A federal appeals court in San Francisco was right to declare unconstitutional the statute, enacted in 1954, that added the phrase “under God” to the Pledge of Allegiance.
Before the statutory amendment, the Pledge contained no reference to religion during its more than 50 years of existence.
In the furor that erupted over the court’s decision, few in politics or the media bothered to look at the merits of the court’s decision or the harm that including “under God” in the Pledge can do.
A long line of U.S. Supreme Court cases holds that the Constitution requires government to be neutral on the subject of religion. Government cannot promote, endorse, support, or oppose religion.
As the court said in Abington School District v. Schempp (1963): “In the relationship between man and religion, the State is firmly committed to a position of neutrality.”
The requirement of neutrality also prohibits government from showing favoritism to believers over nonbelievers. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the court said government may not “prefer one religion to another, or religion to irreligion.”
There is only one way the Pledge’s “under God” affirmation can be found consistent with those well-established constitutional principles. The claim must be made that the phrase has somehow lost all religious meaning.
But as the uproar and divisiveness caused by the court’s decision show, the words still have plenty of theological substance. The federal court was therefore on solid constitutional ground in striking down the statute.
The court’s Judge Stephen Reinhardt later defended his vote by saying: “We may not – we must not – allow public sentiment or outcry to guide our decisions. The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of the majority.”
Sadly, what’s amazing about the decision is that on this volatile issue, a court actually had the courage and character to faithfully apply the Constitution and the ancient legal maxim fiat justitia ruat coelum (“let justice be done though the heavens may fall”).
If more courts would follow the same philosophy, the Pledge’s statement about “liberty and justice for all” would become much closer to a reality.
In criticizing the court’s decision, many indicated they interpret the Pledge’s “under God” language as meaning that belief in God – i.e., monotheism – is part of what it means to be a real American. And some were willing to label as un-American those holding different beliefs about religion.
For example, the person who brought the lawsuit, atheist Dr. Michael Newdow, received death threats after he won the case. Other critics told him to leave the country. This treatment shows what most nonbelievers have known for a long time: some people think nonbelievers have no place in a nation “under God.”
Religious intolerance is bad enough anywhere, but the dangers are worse in public schools. Newdow was concerned about his daughter having to say “under God” when her class recites the Pledge.
Children and adolescents are a “captive audience” in the public schools, and they usually have a strong desire to fit in with their peers. Those who don’t fit in are often targets of ridicule and abuse from classmates.
Thus, as normally happens when students don’t participate in state-sponsored prayers in classrooms, students who won’t recite the Pledge will likely be ostracized and harassed.
This type of division, when caused by governmental involvement in religion, is a danger that church-state separation was intended to avoid. Former U.S. Supreme Court Justice William O. Douglas said the philosophy behind the First Amendment “is that if government interferes in matters spiritual, it will be a divisive force.”
Rather than becoming more patriotic, members of minority religions can develop dislike for a government that causes them to be outsiders in the public schools and victims of hate speech or worse.
As a result of suffering those indignities, they are more likely to become radicals and revolutionaries instead of patriots.
A reason why religious minorities have loved and defended the U.S. is that this country gave them religious freedom. It treated their religious views as equal to all others in the eyes of the law.
The treatment contrasted markedly with what they or their ancestors experienced in other countries, which many of them had fled to escape religious persecution.
This wellspring of patriotism would be weakened considerably for persons whose religious beliefs prevent them from accepting the “under God” idea, and who have thus been harassed or made to feel like second-class citizens.
Undoubtedly, the U.S. would be stronger by having a Pledge that unites Americans instead of one that divides them by causing millions to feel excluded from full citizenship.
Some support having “under God” in the Pledge by pointing to various violations of church-state separation that legislators or courts have occasionally permitted over the years.
Examples include “In God We Trust” as the national motto inscribed on money, salaries paid to legislative chaplains, and prayers at the beginning of legislative sessions.
A problem with these relatively small violations is that theocrats use them as precedents to claim there is no wall of separation between church and state. Then they argue that government has free rein to involve itself in religion.
The U.S. Supreme Court anticipated this problem in the Schempp case. The court said “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, ‘it is proper to take alarm at the first experiment on our liberties.'”
At this time, the small violations are constantly used as precedents in attempts to create a torrent that could swamp and sweep away the wall between church and state.
The strategy is seen in efforts to put prayer in the public schools, post the Ten Commandments in government buildings, provide tax funds for religious schools, insert religious dogma into science classes, and otherwise use the powers of government for promoting and enforcing sectarian doctrines.
If those efforts are successful, little if anything will be left of church-state separation. This is a high price to pay for ignoring Madison’s advice to nip constitutional violations in the bud.
Past violations of church-state separation do not change the fact that, as shown by the language and history of the Constitution, government was given no authority to participate in religion.
Rather, the small violations are examples of a reoccurring problem: some politicians are willing to ignore the Constitution when they can gain political advantage by doing so. This tendency goes back as far as the nation’s inception.
James Madison was well aware of it. He complained that in Virginia “I have seen the Bill of Rights violated in every instance where it has been opposed to a popular current.”
Similar violations were observed by John Jay, coauthor of the Federalist Papers and the first Chief Justice of the Supreme Court. He said that many principles popular in his time were “more generally admitted in theory than observed in practice.”
More recently, Supreme Court Justice David Souter mentioned the same problem. He noted that members of the First Congress “like other politicians, could raise constitutional ideals one day and turn their backs on them the next.”
As strong a supporter of church-state separation as Madison was, even he succumbed to political pressures and backed away from the principle on occasion. As president during the War of 1812, Madison issued proclamations calling for days of fasting and prayer. In an 1822 letter, he explained “I was always careful to make the Proclamation absolutely indiscriminate, and merely recommendatory.”
But Madison eventually came to view such acts as unconstitutional. In his “Detached Memoranda,” he argued that presidents should not issue religious proclamations. Among the reasons he gave was that “thanksgivings and fasts . . . seem to imply and certainly nourish the erroneous idea of a national religion.”
Madison was also a member of the First Congress, which authorized payment of public funds for congressional chaplains. In later years, he criticized this act as a clear violation of the Constitution. “The establishment of the chaplainship in Congress is a palpable violation of equal rights as well as of Constitutional principles,” he wrote.
President Thomas Jefferson likewise recognized that politics could lead some government leaders to violate constitutional principles they supported in theory. He knew that his predecessors in office, George Washington and John Adams, had issued religious proclamations. But Jefferson didn’t consider their acts as reflecting the meaning of the Constitution.
In preparing his famous 1802 letter explaining that the Constitution establishes “a wall of separation between church and state,” Jefferson asked his Attorney General, Levi Lincoln, to review a draft. Jefferson’s accompanying note to Lincoln said the letter “furnished an occasion . . . which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessors did.”
And in an 1808 letter, Jefferson declined to proclaim a national day of prayer by asserting: “I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.”
Clearly, the Founding Fathers did not view the acts of politicians as being undeniable proof of what the Constitution means. They knew that the prospects of obtaining political advantage could sometimes lead to violations of the most fundamental constitutional rights.
Regardless of occasional violations of church-state separation in the past, the U.S. would be stronger, freer, more tolerant, and peaceful by following the Constitution today.
This means having a Pledge of Allegiance that all Americans can support – not one dividing them along religious lines.
The Pledge should therefore be restored to its religiously neutral version, as the federal appeals court said. That version was good enough to see America through two World Wars and the Great Depression.
There is no reason it should not be good enough for us.
[For more information on this subject, please see the article titled “Secular Foundation of the U.S. Government.”]