The Battle Over the Pledge

The Battle Over the Pledge

It’s offended people from the start; now the Supreme Court will wade in–again.


The loss of precision in spoken or written language is not, I suppose, the worst problem we face, compared with so many other distressing developments in our national life. But the consequences can include real political harm. Take, for example, a pesky case on which the Supreme Court will hear arguments on March 24: Elk Grove Unified School District v. Michael A. Newdow, which has generated a great deal of linguistic chaos.

In the summer of 2002 Michael Newdow, a pro se appellee with several bees in his bonnet about family law, religion and government, won a 2-to-1 victory in the Ninth Circuit Court of Appeals, where Judge Alfred Goodwin agreed with him that schoolroom recitation of the Pledge of Allegiance, with the 1954 addition of “under God” to its text, violates the establishment clause of the First Amendment. The Ninth Circuit then amended this decision; the school district appealed; the circuit court refused to rehear the case in a murky fluster of judicial action that showed its members at loggerheads with one another and with another Pledge ruling in the Eleventh Circuit; and judges delivered papers “concurring partly” and “dissenting partly” with their colleagues. The Rehnquist Supreme Court itself is partly to blame for the muddle, since it’s been handing down divided, inconclusive decisions, in this as in other areas, for years.

I’m only an amateur of constitutional history and the Pledge controversy, but you don’t have to be an expert to notice how language gets misused in Newdow. Lawyers, judges and commentators carry on, as they have for decades, without there being much agreement on the meaning of the words they contest or interpret–“Establishment,” say, or “Pledge.” “Prayer.” “God.” Or “under.” Clouds of sanctimonious verbiage billow in the public space–from ardent atheists like the plaintiff and his supporters, and from hypocritical Christian Republicans who are eager to have this case heard at the highest level.

To cut through the semantic fog, we can start by asking, What is the Pledge of Allegiance and where did it come from? Grammar school is where you’re supposed to learn not only how to write and speak (the grammar part) but also the words and texts of our shared civic life. No surprise, then, that it was a schoolteacher, Francis Bellamy, who in 1892 arranged to have children observe the 400th anniversary of Columbus’s landing with a little ceremony that centered on a “pledge of allegiance” to the Stars and Stripes that he had written. (It nowhere mentioned God.) Bellamy, chairman of a committee of state superintendents of education, was able to insure that his mini-liturgy of American triumphalism was installed as a regular feature of public-school life.

A utopian socialist like his cousin the novelist Edward Bellamy, he composed the Pledge, he explained, in “an intensive communing with salient points of our national history, from the Declaration of Independence onwards; with the makings of the Constitution…with the meaning of the Civil War; with the aspiration of the people.” He had wanted to segue from “one nation indivisible” (“we must specify that it is indivisible, as Webster and Lincoln used to repeat in their great speeches”) to “the historic slogan of the French Revolution which meant so much to Jefferson and his friends, ‘Liberty, equality, fraternity'”–but he realized one couldn’t celebrate equality in American life: that “would be too fanciful, too many thousands of years off in realization.” Regretfully, he omitted the middle term, though he thought the other two were safe and sound: “we as a nation do stand square on the doctrine of liberty and justice for all.” (Did he think that justice insured “fraternity”?) Certainly his bighearted words express a more attractive national ideal than flags have sometimes inspired elsewhere.

Bellamy was well connected, and soon his Pledge of Allegiance was being recited by students all across the country. Over the years, as US soldiers followed the flag into foreign wars in Cuba, the Philippines and France, and as millions of Asians, Slavs, Italians, Greeks and Jews flooded into a once primarily Anglo-Saxon nation, militaristic flag fever grew, along with allegiance to the Pledge. By the mid-1920s, when nativist opposition to new immigrants prevailed in the National Origins Act, shutting the door to many nationalities and imposing strict quotas, a new Federal Flag Code explained how the flag was to be treated and the Pledge of Allegiance to it recited: the rules of a new secular religion.

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.

Fundamentalist Protestants and conservative Catholics oppose Newdow because they want this godly Pledge affirmed as constitutional, but the truth is that they also believe it favors religion–and should. They are confident that America functions “under God,” that the Founders believed this and that we should say so out loud. Take the Roman Catholic Justice Antonin Scalia. Blithely misinterpreting two centuries of post-Enlightenment political philosophy, he claims “that government–however you want to limit that concept–derives its moral authority from God,” that this was “the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy.” His bizarre argument appeals to “people of faith” not to resign themselves to this deplorable “tendency of democracy to obscure the divine authority behind government” but “to combat it as effectively as possible.” Americans have already done this, he claims, “by preserving in our public life many visible reminders that–in the words of a Supreme Court opinion from the 1940s–‘we are a religious people, whose institutions presuppose a Supreme Being.'” (It was Justice William Douglas in 1952, but never mind.) Look at “In God We Trust” on our coins and in our courtrooms, he says; “one nation, under God” in our Pledge of Allegiance, “the opening of sessions of our legislatures with a prayer.”

