(2002)
Jeffery Jay Lowder
In the matter of Newdow v. Congress, the Ninth Circuit Court of Appeals declared the words “under God” in the Pledge of Allegiance unconstitutional. The court noted that these revisionist words (added in 1954) violated the Establishment Clause of the First Amendment. However, this ruling has been unpopular, to put it mildly. Yet for all the outrage, personal attacks, and death threats against the plaintiff, it is a challenge to find any legal arguments against the decision. However, occasionally critics of the decision have managed to provide something more than emotional outbursts. In this article, I will quote and then refute the objections to the recent court ruling.
Overview:
- Objections to the Significance / Importance / Timing of the Issue
- Historical / Legal Objections
- Objections to Separation of Church and State in General
- Conclusion
Objections to the Significance / Importance / Timing of the Issue
Objection: “The words ‘under God’ are trivial, meaningless, or a content-free catch-phrase and do not establish religion.”
As silly as this objection may sound, this is what some people have actually said against the recent court ruling! But consider the facts. If the words really were so trivial or meaningless, then the removal of those words from the Pledge of Allegiance would also be trivial or meaningless. The fact that critics of the court decision view the decision as significant clearly shows that the words are not trivial or meaningless. (Why bother getting so upset over something that is trivial or meaningless?) In fact, while I don’t speak for theists, I would have to think that many theists would find it offensive to learn that God is “trivial, meaningless, or a content-free catch phrase.” As John Leo writes in a recent editorial, “To religious conservatives, ‘under God’ is a crucial symbol, the last religious reference left in the schools … .”[1]
Furthermore, the legislative history of the Pledge of Allegiance refutes the claim that the words “under God” are trivial or meaningless. Congress and President Eisenhower both considered the words extremely important when they added the words in 1954:
The hope was to “acknowledge the dependence of our people and our Government upon … the Creator … [and] deny the atheistic and materialistic concept of communism.” In signing the bill on June 14, 1954, Flag Day, Eisenhower delighted in the fact that from then on, “millions of our schoolchildren will daily proclaim in every city and town … the dedication of our nation and our people to the Almighty.”[2]
The legislative history of the 1954 change also refutes the claim that the words, “‘under God’ may merely recognize the historical fact that our Nation was believed to have been founded ‘under God.'” The modified Pledge of Allegiance was not intended to merely make a historical claim. Rather, it was designed to distinguish “God-fearing Americans” from “Godless communists.”
However, in spite of the above points, the courts will probably reverse the ruling, on the basis of this objection, for political reasons. But pro-First Amendment Americans can take pride in the fact that this objection is the best the opposition can come up with.
Objection: “Jehovah’s Witnesses don’t even say the Pledge of Allegiance. It’s against their religion to do so. And yet most JW kids have no problem sitting there quietly, or even standing respectfully, while everyone else says the pledge. Why can’t nonbelievers be like them?”
Note that this particular “objection” does not claim that there is anything factually inaccurate about the court’s ruling. Rather, it simply expresses a desire that nonbelievers not defend their rights and instead accept the revisionist version of the Pledge of Allegiance. It is akin to asking the victim of racial discrimination to just “keep quiet.” (Of course, if the tables were reversed and theists were asked to say the Pledge of Allegiance with the words “without God,” theists would not keep quiet. They would stand up for their rights, just as nonbelievers are standing up for theirs.)
However, pro-First Amendment Americans can make the following points in reply. First, one could just as easily argue that Jehovah’s Witnesses don’t try to force nonbelievers to say a theistic Pledge. Why can’t other believers be like the Jehovah’s Witnesses?
Second, the Jehovah’s Witnesses also had to sue for relief from the courts. Congress had passed a law requiring that all students say the Pledge of Allegiance. The Jehovah’s Witnesses brought suit and won the right to abstain from saying the Pledge of Allegiance (see West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 [June 14, 1943]). That lawsuit was decided well before Congress revised the Pledge in 1954.
