Bailey83221 (bailey83221) wrote,
"One nation, under God": tolerable acknowledgement of religion or unconstitutional cold war propaganda cloaked in American civil religion?

Journal of Church and State

March 22, 2004

SECTION: No. 2, Vol. 46; Pg. 311; ISSN: 0021-969X

IAC-ACC-NO: 119368285

LENGTH: 14822 words

BYLINE: Cloud, Matthew W.

A recent poll conducted by Newsweek magazine showed that nearly 90 percent of Americans believe that the words "under God" should be included in the Pledge of Allegiance. (1) What the poll did not show is the percentage of Americans who are aware of how long the reference to God has been in the Pledge of Allegiance, why it is included, or for that matter how long the Pledge itself has been around. As with many utterances in the public consciousness, widespread acceptance and routine recitation can produce a kind of obscurity that causes few people to "ask themselves what they are saying, why they are saying it, and in what sense they live by it." (2) This paradox may explain why Justice William J. Brennan, a "stalwart" (3) church-state separationist, once suggested that the reference to God in the Pledge was "'protected from Establishment Clause scrutiny chiefly because [it has] lost through rote repetition any significant religious content." (4) As the Supreme Court has now decided to test that proposition in Elk Grove Unified School District v. Newdow, it is worthwhile to examine what the Pledge of Allegiance is and what it means to recite that America is a "Nation, under God." (5)

I

An essential attribute of a state's power has long been the need to foster allegiance in its inhabitants. (6) The American experience has been no exception. On 25 January 1777, General George Washington, as commander-in-chief of the Continental Army, issued a proclamation requiring all who had taken an oath of allegiance to Great Britain either to "take an oath of allegiance to the United States of America" or be treated as common enemies. (7) The order was objected to, not least on the grounds that it represented a federal usurpation of state power. (8) The Continental Congress debated the matter and referred it to committee, whereupon John Adams drafted a resolution declaring that the order did "not interfere with the Laws or Civil Government of any State; but considering the situation of the Army was prudent and necessary." (9) Still, the Congress took no action and tabled Adams's resolution, evidently regarding the issue as "sensitive and divisive." (10)

That is revealing. Whether the inhabitants of the newly-formed United States of America viewed themselves first as citizens of their respective states who would only secondarily swear allegiance to the federal government, (11) it cannot be gainsaid that oaths "smacked of royalism," (12) and objection to that form of coerced communication was "well known to the [F]ramers of the Bill of Rights." (13) Early Christians had been persecuted for refusing to participate in ceremonies before symbols of imperial authority; "William Tell's sentence to shoot an apple off his son's head for refusal to salute a bailiff's hat is an ancient one. The Quakers, William Penn included, suffered punishment rather than uncover their heads in deference to any civil authority." (14) One of the founders of the colony of Maryland, George Calvert, a Catholic, felt "compelled by his conscience to refuse to take the Oath of Supremacy in England at the cost of resigning from high government office." (15) Sir Thomas More, one-time Lord Chancellor under King Henry VIII, was tried, convicted, and beheaded in 1535 for refusing to swear an oath recognizing the King as the supreme head of the Church of England--an act of conscience for which he would be canonized as a saint. (16)

More's dilemma would later be portrayed on Broadway in A Man for All Seasons by Robert Bolt (1960). (17) A "study in loyalty, or loyalties, the play shows More as a man committed to many constituencies--his wife, his family, his friends, the English people, the King, the Church, and God." (18) Ultimately, though, More "must declare his highest duty."(19) As Brian Burrell writes:

The words that lead to [his] undoing are those of the Act of Succession, which acknowledged Henry VIII as the head of the Church of England, allowing him to bypass the Pope's refusal to sanction his divorce from Catherine of Aragon and his marriage to Anne Boleyn. The act was secured by means of an oath--not simply a loyalty oath, to which More would have had no objection, but a test oath, which would have required him to deny the supremacy of Rome. Because a test oath applies to thoughts rather than actions, it comes down hardest on those who insist upon the sanctity of words ... In the play, when More is asked why he will not capitulate and simply assent to the words and trust God to know his heart, he replies, "What is an oath but words we say to God?" (20)

That the Framers of the Constitution shared More's view of an oath as an advertantly religious expression explains why many of their generation were wary of its potential for abuse. (21) Richard Price observed that it "is a miserable legislature which relies much on [oaths]; for in general they bind only honest men." (22) Benjamin Franklin regarded oaths as the last recourse of liars." (23) Noah Webster believed that "[t]he time will come (and the day may be near!) when all test laws, oaths of allegiances, abjuration, and partial exclusions from offices will be proscribed from this land of freedom... They originated in savage ignorance, and they are the instruments of slavery." (24) Oliver Ellsworth of Connecticut, a delegate at the Constitutional Convention and later Chief Justice of the Supreme Court, wrote in his 1787 essay, Landholder Seven: "A test-law is the parent of hypocrisy and the offspring of error and the spirit of persecution. Legislatures have no right to set up an inquisition, and examine into the private opinions of men. Test-laws are useless and ineffectual, unjust and tyrannical." (25)

