A Response to Jeffrey Jay Lowder’s

In Defense of the Original, Secular Pledge of Allegiance

Donn R. Day

Jeffery Jay Lowder, co-founder and past President of Internet Infidels, Inc., has written an article defending the original, secular Pledge of Allegiance. While I often enjoy reading what Lowder has to say, this is not one of his better articles. Although his intent is to "quote and then refute the objections to the recent court ruling," Lowder fails to consider the significant reasons why many Americans (theists and non-theists alike) are upset over the ruling. For example, atheist Martin Miller, in a Los Angeles Times Column [1] after the ruling stated; "I'm struggling with my atheism. I don't mean that I'm losing my belief in a random universe. I mean it's getting harder to remain in a congregation in which the membership--at least that part that grabs the headlines--skews toward the sullen, cantankerous and litigious." Miller goes on to call atheists such as Newdow "evangelical atheists," adding "They are intolerant, pushy and self-righteous. If it didn't interfere with their busy schedule of dark moods and constant brooding, they'd probably be handing out pamphlets and ringing doorbells. In short, they embody all the qualities that sparked this country's movement for religious tolerance and freedom in the first place."

Although in recent times the push for an ever higher "wall of separation" has come from atheists such as Newdow, and organizations such as the ACLU, we must remember that the quest for religious liberty during Constitutional times came from Christians, for Christians. Evan Haefeli, of Princeton University, in a book review [2]of Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America by Andrew R. Murphy, notes:

Religious toleration did not begin as a fight for abstract principle; rather, it involved a struggle by dissenting minorities to win exemption from persecution by civil and religious authorities for the practice of their faith. Such privilege offered only "negative freedom" in the unified world of church and state, and it took many decades, Murphy argues, for this negative freedom to blossom into the positive principle of toleration.

Murphy does allow for a few principled and articulate defenders of religious freedom, notably Williams, Penn, and Gilbert Burnet. However, he qualifies their status as crusaders for liberty by noting that theirs was a distinctly Christian mission: to oppose persecution and to defend the right of religious minorities (to which they themselves almost invariably belonged) to worship in peace. As committed Christians, they agreed that a wide range of behaviors that liberals might consider worth tolerating along with religion--drinking, sex, gambling, theater-going--did not deserve protection from official persecution. Whatever conduct was not strictly bound up with religious worship was deemed a matter of public morality and hence fell properly under the authority of the state to regulate or repress. That was the position of Pennsylvania's founder, William Penn. Thus even the most vigorous promoters of religious toleration held a restrictive view of liberty. Toleration was not an ever-expanding principle. Indeed, magistrates and dissenters agreed that if extended to unconventional behavior, toleration could threaten the social order. The critical difference between the sides turned on religion. To dissenters, religious practices deserved special respect, and to suppress them was to provoke social disorder rather than preserve it.

I'll have more to say in this regard as we progress through Lowder's article. (Please note Lowder’s words will be in italics for easy identification)

In Defense of the Original, Secular Pledge of Allegiance

In the matter of Newdow v. Congress, the Ninth Circuit Court of Appeals declared the words "under God" in the Pledge of Allegiance unconstitutional. The court noted that these revisionist words (added in 1954) violated the Establishment Clause of the First Amendment. However, this ruling has been unpopular, to put it mildly. Yet for all the outrage, personal attacks, and death threats against the plaintiff, it is a challenge to find any legal arguments against the decision. However, occasionally critics of the decision have managed to provide something more than emotional outbursts. In this article, I will quote and then refute the objections to the recent court ruling.
While, at this time, it might be a “challenge to find any legal arguments against the decision,” Lowder is smart enough to know that scholars have, for at least the last fifty years, provided ample reasons to dislike U. S. Federal Courts decisions relating to the First Amendment. [3] Mark A. Noll states "From the mid-twentieth century, important changes in American jurisprudence have significantly altered the way in which separation of church and state is practiced." [4] I find it ironic that Lowder uses the word "revisionist" when discussing the addition of "under God" in 1954, since the whole sum of Lowder's case is revisionist in nature. As Judge Ferdinand F. Fernandez noted in dissent:

We are asked to hold that inclusion of the phrase “under God” in this nation’s Pledge of Allegiance violates the religion clauses of the Constitution of the United States. We should do no such thing. We should, instead, recognize that those clauses were not designed to drive religious expression out of public thought; they were written to avoid discrimination

...The words by such phrases as “In God We Trust,” or “under God” have no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity.

Judge Fernandez certainly represents the "non-revisionist" position of the Founding Fathers, Courts, and citizens of this country for more than the first one hundred and fifty years. This is simply beyond dispute for any objective reviewer of our nation's history.

Objection: "The words ‘under God’ are trivial, meaningless, or a content-free catch-phrase and do not establish religion."