Third, patriotic nonbelievers want to say the Pledge of Allegiance. They have the right to say the Pledge of Allegiance without having to profess beliefs they do not hold. In contrast, Jehovah’s Witnesses wanted to completely avoid saying the Pledge of Allegiance in any form. Sitting out the Pledge was a remedy the Jehovah’s Witnesses chose for themselves.
Objection: “Okay, so having the words ‘under God’ in the official version of the Pledge of Allegiance is technically unconstitutional. But that’s like saying that driving 66 mph in a 65 mph zone is technically breaking the law. What harm would it do to leave the words in?”
If you are a theist and don’t see any harm with the words “under God,” then try this thought experiment. Imagine if the Pledge of Allegiance had the words “without God” and you were asked to either say something you disagreed with or remain silent (and appear unpatriotic). What harm would it do to leave the words “without God” in the Pledge of Allegiance? Similarly, the words “under God” cause significant harm. As the court ruled in Newdow v. Congress, the words “under God” in the Pledge of Allegiance sends a message to nonbelievers “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Even Justice Kennedy, in his dissent in Allegheny County v. Greater Pittsburgh ACLU, admits that the revised Pledge of Allegiance constitutes government endorsement of religion. He wrote,
[B]y statute, the Pledge of Allegiance to the Flag describes the United States as ‘one nation under God.’ To be sure, no one is obligated to recite this phrase, . . . but it borders on sophistry to suggest that the “reasonable” atheist would not feel less than a “full membe[r] of the political community” every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.[3]
In fairness, it should be noted that Justice Kennedy, in the same dissent, stated that he he believed mere endorsement of religion by the government is constitutional. However, since that dissent, Kennedy’s views have evolved. In Lee v. Weisman, Justice Kennedy affirmed the principle that the government may not endorse religious belief over nonbelief. Writing for the majority, Kennedy stated, “What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”
Objection: “After the terrorist attacks of September 11th, many Americans turned to their faith in God to help them get through these difficult times. This lawsuit and court ruling could not have happened at a worse time.”
I agree that the court ruling came at a poor time (given 9/11), though it should be noted that the lawsuit was initiated before 9/11. Once the legal process was set in motion, it was only a matter of time before the courts made a ruling in the matter. But even if 9/11 had never happened, it is hard to imagine when it would have been a good time for a court decision like this one. The ruling still would have been enormously unpopular.
Objection: “Michael Newdow’s daughter (the daughter of the atheist who launched this lawsuit) is no atheist. In fact, she is a Christian. She has no problem with saying the Pledge of Allegiance with the words, ‘under God.'”
In an apparent effort to limit lawsuits, the courts have stated that one must have standing in order to bring suit and that one can only get standing if is one is injured by the issue at hand. Michael Newdow has been very upfront that he used his daughter to get standing before the court. He has never claimed that his daughter is an atheist or that she is forced to recite the Pledge against her will. Rather, Newdow has stated that his daughter is “injured” by a religious test of patriotism, one that implies that Newdow (along with all other nonbelievers) is not a patriotic American. Furthermore, parents can file suit on behalf of their minor children, even if their minor children disagree with the lawsuit. As Newdow himself writes, “I continue to maintain–as I have from the beginning–that the [Constitution] protects my right, as a parent, to send my daughter to public school without her being indoctrinated with any particular religious belief, even one with which we might agree.”[4] As Alonzo Fyfe has noted, “If Mr. Newdow was a Jew, and the government had his daughter reciting anti-semitic rituals in school, the fact that his daughter was eager to engage in those rituals adds to, rather than subtracts from, Mr. Newdow’s right to complain that the rituals were being performed.”
Legal/Historical Objections
Objection: “Our rights derive from God. There is no other way for rights to exist. Therefore, taking ‘under God’ out of the Pledge undermines the entire concept on which the United States was formed.”