Because of the inherence of religion to oaths, a few states permitted members of some religious sects, notably Quakers, to escape taking an oath as a condition of assuming office. The 1780 Constitution of the Commonwealth of Massachusetts, for example, provided,

when any person shall be of the denomination called Quakers, and shall decline taking said oath, he shall make his affirmation in the foregoing form, omitting the words, "swear" and inserting, instead thereof, the word "affirm," and omitting the words, "So help me God," and subjoining, instead thereof, the words, "This I do under the pains and penalties of perjury." (26)

Thus it can be fairly stated that at the time of the Constitutional Convention of 1787, reluctance to impose oaths

flowed [partly] from the religiously-inspired perception that an oath might unfairly demand a promise that would send an oath-breaker to eternal damnation; partly, it reflected a desire to accommodate the rights of Quakers and others, who refused on principle to swear an oath to the Almighty; partly it reflected a growing recognition that oath-taking might invade the rights of conscience of the increasingly deistic populace. (27)

These considerations--reflective at once of the political realties of religious pluralism and emerging notions of religious toleration--underscore the omission of any reference to God and the requirement of a religious oath in the nation's founding charter. (28) Unlike the Declaration of Independence and the Articles of Confederation, both of which invoked God's blessing, the Constitution contains no reference to God. (29) The only oath prescribed in the Constitution, that of the office of the President of the United States set forth in Article II, (30) conspicuously omits the words, "So help me God," which at that time were prevalent in virtually every oath administered in the courts of law and in virtually every state constitution. (31) Further, the constitutional provisions for "Oath or Affirmation" (32) indicate "a concern for rights of conscience that a simple oath requirement would have ignored." (33) Similarly, the first statute enacted by the First Congress codified without reference to God the general oath or affirmation required of federal and state officials under Article VI. (34) It was simply a solemn promise to support and defend the Constitution. (35) And no loyalty requirement was imposed on the citizenry as a whole.

Despite the omission in the Constitution, George Washington concluded the oath of office at the first presidential inaugural with "So help me God" (and swore on a Bible), setting a precedent followed by every president, save Franklin Pierce in 1853. (36) In his 1796 Farewell Address, Washington spoke on the importance of religion to such matters and to civil administration generally. "Where is the security," he asked, "for property, for reputation, for life, if the sense of religious observation deserts the oaths which are the instruments of investigation in the courts of justice?" (37)

Washington's admonition enhances the observation that the Constitution reflects a policy of ending a religious obligation to the (few) loyalty requirements imposed at the federal level. Further support for that observation may be found in the rejection of a proposal that would have, in effect, converted the general oath requirement in Article VI into a religious test for office. The amendment, first offered by the South Carolina ratifying convention, would have inserted the word "other" between "no" and "religious" in the No Religious Test Clause in clause 3 of Article VI, implying that the general oath itself required religious belief. (38) When introduced again during the First Congress, both the House of Representatives and the Senate also rejected the proposal. (39)

To be sure, virtually every state constitution at the time of the Philadelphia Convention contained a religious test for public office, Virginia's being the nominal exception. (40) Non-Christians were barred from holding office, which in most states meant non-Protestants (read Catholics). (41) Notwithstanding the characterization of test oaths as "abhorrent" to the nation's tradition, (42) then, such oaths were commonplace and, by their ubiquity, appear to have been in keeping with the desires of the vast majority of Americans. (43) The essential rationale for employing a religious test was that offices under the public trust ought to be limited to Protestants, lest "Papists," "Jews," "Turks," and "Infidels" might obtain them and undermine the nation's Christian foundation. (44)

But this seeming chasm between acceptance of religious tests at the state level and their prohibition at the federal level was not mere deference to the states over matters of religion. Nor was it an attempt to create a secular or "godless" constitution. (45) Rather, the Constitution's prohibition against religious tests was a necessary mandate for equality among competing religious beliefs based largely on the fear that one religion, even a particular Protestant sect, might gain ascendancy and impose its religious views on the Nation as a whole. (46) As James Madison put it in The Federalist Papers: "A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. (47)

In 1833, Justice Joseph Story would write that the No Religious Test Clause was

not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretense of any alliance between church and state in the national government. The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries; and not wholly unknown to our own. They knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility. The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment, that it was proclaiming the right of private judgment, prescribed boundaries "to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyrdom. The history of the parent country, too, could not fail to instruct them in the uses, and the abuses of religious tests... But ... all persecution for diversity of opinions, however ridiculous or absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of the clergy, the posture of devotion, the material's and colour of the minister's garment, the joining in a known, or an unknown form of prayer, and other matters of the same kind, must be left open to the option of every man's private judgment. (48)

