Commentary by Cheri Pierson Yecke

On a technicality, the U.S. Supreme Court has dodged the opportunity to address the Pledge of Allegiance issue.

The controversy began two years ago, when a California atheist convinced a panel of the Ninth U.S. Circuit Court of Appeals to declare the Pledge of Allegiance unconstitutional because it contains the phrase "under God." The claim was that the phrase violates the "constitutional" concept of "separation of church and state."

But there is a serious problem with this interpretation of the First Amendment: The phrase "separation of church and state" appears nowhere in this founding document. How it has come to be interpreted as a tool to erase religion from the public square is based upon a gross misrepresentation of historical documents and the founders' intent.

First, a little history. Discussions over the wording for the First Amendment are recorded in the Congressional Records from June 7 to Sept. 25, 1789, and the phrase "separation of church and state" is nowhere to be found.

The first time the phrase appears in the context of the First Amendment is in an 1802 letter from Thomas Jefferson to members of the Danbury Baptist Association in Connecticut. This group had expressed serious concerns over the fact that religious freedom was addressed in the First Amendment, as they felt the free exercise of religion was a God-given right, not a government-given right.

As the first Anti-Federalist president, Jefferson believed in limited powers of government. He interpreted the First Amendment to mean two things: that the federal government had no right to establish a national denomination, and that the government was not to prohibit the practice of religion. In his letter to the Danbury Baptists, he declared:

"Believing with you that religion is a matter which lies solely between man and his God ... I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or the free exercise thereof,' thus building a wall of separation between Church and State."

But if the primary historical source for the phrase -- Jefferson's letter -- does not provide enough evidence to establish its meaning, we should examine the actions of our founding fathers to determine their intent. How did they want the First Amendment to be interpreted? Historical fact shows that their intentions were very different from today's interpretation.

While president, Thomas Jefferson was made chairman of the school board for Washington, D.C., and in this capacity he required two books as the principal classroom texts: the Bible and Watts Hymnal. He also signed a treaty with the Kaskaskia Indian tribe that provided federal funds for both the building of a church and for missionaries.

Furthermore, evidence of the founders' intent can be seen in the law they established for allowing new states into the union. The Northwest Ordinance (1789) states: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." In other words, the founding fathers believed that government schools were a proper place for the teaching of religion and morality. And it should be noted that members of Congress were working on the First Amendment and the Northwest Ordinance at the same time.

So we need to ask: How did we get to where we are today?

The intentions of our founding fathers are inconsistent with today's interpretation of the First Amendment largely because of a 1947 Supreme Court decision, Everson vs. Board of Education, that misread the founders' intent. The court announced:

"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."

This ruling disregarded over 150 years of practice, policy and judicial precedent.

Fast-forward now to the 1985 case that challenged a mandatory moment of silence in Alabama schools, Wallace vs. Jaffre. The Supreme Court overturned the moment of silence law in this case. But listen to the words of Justice William Rehnquist in his dissent: He wrote about the "mischievous diversion of judges from the actual intentions" of the Founding Fathers. He further stated:

"It is impossible to build sound constitutional doctrine upon a mistaken understanding of Constitutional history ... [The recent court decisions] are in no way based on either the language or intent of the drafters [of the First Amendment]."

Rehnquist is right -- but how many people have been misinformed about important aspects of our nation's history? Survey after survey indicates that our students are not being given an adequate foundation in understanding either our government or our history.

We have an obligation to ensure that citizens have an accurate understanding of our nation's history -- or we may live to see our freedoms eroded one by one.

But here we are in 21st century America, where a patriotic acknowledgement by school children is deemed unconstitutional by a panel of activist judges; where a cross on the Los Angeles County seal is removed while a pagan goddess is allowed to stay, and where the ACLU actively searches for copies of the Ten Commandments in the public square so it can sue to remove them. Next on the hit list will probably be the phrase that appears both on our money and in the last verse of the Star Spangled Banner: "In God We Trust/In God is Our Trust."

The ACLU will undoubtedly work to bring this issue back. We can only hope that judges will base their decisions on historical fact, not on 20th century revisionist misinterpretations.

Cheri Pierson Yecke is a former American history teacher who served as commissioner of education for Minnesota.

Originally published June 26, 2004 in the Star Tribune.