As silly as this objection may sound, this is what some people have actually said against the recent court ruling! But consider the facts. If the words really were so trivial or meaningless, then the removal of those words from the Pledge of Allegiance would also be trivial or meaningless. The fact that critics of the court decision view the decision as significant clearly shows that the words are not trivial or meaningless. (Why bother getting so upset over something that is trivial or meaningless?) In fact, while I don’t speak for theists, I would have to think that many theists would find it offensive to learn that God is "trivial, meaningless, or a content-free catch phrase."

Personally, I don't care if the words "under God" are in the Pledge of Allegiance, or "In God We Trust" [5] is on our money, because in large part, as a Christian, I know these expressions are examples of "civil religion," and civil religion "when it is untethered from biblical religion, can become a rival religion" (Richard John Neuhaus). Furthermore, I don't think God cares either. I oppose the removal of these words for only one reason, because as Judge Fernandez rightly pointed out, these words do not establish a religion. What did the Founding Father's mean by the "establishment clause" of the First Amendment? Although Lowder brings this up further down in his article, it would be advantageous to take a brief look at this now, with a fuller explanation coming at the appropriate time. It is vitally important to place the Bill of Rights within the worldview of the time. We have this false notion that settlers streamed to these shores seeking religious freedom. Alan Taylor, professor of history at the University of California at Davis, and Mark A. Noll, professor of Christian Thought at Wheaton College, correct this false notion in two recent books.

Myth insists that the seventeenth-century English colonists fled from religious persecution into a land of religious freedom. In addition to omitting economic considerations, the myth grossly simplifies the diverse religious motives for emigration. Not all colonists had felt persecuted at home, and few wanted to live in a society that tolerated a plurality of religions. Perfectly content with the official Anglican faith of the homeland, many colonists sought to replicate it in the colonies. And although some English dissenters, principally the Quakers, did seek in America a general religious freedom, many more emigrants wanted their own denominations to dominate, to the prejudice of all others. Indeed, at the end of the seventeenth century, most colonies offered less religious toleration than did the mother country. [6] (Emphasis in original)

Despite a persistent American mythology that features 'religious liberty' as a main stimulant for British migration to North America, the first colonies actually instituted a tighter governmental control of religion than existed in the Old World. [7]

Well, you might ask, all that is well and good at the end of the seventeenth-century, what about one hundred years later when the Constitution and the Bill of Rights were written? Here is a a sample of State Constitutions from this period.

That there shall be no establishment of any one religious sect in this Province in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity enjoyed by others their fellow-subjects. (New Jersey Constitution of 1776.)

"That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him, all persons professing the Christian religion are equally entitled to protection in their religious liberty. (Maryland Declaration of Rights of 1776.)

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State. (North Carolina Constitution of 1776.)

That all men have a natural and unalienable right to worship ALMIGHTY GOD, according to the dictates of their own consciences and understanding, regulated by the word of GOD; and that no man ought, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience; nor can any man who professes the Protestant religion be justly deprived or abridged of any civil right, as a citizen, on account of his religious sentiment, or peculiar mode of religious worship, and that no authority can, or ought to be vested in, or assumed by, any power whatsoever, that shall, in any case, interfere with, or in any manner controul [sic], the rights of conscience, in the free exercise of religious worship: nevertheless, every sect or denomination of people ought to observe the Sabbath, or the Lord's day, and keep up, and support, some sort of religious worship, which to them shall seem most agreeable to the revealed will of GOD." (Vermont Constitution of 1777.)

That all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equally religious and civil privileges.

No person shall be eligible to a seat in the said senate unless he be of the Protestant religion. No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion." (South Carolina Constitution of 1778.)

Objection: "Okay, so having the words ‘under God’ in the official version of the Pledge of Allegiance is technically unconstitutional. But that’s like saying that driving 66 mph in a 65 mph zone is technically breaking the law. What harm would it do to leave the words in?"

If you are a theist and don’t see any harm with the words "under God," then try this thought experiment. Imagine if the Pledge of Allegiance had the words "without God" and you were asked to either say something you disagreed with or remain silent (and appear unpatriotic). What harm would it do to leave the words "without God" in the Pledge of Allegiance? Similarly, the words "under God" cause significant harm. As the court ruled in Newdow v. Congress, the words "under God" in the Pledge of Allegiance sends a message to nonbelievers "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

The words "under God" in the official Pledge of Allegiance are not unconstitutional, and the words of Supreme Court Justice Anthony Kennedy that Lowder quotes, as well as two of Justices of the Ninth Circuit Court of Appeals, are following the words of Judicial activists such as Hugo Black [8], and not the original meaning of the First Amendment.

I didn't become a Christian until later in life, so for many years I said the Pledge of Allegiance without believing in God, and contrary to Lowder's assertion, I saw no harm in it whatsoever. In fact the words, "under God" did not even register on the radar screen of concerns. I would submit that it is only "evangelical atheists," as Los Angeles Times writer Martin Miller calls them, who see this for the "emotional" [9] issue that it is. Miller states the matter succinctly:

The other problem with evangelicals like Newdow is that while he's so disrespectful about the beliefs of others, he insists his own be treated with the utmost reverence. Don't even mention the word "God" around him or he'll go to pieces. Society must accommodate him, not the other way around.

One of the many magnificent things about this country is that it does strive to accommodate the individual, but in this case, it's gone too far. There are no absolute rights, even with free speech. (Try shouting "fire" in a crowded movie theater.)

Thus, the question becomes what is reasonable. Is it reasonable in a nation where the dominant culture believes in God to recite the words "under God" in a classroom for a nonmandatory morning pledge?

I think so. I grew up in the Bible Belt and said the pledge every morning of elementary school and don't recall my delicate sensibilities being trampled upon or my belief system altered by the ritual. It's a harmless nod to the majority.

Objection: "Michael Newdow's daughter (the daughter of the atheist who launched this lawsuit) is no atheist. In fact, she is a Christian. She has no problem with saying the Pledge of Allegiance with the words, 'under God.'"

In an apparent effort to limit lawsuits, the courts have stated that one must have standing in order to bring suit and that one can only get standing if is one is injured by the issue at hand. Michael Newdow has been very upfront that he used his daughter to get standing before the court. He has never claimed that his daughter is an atheist or that she is forced to recite the Pledge against her will. Rather, Newdow has stated that his daughter is "injured" by a religious test of patriotism, one that implies that Newdow (along with all other nonbelievers) is not a patriotic American. Furthermore, parents can file suit on behalf of their minor children, even if their minor children disagree with the lawsuit. As Newdow himself writes, "I continue to maintain--as I have from the beginning--that the [Constitution] protects my right, as a parent, to send my daughter to public school without her being indoctrinated with any particular religious belief, even one with which we might agree."

"In an apparent effort to limit lawsuits?" Give me a break! Gee, my neighbor got hit by a drunk down at the local tavern, maybe I can sue in an effort to win some compensatory damages! Contrary to Lowder's assertion, Newdow has not been upfront about his daughter. It was only after [10] the story came out about his daughter being a Christian that Newdow was forthcoming. Here's a quote from the USA Today right after the ruling; "Newdow said his family and daughter have also been threatened because of the suit. He declined to talk about his daughter, saying only that she was 'in a safe place.'" The implication from this comment is that Newdow's family agreed with his position, hence the need to hide. Newdow clearly lied in several other ways as well. First, "In its opinion, the 9th Circuit panel noted that Newdow asserted his daughter is injured when compelled to 'watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God.'" [11] The truth is the daughter has no problem reciting the Pledge; therefore no injury has taken place. Newdow also said "the girl is also injured, because the pledge interferes with her right to freely express her beliefs "without the government intruding religious beliefs upon her." [12] It would seem, as a Christian, she is freely expressing her beliefs when she says "under God." This news, in itself, could be enough to have the whole case thrown-out.

Objection: "Our rights derive from God. There is no other way for rights to exist. Therefore, taking ‘under God’ out of the Pledge undermines the entire concept on which the United States was formed."

Our country was founded on the Bill of Rights, including the First Amendment. The Establishment Clause of the First Amendment prohibits the government from endorsing belief over nonbelief. [Deleted interesting, though not germane to this discussion, opinions about "rights."]

Our country was founded on the Declaration of Independence, and the Constitution (of which the Bill of Rights is a part). While it is true that God in not mentioned in the Constitution, He is mentioned four times in the Declaration. Again, we must remember that:

The issue of religious freedom in America did not arise because of any hostility to Christianity, but because the influential nonconforming groups among the rank and file were opposed to certain special favors granted to the Established Church in their states, and because under the influence of Locke, and of others largely influenced by him, a group of intellectuals had been convinced of the importance of religious freedom, both for the cause of religion and for the success of a republican form of government. [13]

Michael W. McConnell, Professor of Law at the University of Chicago, offers some interesting insight on Madison and the Bill of Rights.

Passage of the religion clauses of the First Amendment was one of the first effective exertions of political muscle by minority groups in the United States. James Madison, usually credited with their authorship, initially found the idea of a Bill of Rights 'highly objectionable.' During the early months of 1788, he tried to persuade his fellow Virginians that inclusion of a Bill of Rights in the new Constitution would be unnecessary, maybe even dangerous.