What is more, the ratification of Article VI began a trend in the states as several quickly abolished or modified their own religious tests for office: South Carolina (1790), Delaware (1792), Vermont (1793), and Georgia (1798). (49) Others followed suit early in the nineteenth century, including Connecticut (1818), Maryland (1826), Rhode Island (1842), and New Jersey (1844). (50) And those state constitutions adopted after 1787 more often than not followed the federal model: Kentucky (1792); Tennessee (1796); Ohio (1802); Indiana (1816); Mississippi (1817); Illinois (1818); Alabama (1819); Maine (1819); Michigan (1835); Iowa (1846); and Wisconsin (1848). (51)

Most state courts continued to apply religiously-based oath requirements for testifying in court, serving on juries, or participating in other legal transactions. (52) But even these exclusionary requirements were lessened. (53) Several states abolished all religious prerequisites to oath-taking entirely, (54) with an increasing number of courts sharing the view that "[e]very human being of sufficient capacity to understand the obligation of an oath is a competent witness in [the] State." (55) When, in Torcaso v. Watkins (1961), the Supreme Court struck down the State of Maryland's modest requirement that officeholders declare a belief in God, it did so based on the rights of freedom of conscience and religion. (56) After observing that "the desire to put the people securely beyond the reach of religious test oaths brought about ... Article VI," (57) the Court stated: "[W]e repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion." (58)

II

To be sure, religious references ran throughout numerous aspects of the early American republic. (59) To cite a few examples: The Northwest Ordinance, adopted by Congress in 1787 for the government of the territories, provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." (60) As previously noted, Washington assumed the presidency by swearing on a Bible and concluding the oath of office with "So help me God." At the request of the First Congress, Washington proclaimed 26 November 1789, a day of thanksgiving to "[offer] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions." (61) The First Congress also enacted legislation providing for chaplains for both the House of Representatives and the Senate, as well as for the military. (62) And Chief Justice John Marshall began the practice by which the Supreme Court opens each session with the invocation: "God save the United States and this Honorable Court." (63)

Still, as to oaths, those required of federal officials remained free of express religious obligation. That changed during the Civil War when President Abraham Lincoln (64) recommended that government officials take an oath of allegiance promising to "solemnly swear, in presence of Almighty God, that [they] will henceforth faithfully support, protect, and defend the Constitution of the United States and the union of the states thereunder." (65) Congress rejected Lincoln's proposal in favor of the "Ironclad Test Oath," which concluded with the phrase "So help me God." This more stringent oath required civil servants and military officers to swear--or affirm--not only to defend the Constitution (now) "against all enemies, foreign and domestic," but also that they had never previously engaged in criminal or disloyal conduct against the Union. (66) Citizens who refused to take the oath were denied many of the rights of citizenship and prohibited from pursuing government office as well as certain professions, including the law and the clergy. (67) Lincoln thought that went too far. "I dislike an oath," he said, "which requires a man to swear he has done no wrong. It rejects the Christian principle of forgiveness on terms of repentance. I think it enough if a man does no wrong hereafter." (68) In 1866, the Supreme Court declared the test oath an unconstitutional ex post facto law, which, it said, sought to inflict moral blameworthiness and had no relation to the fitness of the professions it regulated. (69) The remaining clauses, however, survive today in the oath required of Members of Congress and other federal officials. (70)

The divisions of the Civil War and the Reconstruction, along with the rise of nationalism (71) as a force in world affairs, can be seen as the origins of the modern Pledge of Allegiance as well. Increasing immigration, rapid technological advances and westward migration, along with the development of public education, meant that by the end of the late nineteenth century, the United States was becoming more expansive, diverse, and industrial. In 1892, the City of Chicago hosted the World's Fair Columbian Exposition to celebrate the 400th Anniversary of Columbus' arrival and promote America's progress in science, industry, and culture. By some estimates, nearly half the American population journeyed to the midwest celebration where Henry Adams observed "the first expression of American thought as a unity." (72)

As part of the Fair, the World's Youth Congress sponsored a National Public School Celebration for Columbus Day organized by The Youth's Companion, a magazine that "featured uplifting, moralistic adventure stories for children." (73) The Companion had undertaken a campaign to promote patriotism by flying the United States flag over every schoolhouse in the country. (74) Its editors formed a committee of state educators to plan for the" upcoming anniversary of Columbus's voyages, and installed as its chairman a young writer for the Companion who would author the original Pledge of Allegiance, Francis M. Bellamy. (75)

