge in its unadulterated form soon after the decision came down. Their colleagues from what they condescendingly refer to as "the other body" took to the Senate floor the next day and did the same.

The Senate chaplain preceded the ritual with a prayer informing God that the good and reverent senators were not about to desert Him in His hour of need. Senate President Pro Tem Robert Byrd of West Virginia, Congress' chief defender of the Constitution, led the pledge sporting a tie with an Old Glory motif.

The senators had already passed a resolution, 99-0, condemning the court's ruling (Republican Sen. Jesse Helms of North Carolina, a card-carrying believer, was absent). And another patriot, Republican Sen. John Warner of Virginia, had already expressed his confidence that all 100 senators would sign onto a constitutional amendment restoring God to his rightful place in the pledge.

Woe to any one of the 100 who might stray on that vote, Mr. Warner seemed to imply. At first blush, at least, there was no indication that anyone would do so on a vote that the late House speaker, Tip O'Neill, doubtless would have called a no-brainer.

A perception of going to the mat against God or the flag has always been perilous in politics. When Democratic presidential nominee Michael Dukakis, as governor of Massachusetts, vetoed a bill that would have required public school teachers to lead their classes in reciting the Pledge of Allegiance, he spent much time defending himself against charges that he was unpatriotic, godless, or both.

The rush to line up on God's side is, for all the ostentatiousness of the congressional stampede, probably a harmless exercise, if only in anticipating what is likely inevitable.

The chances are that the conservative majority on the Supreme Court will, if the case gets there, reverse the 2-1 decision of the liberal 9th Circuit Court of Appeals based in liberal California, and probably by more than the frequent 5-4 conservative-liberal split. It appears stalled for now in the 9th Circuit: Following the public outcry, Circuit Judge Alfred T. Goodwin stayed the ruling until his colleagues on the court decide whether to reconsider the case.

Judge Goodwin, a Nixon appointee, had written for the majority, as in the Dukakis veto, that a school district is "conveying a message of state endorsement of a religious belief when it requires public school teachers to recite and lead the recitation of the current form of the pledge." The petitioner, an atheist from Sacramento, had protested the practice.

The language at the core of the matter is the First Amendment's instruction that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," known in legal circles as the Establishment Clause.

No less a liberal icon than the late Associate Justice William Brennan left a rationale for his old colleagues to toss out the appellate court decision. He characterized references to God in the pledge, as well as when calling the court into session and on U.S. currency, as no more than "a form of ceremonial deism protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content."

Unlike the periodic attempt to enact a constitutional amendment banning flag burning, which raises a serious freedom of expression issue under the First Amendment, this issue doesn't warrant any drawn-out fight over freedom of religion.

With public sentiment overwhelmingly in support of keeping the Pledge of Allegiance as it is, Congress can better spend its time addressing all the more pressing matters it has been dodging all year, and leave it to the judiciary to put God back in the pledge, as it almost certainly will do if left to its own devices.

Jules Witcover writes from The Sun's Washington bureau. His column appears Mondays, Wednesdays and Fridays.

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