Madison began to reconsider, however, when he found himself under attack for this position among his constituents. Baptists, previously his enthusiastic supporters, were opposing the Constitution and threatening to support his opponent, James Monroe, in the congressional elections that fall. Madison prudently changed his mind, and wrote to Baptist minister George Eve that he would now support 'specific provisions made on the subject of the Rights of Conscience.' In return, the Baptists held an election rally at their church at which Pastor Eve took 'a very spirited and decided part' for Madison and reminded the crowd of his 'many important services to the Baptists.' (Those who think that church involvement in the electoral politics began with Jesse Jackson and Pat Robertson do not know their American history.) Madison was duly elected to Congress, and he did not forget his pledge. He became the draftsman and floor leader for what would later be called the First Amendment.

The Baptists had a good reason to be concerned about religious freedom. As late as the 1760s, Baptists in Virginia were attacked, horsewhipped, fined, and jailed for preaching their faith. But they were not the only religious minority that felt threatened by the absence of a guarantee of religious freedom in the new Constitution. Some Quakers in Pennsylvania opposed the Constitution for fear that the new national government would not respect their conviction against military service. Representative Daniel Carroll of Maryland, one of only three Roman Catholics in the First Congress, spoke up for the proposed religion amendment, stating that 'many sects have concurred in [the] opinion that they are not well secured in the present Constitution.'

The struggle for addition of protections for religious freedom in the Constitution was led by evangelical Protestants. Once proposed by the First Congress, the First Amendment met with easy and widespread approval, not because the majority believed in religious freedom as a matter of principle - most did not - but because the sheer number of religious denominations made each feel vulnerable to the combined efforts of the others. Anglicans were dominant in the South but a beleaguered minority in the New England. Presbyterians were the most numerous denomination in New Jersey but experienced protracted difficulties with the authorities of Virginia, who deemed them fanatical and objected to their practice of itinerant preaching. Quakers had strength in numbers in the middle colonies but nowhere else. The First Amendment was a product of minority religions, but every religion was a minority religion in America.

That ought to tell us something about the purpose and original meaning of the religion clauses. They were not intended as a instrument of secularization, or as a weapon that the non-religious or anti-religious could use to suppress the effusions of the religious. The Religion Clauses were intended to guarantee the rights of those whose religious practices seemed to the majority a little odd. 'Enthusiastic' was the word often used to describe the Baptists of that day, with much the same meaning as our opprobrious term 'fanatical' today. Non-believers were protected from majoritarian religion too, but we must not think that was the exclusive, or even the primary, focus of the religious-freedom advocates of the founding period.[Emphasis added] [14]

I will bring up the topic of the Declaration of Independence further down in the article.

Objection: "But no one is forced to say the Pledge of Allegiance."

It is, of course, true that children are not required by law to say the Pledge of Allegiance. Of course, it didn't always used to be that way. When Congress codified the Pledge of Allegiance back in 1942, it required all children to say the Pledge of Allegiance. It was not until the Jehovah's Witnesses sued that it was declared unconstitutional to force children to say the Pledge of Allegiance. However, aliens who wish to become citizens may be another matter. I am told that in order to become a U.S. citizen, a person must recite the Pledge of Allegiance. If that is true, then that would mean that atheists and agnostics who wish to become U.S. citizens must profess a belief in God in order to do so. Such a requirement would be clearly unconstitutional. Article VI of the Constitution states, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." If no religious test is required for President, Senator, Representative, Supreme Court Justice, etc., then why should a religious test be required for the ‘office’ of citizen? Given Article VI, such a requirement is probably unconstitutional. But returning to the issue of children, this objection misses the point. The issue is not whether children are required to say the Pledge of Allegiance. The issue is whether the government may endorse belief over nonbelief. As we have seen, the Establishment Clause of the First Amendment prohibits the government from endorsing belief over nonbelief.

Personally, I believe no one should be forced to say anything, and that would certainly apply to the Pledge of Allegiance. My quibble with Lowder's statement in this section is with the last two lines. As I have aptly documented (and will continue to document throughout the rest of this response), the First Amendment does not stop the government from endorsing belief over nonbelief. In fact, the Founders were convinced that religion was a vital and necessary part of a Republican form of government.

Early American practice and the United States Constitution constructed a broad concept of religious liberty, but for the first century of United States history, that liberty was enjoyed primarily by Protestants. Sunday religious services were held in Washington, D.C.'s federal buildings, with only Protestant worship leaders until the 1820s and then mostly Protestant leaders thereafter. State and federal governments provided subsidies for missionary work among Indians, sometimes provided Bibles and even land for rural churches, passed a great deal of legislation to protect Sunday as a day of rest, observed major Christian holidays, sponsored chaplains in the military and official prayers for many government meetings, and in other ways offered much state support for religion, without establishing one denomination as the church of the land.