A former socialist minister, Bellamy came from Rome, New York, part of the "burned-over district" of western New York, a hot-bed of Protestant revivalism where much of the utopian and progressive movements of late nineteenth-century America were born. (76) Along with his cousin, Edward Bellamy, author of the utopian novel Looking Backward (1888) and, later, Equality (1897), Francis Bellamy had begun establishing so-called "Nationalist" clubs around the country in the 1880s, dedicated to promoting the economic and class objectives of socialism through the teachings of Christianity. (77) Under his chairmanship in 1892, The Youth's Companion promotion for the National Public School Celebration was possibly the "first nationwide advertising and public relations campaign[] in the United States." (78)

As a centennial history of the Pledge of Allegiance has it, Bellamy urged the Companion's "young readers to ask their teachers and school boards to support the National Public School Celebration ... [because] public schools were the one characteristic institution which linked all neighborhoods together in the United States and thus furnished a common bond for a national celebration." (79) Government leaders were also asked "to press for local school observances and to detail escorts of honor to help children raise the flag." (80) President Benjamin Harrison enjoined Americans to join in the celebration "by suitable exercises in their schools and other places of assembly... Let the National Flag float over every school house in the country, and the exercises of such as shall impress upon our youth the patriotic duties of American citizenship." (81)

The program for the celebration included a "salute to the flag," which Bellamy was charged with composing. (82) He apparently favored the description of "pledge" rather than "oath" or "vow" because of his prior association with the temperance movement and its "temperance pledge." Bellamy also feared that the title "Oath of Allegiance" would engender resentment by Southerners still familiar with the Ironclad Test Oath imposed during the Civil War. (83) Bellamy's 23-word "Pledge of Allegiance" first appeared in the 8 September 1892 issue of The Youth's Companion: "I pledge allegiance to my Flag, and to the Republic for which it stands: one nation, indivisible, with liberty and justice for all." (84) On Columbus Day morning, 21 October 1892, children at the opening of the World's Fair and across the country recited the new Pledge along with an accompanying one-armed salute. (85)

Over the next decades Bellamy's Pledge became increasingly popular. In 1898, immediately following the outbreak of the Spanish-American War, the State of New York passed the first legislation requiring public school students to recite the Pledge each day. (86) After World War I, at the first National Flag Conference, held on 14 June 1923, the American Legion changed the words "my flag" in the Pledge to "the flag of the United States." (87) The next year the Conference added the words "of America" to follow "the United States." (88) And, during World War II, the American Legion supported a bill in Congress that officially codified the Pledge of Allegiance and dropped the (by then) Nazi-like salute. (89)

The following year, in West Virginia State Board of Education v. Barnette, (90) the Supreme Court struck down compulsory recitation of the Pledge in public schools. (91) The Jehovah's Witnesses brought suit against a local school district arguing that having to pledge allegiance to the flag went against the Book of Exodus" prohibition against servitude to "any graven image." (92) A similar challenge had been brought just three years earlier in Minersville School District v. Gobitis. (93) There, the Court ruled against the Witnesses, concluding that "the effective means for ... attainment [of patriotism] are still so uncertain and so unauthenticated by science as to preclude us from putting the widely prevalent belief in flag-saluting beyond the pale of legislative power." (94) Notwithstanding the outcome, the decision set off an outbreak of violence against Jehovah's Witnesses across the country. (95) Now, in Barnette, an opinion handed down on Flag Day amidst "the greatest war in American history," (96) the Court overturned Gobitis. Justice Robert H. Jackson, later to be lead prosecutor for war crimes at Nuremberg, wrote for the majority: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act there, faith therein." (97) In a passage strikingly evocative of Justice Stows comments on the No Religious Test Clause more than a hundred years before, Jackson explained:

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. (98)

Eleven years later, during another period of nationalistic fervor, the Pledge was again revised. In 1954, during the Cold War, Congress added the phrase "under God" after the word "Nation." (99) The drive behind the amendment had begun a few years earlier when the Knights of Columbus, the largest organization of Roman Catholic laymen in America, "adopted a resolution urging all [of its] assembly meetings in the United States to include [under God] in their recitation[s] of the pledge."(100) In 1953, the resolution was sent to the President, Vice President, Speaker of the House, and to each member of Congress. No fewer than 17 bills were introduced urging the amendment. Congress passed no resolution until the following February, however, when the Reverend George M. Docherty, pastor of the New York Avenue Presbyterian Church in Washington, gave a sermon attended by President Dwight D. Eisenhower. "There is something missing in the pledge," said the Reverend, "something that is the characteristic and definitive factor in the American way of life... [A]part from the mention of the phrase, 'the United States of America,' it could be the pledge of any republic. In fact, I could hear little Muscovites repeat a similar pledge to their hammer-and-sickle flag in Moscow." (101)

Eisenhower signed the resolution adding "under God" to the Pledge on Flag Day, 14 June 1954. At a White House ceremony he remarked:

