When California physician/lawyer Michael Newdow won a lawsuit on behalf of his nine-year-old daughter challenging school-sponsored recitation of the Pledge of Allegiance because of its inclusion of the religious phrase “under God,” many people were taken by surprise. After all, we are dealing with a national icon here. Few Americans can remember when the phrase “under God” was not included in our Pledge. Generations of homegrown Americans have recited the Pledge in schools for decades and never thought a thing about it. Indeed, one of the shortcomings of learning anything by rote is that the words are seldom symbolized. When we recite something over and over again, it becomes as automatic as tying our shoes. We don’t think about it; we just do it.
Too, when it comes to the Pledge, we are buoyed up by the inviolability of the icon itself. It is as permanent as a landmark. In fact, previous efforts to have “under God” in the Pledge declared unconstitutional have failed. But now we have the 9th US Circuit Court of Appeals ruling in favor of Mr. Newdow’s petition. There’s no doubt when this lawsuit makes it to the Supreme Court, it will be one of the epic battles of all time in the age-old separation of church and state controversy.
But let’s look at the issue purely from the standpoint of law and individual protection. The original court declared that public school sponsorship of a pledge containing “under God” runs afoul of the religious neutrality required by the Constitution. In rendering the decision, the Court stated, “A profession that we are a nation ‘under God’ is identical to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.”
The Court went further by concluding that “The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of school children, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.” In other words, children who happen to come from a different faith system than the majority can be ridiculed and made to feel powerless simply for questioning why they have to conform to something that is not a part of their family or religious heritage. It doesn’t feel right to them. Unfortunately, most Americans don’t care. To most of us, our emotional reaction is “more right” even if it reeks of intolerance.
But setting aside the emotional reaction of most Americans (who feel rather strongly that our forefathers firmly intended “God” to have a central place in the purported spiritual ambiance of American virtue) and getting back to the ethics of law, the appeals court decision shows, at a minimum, a just respect for freedom of conscience. In the context of public schools, it is not realistic to expect children, regardless of their beliefs, to refuse to participate in activities their peers do.
As a matter of First Amendment law, this should be an easy case. The high court should affirm the 9th Circuit’s decision. The Constitution is a secular document. That the Founders made it clear they believed an American’s religious or philosophical beliefs should be irrelevant to the government. One can be a patriotic American regardless of his religious belief; or lack thereof. A government should never coerce school children, or anyone else, to make a profession of a religious belief. When the Rev. Francis Bellamy penned the Pledge in 1892, he spoke of “one nation, indivisible.” The last thing Bellamy wanted was a Pledge that would divide Americans along religious lines.
It’s also an easy case from a pragmatic policy perspective. Our country is becoming increasingly diverse. Public schools now serve children of many faiths; and many with no faith at all. It should certainly not require students to make a religious profession as the price of expressing patriotism.
But on the other side of the debate, one can well argue that such symbolic uses of religion as in the words “under God” and “in God we trust” have been stated and printed so often that the government’s use of such religious terminology has, in effect, long drained the words of any religious significance. The words themselves have become ceremonial, rather then religious. Such God-inclusive phrases can be found everywhere in both judicial and legislative undertakings.
Regardless of how well intentioned our sentiments are in this issue, the eventual Supreme Court consideration of the matter will be a media feeding frenzy because few national groups will likely see the constitutional correctness of it. Politicians have already widely blasted the decision of the lower court. President George W. Bush further announced that, although the federal government was not a party to the case, the United States government would intervene and pursue an appeal. Then, when the Circuit Court declined to re-examine the ruling, it left only the Supreme Court to settle the dispute. There is no doubt the implications of the judicial action on church-state issues will be far-reaching.
As a fervor will most certainly boil around this controversy, one thing remains hopeful. Even though overwhelming political pressure will undoubtedly be placed on the Supreme Court–through email campaigns directed by the Religious Right, in briefs filed by friends of the court, petition drives by citizens asking that the words be retained in the Pledge–all of these gestures should remain largely symbolic. While such moves have historically swayed elected legislators, judges are expected to base their rulings on the Constitution and the laws of the United States alone.
The high court ruling will likely come down to whether the justices believe the phrase “under God” is considered too benign, or incidental, to be a violation of the First Amendment. There is no question that, if any American is forced to make a religious affirmation as a condition of expressing his love of country, then that affirmation inherently breaches the wall of church-state separation. Prior to 1954, the United States had a pledge that did not divide Americans along religious lines. It is probably safer that we go back to that. Perhaps it was an error of shortsidedness in 1954 when we added the “under God” sentiment to the Pledge. Perhaps we even violated our own constitution then. Perhaps we should have let a sleeping dog die.
But we didn’t. So, if the Supreme Court upholds the 9th Circuit Court ruling, the present public sentiment favoring the religious pronouncement in the Pledge will likely launch a drive by the Religious Right for a constitutional amendment designed to force a union of church and state. It is doubtful that many political leaders will have the backbone to stand up and say why altering the First Amendment is a bad idea.
The larger question may well be: Is the risk of a constitutional amendment fueled by the Religious Right worth taking? I think not. As much as I personally like the symbolic unity and spiritual satisfaction I get from thinking I am living in one nation “under God,” I am also quite prepared to acknowledge that all humans live in places “under God.” In the end, I wouldn’t have it any other way. After all, it is the meaning of the Brotherhood of Man under the Fatherhood of God.