Behind this way of interpreting 'the separation of church and state' was a religious-political consensus inherited from the founding era. The national government would not sponsor any particular denomination and it would also try to ensure the broadest possible space for the exercise of religion. In turn, the churches as such were expected to give up overt political action. But both the founding fathers and major Protestant spokesman appealed for the churches to strengthen the moral character required for a republican government. [15]

Objection: "The only people who want to remove God from the Pledge of Allegiance are atheists."

Even if the only people who wanted to remove the words "under God" from the Pledge were atheists, this wouldn’t affect the constitutional issue one iota. The words would still be unconstitutional. But in fact atheists are not the only people who want to restore the Pledge to its pre-1954 state. The author of the Pledge of Allegiance, Francis Bellamy, was a Baptist minister. When he wrote the Pledge of Allegiance, he didn’t include the word, "God." The words, "under God," were not a part of the Pledge of Allegiance until Congress added them in 1954. According to Bellamy’s granddaughter, Bellamy would have resented this change. Moreover, there are honest and fair theists who also believe the Pledge should remain secular. Rev. Barry Lynn, the President of Americans United for Separation of Church and State, has endorsed the court ruling restoring the secular Pledge. And the Baptist Joint Committee on Public Affairs, while asserting that the words "under God" are constitutional, nevertheless has issued a statement that laments the fact that the words "have lost their primary religious import through rote repetition and long use."

Most of the people who want to remove God from the Pledge of Allegiance are "evangelical atheists," and I would be very surprised if they represented the majority of the atheistic community. There are "honest and fair" atheists who have no problem reciting the Pledge as it now stands. The words "under God" are not a violation of the First Amendment, and subsequent rulings on this issue will likely agree.

Objection: "The Ninth Circuit Court of Appeals is the most liberal and overturned circuit court of all circuit court of appeals. They had no basis or legal precedent for their ruling on the Pledge of Allegiance. They routinely disregard the Constitution and make up stuff that supports their liberal agenda."

The courts have routinely ruled that the Establishment Clause of the First Amendment requires a "wall of separation of church and state." When the Ninth circuit declared the words "under God" unconstitutional, the court was simply taking church-state separation to its logical conclusion.

The Ninth Circuit Court of Appeals is the most overturned Appeals Court in the land. Why is that? Because they are out-of -step with the mainstream [16] of constitutional law. The “Coalition for a Fair Judiciary,” has reported that since 1996 80-90 percent of this Court’s decisions have been reversed when reviewed by the Supreme Court. And that is not because the Supreme Court is more conservative now, this term alone six Ninth Circuit Court of Appeals cases have been unanimously overturned by the Supreme Court. The Ninth Circuit Court has taken church-state separation to its illogical conclusion.

Objection: "The Ninth Circuit Court of Appeals lacks conviction. That is why they back-pedaled from their ruling, as soon as the public expressed outrage at their decision."

Even if the Ninth Circuit lacked conviction, this wouldn’t show that the ruling is incorrect. The court could have made the correct decision even if it lacked conviction. Thus, this objection is a non sequitur. But in fact there was no backpedaling. It is common judicial practice to issue a stay pending appeal any time a controversial decision is issued.

Lowder is correct here.

Objection: "When the President takes the Oath of Office, he places his right hand on the Bible and says, ‘So Help Me God.’"

The President isn’t required to place his right hand on the Bible, though this practice has become a tradition. The Presidential Oath is specified in Article II of the Constitution, which reads: I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. Note that the oath does not include the phrase, "So Help Me God." The saying of "So Help Me God" is another example of something that has become a tradition. And again, Article VI of the Constitution prohibits a religious test for any office.

Again, Lowder is correct here. However, this tradition was started by George Washington and said by every President since then. Obviously, Washington, Adams, Jefferson, and Madison did not see this issue as a religious test for office, or a violation of the separation of church and state. Once again we see that "evangelical atheists" are certainly, just as the Ninth Circuit Court of Appeals, out-of-step with the mainstream.

Objection: "The Founding Fathers never intended to have a totally secular government. They simply wanted to avoid having an official church of the United States."

According to author William Warren Sweet, a respected Protestant scholar, "The records of the proceeding of Congress during its consideration of the First Amendment show conclusively that Congress consistently voted down every proposal which merely prevented an advantage of one denomination over another. This shows that the Founding Fathers wanted go beyond merely preventing the establishment of a ‘Church of the United States.’ The Founding Fathers wanted the government to have no involvement in religion.

With due respect to Mr. Sweet, let's take a look at the actual evolution of the First Amendment. Madison introduced the following amendment:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or under any pretext infringed.