From this day forward, the millions of school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty... [I]n this way we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resource, in peace or in war. (102)

A short while later,

on the steps of the Capitol, an honor guard raised a new American flag ... while a host of congressional dignitaries watched and a military band played "Onward Christian Soldiers." As the flag waived gently in the breeze, [they] recited the new version of the Pledge of Allegiance, proclaiming America's officially affirmed identity as "one nation, under God." (103)

The following year, the President signed legislation requiring that the phrase "In God We Trust" be imprinted on all United States coins and currency; (104) the original inscription, in 1787, was "Mind Your Business." (105) In 1956, the phrase "In God We Trust" replaced "E Pluribus Unum" (Out of many, one) as the national motto. (106)

III

The constitutional tension between national unity and religious faith is perhaps best exemplified by the decisions in Barnette and Gobitis and understanding why the Supreme Court reached opposite conclusions in those eases, decided, as they were, only three years apart. (107) As previously noted, both involved challenges brought by Jehovah's Witnesses against local school districts for compelling students to recite the Pledge of Allegiance. In Gobitis, where the policy was upheld, Justice Felix Frankfurter characterized the Pledge as regulating conduct as against belief, saying that the plaintiffs objected to "such a gesture of respect for the flag." (108) Recognizing that belief itself could not be regulated, Frankfurter said, "[c]ertainly the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law. Government may not interfere with organized or individual expression of belief or disbelief." (109) The question in Gobitis, accordingly, was "whether school children ... must be excused from conduct required of all other children in the promotion of national cohesion." (110) The Court weighed the value of refusing to salute the flag against the value of the State's asserted interest in national unity (characterized as "inferior to none"), and permitted the government interest to trump the refused conduct. (111)

Justice Harlan F. Stone was not persuaded. He alone dissented in Gobitis, saying the majority allowed a state to "coerce the pupil to make affirmation contrary to his belief." (112) In his view, no balancing of interests was permitted. He wrote:

The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. They presuppose the right of the individual to hold such opinions as he will and to give them reasonably free expression, and his freedom, and that of the state as well, to teach and persuade others by the communication of ideas. The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion. If these guarantees are to have any meaning they must, I think, be deemed to withhold from the state any authority to compel belief or the expression of it where that expression violates religious convictions, whatever may be the legislative view of the desirability of such compulsion.

...

The Constitution may well elicit expressions of loyalty to it and to the government to which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. And while such expressions of loyalty, when voluntary given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents' religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion. (113)

Three years later, in Barnette, the Court adopted (by then) Chief Justice Stone's view. Justice Jackson observed at the outset: "Here ... we are dealing with a compulsion of students to declare a belief... The compulsory flag salute requires affirmation of belief and an attitude of mind." (114) Justices Hugo Black and William Douglas, who had previously joined with the Gobitis majority, now concurred. Their original view, they said, had been based on "[r]eluctance to make the federal Constitution a rigid bar against state regulation of conduct thought inimical to the public welfare... [But] long reflection convinced [them] that 'although the principle is sound, its application in the particular case was wrong." (115) The compulsory Pledge of Allegiance, they continued, is "a form of test oath, and the test oath has "always been abhorrent in the United States." (116)

Justice Frankfurter dissented, pleading judicial restraint from acting as a "super-legislature" and making "psychological judgments" as to the wisdom of legislative action. (117) He adhered to his position in Gobitis: Having students recite the Pledge was no more than an educational exercise regulating their conduct. "Law," he said,

is concerned with external behavior and not with the inner life of man. It rests in large measure on compulsion... Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its change or abrogation... The flag salute exercise has no kinship whatever to the test oaths so odious in history. (118)

However, Barnette expressly overruled Gobitis and the inviolate nature of mere religious belief has been upheld by the Supreme Court in all manner of cases dealing with the intersection of civil authority and religious faith. (119) More to the point here, is that, under Barnette, compelling students to affirm national loyalty is unconstitutional because it is a regulation of their belief.

So what about having only presumably willing students recite the Pledge of Allegiance, one which now makes explicit reference to a "Nation, under God"? Such a policy, it is claimed, comports with Barnette because no student is required to participate. Moreover, goes the argument, the reference to God is only an acknowledgement of the role of religion in the nation's history and therefore reciting the Pledge does not necessarily imply affirmation of religious belief. Both of these arguments, discussed below, are without merit.