Our country was founded on the Bill of Rights, including the First Amendment. The Establishment Clause of the First Amendment prohibits the government from endorsing belief over nonbelief. As for the source of our political rights, there are secular explanations of rights. It is one thing to believe that rights derive from God. It is quite another to make the sweeping claim that there is no other way for rights to exist, and I seriously doubt whether many of the people who make that claim today are even familiar with secular accounts of rights. For example, there is a well-known theory among scholars that rights are derived from human nature. Entire books have been written on the subject of rights,[5] so I cannot hope to do the topic justice here. Instead, I will simply note that it will take a lot more than a mere assertion of prejudice against secular accounts of rights in order to prove that there is no way for rights to exist without God.
Indeed, witness the theistic response to so-called ‘logical’ arguments from evil, arguments claiming that there is no way for God to exist if evil exists. Theists forcefully (and rightfully) argue that proponents of such arguments have the burden of proof to demonstrate a logical contradiction between God and evil. Likewise, theists who claim that rights cannot exist without God must demonstrate a logical contradiction between rights and atheism.
Objection: “But no one is forced to say the Pledge of Allegiance.”
It is, of course, true that children are not required by law to say the Pledge of Allegiance. Of course, it didn’t always used to be that way. When Congress codified the Pledge of Allegiance back in 1942, it required all children to say the Pledge of Allegiance. It was not until the Jehovah’s Witnesses sued that it was declared unconstitutional to force children to say the Pledge of Allegiance.
However, aliens who wish to become citizens may be another matter. I am told that in order to become a U.S. citizen, a person must recite the Pledge of Allegiance. If that is true, then that would mean that atheists and agnostics who wish to become U.S. citizens must profess a belief in God in order to do so. Such a requirement would be clearly unconstitutional. Article VI of the Constitution states, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If no religious test is required for President, Senator, Representative, Supreme Court Justice, etc., then why should a religious test be required for the ‘office’ of citizen? Given Article VI, such a requirement is probably unconstitutional.
But returning to the issue of children, this objection misses the point. The issue is not whether children are required to say the Pledge of Allegiance. The issue is whether the government may endorse belief over nonbelief. As we have seen, the Establishment Clause of the First Amendment prohibits the government from endorsing belief over nonbelief.
Objection: “The only people who want to remove God from the Pledge of Allegiance are atheists.”
Even if the only people who wanted to remove the words “under God” from the Pledge were atheists, this wouldn’t affect the constitutional issue one iota. The words would still be unconstitutional. But in fact atheists are not the only people who want to restore the Pledge to its pre-1954 state. The author of the Pledge of Allegiance, Francis Bellamy, was a Baptist minister. When he wrote the Pledge of Allegiance, he didn’t include the word, “God.” The words, “under God,” were not a part of the Pledge of Allegiance until Congress added them in 1954. According to Bellamy’s granddaughter, Bellamy would have resented this change.[6] Moreover, there are honest and fair theists who also believe the Pledge should remain secular. Rev. Barry Lynn, the President of Americans United for Separation of Church and State, has endorsed the court ruling restoring the secular Pledge. And the Baptist Joint Committee on Public Affairs, while asserting that the words “under God” are constitutional, nevertheless has issued a statement that laments the fact that the words “have lost their primary religious import through rote repetition and long use.”
Objection: “Children should have the right to pledge allegiance to the American flag.”
Nonbelievers agree that children should have the right to pledge allegiance to the American flag. That right is guaranteed by the First Amendment and was not in any way challenged by the recent court decision. Indeed, theists can still pledge allegiance to the flag using the words, “under God.” But nonbelievers should also have the right to pledge allegiance to the American flag without having to profess a belief in God. What the court ruling would accomplish, if implemented, would be to make the words, “under God,” an optional phrase in the official Pledge of Allegiance.
Objection: “The Ninth Circuit Court of Appeals is the most liberal and overturned circuit court of all circuit court of appeals. They had no basis or legal precedent for their ruling on the Pledge of Allegiance. They routinely disregard the Constitution and make up stuff that supports their liberal agenda.”