True, the Founders believed that all humanity lived “under God,” but, as Jackson knew and evidently Douglas did not, as people of faith know and evidently atheists do not, this abstract deism in no way resembles the belief that God created the United States and speaks through its institutions. As good eighteenth-century deists the Founders respected the concept of an Almighty Being under whose aegis and according to whose laws the world turns, but they risked their lives for the principle of government created not by divine powers but by ordinary people using their human intelligence and reason. The US Constitution and Bill of Rights, which never mention God, are the great and crowning glories of the secular Enlightenment.

All too many interpreters since 1954–deaf to these distinctions and trying to be broad-minded–have said, along with Eisenhower, that public mention of God, which is considered anodyne, should be permitted out of fidelity to our national origins. So fine a Justice as William Brennan argued nonsensically that “ceremonial deistic” language is constitutionally permissible because it has become essentially meaningless. These weak proponents of “In God We Trust” rhetoric, unwittingly enslaved to imprecision of meaning, do little to combat the blunt reactionary arguments that distort our Founders’ beliefs.

There are other angles to worry about. Thanks to the Barnette decision, no child can be compelled to recite the Pledge, but Newdow says that merely hearing the word “God” in it makes an atheist feel excluded from the polity whose citizens “worship God.” The Court must decide whether this aural experience is indeed coercive. Newdow’s victimization thesis is popular: Think how much of our culture today attributes high moral value to claims of oppression, exclusion, exploitation. Yet contrary to what Newdow says, the Pledge of Allegiance doesn’t begin to express the spiritual nature of most Americans’ civic life.

The meaning of the word “God” is also up for grabs: Atheists flail about trying to define the abhorrent thing, while Judge Goodwin petulantly imagines it as a singular Judeo-Christian noun offensive to polytheists. His view seems more opinion than fact, as lawyers say, but he has supporters.

Secularists also argue that since prayer is banned in public schools and the Pledge has become a sort of prayer, it should be banned, too. Here again we’re in the realm of non-meaning. To pledge is “to recognize the obligation of fidelity” to something, in this case “the Flag of the United States and the Republic for which it stands”–self-evidently a secular act. This is very different from making “an earnest and devout entreaty of a deity,” effecting “a spiritual communion with God as in praise, thanksgiving, contrition or confession”–a religious act. The Pledge of Allegiance would be a prayer (or oath, as its atheist opponents and military supporters often describe it) only if the flag itself is worshiped as a symbol of transcendent authority. This may be happening, of course.

Meanwhile, millions of Americans who are religious but not fundamentalist (one reliable poll says roughly half of us), including Christians, Jews, Muslims and Buddhists, are just as edgy as atheists are about the God talk, and they deplore what we might call the Scalia-Falwell position. A Baptist minister in the South recently wrote, echoing TR, “Giving lip service to God does not advance faith, it cheapens it. It takes the language of faith and reduces it to mere political rhetoric. Language that has the power to heal and mend should never be treated so callously.” The voices of millions of believers who dislike noisy declarations of faith in the public square and noisy ministers in the White House have not (yet) been heard. The middle ground, where many of us still dwell, as our deist Founders did, wishing to honor both the life of faith and the idea of a secular government, is treated as if it had disappeared.

Nor has anybody stepped back to ask, Do we really need this Pledge of Allegiance, and if so, why? Frankfurter and Jackson posed and answered this question–in wartime, too–and on March 24 the Justices will take it up again. In my opinion the Pledge deserves to be shorn of its quasi-sacrosanct status as well as of the “under God” phrase, but I may be a minority of one.

Fundamentalist Christians and their friends in Washington are keen to have Newdow heard precisely so they can discredit the secular presumptions they detest and affirm the kind of belief Scalia cherishes. One fears they may want to use the case as a lever to shift the balance; once the Supremes assure them that the Pledge with “under God” in it is constitutional, then local teachers and politicians sympathetic to them might try to amplify it into more openly Christian, even Jesus-specific, formulations. They have a President in the White House who listens to them, a Justice Department sympathetic to their aims, a Solicitor General who is close to some of their principal agents–in short, a perfect political situation in which to further their cause.

For the Bushies and the religious right, Newdow is a perfect opponent, and they’re piling on. He’s an atheist and proud of it; he didn’t marry his daughter’s mother and didn’t have custodial rights when he started his litigation; moreover, the mother, Sandra Banning, is an evangelical Christian who says her daughter doesn’t mind the Pledge. While Newdow’s initial case was wending its way through courts in various jurisdictions, he created a legal tangle over parental rights; when the California school district where his daughter is a pupil appealed Judge Goodwin’s ruling, it also challenged Newdow’s standing to have a say in her education. The Supreme Court ordered briefs and argument on that issue, and asked Solicitor General Theodore Olson to file an amicus brief in the school district’s case.