A

The Pledge of Allegiance is fundamentally different from what it was when Barnette was decided. The 1954 addition of the phrase "under God" converted the Pledge from what had been an affirmation of future allegiance to the Republic into an affirmation of religious belief that the nation is "under God" and was founded "under God." (120) Notwithstanding the characterization by Justices Black and Douglas that the Pledge in Barnette was a test oath, (121) it would be more accurately described then as a general loyalty oath. The Pledge in 1943 was normative: It expressed an "ideal" and did not describe the "present order" or "political history" of the United States. (122) To recite the Pledge was to swear allegiance to the American aspirational ideals of unity, indivisibility, liberty, and justice. Since 1954, however, to recite the Pledge is also to swear belief in God. Congress unequivocally intended that the addition of "under God" was to "acknowledge the dependence of our people and our Government upon the moral directions of the Creator." (123)

The explicit reference to God thus added a level of coercion to reciting the Pledge that was not present in its original form. The original Pledge was permissible, under Barnette, only insofar as it was not compulsory so as not to infringe on a citizen's freedom of conscience; the 1954 version, on the other hand, as the Framers" experience with religious oaths demonstrates, can never be permissible. It now places citizens who would otherwise willingly recite the Pledge in the position of choosing between expressing patriotism and expressing religious belief whether perhaps it is because they do not believe in God, say, or because they may object to invoking His name in that manner. Unlike the oaths prescribed in the Constitution, there is no equivalent substitute, no "affirmation alternative" for persons in that dilemma. (124)

The dilemma is the more difficult for the context in which it occurs--the public school classroom. The addition of "under God" in the Pledge was intended to result in inculcation of religious belief in schoolchildren so that they would "deny the atheistic and materialistic concepts of communism." (125) As the Congress purposefully stated in 1954, through "daily recitation of the pledge in school ... the children of our land will be daily impressed with a true understanding of our way of life and its origins... As they grow and advance in this understanding, they will assume the responsibilities of self-government equipped to carry on the traditions that have been given to us." (126) President Eisenhower likewise remarked that "millions of school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty." (127)

If there is one consistency in the Supreme Court's religion cases it is the recognition of the uniquely coercive environment of the public school setting. (128) The Court has been near to unyielding in protecting the rights of students to be free from even subtle religious indoctrination. That has been so whether students have been required to participate in religious exercises or not. In the school prayer cases of the early 1960s for instance, Engel v. Vitale (129) and School District of Abington Township v. Schempp, (130) the Court struck down prayer recital in public schools even though neither case involved mandatory student recital. In Engel, the New York Court of Appeals had upheld the state-endorsed Regents' Prayer "so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection." (131) Likewise in Schempp, where "the students and parents [were] advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises." (132) Nevertheless, both were invalidated. The Court's more recent cases have been the same: Neither the graduation prayer in Lee v. Weisman (133) (1992) nor the football game prayer in Santa Fe Independent School District v. Doe (134) (2000) involved "compulsory" participation. Yet, again, both were unconstitutional. (135) The rationale was perhaps most clearly articulated in Lee: "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." (136)

The policy now before the Court in Elk Grove Unified School District v. Newdow requires that "each class [shall] recite the Pledge of Allegiance to the Flag once each day." (137) As an initial observation, a requirement of volunteerism is almost contradictory on its face. By its terms, it assumes that not all students will object to reciting the Pledge, making supposedly willful recitation mandatory and routine. (138) In other words, the Pledge is going to be recited each day whether anyone likes it or not. That can hardly be the voluntariness contemplated in Barnette: "To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds." (139)

Moreover, although in theory such a policy may permit "unwilling" students to opt out of the recitation, as applied, it is unquestionably frustrated amidst the subtle coercive pressure of the elementary school context. (140) Even assuming that teachers and administrators remind students each day of their freedom not to participate in reciting the Pledge before the start of classes, there can be no doubt that while watching classmates rise to recite "one Nation, under God," a child would feel less than fully able to exercise that right. (141) The pressure to participate, to proclaim what one does not believe, comes not only from peers but also from school officials whose leading of the recital can be perceived by students as "inducing a participation they might otherwise reject." (142) A child who would refuse to recite the Pledge on religious grounds risks being labeled irreligious as well as being labeled unpatriotic. Perhaps even more so than in Lee, then, where there was no stigma that the dissenters at the graduation ceremony there did not support the flag, "[f]inding no Establishment Clause violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting... [T]he State may not ... place primary and secondary schoolchildren in this position." (143)

B

It may be conceded that Lee and its related cases involved religious expressions that were readily identifiable as prayers in a "traditional" sense. They spoke in terms of gratitude, appealed to God's blessing, and concluded with "Amen." No doubt to avoid constitutional challenge, they were also quite generic and civic-minded too. The prayer in Engel was typical: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." (144) There, the Board of Regents of the New York public schools had urged the Court to distinguish the prayer from more sect-specific ones. It argued that its prayer was merely a reflection of the Nation's "spiritual heritage." (145) The Court declined that invitation, and has "rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another." (146)

