Liberty and Justice For All

by

M. L. Ingram

It has been two years since the Ninth Circuit Court of Appeals made its controversial ruling in the Newdow case. The ruling held that the phrase "under God’’ in the Pledge of Allegiance violated the Establishment Clause of the First Amendment to our Constitution. The Supreme Court heard oral arguments in March of this year, and their ruling is expected by the end of June.

I had never given any thought to the inclusion of "under God" in the Pledge until the media frenzy that followed the Ninth Circuit’s decision. Initially, I found Mr. Newdow’s argument more compelling, and I was shocked by the invective attacks employed by many who favored keeping "under God" in the Pledge. I knew which side of the issue I was on, but I was ignorant as to why. In the intervening two years, I have researched the history and jurisprudence regarding the Religion Clauses of the First Amendment, and I have let the evidence lead the way. At first, I agreed that "under God" should be removed from the Pledge; however, my research has led me to support an even more radical conclusion. The Pledge, with or without God, is religiously divisive, and therefore, impermissible under the First Amendment’s religion clauses. A review of the Pledge’s history and of Supreme Court opinions regarding both the Establishment Clause and the Free Exercise Clause will make this point clear.

The Pledge was written by Francis Bellamy, a Baptist minister, in 1892. It first appeared in Youth’s Companion, a weekly magazine published in Boston, Massachusetts. The original text was: "I pledge allegiance to my flag, and to the Republic for which it stands, one Nation indivisible, with Liberty and Justice for all."

Approximately thirty years later, after WWI, the text was changed because some feared that certain immigrants might not be pledging their allegiance to the United States. The new version was: "I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one Nation indivisible, with Liberty and Justice for all."

In 1942, the U.S. Congress officially codified this version of the Pledge. Almost immediately, the states and their school systems mandated that each school day would start with the students standing, hand on heart, and reciting the Pledge of Allegiance.

In 1954, the Knights of Columbus, a Catholic organization, lobbied Congress to change the language of the Pledge in order to acknowledge our Country’s dependence upon God. The early Fifties being the height of the Cold War, this acknowledgement was deemed necessary to differentiate us from the godless Communists.

The intent of the legislature is always an important consideration for the Court when it determines its ruling. Consider the following legislative history of the 1954 Pledge Act.

The House sponsor, Louis C. Rabout, testified at the Congressional hearing that "the children of our land, in daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its .origins."

The Senate sponsor, Senator Ferguson, stated the following when he introduced the legislation: "I have felt that the Pledge of Allegiance to the Flag of the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic.... This is not an attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God, in whom we sincerely repose our trust."

Also, consider the comments of President Eisenhower during the Act’s signing ceremony: "From this day forward, the millions of our 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."

From the above comments, it is clear that the intent was to include within the Pledge’s patriotic message the acknowledgement of God’s existence and His divine intervention into worldly affairs. This is clearly an act of government endorsement of a particular theological position. Also, the Congressional sponsors and the President were aware that the Pledge and its new religious message would be daily recited in every school classroom throughout the Nation. These facts will bear heavily upon the reasoning of the Court when they are considering the Newdow case.

The Establishment Clause

Senator Ferguson commented that the Pledge Act was "not an attempt to establish a religion...." His comment in indicative of the narrow interpretation of the Establishment Clause. The First Amendment starts with: "Congress shall make no laws respecting an establishment of religion,..." Those who support the narrow interpretation consistently insert "a" between "of" and "religion." Their version reads: Congress shall make no laws respecting an establishment of a religion. Thus, so long as the government does not establish an official state religion, it has not violated the Establishment Clause. However, the Supreme Court has in most, but not all, of its cases interpreted the Establishment Clause in broader terms. Where the narrow interpretation prevents government from favoring one religion over another, the broad interpretation calls for government to be neutral not only among religions, but between religion and nonreligion, between belief and disbelief.

