Under God Freedom
C. Welton Gaddy November/December 2002
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The timing was at the very least a guaranteed attention-getter: one week before this year's Fourth of July celebrations, the Ninth Circuit Federal Court of Appeals ruled that recitation of the Pledge of Allegiance to the Flag of the United States of America in public school classrooms constitutes an unacceptable state endorsement of religion. Reactions were immediate and loud, and they were almost universally negative. Emotion trumped reason. Attempts to understand the ruling fell away before effusive denunciations of the court even by leaders at the highest levels of the nation. Senate majority leader Tom Daschle (D–S. Dak.) called the decision "just nuts." President George W. Bush labeled the ruling "ridiculous."
Clearly this is no ordinary court ruling? Do the words "under God" in the Pledge of Allegiance represent a boast of special national status, a prayer for divine blessing, a declaration of personal faith-based patriotism, or a mantra of civil religion? Can there really be an establishment of theistic religion in a nation whose Constitution prohibits the establishment of a national religion? And does the religious integrity of the nation stand or fall with the legal status of a religious reference in a civic, patriotic statement?
Frankly—as a Christian minister who values religion, gives thanks regularly for the principle of religious liberty, and supports interfaith cooperation in public life as the best way into a meaningful future—I found most of the public reaction to the Ninth Circuit Court's decision to be as disturbing as the decision itself.
Legal Concerns Related to Liberty
The California-based federal court's decision was hardly the first time that the judiciary has ruled on the legality of the recitation of the Pledge by public schoolchildren. In West Virginia v. Barnette,1 a court overturned a precedent decision of just three years (Minersville School District v. Gobitis),2 in deciding that public schools could not compel students to participate in flag salute ceremonies that violated their religious liberty.
Of course, in Newdow v. U.S. Congress, the most recent case decided by the Ninth Circuit, the issue was not a compulsion for students to recite anything. Mr. Newdow wanted his daughter to be able to join her classmates in a recitation of patriotism that did not force her simultaneously to make a confession of theistic belief endorsed by the state—a reasonable interest, as he saw it, when viewed from the perspective of the Constitution's guarantees related to religious freedom.3
Indeed, what was going on here?
The different judicial decisions reached in the Gobitis and Barnette cases were largely because of the different historical contexts in which the respective cases were heard. A letter from Justice Frankfurter to Justice Stone—who dissented from the Gobitis decision—would seem to indicate that while a majority of the Court may have been inclined to favor individual rights as expressed in an exemption from the required flag salute ceremony (as was later decided in Barnette), given the United States's entry into World War II at that particular point in history, the Court, instead, permitted the school authorities additional leeway in their "judgment as to the effect of this exemption in the particular setting of our time and circumstances."4
Actually, it is important to understand the historical context for all such judicial decisions. In 1954, at the height of McCarthyism, Congress added the words "under God" to the Pledge as a means of distinguishing the United States from "godless" Communist nations and seeking divine favor.
Now, in 2002, our nation again finds itself in a "war" against enemies who are not always readily apparent. Once more, as in 1954, we are wary of "the enemy within." The mixture of grief, fear, and firm resolve that marked our nation's response to the horrific events of September 11, 2001, has produced a level of patriotism unparalleled in recent history. Flag-waving is the order of the day. The words "In God We Trust" have been printed on everything from billboards to pizza boxes. The melodic words of "God Bless America" are being sung in virtually every public religious and civic gathering. Vocal patriotism is a form of protest against terrorism.
Within this particular patriotism-laced historical moment, questioning the words "under God" in the Pledge of Allegiance to the United States flag—a primal symbol of patriotism itself— gave the appearance of a softness on terrorism and a weakness in patriotism. The perspective was emotional rather than rational—but nevertheless real. Little wonder, then, that members of Congress rushed to the steps of the Capitol, where they recited the Pledge in unison. The next day, both chambers of Congress set aside the business of the nation to go on record as opposing the Ninth Circuit's decision. The U.S. Senate approved a bill 90-0 reaffirming the flag pledge and the national motto of "In God We Trust," while the House passed a resolution (416-3) protesting the ruling. During the debate, senators went so far as to compare the Ninth Circuit's decision to the Dred Scott and Plessy v. Ferguson cases, as well as to suggest "blackballing" the Ninth Circuit justices—a Republican appointee of President Nixon and a Democrat named by President Carter—who concurred in the decision. The United States Department of Justice promised to appeal the ruling on the Pledge.
I appreciate impassioned patriotism and identify myself as a compassionate patriot. I wave the flag with devotion to the Constitution and pray (as well as sing) for a blessing on the nation. At the same time, however, also as acts of patriotism, I raise critical questions about the nation and offer constructive criticism for the good of the nation. As in other forms of love, patriotism requires working to correct what is wrong as well as strengthening what is right in the nation.
My concerns with the Ninth Circuit Court's decision on the Pledge of Allegiance and the public's instantaneously negative reactions to it grow out of an abiding love for my nation and a profound appreciation for the constitutional principles that enable religion to play such a free and vital role.
Yes, the decision of the Ninth Circuit Federal Court was a difficult one. In legal, constitutional truth, the nation has a Pledge that stands in violation of its Constitution. But the decision was far from extreme. The written explanation of the Barnette decision remains pertinent: "The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. 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."5
The decision of the Ninth Circuit Court rested solidly on previous rulings by the Supreme Court—the High Court's rulings on the relationship between church and state and the differing standards developed by the Courts in evaluating challenges under the establishment clause.