Neither has the Court shown any inclination of making judicial determinations as to what is or is not prayer, having also "rejected the attempt to distinguish worship from other religious speech." (147) Such a distinction, the Court has said, "has [no] intelligible content,' and further, no 'relevance" to the constitutional issue." (148) In Marsh v. Chambers, where the State of Nebraska's practice of opening its legislative sessions with prayer was upheld, the Court equated the prayer there with the Court's own proclamation, God Save the United States and this Honorable Court." The practice was upheld not because it was any less a prayer (or any more genetic) than the one in Engel, but because of its unambiguous and unbroken history of more than 200 years. (149) And, not least, because it involved adults, not readily susceptible to religious indoctrination or peer pressure." (150)

Indeed, the overriding concern that can be gleaned from the Court's cases involving religion and the public schools has been foremost "in the lesson of history ... that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at great risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed." (151) In the public schools, where the vigilant protection of constitutional freedoms is most vital, (152) the First Amendment tolerates no laws that "cast a pall of orthodoxy over the classroom." (153)

To be sure, the nation has a rich spiritual heritage. Its history is "replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers." (154) But whatever significance the Framers' religious convictions may have to constitutional inquiry, it cannot be ignored that the Pledge was amended in 1954 to result in the daily affirmation of religious faith--even if that only meant a generic belief in God--so that schoolchildren would reject the ideology of atheistic communism. For what it is worth, the Framers thought an oath or a pledge was a prayer, or at least something very near to it. They would surely have recognized that such a policy can place citizens in the untenable position of having to choose between expressing love for country or expressing religious faith. The No Religious Test Clause shows that laws "respecting an establishment of religion" (155) could come in a number of forms, including oaths. Indeed, for many of the Framers, Article VI was "Establishment Clause enough" in a federal government of specific enumerated powers, since "the oath requirement was the only plausible power one sect might use to gain the upper hand." (156) Again, in the words of Justice Story, the ban on religious tests was "to cut off for ever every pretense of any alliance between church and state in the national government... [T]he joining in a known or unknown form of prayer, and other matters of the same kind, must be left open to the option of every man's private judgment." (157)

That would seem to settle the matter. Nevertheless, arguments that "under God" in the Pledge does not amount to espousing religious belief continue. Writing in this Journal last year for example, Lee Canipe argued that "the inclusion of God was not intended to serve any specific religious purpose. It was, instead, seen as a direct rebuttal of communist ideology and an essential contribution to the national defense arsenal." (158) "Above all else," he says, "the important thing was to believe." (159) "God," he writes, "represented an ideological device, an icon of democracy that lent transcendent significance to the American system of government. Christians, Jews, atheists, and agnostics alike could all say 'under God' as long as they believed in America." (160)

Canipe says that this derivative interpretation can be seen as part of an overall attempt to identify what the sociologist Robert N. Bellah called an "American civil religion." (161) That is, "the use of commonly-accepted religious sentiments, concepts, and symbols by the state for its own purposes." (162) These include the need to solemnize public occasions and foster a collective national identity based around sacred ideals within the public consciousness. The danger, however, which Canipe readily acknowledges, is that "[w]hen the boundaries between religion and polities are blurred, the name of God becomes an empty vessel, a receptacle for patriotic rhetoric in support of whatever the current national crusade happens to be." (163)

In the judicial setting this raises a number of questions. Foremost is whether civil religion has any place in constitutional law at all. Professor Gerald V. Bradley, for one, has said it does not. Attempts to locate a civil religion in the Constitution represent, in his view, a communitarian urge that is often little more than "righteous political sentiment." (164) Its proponents seek a policy molded not by the pluralistic realities of political necessity but by philosophical understandings of truth. Judicial deference to a public policy as such is misplaced in constitutional law, he says, because the "Constitution does not evoke a philosophical reference point." (165) It makes no claim to "a 'right' answer to the contending claims of religious factions." (166) For indeed, he says, none is needed. "Civic peace and unity, as well as substantial liberty" (167) are achieved through a pluralistic accounting of religious differences. This pluralistic account is a "better explanation of our Constitution." (168) It is, writes Bradley,

rooted in presentable constitutional sources ... [and] addresses and locates the communitarian urge in its theory. Madison referred in Federalist Ten not only to religious opinion, but also to opinion about government as causes of political faction. The generic phenomenon described was righteous political sentiment. A comprehensive public philosophy is one example. The communitarian urge is not as absent from the pluralistic account as one might think; it is identified as part of the problem. It most certainly is not part of the solution. (169)

The Supreme Court has seemed, of late at least, to agree. Writing for the Court in Lee for example, Justice Anthony M. Kennedy put it thus: "There may be some support, as an empirical observation ... that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not... [But] [t]he suggestion that government may establish ... [a] civic religion as a means of avoiding the establishment of religion with more specific creeds strikes us as a contradiction that cannot be accepted." (170) A principle ground for opposition to a religious establishment, continued Justice Kennedy, was Madison's view that "'[e]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." (171) It was also the understanding, Justice Harry M. Blackmun concurred, that "[w]hen the government appropriates religious truth, it 'transforms rational debate into theological decree." Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach." (172)