Thus far, Olson has argued that the “under God” phrase in the Pledge is an “official acknowledgment of our nation’s religious heritage,” analogous to “In God We Trust” on coins and bills. Here we go again: This is the “ceremonial deism” or “historically verified foundationalism” that Scalia approves of for his own dark reasons and that Brennan and Douglas accepted. Olson adds, in a sleazy bow to creationists, that the Pledge phrase can’t be any more offensive to some pupils than teaching modern science is to others: “Public schools routinely instruct students about evolution, war and other matters with which some parents may disagree on religious, political or moral grounds.”

Thank the lord, though (as we say), Justice Scalia is out of the picture. Speaking at a Religious Freedom Day rally organized by the Knights of Columbus in Fredericksburg, Virginia, a year ago, he derided the Ninth Circuit’s Newdow decision as an example of constitutional misinterpretation. Justices aren’t supposed to comment on cases that might come before them on which they haven’t yet heard full briefs and arguments, so Newdow requested that he recuse himself, and Scalia agreed. We know about the cases from which he refuses to recuse himself; perhaps he has calculated that this one is safe without him.

Secular liberals and church-state separationists supporting Newdow gloomily anticipate that, yes, the Court will uphold the school district’s appeal. Twenty groups, including People for the American Way, the ACLU, and Americans United for Separation of Church and State, have gamely filed amicus briefs for Newdow and will watch warily as this peculiar father argues his own case, but for them, it’s a pain in the neck: They have gay marriages and abortion rights to worry about; even if a godly Pledge is entrenched in our schools as a patriotic litmus test, they think of this as fighting a major battle on a minor front.

For the fundamentalists and their friends in Washington, there are no minor fronts in this political war, and an election is looming. Amicus briefs supporting the school district have poured in from dozens of organizations, including the Senate and House of Representatives, and the governors’ offices of California and Idaho. Republican politics have swirled around the case from the get-go. (In 2002, Republicans attacked Governor Gray Davis for not being vigilant enough about the Newdow “threat.”) And here comes the American Legion, the Knights of Columbus and the Pacific Legal Foundation, a conservative outfit. Then there’s the Christian Legal Society, a group of lawyers who want more Jesus in public debate, whose brief has been joined by the Center for Public Justice, a well-known right-wing group. The Ethics and Religious Liberty Commission of the Southern Baptist Convention, proud of its inside dealings with the Bush White House, was a player in the drama to begin with, as was the National Association of Evangelicals, but they are now in the wings. Still, their presence is felt. “You’re not going to run into too many people who are smarter than Karl [Rove],” Richard Land, its president, has said. “Karl understands the importance of this segment of his coalition, and I think the President understands it.” Looking out for the mother, Sandra Banning, is Kenneth Starr, Solicitor General Olson’s pal and former law partner. Now, how did that come about?

The list goes on: Phyllis Schlafly–no party complete without her–of the Eagle Forum Education & Legal Defense Fund; and my favorite, the Rutherford Institute, “a tiny foundation on the far shores of the right wing that advocated a literal interpretation of biblical scripture as a replacement for civil law,” as one chronicler described it. We last heard of the Rutherford Institute when it was supplying lawyers for Paula Jones in 1998–lawyers who benefited so nicely from their proximity to friends in Ken Starr’s independent counsel office.

Many of these same political activists turned up in November to celebrate President Bush’s signing of the “partial birth” abortion ban. About this happy moment, Jerry Falwell, in a burst of characteristic hogwash, wrote:

After having a wonderful time of fellowship with President Bush, the president asked if we could all join hands and pray that God will bless our efforts to preserve life in our land. What an astounding moment this was for me personally. Standing there in the Oval Office I felt suddenly humbled to be in the presence of a man–our president–who takes his faith very seriously and who seeks the prayers of his friends as he leads our nation. Following the prayer, I told President Bush the people in the room represent about 200,000 pastors and 80 million believers nationwide, who consider him not only to be our president but also a man of God. He humbly turned to me and replied, “I’ll try to live up to it.”

The bold calculation of electoral power, the canny conflation of a sectarian agenda with divisive presidential politics, the syrup of piety poured over both–this is Bush’s America, a country where fundamentalism thrives in the chaos of non-meaning in secular public space. Richard Land has said, “We’re in this for the long haul, and the people on the other side had best understand…we’re winning.” I’m not sure about that, but to prove him wrong we have to be sure we say what we mean, and mean what we say–on the campaign trail, in Congress and in our courts.

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