Opinion A good decision on the Pledge

Ted Goodwin, who spends his summers in Sisters, told a Central Oregon reporter last week: "You just have to hunker down, like a jackass in a hailstorm, and let this thing happen."

That was vintage Goodwin; he's still part cowboy. He was talking about his role in the Ninth U.S. Circuit Court of Appeals decision declaring the phrase "under God" in the Pledge of Allegiance unconstitutional. Well, not quite. But that's how it was perceived.

In truth, Goodwin has been outhunkered by members of Congress, the President and virtually all other U.S. politicians, who are desperately afraid of appearing less than 110 percent patriotic in the post-September 11 political atmosphere. When the Pledge decision was announced, Republicans and Democrats engaged in competitive denunciations of the court.

I have an advantage over these critics. Unlike most of them, I have actually read the opinion that Goodwin wrote in support of the Pledge decision, all 22 pages of it. I have even read the short opinion by Ferdinand Fernandez, the dissenter on the three-member panel.

Moreover, I have followed Goodwin's judicial career since he was appointed to the Lane County circuit bench in 1960. He rose quickly through the state and federal chairs and in his prime was widely considered a good candidate for appointment to the Supreme Court. To paraphrase Lloyd Bentsen, I know Ted Goodwin and he is no jackass.

But what about that decision? Was it totally deluded, mistaking something trivial for something dangerous? Not in my view. It strikes me as a rational and responsible analysis worthy of the attention of the nation's highest court, which has never directly confronted the basic question.

Luckily for his readers, whether judges or cowboys, Goodwin is literate. He writes clearly and concisely. This talent, not widely distributed across the judicial species, has often been attributed (by journalists) to his journalistic beginnings. He has a journalism degree from the University of Oregon and for a while worked on the news staff of The Register-Guard in Eugene.

His approach to the issues in the Newdow case (the plaintiff was Michael Newdow) is direct and methodical. Newdow essentially attacked two combined government actions: the 1954 congressional addition of the words "under God" to the Pledge of Allegiance, and a California statute that requires all public schools to begin each school day with "appropriate patriotic exercises." The law says that "the giving of the Pledge of Allegiance...shall satisfy" this requirement. Hint, hint.

Thus, the public school that Newdow's fourth-grade daughter attends in Sacramento requires each class to recite the Pledge every school day. As an athetist, Newdow objects to this state indoctrination in monotheism. While his daughter and others whose parents object are not required to say the Pledge, Newdow claims that she is still injured because of being 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, and that ours is 'one nation under God.'"

The Establishment Clause of the First Amendment says "Congress shall make no law respecting an establishment of religion." This has been interpreted to mean that government must steer clear of endorsing or promoting religion in any overt way.

During the past three decades, the Supreme Court has developed three major tests to analyze alleged violations of the Establishment Clause, one of which itself has three "prongs." Goodwin measured the "under God" phrasing of the Pledge and California's recitation requirement against these tests and determined that they fail all three. Whatever else may be said about him, he clearly did not arrive at his conclusions capriciously or arbitrarily.

Goodwin concluded, "...we hold that (1) the 1954 Act adding the words "under God" to the Pledge, and (2) EGUSD's (Elk Grove Unified School District) policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause."

My own reservation stems from the fact that the decision inherently depends upon two government actions working together. The combined actions do produce an untenable result. They put government in the position of telling impressionable kids: "You better believe in God because in this country we all do."

This effect was not accidental; it was contemplated by the authors of the federal Act. As Goodwin notes, President Eisenhower said during the Act's signing ceremony: "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty."

I don't know how many states follow California's example in making recitation of the Pledge a daily ritual. Not Oregon. But what if those policies, wherever they exist, were repealed? Would the 1954 congressional action, a reaction to the spread of "atheistic communism," by itself violate the Establishment Clause? On that issue I might side with those who contend that the phrase "under God" in the Pledge is a form of petty but harmless religiosity -- irritating to those of us who want religion and government to stay on their own sides of a mutually beneficial fence, but not worth Supreme Court invalidation.

But that scenario is hypothetical. Today's reality is that official policies compelling recitation of the Pledge exist, including the one in California that provided the basis for the Goodwin panel's decision.