On Wednesday the Supreme Court started proceedings concerning the constitutionality of the phrase “under God” in the Pledge of Allegiance. In Elk Grove Unified School District v. Michael A. Newdow, the Ninth Circuit Court of Appeals agreed with Newdow that the phrase “under God” violates the establishment clause of the First Amendment. The case is centrally important to the constitutional relationship between religion and government, but it may be decided upon quibbles over linguistic minutiae.
For conservative Christian groups, the case is ideal, because Newdow is an ardent atheist and lacked custodial rights over his daughter when he began arguing on her behalf. Solicitor General Theodore Olsen, arguing on the behalf of the school district, has criticized Newdow for having “thrust [his daughter] into the vortex of this constitutional case.” The Court could possibly sidestep the whole issue over a squabble about parental rights; however, this seems unlikely, as Chief Justice Rehnquist recognized that the case’s issues “have nothing to do with domestic relations.
But conservative Christians don’t want Newdow’s case to be heard simply because they believe it will fail; they also see Newdow as the perfect secularist straw man, whose defeat will discredit any claims about the unconstitutionality of religious ceremony in the public sphere. Justice Antonin Scalia (who recused himself from the case after publicly criticizing the Ninth Circuit Court’s decision), a conservative Catholic, speaks for such people, having declared that “government … derives its moral authority from God” and bemoaned that the “tendency of democracy to obscure the divine authority behind government.”
Scalia’s peculiar opinions on popular sovereignty aside, he is not alone in believing that the Pledge should retain a reference to “historically verified foundationalism” (as Scalia puts it). A recent AP poll found that more than nine in 10 Americans favor keeping the phrase “under God” even if it raises questions of constitutionality.
Civil libertarians believe that the mention of a deity in any governmental capacity violates the establishment clause (“Congress shall make no law respecting an establishment of religion”). Newdow contends that the phrase is unconstitutional. “It’s indoctrinating children … the government is supposed to stay out of religion,” Newdow told the Court yesterday.
On the face of it, it should seem obvious that including God in the Pledge is a governmental attempt at establishment of the kind prohibited by the First Amendment. But the Court’s previous decisions on the issue make matters murkier.
The 1940 Gobitis decision (written before the inclusion in 1954 of the phrase “under God” in the Pledge, a statement of national unity written by the 19th-century socialist educator Francis Bellamy) ruled that state laws requiring citizens to salute the flag and recite the Pledge were not unconstitutional. Justice Felix Frankfurter argued for national unity: “The ultimate foundation of a free society is the binding tie of cohesive sentiment.” But three years later, the 8-1 Barnette decision struck down compulsory salutation and recitation laws, with Justice Robert Jackson’s famous lines that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion … or force citizens to confess by word or act their faith therein.”
Thus, no student can be forced to recite the Pledge, but after Barnette, supporters of religious expression in public life have argued that a phrase so generic as “under God” is merely “ceremonially deistic,” to use Justice William Brennan’s unfortunate term. Because the Pledge’s “God” is blandly nondenominational, we should therefore be assured that the government is not seeking to force particular articles of faith down our throats.
But the creation of an American national church or national principles of faith have never been a serious danger, and it is the not the main issue in the Constitutional jurisprudence related to the Pledge. The real risk is the gradual encroachment of religion into public affairs, and while the Pledge itself is hardly a great danger to the republic, the semantic shell game of “ceremonial deism” is hardly an adequate protection against the possibility of the government favoring a particular form of religious expression against another.
The principle of the separation of church and state — an interpretation of the First Amendment’s establishment clause that has been with us for two hundred years — does not compel citizens to relinquish their faith. Nor is it a tool of “secularists” who would seek to create a national non-religion, as some conservative activists claim.
Rather, the secular state — in which religion and government are separate — is the best means for protecting religious freedom in a democratic and religiously varied society. To uphold that principle, the Court’s ruling — even if it retains the words “under God,” as seems likely — must state in no uncertain terms that the government can neither establish religious belief nor favor the tenets or expression of one form of religious belief over another.
Rob Hunter, Badger Herald, University of Wisconsin