Here is indisputable proof as to Madison's thinking on the issue--nor shall any national religion be established. Was this voted down for the reason that Sweet and Lowder suggest? Quite the opposite! After the term "national" was trimmed in committee, Madison again suggested that the word "national" be reinserted. Here are the Annals of Congress for August 15, 1789.

Mr. MADISON thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentleman. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent. (Emphasis added)

Mr. LIVERMORE was not satisfied with that amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it was altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.

Mr. GERRY did not like the term national, proposed by the gentleman form Virginia, and he hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the conventions at the time they were considering the present constitution. It had been insisted upon by those who were called antifederalists, that this form of Government consolidated the Union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called antifederalists at that time complained that they had injustice done them by the title, because they were in favor of a Federal Government, and the others were in favor of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made. Their names then ought not to have been distinguished by federalists and antifederalists, but rats and antirats [evidently ratificationists and antiratificationists].

Mr. MADISON withdrew his motion, but observed that the words 'no national religion shall be established by law,' did not imply that the Government was a national one; the question was then taken on Livermore's motion, and passed in the affirmative, thirty-one for, and twenty against. [Emphasis added]

Here we see, contrary to Sweet's and Lowder's assertion, the issue was, according to Madison, exactly the issue of preventing the establishment of a ‘Church of the United States.’ And again, contrary to Sweet, the amendment was withdrawn by Madison, and not voted on by Congress!

Objection: "The Declaration of Independence refers to a Creator. Therefore, the United States was founded on God."

It is, of course, true that the Declaration of Independence refers to a "Creator." But this only shows that the Founding Fathers believed in a "Creator," not that they intended the United States Government to officially endorse the idea of a "Creator." (As a side note, it should be noted that many of the Founding Fathers were Deists and not Christians. Many of the Founding Fathers would have rejected the positions of Radical Religious Right organizations like the Christian Coalition.) The United States was founded on the Constitution, not the Declaration of Independence. The Declaration of Independence was equivalent to an act of Congress and does not have the authority granted to the Constitution, which is the supreme law of the land. The Constitution does not contain the word "God." This was not an oversight. In fact, the original Constitution only contained one reference to religion of any kind: a statement that no religious test would ever be required as a qualification for public office. Moreover, there was very little controversy about this among the Founding Fathers. When Benjamin Franklin proposed that the Constitutional Convention open with a daily prayer, he was rebuffed. And when the Founding Fathers decided to supplement the Constitution with the Bill of Rights, the very first clause of the First Amendment prohibited government establishment of religion.

Lowder makes several false assertions in the foregoing paragraph. What role does the Declaration of Independence play in the United States founding? In a review of Crisis of the House Divided, Michael M. Uhlmann, Vice–President for Public Policy Research at the Lynde and Harry Bradley Foundation, had this to say about Harry V. Jaffa.

Harry V. Jaffa has few peers as a student of the American Founding and none as the expositor of the Declaration of Independence and the statesmanship of Abraham Lincoln. He first established these credentials forty-one years ago with the publication of Crisis of the House Divided, which is, simply stated, the best commentary on American politics written in this century-indeed, since the death of Lincoln himself. Jaffa has responded...that the case for constitutional government cannot be understood or sustained without affirming the truths set forth in the preamble to the Declaration. The only alternative, he contends with eloquence and at times passionate intensity, is tyranny, whether of the few or the many. [17]

Jaffa offers the following information about the Declaration of Independence.

In 1825 James Madison and Thomas Jefferson considered what books and documents the Board of Visitors ought to recommend as norma docendi, as authoritative principles of instruction, for the faculty of law of the new University of Virginia. The question uppermost in their minds was how best to educate the lawyers--those most likely to be the legislators, executives, and judges of the future--those whose vocation would make them in a peculiar sense the future guardians of the Constitution and of republican freedom. Madison and Jefferson were aware of the delicacy of proposing to tell the professors what to teach. They would not think of doing so, Jefferson said, in most branches of science in which the university would offer instruction. And yet he wrote--and surely not without reason--'there is one branch in which we are the best judges...It is that of government.'

