The dissent in the Ninth Circuit Court opinion is
wrong. The Supreme Court (West Virginia State Board of Education
v. Barnette, 399 U.S. 624, 1943) ruled no one can be compelled
to take or recite the national pledge of allegiance as made
into law by Congress. The California statute or law code compelling
teachers to administer the pledge is also wrong, unconstitutional.
The issue is not just a matter of compelling someone to take the
pledge. The issue is a matter of the law itself: the California
statute or law code which required the pledge is unconstitutional.
The law itself is unconstitutional which is why the law and the
dissenting opinion is wrong. Neither Congress nor a state shall
make a "law" which establishes "religion" or requires citizens
to take an oath. An oath is "a solemn, usually formal, calling upon
God or a god to witness to the truth of what one says or to witness
that one sincerely intends to do what one says" (Webster's Ninth
New Collegiate Dictionary). The national pledge of allegiance, although
unlike a legally binding oath or affirmation "made under
penalties of perjury" (see Webster's), is a vocally stated promise
which asserts existence of God and which by itself serves (without an
additional calling upon "God") as witness to and consideration or
security for the allegiance promised. Understand, Jehovah's Witnesses
in the 1943 West Virginia case, objected to the pledge even when "God"
was not a part the pledge. The California law and Public Law 396 of
1954, therefore, are doubly wrong because, as currently written (since
1954), they include, not only allegiance to a promise, but to
an establishment of religion through an official recognition of "God"
by law, and become, legally and in reality, a religion test, in
violation of the Constitution (Art. 6., Sec. 3.). Further, the pledge
of allegiance includes a congressionally legislated "agreement" about
"God," if not a "binding promise" (see Webster's), which, according to
the Constitution, cannot be required because it includes an affirmation,
"a positive assertion" (see Webster's), that there is a God, about
which, "Congress shall make no law respecting" (First Amendment).
Any suggestion that "God" has nothing to do with "religion" is, on its
face, ridiculous and absurd.
Dissenting Judge O'Scannlain's confused dissent is obfuscation
and sophistry at its best, like a dog chasing its tail, obviously dumb.
Nevertheless, Judge O'Scannlain would have us believe the California
case "involves a question of exceptional importance." On the other
hand, dissenting Judge Fernandez would have us believe the danger resulting
from any constitutional violation is "de minimis" and "picayune," and
he revises the essence of the Establishment Clause in terms of "a"
religion or "a" theocracy. Absurd! Neither of them can read and both
are unwilling to accept a strict constructionist reading of the words of
the First Amendment. It is "religion" which is not to be established by
law or Congress, and "religion" is the only word which makes sense out of
"thereof" in the Free Exercise Clause. Making religion laws is not the
business of government. Congress made a religion law (Public Law 396)
in 1954. California made a religion law in Cal. Educ. Code #52720. Both
laws are violations of the Establishment Clause because they are laws
respecting an establishment of "religion." Neither Congress nor the
states shall make religion laws. Religion is not the business of
government at any level because government is the essence of coercion.
In America religion is to be voluntary. That is the proper concept of
the religion clauses of the Constitution (Art. 6., Sec. 3., and the
First Amendment).
Indeed, the constitutional principle of "separation between
Religion and Government in the Constitution of the United States"
(James Madison, William and Mary Quarterly, 3:555)
is voluntarism in matters of religion. That constitutional principle
is clearly commanded by the Founding Fathers in Article 6., Section 3.:
"No religious test shall ever be required" and by the
First Congress in the First Amendment: "Congress shall make no law
respecting an establishment of religion."
Therefore, "no law" means NO LAW. The Ninth Circuit is
absolutely correct in ruling against state laws or school district
rules (in this case, California Educational Code #52720) which,
in effect, make laws or directives even "respecting an establishment
of religion." Code #52720, itself, is unconstitutional.
In America religion is not to be established by law or
government at any level. In America religion is a matter for
individuals, families, churches, and religion organizations; religion
is not the business of government. "The very purpose of the Bill of
Rights was to withdraw certain subjects from . . . political controversy,
to place them beyond the reach of majorities and officials" (Barnette,
1943). One of those subjects is "religion."
In 1954 Congress unconstitutionally injected religion (God)
into the Pledge of Allegiance, and it unconstitutionally became Public
Law 396 when signed by President Eisenhower. California
unconstitutionally injected the pledge of allegiance into its
requirement for "shall be conducted . . .
patriotic exercises."
Please read my earlier answer concerning the pledge of
allegiance and the June 26, 2002, ruling by the San Francisco Ninth U.S.
Circuit Court of Appeals.