After the landmark case on the establishment clause, Everson v. Board of Education (1947), the Supreme Court devised various "tests" to be used in subsequent cases to determine when there is an unconstitutional establishment of religion. The recent decision by the Ninth Circuit methodically demonstrated how the 1954 insertion of the words "under God" into the Pledge fails all of these established tests:
* The Lemon test (Lemon v. Kurtzman—1971) is a three-prong test requiring that a policy must have a "secular purpose"; its primary effect must be neutral; and it must not promote an "excessive entanglement" between government and religion.
* The endorsement test (Wallace v. Jaffree—1985) considers a policy a violation of the Constitution when the policy makes some people feel as "outsiders" and others as "insiders" because of the government's sending a signal that a religion or particular religious belief is favored or preferred.
* The coercion test (Lee v. Weisman—1992) allows for a "recognition" or an "accommodation" of religion, but bars any form of coercion that forces citizens to support or to participate in any religion or religious exercise.
Clearly, the Ninth Circuit's decision on the Pledge of Allegiance was laced with caution. Relying heavily on precedents established by the Supreme Court, the Ninth Circuit made no new assertions regarding the issue in question.
Will the decision of the Ninth Circuit stand? Most prognosticators answer that question with a vigorous "No." The dynamics of the current moment seem to reenforce that opinion. Look, though, at what is at stake here.
Given the careful reasoning of the Ninth Circuit, based on clear precedents set by the Supreme Court over the years, a reversal of this decision by the Supreme Court will unravel a half century's worth of jurisprudence concerning the establishment clause. In a zealousness to protect assertions of patriotism entangled in religious language, all precedent regarding the proper relationship of church and state might be done away with in one broad stroke.
The United States is now the most religiously pluralistic nation in the world. Today the religious liberty clauses in the Constitution—the "no establishment" clause and the "free exercise" clause—are more important than ever. Here is a legally guaranteed provision by which the nation can benefit from the spiritual wisdom of many different religions without those religions warring against each other and without any one particular religion and government falling into an unholy institutional alliance.
Religious Concerns Related to Integrity
Legal concerns aside, allow me to address the issue from the perspective of a Christian minister. In the wake of the controversial ruling by the Ninth Circuit Court in California, I have found the analysis of the ruling as deeply disturbing as the emotional reactions to the ruling.
More than one legal analyst has suggested that the words "under God" in the Pledge of Allegiance present no problem because the reference to divinity is generic—a patriotic term, not a religious one. Such a conclusion is not justified by a look at the legislative history of the 1954 act that inserted the words "under God" into the Pledge. Clearly the language was intended to establish the nation's position on the question of theism.
"At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual."6
Our Constitution has been interpreted so as not to favor religion over nonreligion. And yes, an atheist would assume that the words "under God" in the Pledge of Allegiance to the Flag represent an impermissible state endorsement of religion. No lesser constitutional expert than Justice Kennedy recognized this possibility in his dissent in the Allegheny case over two decades ago: "By statute, the Pledge of Allegiance to the Flag describes the United States as 'one nation under God.' To be sure, no one is obligated to recite this phrase, . . .but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false."7
Strangely, in the minds of many, but unquestionably for the welfare of all, the rights of an atheist and the rights of a theist, like the rights of a Christian Baptist minister like myself, are intertwined; so is the integrity with which each of us holds a religious or nonreligious conviction. How can the name of God not be a religious term? In many religious traditions, including my own, the name of God is to be held in such reverence that it is better never to speak the name aloud than to use God's name in a manner that manipulates or otherwise abuses holiness.
The secularization of the name of God points to a politicization of religion that is every bit as dangerous as attempts at the religiofication of government.
Concerns for the Future
A few evenings ago at dusk, I went again to spend time at the Jefferson Memorial. I read once more the moving words of this founder of our nation who understood so clearly that religion is a matter of free will, not forced confessions. I embrace Jefferson's unwavering opposition to tyranny and relentless advocacy for religious liberty both as a patriot of this nation and as a religious believer.
The scenario that has unfolded in the wake of the ruling by the Ninth Circuit Court underscores the importance of a new and honest national dialogue on the institutional relationship between religion and government, the proper role of religion in the life of the nation, and the meaning of civil religion as well as its relationship to the varied particular religious traditions that populate this nation. Nothing less is at stake here than the legal principle of religious liberty.
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Reverend Dr. C. Welton Gaddy is executive director of the Interfaith Alliance and the Interfaith Alliance Foundation, Washington, D.C.
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1 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
2 Minersville v. Gobitis, 310 U.S. 586 (1940).
3 Newdow v. U.S. Congress et al., Appeal from the U.S. District Court for the Eastern District of California (2002).
4 Justice Frankfurter to Justice Stone, May 27, 1940: "A Qualified Plea for Judicial Self- Restraint."
5 Barnette.
6 H. P. Rep. No. 83-1693, pp. 1, 2 (1954), reprinted in 1954 U.S. C. C. A. N. 2339, 2340.
7 County of Allegheny v. American Civil Liberties Union, 492 U.S. 672 (1989).