The courts have routinely ruled that the Establishment Clause of the First Amendment requires a “wall of separation of church and state.” When the Ninth circuit declared the words “under God” unconstitutional, the court was simply taking church-state separation to its logical conclusion.
Objection: “The Ninth Circuit Court of Appeals lacks conviction. That is why they back-pedaled from their ruling, as soon as the public expressed outrage at their decision.”
Even if the Ninth Circuit lacked conviction, this wouldn’t show that the ruling is incorrect. The court could have made the correct decision even if it lacked conviction. Thus, this objection is a non sequitur. But in fact there was no backpedaling. It is common judicial practice to issue a stay pending appeal any time a controversial decision is issued.[7]
Objection: “When the President takes the Oath of Office, he places his right hand on the Bible and says, ‘So Help Me God.'”
The President isn’t required to place his right hand on the Bible, though this practice has become a tradition. The Presidential Oath is specified in Article II of the Constitution, which reads:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Note that the oath does not include the phrase, “So Help Me God.” The saying of “So Help Me God” is another example of something that has become a tradition. And again, Article VI of the Constitution prohibits a religious test for any office.
Objection: “You would think that the decision this week was to add those two words, and that the country was all out of whack over it. Not true! That phrase, ‘Under God,’ has been in the Pledge since 1954. There was no controversy whatsoever until this decision.” (Rush Limbaugh, “Ninth Circus Judges Fold Tent”)
Such a claim hardly constitutes “excellence in broadcasting” and Rush Limbaugh of all people ought to know better. It is true that that the modified Pledge of Allegiance had very wide support in Congress in 1954. (I am told that the measure was passed unanimously, but I have been unable to verify that.) But even in 1954, there were probably a few liberal members of Congress who privately disagreed with the change in wording but who also felt that, during the tide of McCarthyism, it would be political suicide to publicly oppose it. And even in 1954, there were common American citizens–including atheists–who opposed the phrase. Of course, atheists were not well organized in 1954. But over time atheists began to organize and eventually lawsuits were filed. The phrase, ‘Under God,’ was challenged in court in 1970 (Aronow v. United States) and in 1979 (Madalyn Murray O’Hair, et al. v. W. Michael Blumenthal, Secretary of Treasury, et al).
Objection: “Yet the media is reporting that this is outrageous and an affront to people who do not believe in God — all four of them. And if there were more, we don’t care. Learn some tolerance, you atheists — and learn to report the facts, you media people.” (Rush Limbaugh, “Ninth Circus Judges Fold Tent”)
Rush Limbaugh’s statement there are only “four” atheists in the entire country is ludicrous and trivializes the millions of Americans who are atheists. It is incredible that Rush Limbaugh can criticize “media people” for allegedly failing “to report the facts,” when he himself has got his facts wrong and then adds insult to injury by declaring he doesn’t “care” whether his information is right. If this is “Excellence in Broadcasting,” then I would hate to see what constitutes “Failure in Broadcasting.”
As for “tolerance,” Rush has got things totally backwards here. The 1954 version of the Pledge of Allegiance is intolerant, since it doesn’t provide an option for any patriotic American who wanted to say the Pledge of Allegiance without saying the words “under God.” Restoring the Pledge of Allegiance to the pre-1954, secular version doesn’t stop anyone from saying a religious version of the Pledge of Allegiance or from saying any other religious oath or prayer.
Objections to Separation of Church and State in General
Objection: “The Founding Fathers never intended to have a totally secular government. They simply wanted to avoid having an official church of the United States.”
According to author William Warren Sweet, a respected Protestant scholar, “The records of the proceeding of Congress during its consideration of the First Amendment show conclusively that Congress consistently voted down every proposal which merely prevented an advantage of one denomination over another.”[8] This shows that the Founding Fathers wanted go beyond merely preventing the establishment of a ‘Church of the United States.’ The Founding Fathers wanted the government to have no involvement in religion.
