The Battle Over the Pledge
Bellamy's Pledge offended various groups from the start: Jehovah's Witnesses and Mennonites, among others, objected, as any of us might, to the idolatrous worship of the symbols of state power, and believed, as any religious person might, that saluting the flag contradicted their declared fidelity to God alone, a spiritual commitment that the First Amendment's "free exercise" clause protects.
Yet, as Justice Felix Frankfurter noted--when the Supreme Court ruled in 1940 that requiring students to salute the flag and recite the Pledge was not unconstitutional--dozens of state legislatures thought the flag ceremony was a good way to instill national loyalty in a diverse school population, having them share "a common experience...designed to evoke in them appreciation of the nation's hopes and dreams, its sufferings and sacrifices.... The ultimate foundation of a free society is the binding tie of cohesive sentiment."
But Justice Frankfurter's 1940 Gobitis decision was soon re-versed, when Justice Robert Jackson wrote a ferociously eloquent opinion for a 6-to-3 majority that struck down the statutes that, post-Gobitis, had enforced salutation of the flag and recitation of the Pledge. This 1943 Barnette opinion, with its robust warning against the authoritarian coercion of belief, still holds as constitutional doctrine:
Compulsory unification of opinion achieves only the unanimity of the graveyard.... There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent....
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.
Jackson's magnificent, lucid words notwithstanding, Bellamy's Pledge continued to inspire secular sanctimony. And flag worship intensified in 1954, when the Knights of Columbus persuaded President Eisenhower to add the words "under God." Ike saw no harm in affirming that America, battling against godless Communism, was doing so "under God"--this enhanced his standing with patriotic voters. In an Ike-ish smudge of non-meaning, he added, "Our government makes no sense unless it is founded on a deeply felt religious belief--and I don't care what it is."
President Theodore Roosevelt had detested this kind of mush. When he authorized a new design for a $20 gold coin in 1907, he was relieved that no statute required the words "In God We Trust" to appear on them. To engrave the phrase on specie, this believing Christian said, "not only does no good but does positive harm," weakening the very spiritual commitment it was intended to promote. Congress, however, reflexively favoring banal religiosity, made the motto mandatory on coins, and positive harm ensued.
Newdow claims that the "under God" phrase in the 1954 Pledge violates the clause in the First Amendment reading "Congress shall make no law respecting an establishment of religion...." To "establish" a church is to make it a national or state church, but American law scarcely worries about that unlikelihood; rather, the courts repeatedly assess whether the government is favoring religion in publicly funded activities. (The basic worry is about favoring one church over another; secularists worry about favoring religion of any kind.) Does the 1954 Pledge do such a thing? The Elk Grove School District will have to argue that it does not "establish" religion.