The God problem with the Pledge of Allegiance

Freely choosing to pledge?

Ten-year-old Will Phillips refused to say the Pledge of Allegiance on the ground that we as a country still discriminate against gays and lesbians, and therefore do not have “freedom and justice for all.”  (See his adorable CNN interview here.)  Phillips did not mention this, but another portion of the Pledge of Allegiance seems far more problematic to me.  It is the portion that declares that the United States is “one nation, under God.”

The original Pledge did not include the phrase “under God.”  That phrase was officially added in 1954 by Congress and approved by Eisenhower after intense lobbying by the Knights of Columbus and several prominent clergymen.  Although the Supreme Court had ruled in 1943 in the case of West Virginia State Board of Education v. Barnette that public school children could not be compelled to say the Pledge of Allegiance, the Court rested its ruling on the freedom of expression prong of the First Amendment (after all, the phrase “under God” was not yet incorporated into the Pledge in 1943).  The Barnette opinion also did not prohibit the Pledge from being said in public schools.  Therefore, the Pledge, even after the inclusion of the phrase “under God,” remained an “optional” part of most school children’s morning ritual.

As might be expected, the phrase has been the subject of much controversy, protest, and litigation.  In 2004, the Supreme Court heard a suit brought by Michael Newdow, an atheist and attorney who objected on behalf of his daughter to the inclusion of the phrase in the Pledge.  The 9th Circuit sided with Newdow and ruled that the phrase endorsed religion and therefore violated the Establishment Clause, but the Supreme Court dodged the issue by dismissing the case on a procedural ground.  Newdow, it found, had no standing to bring the suit because he was not a custodial parent of his daughter.

A new round of lawsuit is being brought in California, this time by three families who are represented by Newdow and who presumably do not have the standing problem.  A district court in California has ruled that the Pledge does violate the Constitution.  The case, styled Newdow v. Carey, was argued before the 9th Circuit in 2007 and is awaiting judgment.  (Hear the recording of the oral arguments here.)  Whatever the judgment, it is certain that the case will petition for certiorari.

Conservative members of Congress are concerned enough about the possibility that the Supreme Court would side with Newdow that a bill passed the House in 2005 that would strip the Supreme Court and most federal courts of jurisdiction to consider the issue.  The bill died when the Senate declined to take up the issue.

The supporters of the Pledge are in a curious position.  On the one hand, they argue that the voluntary recitation of the Pledge does not violate the Establishment Clause because the recitation is mainly a “patriotic exercise,” and that any mention of God is merely incidental and only raised for historical reasons.  (The attorney for the government, for example, argued at one point during oral argument that God is not a religious figure, to the puzzlement of Judge Reinhardt.)

But the ardent refusal by the school district to take the phrase out of the Pledge, and the anger and disdain expressed against Newdow and his supporters during the lawsuit (Newdow received quite a few death threats), belie the argument that any mention of God in the Pledge is merely incidental.  Most proponents of the inclusion of the phrase, unsurprisingly, take the belief that we are a nation “under God” quite seriously.

Finally, does the voluntariness of the recitation of the Pledge save its constitutionality? I think the reaction of some of Phillips’s classmates in the past week counters that argument quite nicely.  Is it coercive to begin each day by asking impressionable young children to stand up in a roomful of other children and declare their loyalty to the flag while also affirming that the nation is, in fact, “under God?”  How many times does Phillips have to be called ugly names to prove that, yes, it is?

One Response

  1. The SCOTUS decision on Newdow was also terrible for the rights of non-custodial parents.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: