Pledge of Allegiance: Legal and Social Aspects, History and the Future Essay

Introduction

The words within the Pledge of Allegiance; ‘one nation, under God, indivisible’ are indeed a divisive statement that has polarized both the public and the justice system. Those opposed to schoolchildren being obliged to recite the words ‘under God’ as a routine classroom ritual claim that is a clear violation of the First Amendment in that it expresses a connection between church and state. In addition, kids of all faiths are pressured to pledge this oath to a Christian God and thereby accept that the Christian religion is the anointed national faith. The phrase amounts to forced prayer in public schools. Proponents of the controversial phrase argue that the country was founded on the concept, most Americans do not have a problem with it, and that it is simply an innocuous acknowledgment of the nation’s historical foundations. This discussion examines both legal and social aspects of the Pledge of Allegiance, its history, and the future prospects of a Constitutional Amendment that allows its lawfulness.

History of the Pledge

Francis Bellamy is credited with penning the Pledge of Allegiance in 1892, at least the original incantation. Bellamy, as chairman of the state superintendents committee, was charged by the National Education Association with coordinating the nationwide observance of Columbus Day in public schools. The year 1892 was the 400^th anniversary of the historic cross-Atlantic voyage which prompted the special celebration. The central activity was a formal flag-raising observance that featured the reciting of Bellamy’s ‘Pledge.’ It’s been a practically sacred tradition in American public schools since then. The Daughters of the American Revolution in conjunction with the American Legion voted to alter the Pledge during its National Flag Conference in 1923. Bellamy’s original ‘my flag’ was changed to ‘the flag of the United States of America.’ Another social group, the Knights of Columbus was responsible for the ‘under God’ addition following a successful lobbying campaign to Congress in 1954 (Baer, 1992).

Was America founded ‘under God’?

The Founders of the country were mindful of the religious oppression and the cruelty imposed on individuals considered heretics and non-Christian groups throughout not only the bloody history of Europe but the British American colonies as well. The Foundering Fathers’ efforts to create ‘a more perfect union’ included, among other innovations, promoting tolerance to and from religion. They desired to “create a tolerant society that would allow all citizens to believe or disbelieve any religion, theology, or philosophy they wanted without fear of state religious favoritism, prejudice, coercion, or retribution” (Schafersman, 2003). While some might offer evidence to the contrary, most agree that the U.S. was never intended by the Founders to be a Christian nation much as, for example, Iran is a Muslim nation. The confusion for some is the differentiation between the first settlers and the framers of the Constitution. The early immigrants to the ‘new world’ were largely Puritans who desired the liberty to worship as they wished and many envisioned America as being a Christian haven. Many of the early settlements’ bodies of government were theocratic and allowed only one type of religion to be worshipped within its boundaries. Old European traditions were followed in this early American period such as the burning of witches. This was how the colonies began but not the country. The American Revolution and the subsequent writing of the Constitution was a new chapter in the history of the European occupation of America but the first chapter in U.S. history. A minority of delegates to the Constitutional Convention lobbied for some mention of Christianity within the structure of the Constitution but this concept was soundly rejected by the majority of members, most of whom were Christians themselves. The delegates deliberately constructed the Constitution as a secular document (Morgan, 1999).

According to those that dispute the majority opinion of both contemporary Constitutional scholars and the Founders alike, the First Amendment to the Constitution provides evidence that religion was not intended to be muffled in any way and could be expressed freely by those that chose to which includes individuals and institutions such as schools. It is a minority opinion but a compelling one. The separation of church and state certainly does not prevent a politician from speaking publicly regarding their faith in God or acting following their Christian beliefs. Political and ecclesiastical power is separated within the Constitution but nothing within the document intends to separate God from America. Those individuals who feel the nation was formed ‘under God’ argue that the nation’s laws were essentially a redraft of the Ten Commandments; they were lawmakers’ acknowledgment of their obligation for their political actions to be consistent with God’s will. “By making laws for the nation which conformed to the Higher Law of God, legislators acknowledged that this was a nation ‘under God’” (Craig, 2007).

Is the Pledge un-patriotic?

The precepts of the Founders regarding religion endured until the 1950s. During this time in American history when the ‘red scare’ was at its height and McCarthyism flourished, Congress added the phrase ‘under God’ to the Pledge of Allegiance and changed the national motto to ‘In God We Trust’ which appears on every piece of currency. These momentous and many would argue unconstitutional steps were meant to draw distinctions between democracies and communism which were illogically perceived to equate with atheism. By its rather knee-jerk reactions, Congress had decided to emulate instead of opposing the oppressive tactics of Communist regimes it so loudly condemned. Whenever a schoolchild recites the Pledge or money is exchanged in the U.S., it is an expression of a federally mandated belief in God. Though the Constitution forbids the conversion of the country to a Christian nation, it is obvious to any outside observer that both the Pledge and the currency are clear indications of a monotheistic government. This fact is not as clear to American citizens, however. A country that imposes certain religious beliefs is acting in a coercive and authoritarian manner that would rival any communist regime. The U.S. does not prosecute those that refuse to express the state-sanctioned religion as might a communist nation but those that deviate from belief are certainly persecuted in the form of coercion and ostracism. “Communist and fascist states admittedly persecute religious believers whose beliefs oppose the states’ ideologies, but this is no different than the persecution that religious nonbelievers face in the United States whenever the Pledge is recited” (Schafersman, 2003).

Does the Pledge sanction religion from a legal standpoint?

Constitutional experts, justices, and the public alike debated at length whether the Pledge is simply a patriotic vow or constitutes prayer in public school. The Ninth U.S. Circuit Court of Appeals in June of 2002 decided that the Pledge could not be led by teachers in public schools within its nine-state jurisdiction. The Court ruled that the policy of reciting the Pledge was coercive within the context of it being directed by an authoritative figure to impressionable children in a school setting. This authoritative figure, the teacher, is an employee of the state thus an extension of the government who directs the students to acknowledge the existence of God while stating an oath. The matter was constitutionally hazy and significant enough for this historic case to be accepted by the Supreme Court who reversed the Appeals Court ruling by an 8-0 vote in 2004. The case was not ultimately decided on its legal merit. Five of the eight justices (Justice Scalia did not participate) made their decision based on a procedural issue. The father who sued the school district on behalf of his child could not legally do so because he did not have legal custody of the child. “It is true that ‘under God’ remains part of the (voluntary) Pledge of Allegiance but not because the Court said ‘make it so.’ Indeed, five of the eight voiced no opinion as to the validity of the suit but instead ruled only on standing” (Mears, 2004).

The First Amendment and the Pledge

Following the Ninth Circuit ruling essentially abolishing the Pledge in public schools due to it violating the First Amendment guarantee regarding religious freedoms, the U.S. Justice Department formally requested that the Supreme Court overturn the lower courts’ ruling. The Justice Department’s central argument was that the Pledge was nothing more than a history lesson. Although the fact that the Department was involved to the extent it was, in this case, was disturbing to some as was its ‘legal’ interpretation of the Constitution related to the Pledge, the majority of Americans are of a similar opinion. A survey conducted in 2003 demonstrated that nearly three out of four Americans felt that the phrase ‘one nation under God’ was “primarily a statement related to the American political tradition” (Paulson, 2004). Less than 20 percent thought it is “primarily a religious statement” (Paulson, 2004).

Those who do not acknowledge a contradiction between the First Amendment and the reciting of the Pledge in schools, evidently about 75 percent of the nation, maintain that the Establishment clause should not be interpreted in a way that would disallow the government or an extension of it from expressing the fundamental ideologies upon which its society and laws are founded simply because these principles emanate from religious origins. “If the court were to prohibit the government from affirming underlying principles with religious content, it would render unconstitutional the Declaration of Independence and the Virginia Act for Religious Freedom, both of which expressly rely upon particular religious propositions” (“Pledge of Allegiance”, 2004). This stance seems to be the will of the people even though some would argue that it is in opposition to the concept of religious freedom. Schoolchildren surely feel pressured to state the Pledge without disagreements to avoid ostracism by their peers. This amounts to coercion thus religious oppression and in violation of the Constitution.

Court theories and tests of religion regarding the First Amendment

Religious Establishment Clause cases have generally been determined based upon the majority opinion of Chief Justice Burger in Lemon v. Kurtzman in which he ruled that government funds cannot be used to subsidize the pay of Catholic school teachers. In his opinion, Burger established a test for future Establishment Clause cases based on prior Supreme Court decisions he referred to as the ‘cumulative criteria.’ “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” (Suyes, 2006). Burger stated that if any of these principles are violated by actions of the government or existing law, this action or law should be found to be unconstitutional.

This ‘litmus test’ of constitutionality has not been utilized in all Establishment Clause cases. Some, such as the 2002 decision by the Ninth Circuit, are better suited for use of the ‘endorsement test,’ where the constitutional validity of state-endorsed acts is based on what the ‘reasonable observer’ would judge to be the government’s endorsement of a particular religion. This 2002 decision could also fall within the realm of the coercion test. Related to the endorsement test, the coercion test would judge unconstitutional under provisions of the Establishment Clause, the actions by the government that resulted in the coercing of, support of, or the participating in any religion. Some decisions have been based on the ‘governmental neutrality’ method which seeks a balance between respect for the expression of religion and the right not to express religious beliefs. This approach attempts to establish that the governments’ relationship with religion is one of “benevolent neutrality which will permit religious exercise to exist without sponsorship and interference” (Suyes, 2006). The Supreme Court in yet other cases has understood that the state and church cannot always remain completely separated. A connection between these two entities can exist within the law provided that the government does not become excessively entangled in religious affairs.

Constitutional Amendment to protect the Phrase ‘under God’

Whenever the issue regarding the constitutional legitimacy of the ‘under God’ portion of the Pledge surfaces, politicians in both houses of Congress vigorously demand that a Constitutional amendment be drafted that would ensure ‘under God’ cannot be removed by either a federal court or by the court of future public opinion. The Framers of the Constitution would likely be somewhat disappointed but entirely amused by the political pandering of calling for such an amendment. They crafted the Constitution knowing that amendments would be necessary but also knew that there would be those that attempted to undermine the principles of the country’s founding document. Therefore, they made it difficult to amend. Had they not, amendments would be passed whenever emotional, politically-charged subjects arose which would ultimately prove incompatible with other amendments as well as the original document itself, as is the case of an ‘under God’ amendment, thus making the Constitution worthless. The founders were right. In the past 200 years, at least 10,000 sincere attempts to amend the Constitution have been proposed yet, of these, only 17 have been ratified because of the safeguards built into the system. Several attempts have been made to weaken the establishment clause via Constructional Amendment but, thanks to the difficulty of the process and the forward-thinking of the Founders, all attempts have been in vain.

From 1890 to 1910 alone congressional members proposed no less than a dozen amendments that would enjoin the Christian religion into the Constitution. The majority of these declared Jesus as the country’s ‘spiritual leader’ and the Bible the principal document determining societal behavior. Though at this period in history religious fundamentalism was reaching its peak and the idea was popular among American citizens, these proposals, much as many others like them, did not become the law of the land. This was because, during the long ratification process, individuals came to realize the value of the Constitution which was never intended by the Founders to be altered simply because of a divisive, zealous issue. A contemporary example of a proposed amendment that enjoyed widespread support but did not survive a Senate vote much less sent to state legislators for a ratification vote is a flag-burning ban. “Although the proposed (flag burning) amendment has the support of more than 90 percent of all Americans, amendments, as the Founding Fathers intended, should not be enacted because the people are inflamed about an issue” (Brasch, 2002). Brought to the floor of the legislature to invoke patriotic emotions thus increase voter turnout for the political party that introduced the proposal, it predictably failed as it likely always will.

Conclusion

It is more than slightly astonishing that the American public would entertain the thought of a Constitutional amendment that would legally enforce the words ‘under God’ in the Pledge of Allegiance. In effect, those that would support such an amendment feel stronger about a document written as part of a public relations stunt to honor Christopher Columbus who brought disease and oppression to Native American peoples and did not ‘discover’ America much less the future lands of the U.S. than they do the Constitution. The Pledge was not a creation of the Founders and the ‘under God’ phrase a reactionary response to the perceived threat of communist influence. Among the many ironies surrounding this issue, the Constitution protects a citizen’s right to be a communist. Many suggest the Founders of the nation intended to incorporate religion into the fabric of the national conscious and legal system because they used words such as ‘endowed by their Creator with certain unalienable rights’ but the Founders understood that a government-operated from a secular foundation rather than from religious ideals will sustain a workable democracy. It’s a lesson they learned from the theocratic regimes of Europe and built into the Constitution. It’s a lesson their descendants haven’t seemed to grasp even 250 years later.

References

Baer, Dr. John W. (1992). “The Pledge of Allegiance: A Short History.” History Vineyard. 2007. Web.

Brasch, Walter. (2002). “Protecting America Against Partisan Zealousness.” CounterPunch Magazine. (weekend edition). Web.

Craig, Kevin. (2007). “A Nation ‘Under God’ No Separation of True Religion and Government.” Craig for Congress. Web.

Mears, Bill. (2004). “Court Dismisses Pledge Case.” CNN. 2007. Web.

Morgan, Bill. (1999). “First Amendment Symposium: The Establishment and Free Exercise Clauses.” Georgia College & State University. 2007. Web.

Paulson, Ken. (2004). “Two words separate sides in Pledge of Allegiance battle.” First Amendment Center. 2007. Web.

“Pledge of Allegiance and the First Amendment.” (2004). Public Justice Report. The Center for Public Justice. 2007. Web.

Schafersman, Steven. (2003). “The Pledge of Allegiance: America’s Little Hypocrisy.” Free Inquiry. 2007. Web.

Suyes, Joanna L. (2006). “An Examination of the United States Supreme Court’s Recent Establishment Clause Rulings in McCreary County, Ky. v. American Civil Liberties Union 1 and Van Orden v. Perry 2.” Richmond Journal of Law and the Public Interest. 2007. Web.