Less than a year after 9/11, when our nation was at peak patriotism, the Ninth Circuit Court of Appeals ruled in 2002 that the words “Under God” in the Pledge of Allegiance endorsed religion and were therefore unconstitutional. It was a decision that played right into the culture wars, and more than 100 mostly Republican members of Congress responded by reciting the Pledge outside the Capitol.
It was a 2-1 decision that was later reversed by the Supreme Court, in 2004, because they said the plaintiff Michael Newdow didn’t have legal custody of his daughter, whom he was representing. That meant he didn’t have standing to bring the case. It was essentially tossed out by the Supreme Court on a technicality; they never ruled on the merits like the Ninth Circuit did. But those two justices on the Ninth Circuit included Judge Alfred T. Goodwin, who wrote the majority opinion, and Judge Stephen Reinhardt.
Reinhardt, who was appointed to the federal bench in 1980 by President Jimmy Carter, died yesterday at age 87. He was arguably the most liberal justice in the nation, and the Pledge case was a perfect example of why people thought of him that way.
Reinhardt didn’t author that particular ruling, but in 2010, Newdow tried once again to have the Pledge declared unconstitutional. This time, to avoid the issue of standing, he represented other people, including an atheist whose child had to recite the Pledge, which “interfere[d] with her right to direct her child’s upbringing, and indoctrinate[d] her child with the belief that God exists.” They had standing, so this case had to be decided on the merits.
Once again, that case made it to the Ninth Circuit, and wouldn’t you know it, Justice Reinhardt was assigned to decide this matter once again.
Newdow lost that case 2-1. Reinhardt was the lone dissenter. And you really have to read this dissent to see what a firebrand we just lost. He really let his colleagues have it.
… Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.
To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion”…; and to indoctrinate schoolchildren in the belief that God exists… Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.
Daaaaaaamn. He went on to write:
I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all.
Reinhardt was willing to state the obvious: Congress inserted those two words into the Pledge in 1954 specifically to spread the idea that religion was good and a belief in God was better. There was no secular (read: patriotic) reason for that phrase to be wedged in there.
He also argued that it was ridiculous for the two-judge majority to say the Pledge needed to be considered as a whole when all they needed to look at were the two clearly religious words and nothing more. By looking at the whole Pledge, he said, it was easy to dismiss the claim the ritual was a promotion of religion. Even though “Under God” was obviously that.
The point is: He wasn’t afraid to say what everyone who understood the Pledge’s history knew. It was an unpopular opinion, but he didn’t shy away from making it. And he did it twice. (Actually more than that, since the first iteration had multiple versions.)
In addition to his decision on the Pledge cases, Reinhardt had a hand in several other major decisions. Slate‘s Mark Joseph Stern explains:
The classic Reinhardt opinions involve political and jurisprudential lightning rods. He ruled that terminally ill patients have a constitutional right to end their own lives, though the Supreme Court disagreed… He held that a federal ban on a common second trimester abortion procedure unduly infringed on women’s right to choose. (Once again, the Supreme Court reversed his decision.) And he ruled that the Second Amendment does not guarantee an individual right to bear arms six years before the Supreme Court concluded that it did.
He also struck down same-sex marriage bans; the Supreme Court eventually agreed with him on that one.
His death means Donald Trump will be able to nominate his replacement. So far, Trump has ceded all of his judicial nominees to the Religious Right. They have their list of acceptable nominees, and Trump hasn’t deviated from it. It’s the reason so many white evangelicals stand by his side despite all the reasons he’s given them to walk away.
The Ninth Circuit remains the most liberal appeals court in the nation, but this is a heavy loss and very likely a big flip for conservatives. The ability to choose Reinhardt’s replacement is what Democrats lost when progressives didn’t vote for Hillary Clinton because of some stupid reason or another.
Newdow didn’t respond to a request for comment. According to BuzzFeed’s Chris Geidner, Reinhardt’s family has requested that, “in lieu of flowers, donations in Reinhardt’s memory may be made to the ACLU.” You can do that right here.
(Screenshot via YouTube)