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The Pledge of Allegiance, the Courts, and Death Threats

Like most Americans, I was shocked when I learned that a federal appeals court had declared unconstitutional the words, “under God,” in the Pledge of Allegiance. Unlike many Americans, however, I was not shocked because I disagreed with the decision. On the contrary, I agreed with the decision. Rather, I was shocked by the sheer hatred and bigotry openly expressed on national television by politicians and journalists (most of whom had not yet even read the decision they were so vehemently attacking).

Controversial court decisions are not new. However, I have never witnessed such contempt towards the individuals responsible for a single court decision, as I have seen in response to the recent Pledge of Allegiance decision. Indeed, it seemed as if politicians and even journalists were lining up to see who could outdo the rest in slamming the plaintiff and the judges who ruled in his favor. Senator Robert Byrd called the judges “stupid.” According to the Rev. Jerry Falwell, the decision was not only incorrect, but grounds for the impeachment of the judges who supported it. But perhaps most appalling is the fact that numerous people have made death threats against the plaintiff. I happened to be listening to the news in a public place when the death threats were announced. When the news reported death threats against the plaintiff, I heard a woman say out loud, “Good!” and watched in disbelief as several people nodded their heads in agreement!

The courts have ruled in favor of minorities before. African Americans, Native Americans, Jehovah’s Witnesses, Jews, Mormons, homosexuals, and the handicapped are just a few of the many minorities that have benefited from judicial protection. Death threats against a member of any of those groups would not be tolerated; in fact, there would be public outrage and law enforcement investigation. But, as of the time this essay was written, I have not yet heard of any law enforcement investigations into the death threats, though I hope such investigations will be forthcoming. Moreover, I have not heard a single critic of the Pledge decision condemn such threats. For all practical purposes, then, it appears that many Americans believe it is acceptable to treat nonbelievers as second-class citizens, especially if nonbelievers dare to stand up for their civil rights.

But why? Why is there so much hatred towards anyone who dares to challenge the constitutionality of the words “under God” in the Pledge of Allegiance? I suspect the hatred results from the failure of Americans to make three crucial distinctions. First, I suspect the majority of Americans are not making a distinction between two different religious clauses of the First Amendment. Here is the full text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Legal scholars call the first clause (“Congress shall make no law respecting an establishment of religion”) the Establishment Clause, while referring to the second clause (“or prohibiting the free exercise thereof”) as the Free Exercise Clause. The Free Exercise clause guarantees the people the right to freely exercise religion. When applied to the Pledge of Allegiance, the Free Exercise clause implies that the people may pledge their allegiance to the flag of the United States using many different words:

  • “under God”
  • “under Jesus”
  • “under Allah”
  • “under Zeus”
  • “without God”
  • “against God”

Americans can also pledge their allegiance to the flag of the United States without saying anything about God, for or against. Finally, Americans can choose not to say the Pledge of Allegiance (in any form) whatsoever. The point is that nothing in the recent Pledge of Allegiance ruling undermined any American’s right to freely exercise their religious beliefs (or lack of religious beliefs). Even if the recent Pledge of Allegiance decision were upheld, the people would continue to be free to say a Pledge of Allegiance with the words “under God.”

In contrast to the Free Exercise clause’s focus on “the people,” the Establishment Clause is about Congress. The Establishment Clause of the First Amendment states, “Congress shall make no law respecting an establishment of religion.” The point is that while politicians as individuals have the right to freely exercise their religion, the state as such does not have the right to even take a stand on religious matters. The Establishment Clause implies that the state is supposed to be neutral regarding religion. It is not even supposed to favor believers over nonbelievers.

Second, I suspect that most Americans do not distinguish between a secular Pledge and an atheistic Pledge. The Establishment Clause of the First Amendment implies that the Pledge of Allegiance is supposed to be secular. There is a huge difference between a Pledge of Allegiance that is silent about God and a Pledge of Allegiance that denies God. A Pledge of Allegiance that says nothing about God maintains the neutrality required by the Establishment Clause. In contrast, a Pledge of Allegiance that denied God would be just as unconstitutional as a Pledge of Allegiance that affirms God. Nonbelievers would be just as opposed to an atheistic Pledge of Allegiance as they are opposed to a theistic Pledge of Allegiance.

Third, I believe that most Americans do not distinguish between the entire Pledge of Allegiance and the two-word phrase, “under God.” The Pledge of Allegiance was not declared unconstitutional. Rather, the two words “under God” were declared unconstitutional. What the recent court decision would accomplish, if implemented, would be to restore the Pledge of Allegiance to its pre-1954 state.

Unfortunately, although I believe the above three distinctions vindicate the court decision, I think any judicial victory is likely to be short-lived. Even if the U.S. Supreme Court were to uphold the decision (which is far from certain), there would probably
be an amendment to the U.S. Constitution. There are no nonbelievers in elected office anywhere in America and no theistic politician, no matter how liberal, dares to publicly oppose a Constitutional Amendment protecting the words, “under God.” As Edward Tabash has argued, this is why it is so vital for nonbelievers to become politically organized and elect some of their own to political office.

I have received mailings from several national freethought organizations claiming that nonbelievers constitute over 15% of the American population. If that is true, the time is now for nonbelievers to come out of the closet and stand up for their beliefs. If the majority of nonbelievers continue to be apathetic, then we will have no one to blame but ourselves as we lose what little religious freedom we had. In the mean time, let us hope that death threats are not acted upon.

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