Constitution for a God of Small Things

The earlier of the two President Bushes, who first revealed to the world the mis-speaking gene unfortunately carried by the family, was once asked what he'd thought about while waiting for rescue after his plane ditched in the sea during the second world war. George I's claim that he reflected on "the separation of church and state" was judged unlikely by most hearers and regarded as another attempt to convince the religious right of the Republican party that he was really one of them.

Now his son, who undoubtedly is one of them, is forced to contemplate the same issue, although at least from the comfort of the dry land. The 9th US circuit court of appeals, which has jurisdiction over nine western states, has upheld an objection by a doctor from Sacramento, Michael Newdow, that his daughter at school must daily pledge allegiance to "one nation indivisible under God." As an atheist, the physician claims to find the suggestion of divine national direction offensive and a breach of the constitutional requirement that politicians and priests must walk on different sides of the street.

While the appeal court judgment is itself appealed - and Dr Newdow reportedly plays back death-threats from American Christians on his answering machine - George II's attorney general and the Senate (voting unanimously) have condemned the judges' attempt to delete the deity from the school day.

Many British observers will be bemused that two little words in morning assembly could prompt millions of words in court papers, journalism and chat-room clashes. But this case is worth examining as a classic example of the shapes into which America is contorted by wars over the meaning of its constitution.

The story of the pledge of allegiance shows how national history becomes smoothed and obscured. Listening to American children venerating the flag, you have the vague feeling that they must be speaking the words of the Pilgrim Fathers, or at least George Washington.

Yet the patriotic paragraph was written in 1892 by a socialist journalist, Francis Bellamy, in a publication called The Youth Companion, and not adopted by the US government until 50 years later. It was only in 1954 that the "one nation indivisible" was specified as being "under God" when, in a fascinating footnote to the cold war, the American government deliberately set out to suggest distance between the US and the godless commies of the USSR.

The pledge of allegiance is, then, a less solid text than it now sounds. The same, though, is true of the claim on which the Newdow case rests: that the American constitution demands a "separation between church and state", the wording which the first President Bush supposedly considered in the drink. In fact, that phrase is taken from a letter written by Thomas Jefferson in 1802 to the Danbury Baptists. The constitution demands only that "no religious test shall ever be required as a qualification to any office or public trust".

As so often, the constitution can mean whatever a sharp-suited attorney might want it to. Is a child in morning assembly really holding "office" or "public trust"? And - given that it has so far proved impossible to become elected president without a very public show of Christian faith - it can be argued that entry to the White House is indeed subject to a "religious test" and therefore all presidents are unconstitutional.

While the Californian doctor started an argument over God, the case has considerable relevance to an even more fanatical American religion: gun-ownership. What Dr Newdow has cleverly done is to turn against rightwingers - for whom God and the gun often go together - their favoured weapon: constitutional immovability.

Enthusiasts for shooting in the US use a phrase from the nation's founders about the right to "bear arms" as part of "a well-regulated militia" as an excuse for an armed private population. If that wording can justify the pistol in the coat-pocket, then the founders' objection to a "religious test" can equally be argued to rule out a deistic start to the educational day. The sharpest irony of this case is found, though, in a comment from the governor of California, Gray Davis: "With troops overseas, this is the wrong decision at the worst possible time." The implication here is that foreign aggressors might see in the ruling from the 9th US circuit court of appeals an admission that America no longer believes God to be on its watch and - presumably - strike.

Yet the words "under God" were introduced 48 years ago purely to distinguish America from a godless antagonist. America's enemy now is so far from atheism that its agents fly planeloads of innocents into buildings in the apparent belief that this will gain them entry to heaven. If the rationale for inserting God was to differentiate America from atheists, then the words should logically be deleted to distinguish the nation from enemies who promote a holy war: a concept in which we like to think Bush doesn't believe.

The question of whether or not three syllables should be lisped by schoolchildren is finally a small one, its elevation into a national cause celebre showing once again how the US is being stupefied by lawyers. Both believers and non-believers, however, may take pleasure from this reminder to the gun-toting American right that liberals too reserve the right to bear pedantic legalistic arms.

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