Children are back in school and, as part of their daily routine, most of them will be expected to participate in the reciting of the Pledge of Allegiance. Recitation of the Pledge is a requirement under the laws of over forty states.
Mandatory recitation of the Pledge in our schools is something that troubles, indeed outrages, many of this country’s nonreligious. And it should also trouble anyone concerned about the separation of church and state and religious indoctrination of children. Recitation of the Pledge is a solemn ceremony in which students are to affirm, among other things, that this is one nation “under God.” So, effectively, every school day we require children to state that they believe in God.
Oh, I’m aware that students who object to the Pledge cannot be compelled to take part. If they object to the Pledge, they have the option of standing or sitting at their desks quietly—and of being stigmatized as unpatriotic and un-American. The coercion to take part, the pressure on nonreligious students to say something they don’t believe, is undeniable. (Remember we’re talking about schoolchildren here.)
Because the Pledge practice both endorses religion and is inherently coercive, numerous lawsuits have been brought seeking to have the Pledge practice declared unconstitutional, usually on the ground that it violates the Establishment Clause of the First Amendment, but occasionally on the theory that it violates equal protection of the laws or some other federal or state constitutional guarantee.
With one exception , all these challenges have failed. Both federal and state courts that have considered challenges to the legality of the mandatory recitation of the Pledge under its current wording (as most readers of this blog know, the phrase “under God” was added only in 1954) have repeatedly found that inclusion of the “under God” phrase does not violate the Establishment Clause of the First Amendment. Nor has any state court found that the Pledge practice violates any state constitutional guarantees relating to religious liberty. The rationale for all these decisions is that the Pledge is a patriotic exercise, not a religious one, and therefore, it cannot be analogized to mandatory recitation of prayer in public schools, which has been found unconstitutional.
The sole exception was the 2002 decision of the U.S. Court of Appeals for the Ninth Circuit in the case brought by Michael Newdow on behalf of his daughter. A panel of the Ninth Circuit did conclude that mandatory recitation of the Pledge impermissibly conveys government endorsement of a religious belief. However, as is well known, this decision was subsequently vacated by the Supreme Court on the ground that the plaintiff, Newdow, a noncustodial parent, lacked standing. (The Supreme Court itself has never expressly ruled on the constitutionality of the Pledge practice—although several justices have stated they would find it constitutional.) In a subsequent case brought by Newdow and some other plaintiffs, the Ninth Circuit held that mandatory recitation of the Pledge did not violate the Establishment Clause. Along with every other court that has examined the issue, the Ninth Circuit found the Pledge’s primary purpose was to instill patriotism not religion.
Undoubtedly, the Pledge is supposed to instill patriotic sentiments. To those of us who are atheists, that’s part of the problem: it equates being a patriot with belief in God. Moreover, that the Pledge taken as a whole might be described as a patriotic exercise doesn’t eliminate the statement of religious belief contained therein. There is no question that a solemn avowal that this is a nation “under God” is inherently a religious affirmation.
However, it’s pretty clear no court is going to rule the Pledge unconstitutional any time soon. So it appears that the choices for nonreligious Americans are to keep filing losing lawsuits or accept the status quo.
Except there’s a third way. We need to rethink our approach to the Pledge.
All the lawsuits to date have asked the courts to eliminate the phrase “under God” from the Pledge. Instead, I suggest an appropriate plaintiff request that the phrase be explicitly made optional. In other words, students would be informed by their schools that they can recite the Pledge with or without the words “under God.” Their choice.
Bear in mind that the defenders of the Pledge, and many of the courts that have upheld its legality, have maintained that the Pledge is not only a patriotic exercise, but an important patriotic exercise: it’s considered a critical part of a student’s formation as a good citizen. Therefore—according to defenders of the Pledge— some students are being denied a critical component of their education merely because they refuse to abjure their religious beliefs. Students who want to obtain the benefit of participating in the Pledge exercise should not be denied this important aspect of their education merely because they cannot honestly affirm there is a God.
Frankly, it’s difficult to see how a request for making the religious avowal in the Pledge optional could be refused. Compare it to other situations where religious avowals embedded in certain ceremonies were once employed as a pretext for barring atheists from participating in important civic activities. Until the mid-twentieth century, some states barred atheists from testifying, serving in public office, or serving on juries on the ground that they could not take a religious oath. All such provisions are now recognized as unconstitutional. Witnesses, for example, have the option of swearing on some sacred book to tell the truth “so help me God” or of simply making a solemn affirmation to tell the truth under penalties of perjury. If this country no longer requires witnesses, jurors, or public officials to affirm belief in God to participate in civic activities, how can a state require schoolchildren to affirm belief in God to participate in an important civic activity?
I can think of three objections to my proposal, one from defenders of the status quo and two from some of my fellow atheists who will regard my proposal as a surrender. The defenders of the status quo might argue that inclusion of the phrase “under God” is essential. But as Justice O’Connor observed in the Newdow Pledge case:
“[T]he presence of these words is not absolutely essential to the Pledge as demonstrated by the fact that it existed without them for over 50 years.”
Furthermore, if defenders of the current Pledge are going to maintain that “under God” is absolutely essential, then this undercuts the claim that the Pledge is not primarily a religious exercise. You can’t have it both ways. You can’t claim the Pledge is not principally a religious exercise and then insist it must contain an avowal of belief in God.
Turning to potential atheist critics, some will say I’m giving up too easily and am compromising on some fundamental points. We should keep filing lawsuits until some court recognizes that by including “under God” in the Pledge the government is endorsing monotheism and stigmatizing nonbelievers. Indeed, our friends at the American Humanist Association have a lawsuit pending now in New Jersey alleging that the Pledge practice constitutes a denial of equal protection under the New Jersey constitution. I sincerely hope their case succeeds. But I’m afraid it will meet the same fate as their recent Massachusetts lawsuit, which advanced a similar theory. (By the way, in case one doubts my sincere good wishes, I note that CFI was the only secular organization to file an amicus brief supporting AHA in the Massachusetts case.) At some point we need to acknowledge that an
unbroken losing streak of about a dozen cases indicates we’re not going to persuade the courts to remove the phrase “under God.”
As to compromising principles, it seems to me atheists’ primary goal in the Pledge dispute should be to have public schools acknowledge that the nonreligious are patriots and citizens in good standing just like the religious. Having school officials inform the students that it is perfectly acceptable to omit God from the Pledge accomplishes that purpose.
Finally, there would be the concern that those students who say the Pledge without “under God” will become the targets of bullying and harassment. That could happen, but the situation of nonreligious students will be no worse than it is now. Today, the conscientious nonreligious students who decline to say the Pledge are made conspicuous by having to remain completely silent, effectively putting a target on their backs. Plus, because they are barred from participating unless they affirm belief in God, they are stigmatized as unpatriotic individuals who hold views incompatible with pledging allegiance to their country. Official recognition that saying the Pledge without “under God” is perfectly appropriate should remove at least some of that stigma.
Battles over the Pledge have resulted in multiple acrimonious lawsuits and disputes, with no change to the law, only increasing resentment and hostility on both sides of the dispute. It’s time to reframe the debate. We should not look at the Pledge issue as a controversy over whether to eliminate God from the Pledge, but rather as a challenge to consider how the Pledge practice can be modified to accommodate the religious diversity of this country, allowing both believer and nonbeliever to participate in pledging allegiance to their country. We are part of “one nation” whether or not we believe in God. Make “under God” optional.