Objection: “The Declaration of Independence refers to a Creator. Therefore, the United States was founded on God.”
It is, of course, true that the Declaration of Independence refers to a “Creator.” But this only shows that the Founding Fathers believed in a “Creator,” not that they intended the United States Government to officially endorse the idea of a “Creator.” (As a side note, it should be noted that many of the Founding Fathers were Deists and not Christians. Many of the Founding Fathers would have rejected the positions of Radical Religious Right organizations like the Christian Coalition.)
The United States was founded on the Constitution, not the Declaration of Independence. The Declaration of Independence was equivalent to an act of Congress and does not have the authority granted to the Constitution, which is the supreme law of the land. The Constitution does not contain the word “God.” This was not an oversight. In fact, the original Constitution only contained one reference to religion of any kind: a statement that no religious test would ever be required as a qualification for public office. Moreover, there was very little controversy about this among the Founding Fathers. When Benjamin Franklin proposed that the Constitutional Convention open with a daily prayer, he was rebuffed. And when the Founding Fathers decided to supplement the Constitution with the Bill of Rights, the very first clause of the First Amendment prohibited government establishment of religion.
Objection: “Article VII of the Constitution refers to the ‘Year of our Lord.’ Therefore, the Founding Fathers never intended for the United States Government to be secular.” (S.B. No. 2690, sec. 1(16))
Here is the context for the reference to the “Year of our Lord”:
done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.
Thus, the phrase “Year of our Lord” is nothing more than the standard formal date reference of the times. It merely recognizes the Christian origin of our calendar, just as we do today by adding A.D. and B.C. to dates.
Objection: “Congress has chaplains and opens its legislative sessions in prayer. Therefore, the United States is one nation under God.”
I personally have no objection to Congress opening its legislative sessions in prayer, so long as a majority of the Congress supports that. I view Congressional prayers similar to Congressional resolutions. (Congress has the right to pass a resolution on any subject expressing any opinion.) As such, I view Congressional prayers as simply expressing the views of Members of Congress, not the official position of the United States Government as such.
What about Congressional chaplains? James Madison argued against chaplains: “Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative.”[9] However, the U.S. Supreme Court ruled 6-3 in Marsh v. Chambers, 463 U.S. 783 (July 5, 1983), that paid legislative chaplains are constitutional. The majority noted that legislative chaplains date back to the very first Congress: “Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”
But why is having “under God” in the official version of the Pledge of Allegiance unconstitutional if having legislative chaplains is constitutional? First, the Pledge of Allegiance affects children while legislative prayers affect adults. In Marsh v. Chambers, the U.S. Supreme Court noted that members of the Legislature are adults who are “presumably not readily susceptible to ‘religious indoctrination’ … or peer pressure.” In contrast, children are susceptible to religious indoctrination and peer pressure. As the Ninth Circuit wrote in Newdow v. Congress, “The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.” Second, whereas the revisionist Pledge of Allegiance amounts to Congress imposing a religious view on the general public, legislative chaplains are a practice authorized by the same legislative bodies they affect.
Objection: “Our money says, ‘In God We Trust.’ Therefore, the United States was founded on God.”
This argument would be a good one if those slogans had been in place since the time the United States was founded. Unfortunately, those slogans were unconstitutionally added to our currency long after the founding of the country. Our currency originally bore the slogan, “E Pluribus Unum.” The words, ‘In God We Trust,’ were added to coins in 1864. Those same words were not added to paper currency until 1956.[10]
Objection: “At the beginning of every session of the U.S. Supreme Court, the crier says, ‘God save the United States and this Honorable Court.’ That is obviously constitutional, since if it were not constitutional the Justices of the Supreme Court would have put a stop to that.”
