The Values of the Pledge of Allegiance

September 3, 2002 by Margaret Crosby, The Daily Journal

In striking down the McCarthy-era law that rewrote the Pledge of Allegiance to insert the words "under God," Newdow v. United States Congress, the Ninth Circuit breathed life into the Pledge's stirring ideal of a country "with liberty and justice for all." The decision secured liberty for children of minority faiths who have quietly been denied religious freedom for nearly 50 years, when pressured in public school to pledge allegiance to a God they do not worship. By enforcing the First Amendment, the Ninth Circuit provided justice for all children in the United States.

The firestorm of protest sparked by the Newdow ruling is reminiscent of the public's reaction in 1962 to the original United States Supreme Court decision banning prayer in public school. (Engel v. Vitale, 370 U.S. 421 (1962)). Then, however, President John F. Kennedy stepped forward to support the court decision and the constitutional separation of church and state. He reminded Americans that the Supreme Court had not prevented anyone from worship. Families remained free to pray at home and in church, where, he pointed out, religious expression may be robust in ways it never can be when the government composes watered-down religious scripts for schoolchildren to recite.

Today's political leaders are no John Kennedys. Across the political spectrum, politicians leaped to microphones to denounce the Newdow decision. "Just nuts" (Majority Leader Tom Daschle's comment) and "embarrassing at best" (Senator Feinstein's comment) illustrate the analytical acuity of the attacks on the Court. President Bush announced that the decision proved that the country needs federal judges who have "common sense" (apparently a synonym for majoritarian supporters) and, chillingly, federal judges who "recognize that our rights come from God."

In our system of government, fundamental rights come from the Constitution. The Ninth Circuit took those rights seriously in Newdow.

In adding "under God" to the Pledge of Allegiance in 1954, Congress intended to put religion in public school. As President Eisenhower said in signing the law, from "this day forward, the millions of our schoolchildren will daily proclaim, in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty." Since students were praying daily in many public schools, the new Pledge language was not subject to an immediate constitutional challenge. Courts had not yet recognized the rights of minority faiths to be free of religious coercion in public schools.

But 50 years later, a law requiring school children to pledge allegiance to a nation "under God" cannot be reconciled with the Supreme Court's strict constitutional precedents on religion in public school. The Court has disallowed far less coercive practices, such as laws creating a moment of silence "for meditation or prayer" (Wallace v. Jaffree, 472 U.S. 38 (1985)) and far less official practices (such as policies allowing students to broadcast any message, including prayer, before school sporting events (Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)). The Court has insisted that government not make students of minority faiths feel like second-class citizens in public schools that exist to serve children of all religions.

How then can Congress write a religious reference into the Pledge of Allegiance that many states and local school districts require to be recited daily? Supporters of the Cold War Pledge offer justifications. They are wholly unpersuasive:

The phrase "under God" is inclusive, because everyone believes in some kind of god. No, they don't. The hallmark of the McCarthy era was its pressure to conform in politics and religion, in speech and belief. The prevailing assumption was that all good (non-Communist) Americans believed in a monotheistic God. Untrue in the 50s, this assumption is more strikingly untrue today. Many Americans subscribe to no religion. And even people who do worship a monotheistic God show great variation in their definition of the deity; many do not subscribe to the idea that God's role is to organize the affairs of humans and countries, as embodied in the phrase "one nation under God."

Moreover, immigration patterns and the growth of new indigenous faith communities have altered the religious geography of the United States greatly from the 1950s. Today's pluralistic America contains adherents to nontheistic religions (for example, Buddhism) and pantheistic religions (for example, Santeria). Other members of spiritual groups do not worship a Judeo-Christian deity (for example, Native Americans). On a national level, these minority faiths are apparently invisible to many people, but they are important members of local communities-certainly here in California-and, under the Constitution, have equal rights with the religious mainstream religions.

The silence of religious minorities-their reluctance to take on the combined power of government and majority by challenging the law rewriting the Pledge-is understandable. They simply feel too vulnerable to invite the kind of vituperative response that greeted the Newdow ruling. However, many people of minority faith vividly remember feeling shamed, isolated, confused and coerced as children in American public schools by the daily recitation of the Pledge of Allegiance to a God foreign to the faith of their families.

Students may decline to participate in the Pledge of Allegiance. True, and irrelevant. All of the school prayer cases have involved religious exercises that students are free not to join. As t Supreme Court has recognized, it is callous for the government to force schoolchildren of minority faiths to isolate themselves from their classmates to avoid participating in a religious exercise in violation of their conscience.

The phrase "under God" has never been religious is or has lost any religious meaning by rote repetition, and it's a trivial matter. Why, then, did Newdow provoke such an angry reaction? Plainly, because many people felt that the court had attacked their religion by restoring the Pledge of Allegiance to its original form. Pretending that the phrase is purely secular is both untrue and devalues religion.

The claim of secularization is central to the constitutional defense to "under God." Most frequently, the defense is phrased as "ceremonial deism," a category of permissible references to a deity that simply acknowledge this country's historically religious roots. But ceremonial deism is itself a doctrinally problematic rationale: courts invoke it to justify government endorsement of religion inconsistent with the First Amendment, reasoning, for example, that a city-owned Nativity Scene may be part of an official Christmas display. Moreover, the Pledge of Allegiance is inherently different from other mottos or references to a Deity. The Pledge is not simply a passive reference to religion; it calls upon children in public school to promise loyalty to the concept of their country as under God.

The final variant of the secularization rationale is the claim that the term "under God" has lost, through rote repetition, any true meaning. But why? Have the phrases in the original Pledge-say, the parts about "liberty and justice for all"-also lost their meaning through repetition over time?

The Ninth Circuit didn't think so. And when we think with pride of a country founded on the ideals of liberty and justice for all, we should also be proud of the Court that made those ideals real.