A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Wednesday that reciting the Pledge of Allegiance in public schools is an unconstitutional "endorsement of religion" because of the addition of the phrase "under God" in 1954 by Congress, partially satisfying my adolescent anger at that phrase. The decision, which is likely to be shot down by either the full 9th Circuit or the Supreme Court, correctly finds the presence of those two little words to be in violation of our constitutionally required separation of church and state. I remember huge fights with my middle-school social studies teacher, who wore red, white, and blue jumpsuits everyday, about whether I had to say the pledge. I knew I wasn’t required to, that I had a right not to be forced to say anything, and especially not anything that mentioned—or worse, was an indirect oath to—God. Our compromise was that I had to stand, but didn’t have to speak the words.
Why is the pledge unconstitutional? The separation of church and state is a fundamental concept of our government. The founders of this country knew it was the only way they could prevent government persecution on the basis of religion. Religious freedom includes the right not to be religious. It also includes the right to not subscribe to Judeo-Christian beliefs, something that most of the citizens and members of the government of the U.S. forget pretty consistently. The Constitution requires that our government does not establish religion. It doesn’t require that the government not establish a specific faith, like the Catholic faith or the Baptist faith, it requires that the government not establish religion at all.
The words “under God” were added to the pledge in 1943 in the context of the beginning of the Cold War. The explicit motivation was to show opposition to the atheistic tenets of Soviet communism. The words are there to prove that the citizens of this country believe that it is a nation “under God.” It’s not just fancy talk. It is an intentional endorsement of monotheistic religion.
Schoolchildren are not required to say the pledge. That’s been illegal for 60 years. But they are required to be present as the sole authority figure and government representative in the class and all of their peers say it. This forces them to choose between participating in a state-sponsored semi-religious ceremony and protesting that ceremony in silence. There are forces at work in that situation that make the children’s “option” to simply not say the pledge inadequate. Children are easily swayed by such subtle forces as being expected to speak an oath in unison every day, if you can imagine that. If a representative of government walked into my workplace daily and led all my coworkers in an oath that mentioned God, that would be government endorsement of religion. It’s the same in schools. People seem to think that it’s not establishment of religion because it’s not specific enough. But “under God” rules out anyone who’s not a monotheist. It’s specific enough to oppose the religious stance of atheists, and that’s enough to make it unconstitutional. Furthermore, there’s no illusion that the God mentioned is the Judeo-Christian God. It could of course be interpreted to be any God, but the people who put it there and those who want to ensure its survival surely think it refers to theirs. Its implicit impact is even more unconstitutional than its explicit force.
How can the pledge be wrong when so many people, including members of Congress, are so angry about this ruling against it? Surely the court must be wrong to have made such an unpopular decision! In fact, it’s not the job of any court to make decisions that are in line with popular opinion. Judges make decisions according to the law. In this case, the decision was made with reference to the U.S. Constitution. Everyone who says this decision is wrong needs an exercise in the basic structure of our government. Most people think that this ruling isn’t going to stand up to further appeal because it’s so far out of line with public opinion. Unfortunately, that’s probably true, but it shouldn’t be. The decision should be about whether the Constitution prohibits the pledge in its current version. It clearly does, and therefore the pledge is illegal. The only appropriate avenue for those who are outraged at this protection of our constitutional rights is to try to amend the Constitution, which is already being talked about in Congress. Such an amendment would threaten the fundamental values that this country was founded upon. Separation of church and state is essential to the protection of religious freedom. The people and the Congress need to understand that religious freedom doesn’t just mean the freedom to practice their religion.