|The Constitutional Principle: Separation of Church and State|
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This is the third of a series of articles by Jacques Bailhé, a media artist from Los Angeles, CA; the author of the novel Thai Heaven and owner of the http://www.bailhe.net/ website
It is probably not incidental that the very first amendment to the Constitution, and the very first sentence of that amendment, decrees “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Clearly, Congress saw the issue as deeply meaningful and significant. The question now arises whether or not the words “under God” in the Pledge of Allegiance are a problem. Perhaps some history will help both sides think this through.
The original Pledge was written by Francis Bellamy as part of his effort to institute Columbus Day celebrations in our public schools and published in 1892 to commemorate the 400th anniversary of Columbus’s discovery of the Americas. It read, quite simply and elegantly:
I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.
Around 1924, the American Legion and the Daughters of the American Revolution caused a revision out of concern that immigrants might recite the pledge as an allegiance to the country of their birth rather than the United States. To fix this, the pledge changed the generic “my Flag” to “the flag of the United States of America.” This has apparently fallen into disuse. I, for example, was taught in the 1950’s to recite “I pledge allegiance to the flag.” Nobody seems interested in this issue anymore.
In the early 20th century, many states and local school districts made recitation of the Pledge compulsory. That was soon challenged by Jehovah’s Witnesses on the basis that their members swear allegiance solely to the Kingdom of Jesus Christ and being compelled to swear allegiance to God caused a violation of their right to the free exercise of religion. The children involved had refused to say the Pledge and were summarily expelled from their Pennsylvania school. In 1940, the Supreme Court heard their case in Minersville School District v. Gobitis and ruled the school officials were justified in expelling the students. That decision fell quickly. In 1943, in West Virginia State Board of Education v. Barnette, the Court reversed itself, finding that public schools cannot compel children to recite the pledge. The courts have further established that children, or anyone else refusing to recite the Pledge, may not be punished, required to stand at attention, or leave the classroom. On its face, it seems obviously wrong-headed that children should be caused to suffer this turmoil, whatever their beliefs, but I suggest we’re naïve to think the arguments now raging are anything less than a battle for the minds of our children. The Pledge is, after all, recited by our children and the effect of constant repetition at the very place where they are taught what is true and what is false should not be underestimated.
In 1954, near the height of the Cold War, Congress decided it was essential to teach our children that although the Soviets might have bigger guns and armies, we had God on our side. To distinguish the United States from what was perceived as the godless and therefore evil communism of the Soviet Union, Congress added the words “under God” to the Pledge. And so began the current debate: do those words violate the First Amendment by requiring or otherwise inducing children to pledge a religious principle.
In 2000, Michael Newdow brought a case intended to completely turn the tables. He argued the Pledge violated the prohibition against government sponsored religion and sought to prevent his daughter’s entire school from reciting the Pledge each morning. Mr. Newdow’s argument presented an interesting legal question, but fizzled when the Supreme Court pulled the rug from under him by ruling he didn’t have standing to sue on on the basis he presented. The effect of that decision allowed “under God” to remain, but gave no guidance about whether the Pledge constituted establishment of religion and might thereby violate the First Amendment. And so the debate continues.
That’s the history. Now I offer some thoughts. The words “under God” do not seem to establish a particular religion since the word “God” is generic. Many religions differ in practice and other beliefs, but hold belief in “God” as a central tenet. Accordingly, those generic words could be interpreted to allow Hindus and Muslims to recite the pledge without violating their rights since belief in God and the word “God” is not specifically Christian - despite the railings of some. The issue cannot, however, be decided quite so simply.
Although many definitions of “religion” contain the belief in a supreme deity, those definitions are challenged as too restrictive by many scholars since religious beliefs come in all stripes and some don’t contain the concept of God. Besides the complaint of the Jehovah’s Witnesses about “God” versus the “Kingdom of Jesus Christ,” agnostics, atheists, Buddhists, Taoists, and others do not subscribe to belief in “God” as the word is generally used. Unlike religions based on a belief in God, followers of those religions could have a reasonable objection to “under God” in the Pledge of Allegiance. There is, however, a more direct way of deciding the issue and that is through a close reading of the First Amendment itself.
It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” This appears to mean that congress must not make any law of any kind establishing religion, and more sweeping, “respecting” or having to do with religion. It proscribes establishment of a particular religion, but also, seems to be worded to mean any law related to any and all religion in the broadest sense. Congress may not establish any particular religion, but it also may not establish religion in general. The fundamental and, I suggest, very wise idea is that government should stay out of people’s religious life. We are, and must be, free to accept or disavow religion as we may choose. Because “under God,” generic though it may be, establishes a religious belief as a fundamental part of being an American, it appears to violate the First Amendment. It clearly contradicts the beliefs of some religions and non-believers and thereby appears to wade into the emotionally charged waters the framers were so careful to avoid.
The second part of the clause is equally instructive. It reads, “…or prohibiting the free exercise thereof….” Some of us want to say “under God.” Some of us don’t. It appears Congress is itself prohibited from deciding or influencing the issue one way or the other because doing so would interfere with “free exercise.” It is well settled that a child may elect not to recite the Pledge because it contains the words “under God,” but if that child stands silent and alone, or with a few others, are they not made to feel separate and different from the rest? Somehow less American? Seems to me the admirable purpose of the Pledge is to unite us, not divide us.
The original Pledge did just that. It simply and plainly asks children to pledge allegiance to our country and the beliefs all Americans hold, “…one Nation indivisible, with Liberty and Justice for all.” I suggest the Pledge’s author, Mr. Bellamy, had it right in the first place - profoundly so. We should not throw out the Pledge, but to teach our children that “Liberty and Justice for all” is a principle that unifies all Americans, we must make those plain words true by removing “under God” and restoring the original Pledge of Allegiance.