So these two ex-presidents and Founding Fathers concluded--and recommended to the Board of Visitors of which both were members and Jefferson was president--that, of the 'best guides' to the principles of the Constitutions, of Virginia, and of the United States, the first was 'the Declaration of Independence as the fundamental act of Union of these States.' Let it be noted that Jefferson and Madison here refer to the Declaration, not only as the instrument by which the thirteen colonies separated themselves from Great Britain, but as the instrument by which they combined with each other to become one Union--thirteen states indeed, but thirteen states united. As the 'fundamental act of Union' the Declaration was and remains the fundamental legal instrument attesting to the existence of the United States. From it all subsequent acts of the people of the United States, including the Constitution, are dated and authorized. It defines at once the legal and the moral personality of that 'one people' (who are also said to be a 'good people') who separated themselves from Great Britain and became free and independent. It thereby also defines the source and nature of that authority which is invoked when 'We the people of the United States' ordained and established the Constitution. For the same principle of authority--that of the people--that made the independence of the states lawful, made lawful all the acts and things done subsequently in their name. This tells us why the Constitution ought to be obeyed, why we have a duty to obey it, why and it what sense it may be truly said that the voice of the people is the voice of God. For these reasons the Declaration remains the most fundamental dimension of the law of the Constitution. It is the Declaration that tells us why and in what sense the government of the people is a government of right and not merely of force. It is by virtue of the principles of the Declaration that the Constitution must be said to reject the thesis that justice in nothing but the interest of the stronger. It is by virtue of the principles of the Declaration that, in the words of Leo Strauss, 'The United States of America may be said to be the only country in the world which was founded in the explicit opposition to Machiavellian principles.'

To repeat, the Declaration of Independence, as seen by Jefferson and Madison, tells us why the political authority of the United States is also a moral authority, and why the physical force by which the United States may protect and defend itself is a moral force, and not merely the expression of collective self-interest. [18]

Lowder makes a common mistake when he implies that by virtue of the fact the Constitution states "no religious test would ever be required as a qualification for public office," that this obviously proves the Founders wanted a strictly secular government, with presumably a high wall of separation between church and state. Nothing is further from the truth. Read the following words of Oliver Ellsworth of Connecticut, a member of the Constitutional Congress, and later chief justice of the United States.

Some very worthy persons, who have not great advantages for information, have objected against the clause in the constitution which provides, that no religious test shall ever be required as a qualification to any office or public trust under the United States. They have been afraid that this clause is unfavorable to religion. But my countrymen, the sole purpose and effect of it is to exclude persecution, and secure to you the important right of religious liberty. We are almost the only people in the world, who have full enjoyment of this important right of human nature. In our country every man has a right to worship God in that way which is most agreeable to his conscience. If he be a good and peaceable person he is liable to no penalties or incapacities on account of his religious sentiments; or in other words he is not subject to persecution.... [19]

A religious test is an act to be done, or a profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one's belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissible to a publick office. A test in favour of any one denomination of Christians would be to the last degree absurd in the United States. If it were in favour of either congregationalists, presbyterians, episcopalians, baptists, or quakers, it would incapacitate more than three-fourths of the American citizens for any publick office; and thus degrade them from the rank of freemen. There need no argument to prove that the majority of our citizens would never submit to this indignity.

If any test-act were to be made, perhaps the least exceptionable would be one, requiring all persons appointed to office to declare, at the time of their admission, their belief in the being of a God, and in the divine authority of the scriptures. In favour of such a test, it may be said, that one who believes these great truths, will not be as likely to violate his obligations to his country, as one who disbelieves them; we may have greater confidence in his integrity. But I answer: His making a declaration of such a belief is no security at all. For suppose him to be an unprincipled man, who believes neither the word nor the being of God; and to be governed merely be selfish motives; how easy is it for him to dissemble! how easy is it for him to make a public declaration of his belief in the creed which the law prescribes, and excuse himself by calling it a mere formality. This is the case with the test-laws and creeds in England....In short, test-laws are utterly ineffectual; they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are....[20]

As we see, the absence of any religious tests for national office (many States had religious tests at this time) was uncontroversial because above all, our Founders were men of practical wisdom and insight. Any national religious test, as Oliver Ellsworth so eloquently points out, would result in the very opposite of what was intended.

Objection: "Our money says, ‘In God We Trust.’ Therefore, the United States was founded on God."

This argument would be a good one if those slogans had been in place since the time the United States was founded. Unfortunately, those slogans were unconstitutionally added to our currency long after the founding of the country. Our currency originally bore the slogan, "E Pluribus Unum." The words, ‘In God We Trust,’ were added to coins in 1864. Those same words were not added to paper currency until 1956.

The fact that 'In God We Trust' was not on our money since the United States was founded, is of absolutely no consequence. How can Lowder say this, in 'God We Trust' being on our money since the very beginning would be a good argument, but then ignores countless other similar examples, which would have just as much explanatory value? Let me here provide many such examples. The first one is provided by Lowder himself in his previous section (which I deleted since it is similar to this one.) The fact is that "Congress has chaplains and opens its legislative sessions in prayer," and as had such since the United States was founded. Of course, Lowder doesn't deal with this point in this way, choosing to focus on the world of adults versus children. Even though I disagree with Lowder's point in this regard, it is immaterial to the focus that I am here presenting. Dr. Anson Phelps Stokes, in him monumental work Church and State in the United States, provides several more.

