If the Beav was a real person, he would have recited the pledge of allegiance and the Lord’s Prayer every morning before class, because that’s what we did back then.  Unless, of course, he was a real person in Texas, where he would have uttered an atheist pledge to the Republic of Texas instead.  The reason is that the Texas Education Code, §25.082, demands that its school children pledge allegiance to the state (§3100.101) rather than the Yankee federalists.

But some Texan screwed up and left out the critical words that distinguish a great democracy from the filthy communist heathens.  At the behest of Representative Debbie Riddle, who sharply refused to include the words “liberty and justice for all” in her amendment, the state corrected this omission in 2007.  From Lawprof Caroline Mala Corbin at Concurring Opinions :

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

Whew.  Can you imagine what would have happened had the Fifth Circuit not ruled in favor of God?  Texas high school football teams would have started to lose games, even against each other, and the Cowboys would be in last place in the NFC East.  Fortunately for all, whether possessed of hat or cattle, the court cleared things up.  From Circuit Judge E. Grady Jolly (of the Mississippi Jollys):

The term God is adequately generic to acknowledge a wide range of religious belief, monotheistic and polytheistic alike. A reference to “God” may not reach every belief system, but it is a “tolerable attempt” at acknowledging religion without favoring a particular sect or belief. Id. We thus hold that the pledge’s use of the singular “God” does not favor a particular faith in violation of the Establishment Clause.

What?  You thought they were referring to Jesus?  No, no, no.  This is the generic God.  You know, the “one God fits all” God.  The one we can all get behind, unless of course we don’t believe in God or are believers in one of this crazy religions which don’t subscribe to an overarching deity. 

There can be no doubt that mirroring the national pledge and acknowledging the state’s religious heritage are permissible secular purposes. Acknowledgment of religious heritage, although religiously oriented, “is no less secular simply because it is infused with a religious element.” Freiler, 185 F.3d at 345. The same is true of the defendant’s mirroring rationale.

Texas, you see, just wanted to better “mirror” the national pledge of allegiance.  Except for that “liberty and justice” junk, which it didn’t want to mirror at all. 

Some benefit flowing from state legislation or policy to religion is permissible: “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Lynch, 465 U.S. at 683. Nor does the Establishment Clause forbid statutes whose “effect merely happens to coincide or harmonize with the tenets of some . . . religions.” Id.

Seriously, how much more indirect toward religion can you get than adding the words, “under God”?  I mean, it’s not like they added the words, “under God” or anything.  And the decision goes on.

The real problem, which the 5th Circuit did its absolute best to avoid, is that we have some historic basis, from way back when the entire Establishment Clause concern ran the gamut from Christian to witches, explaining why Christine O’Donnell now finds herself so confused,   Even the finest minds never considered going beyond the pale of the Judeo-Christian ethic, though within the narrow confines of their concerns, they made clear that this new government wasn’t to mix secular with religious concerns.

To straighten out the mess now, however, would require some fundamental alterations to historic positions.  And so the 5th Circuit held:

The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas’s religious heritage via the inclusion of the phrase “under God.” A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief, without advancing belief over non-belief, and without coercing participation in a religious exercise.

A steaming Texas cowpie, served fresh every morning to its students, courtesy of the Fifth Circuit Court of Appeals.