In 1947, the Supreme Court, in Everson v. Board of Education of Ewing Township et al., upheld a New Jersey statute that provided reimbursement to all parents of school children who spent money on bus fare in order to get their children to school. The money was available to parents of both public and parochial students. Arch R. Everson challenged the statute on the grounds that the program diverted tax dollars to support parochial schools. The Court rejected this argument, citing that the statute served the secular public purpose of the safe conveyance of school children, and that the tax money went to the parents, not the parochial schools.

Everson was a landmark case. In the opinion, Justice Black made the first attempt at defining the meaning of the Establishment Clause. "The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." This definition served to broaden the interpretation and became further refined through time. In the early Sixties, the Court struck down state statutes which permitted Bible reading and prayers in public schools.

The Everson definition served as the basis of Establishment Clause jurisprudence from 1947 until 1971. In Lemon v. Kurtzman (1971), the Court refined the bulky definition into a concise three-prong test, the Lemon test: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." Under the Lemon test, a failure to meet the conditions of any one prong will invalidate the statute in question.

The Endorsement Test was first written in a concurring opinion in Lynch v. Donnelly and then used in the majority opinion in County of Alleghany v ACLU (1989). Both cases concerned the crèche – nativity – as part of Christmas display. In Lynch, the Court ruled that the crèche was appropriate because it was only a small part of a larger display "with other secular pieces such as Santa Claus, his reindeer, candy canes, etc." But in Alleghany, the Court ruled the crèche an unconstitutional endorsement because it was displayed by itself in the main hall of the County courthouse. It is interesting to note that the Christian holy day celebrating the birth of Jesus Christ has become a secular event. This highlights the danger of mingling State with Church and Church with State. Neither party will benefit.

The Endorsement Test reads as follows: "The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions.... The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

The final Establishment Clause test comes from a 1992 case, Lee v. Weisman. The Coercion Test recognizes the special care that must be taken when considering the Establishment Clause and school age children. Lee regarded a Providence, Rhode Island policy that permitted "public high school and middle school principals to invite members of the clergy to offer invocation and benediction prayers as part of the school’s formal graduation ceremonies." The Court found this policy to be unconstitutional. "Noting that there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools, the Court held that the school district’s supervision and control of the graduation ceremony put impermissible pressure on students to participate in, or at least show respect during, the prayer. The Court concluded that primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting."

The Court could have used the Endorsement Test to invalidate the invocation and benediction policy, but instead chose to stress the coercive effect of social conventions and peer pressure. In choosing to employ this line of reasoning, the Court acknowledged the anti-majoritarian principles upon which the Establishment Clause was founded. Justice Kennedy eloquently stated: "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."

Even the conservative Justice Scalia notes the significance of the school setting. Justice Scalia dissented from the finding of the Court in Lee. He reasoned that coercion was not present because the students were not compelled by threat of punishment to attend the graduation ceremony. However, in his dissent, he noted some very interesting ideas relating to the facts of the Pledge case.

First: "We have made clear our understanding that school prayer occurs in a framework in which legal coercion to attend school (i.e. coercion under threat of penalty) provides the ultimate backdrop. In Schemp, for example, we emphasized that the prayers were ‘prescribed as part of the curricular activities of students who are required by law to attend school."

Next: "Our School prayer cases turn in part on the fact that the classroom is inherently an instructional setting, and daily prayer there – where parents are not present to counter the student’s emulation of teachers as role models and the children’s susceptibility to peer pressure – might be thought to raise special concerns regarding state interference with the liberty of parents to direct the religious upbringing of their children."

Finally: "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family."

Justice Scalia does not dissent from Lee because he does not accept the Coercion Test’s validity. His statements attest to the acceptance of the coercive effects in school settings. He dissents primarily because attendance at the graduation ceremony in question is not required by law.

To summarize at this point, there are three modern Tests that can be applied to the Pledge of Allegiance. If we apply these tests to the 1954 Pledge Act, we will undoubtedly find that Congress violated the Establishment Clause by adding "under God."

