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Jay Wexler: “Under God” and the Religion Clauses

Today's post is from law professor Jay Wexler, author of Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars. He studied religion at the University of Chicago Divinity School and law at Stanford, and worked as a clerk to U.S. Supreme Court justice Ruth Bader Ginsburg. Wexler teaches at the Boston University School of Law, and he blogs at holyhullabaloos.typepad.com.

Photo by JColman on Flickr The First Amendment's religion clauses raise a lot of hard questions about how much intermingling of church and state is constitutionally acceptable in our religiously diverse nation, but whether the Pledge of Allegiance is constitutional is not one of them. The Pledge, in its current form, in which children of impressionable age declare that they live in "one nation under God," clearly violates the First Amendment. The practice of leading kids in reciting the Pledge violates every one of the Supreme Court's tests for what passes constitutional muster: it endorses a specific and controversial religious viewpoint, coerces non-believing youngsters into declaring their belief in a single god, and undeniably has a religious purpose. When Congress added "under God" into the Pledge in 1954, it did so specifically to proclaim our superiority to those awful godless communists of the Soviet Union.

This is not to say, however, that those of us who believe in church-state separation or who are personally offended by the idea that our nation purportedly exists under the gaze of a single supreme being should be too upset by a recent 2-1 decision of a federal appellate court that the Pledge is constitutional. At least we can look forward to not watching an embarrassing replay of what happened the last time the appeals court heard the question, when nearly the entire House came onto the steps of the Capitol to hold hands and sing "God Bless America" in protest. We also likely don't have to worry that the Supreme Court, which last time around dismissed the case on procedural grounds not present here, will take the case and decide it in a principled fashion, thereby instigating a movement to amend the Constitution to declare us a Christian Nation.

The dissent in the case, penned by Stephen Reinhardt, the most minority-rights-friendly judge remaining on the federal bench, is a judicial masterpiece. In over 130 pages (the length of the opinion might explain why the court waited over two years since oral arguments took place to release the decision), Judge Reinhardt carefully tears apart all of the arguments advanced by the majority and then some. The opinion should be required reading for anyone who cares deeply about the Constitution and the protection it provides minorities in a diverse democracy.

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Some defenders of the Pledge argue that the words "under God" are so minor that they can't possibly be problematic. I mean, "G-O-D. It's only three letters!" The classic and pretty much unarguable response to this suggestion is to replace "under God" with something like "under Allah" or "under no God" and see whether this gives you some insight into how an atheist or Buddhist might feel saying the current pledge or having his or her teacher lead the class in its recitation.

A more sophisticated defense of the Pledge suggests that the phrase "under God" does not represent any current religious viewpoint, but simply acknowledges that our nation's founders believed in God or that they thought the rights of individuals stem from a higher power than the state. Okay, in that case, try substituting "one nation, forged with slave labor" for "one nation, under God" and see if you feel comfortable saying it. If not, why is that? Is it because you think the claim is historically untrue, or is it because saying it makes you feel like you are endorsing or celebrating slavery? If it's the latter, then perhaps it might be easier to understand why an atheist or Hindu might feel that the current version of the Pledge is doing something more than just acknowledging an historical fact about our nation.

It is true that the Supreme Court has from time to time suggested in passing that the Pledge is likely constitutional, but the argument from precedent cuts both ways. In 1992, the Court held that a Rhode Island middle school violated the Constitution by inviting a Rabbi to give a graduation prayer. Although nonbelievers were not forced to stand during the prayer, the Court nonetheless held that by creating a situation where most of the students would be standing, the school had subjected nonbelievers to peer pressure to stand as well. This was sufficient, held the Court, to invalidate the prayer.

If it is unconstitutional for a school to impose pressure on middle school students at a giant one-time ceremony to stand silently during a prayer recited by someone else, surely it's unconstitutional for a school to impose pressure on elementary school students in a small classroom on a daily basis to personally voice a belief in one supreme being. But don't take my word for it; Clarence Thomas, who has never seen a church-state arrangement that he didn't want to put on his lap and cuddle like a teddy bear, wrote basically the same thing when the Pledge case came to the Court back in 2004. This didn't matter to Thomas because he would have overruled the Rhode Island case, but it's pretty instructive nonetheless. If the Court's most conservative member thinks that the Pledge is unconstitutional under current Supreme Court doctrine, then it would seem that a lower federal court, bound to follow the Court's precedent, should feel compelled to find the Pledge invalid.

The law aside, keeping "under God" in the Pledge is bad policy. Why would we want to keep a phrase that is incredibly offensive to a large minority of American citizens in a pledge that is supposed to unite us as a nation? We should go back to the pre-1954 version of the Pledge—"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." Those are words we can all get behind. And that makes them a lot more patriotic than the divisive Pledge we've got now.