The practice of opening Supreme Court sessions with that particular phrase originated during the days of Chief Justice John Marshall, who served from 1801-1835 (see Lee v. Weisman, SCALIA, J. dissenting). Probably all of the justices that are now or have been on the Supreme Court were monotheists who did not feel harmed by the phrase. And although I believe such a practice is probably strictly unconstitutional, I must admit that even I, as an atheist, do not feel terribly harmed by the practice as such. The phrase is only heard by a very small portion of the population, no citizens (apart from the Supreme Court’s crier) are asked to repeat it, and that phrase–unlike the words ‘under God’ in the Pledge of Allegiance–has lost its religious significance. Indeed, enemies of church-state separation justify the practice precisely because of the loss of the religious significance of the phrase. We can take some comfort in that fact.
Conclusion
As we have seen, objections to the recent court ruling on the Pledge of Allegiance are invalid and often at odds with the facts. The courts have consistently recognized the First Amendment requirement that the government be neutral in matters of religion. The Ninth Circuit’s decision in Newdow v. Congress simply took that requirement to its logical conclusion regarding the words “under God.” Inserting the words “under God” into the Pledge of Allegiance was an unconstitutional establishment of religion. Theists still have the right to freely exercise their religious beliefs and insert the words “under God” when they repeat the Pledge of Allegiance, but such words are unconstitutional in the official, Government-sanctioned version of the Pledge of Allegiance.[11]
[1] John Leo, “Pledge Furor More Evidence of Elites’ Hostility of Religion” (<URL:http://www.uexpress.com/johnleo/>, June 30, 2002), spotted June 30, 2002.
[2] David Greenberg, “The Pledge of Allegiance: Why We’re Not One Nation ‘Under God'” (<URL:http://slate.msn.com/?id=2067499>, June 28, 2002), spotted June 30, 2002.
[3] Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. at 573 (1989) (Kennedy, J., dissenting).
[4] Michael Newdow, quoted in Scott Gold, “Ex-Partner of Pledge Plaintiff Goes Public” Los Angeles Times (<URL:http://www.latimes.com/news/local/la-me-pledge12jul12.story>, July 12, 2002), spotted July 14, 2002.
[5] See, e.g., Robert Grant, American Ethics and the Virtuous Citizen (Amherst, N.Y.: Humanist Press, 1999); and Tara Smith, Moral Rights and Political Freedom (Lanham, Md: Rowman & Littlefield, 1995).
[6] Jim Allison, “A Study Guide to the History of the United States Symbols and Mottos” (<URL:http://candst.tripod.com/studygd5.htm>, n.d.), spotted June 30, 2002.
[7] Jason Hoppin, “Goodwin Isn’t Fazed by Storm Over the Pledge: 9th Circuit Judge Sees Critics as ‘Superficial'” The Recorder (<URL:http://www.law.com/regionals/ca/stories/020701a.shtml>, July 1, 2002), spotted July 2, 2002.
[8] William Warren Sweet, Religion in the Development of American Culture 1765-1840, quoted in Stephen Lynch, “Atheists Aren’t Viewing Pledge Ruling as Godsend” Orange County Register, June 30, 2002, spotted at <URL:http://www.ocregister.com/news/nogod00630cci4.shtml>, June 30, 2002.
[9] Quoted in “James Madison on Separation of Church and State” (<URL:http://candst.tripod.com/tnppage/qmadison.htm>, n.d.), spotted July 4, 2002.
[10] U.S. Treasury, “Fact Sheet: Currency & Coins: History of ‘In God We Trust'” (<URL:http://www.ustreas.gov/education/fact-sheets/currency/in-god-we-trust.html>, n.d.), spotted July 5, 2002.
[11] I am grateful to Bill Schultz who provided extensive comments and suggestions that great strengthened this essay. I am also grateful to Edward Tabash, Bill Snedden, Sue Strandberg, Nick Tattersall, Alonzo Fyfe, Dan Lewandowski, Ted Drange, and several other individuals for comments on previous drafts of this essay.