First, under the Lemon Test’s first prong, the secular purpose prong, the legislative history proves there were religious motives to amend the Pledge. Thus under Lemon, the Pledge Act is invalid. Next, the phrase "under God" implies that one god exists, and that this god is involved in national, if not worldly affairs. At a minimum, the phrase places a governmental endorsement upon monotheism. Thus polytheist, pantheists, and atheists are all rendered as "outsiders, not full members of the political community" in a monotheistic society. Finally, under the Coercion Test, the amended Pledge places dissenters in the dilemma of either participating or protesting the Pledge’s daily recital.

If the only consideration was the Establishment Clause then the case would be done at this point. Remove the religious reference added in 1954 and the Pledge could be an appropriate patriotic exercise with which to start each school day. However, the Establishment Clause in immediately followed by the Free Exercise Clause.

"Congress shall make no laws respecting an establishment of religion, nor prohibit the free exercise thereof...."

When Congress codified the Pledge of Allegiance in 1942, the states and their school systems mandated that each school day was to be started with the recitation of the Pledge. All students were compelled by state law or school board policy to join in the recitation, no exceptions. Noncompliance could be punished by expulsion from school. This led to the first Constitutional challenge of the Pledge. In 1943, the Supreme Court heard West Virginia State Board of Education v. Barnette. Barnette was a Jehovah’s Witness who objected to the Pledge because his religious faith held it to be an act of idolatry.

The Court had to consider the ramifications of mandatory Pledge recitation and the Free Exercise Clause. They ruled in favor of Barnette, and from that time forward, any student who objected to reciting the Pledge could leave the room or remain seated and silent without threat of punishment. In the majority opinion, Justice Jackson stated: "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 their faith therein."

Under the Free Exercise Clause, the Court has interpreted it to grant absolute freedom of belief, but the freedom to act on beliefs is limited. The earliest case limiting free exercise was. Reynolds v. United States. Reynolds involved the Mormon practice of polygamy, and the Court ruled against this practice. Later cases have involved drug use as a religious exercise and medical treatment for minor children. In these cases, the Court has consistently limited the freedom to act upon religious beliefs.

The Barnette case was brought before the Pledge was amended in 1954, and even if the Supreme Court affirms the Ninth Circuit’s opinion, the Pledge will still remain religiously divisive. Jehovah’s Witnesses, Hebrew Israelites, and some orthodox Christian sects will still object to the Pledge’s idolatrous aspect. And while the opt-out condition was applied in Barnette, it can no longer be considered valid in light of the Coercion Test. While the Coercion Test holds that it is impermissible to put a primary or secondary school student in the dilemma of participating or protesting a religious exercise, the obverse should also hold true. It should be just as impermissible to place the Jehovah’s Witness or Hebrew Israelite student in the dilemma off participating or protesting the Pledge recitation based upon his or her deeply held religious convictions.

The Bill of Rights was added to the Constitution to protect individual liberties from government encroachment. The first issue addressed in the First Amendment was the freedom of religion and conscience. The Establishment and Free Exercise Clauses were intended to forever put beyond the reach of a fickle and changing majority of the electorate the personal matter of religious belief or disbelief. Those who wish to keep God in the Pledge want to keep that government endorsement of their position, even if that violates the constitutionally guaranteed rights of others. Those who wish to keep the Pledge and remove "under God" are closer to the ideals embodied within the Bill of Rights. None have sought to change the Pledge to read "under many gods" or "under no god." However, to truly promote "Liberty and Justice for all," the Pledge itself, with or without God, must go. If the purpose of the Pledge of Allegiance was to promote patriotism, then we can replace it with other means of instruction. Teach our younger children about the fundamental principles upon which our Nation was founded: equality, liberty, and justice. Assign the older students an essay describing "Why I love America." Even if the student uses the essay to express his dislike of America, he has been taught a valuable lesson in the freedom of speech that he enjoys as an American.