Surely the appropriation of religious truth is occurring when those who most insist on having "under God" in the Pledge of Allegiance suggest that those words have no religious meaning. As the congressional sponsor of the 1954 amendment argued to the House of Representatives: "From their earliest childhood our children must know the real meaning of America. Children and Americans of all ages must know that this is one Nation in which 'under God' means "liberty and justice for all.'" (173) Of course, such dilution flies in the face of those who "would move heaven and each to keep 'under God" in the Pledge." (174) Worse, it threatens the integrity of both religion and government and ultimately marginalizes nonadherents. (175) Applying the machinery of the state in this way inevitably does more than merely acknowledge the role of religion in the nation's history. It privileges religion over nonreligion, and Christianity over all ... contribut[ing] to religious divisiveness, violating the fundamental principles behind the religion clauses." (176)

To many, "under God" in the Pledge of Allegiance may seem insignificant in and of itself and few may wish to protest such a seemingly sentimental gesture, especially when patriotism is involved. (177) But as Professor Kenneth L. Karst has observed, "[w]hen government displays the symbols of the majority religion, the members of religious minorities suffer a painful status harm." In local communities at least, this "is the road to a system of de facto religious parties," best understood by politicians who seize on "the high emotional content of these issues." (178) He concludes:

Each judicial approval of a de facto establishment adds to the fund of precedents for the next extension of official support for religion. This process to date ... not only has contributed to the sense of exclusion of religious outsiders, but has diluted the meanings of religious symbols. The result amply validates a fear long ago expressed by Roger Williams: Beasts from the wilderness of politics have repeatedly trampled the garden of faith. As politicians have appropriated religion to their oval political uses, the jungles vines of "civil religion" have strangled more than a few varieties of the real thing. (179)

IV

It does not follow from this that 'all expressions of religion in the public sphere are unconstitutional. The Pledge of Allegiance is different from many longstanding practices in the nation that would seem, at first, to evoke God in similar fashion. Unlike the legislative prayer upheld in Marsh, for example, a practice expressly approved by the First Congress, the practice of imposing a loyalty oath on the general citizenry does not date back to the founding of the Republic, but is a product of the rise of nationalism in the late nineteenth and early twentieth centuries. And the fact that the Pledge existed for 62 years (and through two world wars) without any mention of God suggests that its amendment is not "necessary to solemnize public occasions ... and encourage the appreciation of what is worthy in society." (180) Surely public occasions at which the Pledge was recited prior to 1954 were no less solemn because the two words "under God" were not uttered.

More significantly, the Pledge is unique because of its performative nature and its attendant intrusion on the right of conscience that the First Amendment implicitly protects. Merely to exchange currency emblazoned with "In God We Trust" does not imply affirmation of belief in the national motto. Neither does studying and reciting historical documents that may contain similar references to the Divine. Reciting the Pledge, on the other hand, is a declaration of belief in the principles the Pledge represents, including belief in the existence of God. A citizen's inability to recite the Pledge in the public school classroom, then, does make religious belief relevant to his or her "standing in the political community." (181) This is the very type of religious imposition the No Religious Test Clause as well as the First Amendment itself were designed to avoid.

The freedom of conscience guaranteed by the Constitution means that no governmental interest can compel the state to coerce belief. Barnette laid that down in the middle of World War II when the fate of the United States and its 'allies was very much in doubt. The fact that the Cold War upped the stakes, as it were, to the possibility that nuclear war with the Soviet Union could well destroy American society does not change that; nothing less was at stake in 1943--or, really, in 1787. And nothing should change that fundamental right today either. (182) At its essence, it comes down to this: The government cannot tell citizens what to believe, ask them to forgo their religious scruples if they do not share that belief, and put them in a position where their loyalty to country is questioned because of that. Although some will no doubt find it far-fetched to say that "under God" in the Pledge of Allegiance amounts to a religious test, it is worth remembering that the purpose of the oath requirements in the Constitution is not to protect the government from faithless citizens, but to protect the citizens from faithless government. (183)

As Justice Stone observed in his dissent in Gobitis, it is through the "teaching by instruction and study of all in our history and in the structure and organization of our government, including the guarantees of civil liberty which tend to inspire patriotism and love of country." (184) Today, that remains the best, if not the only way to foster national unity and respect for religious freedom under our Constitution. It does not coerce, but begins debate.

Notes: http://bailey83221.livejournal.com/95022.html
  • Post a new comment

    Error

    Comments allowed for friends only

    Anonymous comments are disabled in this journal

    default userpic

    Your IP address will be recorded 

  • 0 comments