  • Divine Service as Part of Washington's Inauguration (1789)--clear evidence that the Congress wished to have the government started under religious auspices.
  • The Presidential Thanksgiving Day Proclamation of 1789. This proclamation, issued by President Washington at the request of Congress, shows the founders of the new nation were actuated by a religious spirit.
  • Treaties with Tripoli (1797 and 1805). These are interesting as evidence of the broadly tolerant spirit of the new government. The change in wording in the second treaty, where the original statement that the United States is "not founded on the Christian religion" was omitted, is evidence that many influential people had felt the government had gone to far in the first treaty in denying the Christian character of the American State. [21]
  • The Holding of Religious Services in the Hall of the House of Representatives. This was another evidence of the desire of the early Congresses to show respect for religion without giving advantages to any denomination. President Jefferson's attendance and apparent approval of the plan is particularly worthy of note. [22]

    All of these, and the many more examples that could be offered show that religion and our government were intertwined in what could be called an "accommodationist" relationship, with nothing that could even remotely be called a "wall of separation." The evidence is beyond doubt or dispute.


    As we have seen, objections to the recent court ruling on the Pledge of Allegiance are invalid and often at odds with the facts. The courts have consistently recognized the First Amendment requirement that the government be neutral in matters of religion. The Ninth Circuit’s decision in Newdow v. Congress simply took that requirement to its logical conclusion regarding the words "under God." Inserting the words "under God" into the Pledge of Allegiance was an unconstitutional establishment of religion. Theists still have the right to freely exercise their religious beliefs and insert the words "under God" when they repeat the Pledge of Allegiance, but such words are unconstitutional in the official, Government-sanctioned version of the Pledge of Allegiance

    As we have seen, opinions by 'evangelical atheists' such as Lowder, are at odds with the facts. The Ninth Circuit’s decision in Newdow v. Congress, while the trend in our courts for only the last fifty years or so, now seems to be in retreat. It took almost fifty years for the words "under God" in our Pledge of Allegiance to be called an "establishment of religion," and this by the most radical court in the nation. One can only hope that a more honest judgment would soon be forthcoming; a judgment based on the history and intentions of our Founding Fathers, not on some wild notion of what an "establishment of religion" truly is.


    [1] Martin Miller, The Los Angeles Times Jun 28, 2002; pg. E.1

    [2] Evan Haefeli, The William and Mary Quarterly, Vol.59, No.2. April 2002.

    [3] For a popular treatment on this issue, see The Culture of Disbelief by Yale Law Professor Stephen L. Carter.

    [4] Mark A. Noll, The Old Religion in a New World (Grand Rapids: Erdmans, 2002) p. 92.

    [5] To this latter point I wonder if it might be more appropriate to have "In Satan We Trust" on our money since the Bible declares that [the love of] money is the root of all kinds of evil. (1 Tim. 6:10).

    [6] Alan Taylor, American Colonies (New York: Viking, 2001) p. 339.

    [7] Mark A. Noll, The Old Religion in a New World (Grand Rapids: Erdmans, 2002) p. 74.

    [8] Hugo Black, appointed by "New Deal" liberal F.D.R., states "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

    [9] It is my contention that the majority of atheists do not believe in God for "emotional" reasons, though most of them state rational reasons for their unbelief (see A.N. Wilson's quote in SRM's reply to randau for support on my position). In this regard it is interesting that Lowder begins his article criticizing opponents of the Ninth Court of Appeals decision saying they can only "occasionally" "provide something more than emotional outbursts."

    [10] I live in the same Sacramento, CA region that Newdow does and have followed this case closely.

    [11] Sacramento Bee Website, Published 4:24 p.m. PDT Thursday, July 11, 2002.

    [12] Ibid.

    [13] Anson Phelps Stokes, Church and State in the United States (New York: Harper and Brothers, 1950) p. 555.

    [14] Terry Eastland, ed. Religious Liberty in the Supreme Court (Washington, D.C.: Ethics and Policy Center, 1993) pp. 497-499.

    [15} Mark A. Noll, The Old Religion in a New World (Grand Rapids: Erdmans, 2002) pp 85-86.

    [16] Mainstream is not a code word for "conservative." Mainstream would best be described as middle-of-the-road.

    [17] Michael M. Uhlmann, First Things, March 2000. pp. 58-59.

    [18] Harry V. Jaffa, Original Intent and the Framers of the Constitution (Washington, D.C.: Regency Gateway, 1994) pp. 22-23.

    [19] Anson Phelps Stokes, Church and State in the United States (New York: Harper and Brothers, 1950) pp. 534-535.

    [20] Ibid. p. 525.

    [21] You can find the quote from the first treaty on many atheist websites, yet you never see it mentioned the phrase was dropped eight years later.

    [22] Anson Phelps Stokes, Church and State in the United States (New York: Harper and Brothers, 1950) pp. 483-507.

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