Religion & American Law

Atheist father speaking up.

On Wednesday, September 4, 2013 the Justices of Massachusetts Supreme Court examined the nature of the Pledge of Allegiance as they heard a challenge from an atheist group who want the pledge banned in Massachusetts schools. The plaintiffs are going to try to argue that the pledge's reference to "one nation under God" violates the Establishment Clause of the United States Constitution. The line the plaintiffs will attempt to call into question is that "Congress shall make no law respecting an establishment of religion..." claiming that the reference to God is a direct respect of religion and disrespect to the nonreligious in public school classrooms.

A popular argument supporting the pledge in classrooms is that the pledge recitation must always be voluntary and never coerced. Therefore it is thought that atheist children can opt out of the pledge, and there will be no repercussions for them. This argument is especially compelling when we consider the case of West Virginia State Board of Ed v. Barnette. In this case it was ruled that a compulsory flag-salute for public school children is unconstitutional on the basis that "compulsory unification of opinion" was in conflict with First Amendment values. On this basis, some argue that since there is no coercion, the recitation of the pledge is constitutional. 

However, a later case which we read together in class called Engel v. Vitale offers a useful counter to the compulsory argument. In this case it was ruled that prayer written by the government and recited by non-objecting students outside of regular classwork in a public school is unconstitutional. The ruling also stated the even if they prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is recited, it is still unconstitutional. I see a parallel here in that the ruling of this case completely invalidates the argument of the pledge being voluntary. In the Engel case, even though the prayer was voluntary, it was still ruled that its presence in the classroom was unconstitutional. Along that same line of logic, it seems to me that the pledge may be ruled unconstitutional in the classroom regardless of the fact if it is voluntary or not. 

More importantly, this case brings about the issues of competing interpretations of the establishment clause and the definition of "neutrality." Over time the idea of neutral has evolved and become more inclusive of different types of neutrality. Originally, the Establishment Clause was interpreted as to have no one religion be established as an official religion, as one supported by the state. Then as time passed and more cases were presented to the Supreme Court, there was a question of neutrality among all religions and the most controversial aspect: neutrality among religion and non-religion. The famous words of the Court in Everson v. US "Neither [a state nor the federal government] can pass laws that aid one religion, aid all religions, or prefer one religion over another" seems to attempt to be clear and very neat at face value, but has proven to be just the opposite. 

The case that the plaintiffs are trying to make in this case would appeal to the idea that the government is favoring religion over non-religion by having a pledge that has a reference to theistic ideals. However, if the government were to rule in favor of the plaintiffs and ban the pledge, others could argue that this banning is actually favoring non-religion and therefore not "neutral" in this sense. I would disagree with that argument and say that by removing the word God from the pledge in the public school environment it is not hostile or harmful towards religion, it is just being more neutral to those who can not identify with it based on their own religious beliefs.

The old flag salute...strange?

Another popular argument defending the pledge and other questionable establishment cases is the support of historical customs and traditions. The pledge was first recited in public schools in 1892, 121 years ago. However, the pledge originally didn't have "under God" in it, so our historical figures whom we are trying to respect by keeping their tradition didn't even write this phrase in the pledge in the first place. One of the more significant cases dealing with historical tradition and religion is Marsh v. Chambers. In this case, the Court upheld the tradition of having chaplaincy practiced in legislative court before the court sessions began. The Court ruled that since prayers by tax-supported legislative chaplains could be traced back to the First Continental Congress it was considered to be a "part of the fabric of our society." The Court claimed that invoking Divine guidance is not an establishment of religion, but rather a "tolerable acknowledgement of beliefs widely held among the people of this country." Marsh only has partial relevance to this topic because it is not dealing with school children, who are highly susceptible to being molded. It has to do with consenting adults, who have already had significant life experience and are usually already set in their religious ideals. 

In my opinion, I think asking public school children to recite the phrase (voluntary or not) "under God" in the Pledge of Allegiance is in direct violation of the Establishment Clause of the US Constitution. Although I think the pledge is unconstitutional across the board, in this post I am purely arguing for the purposes of addressing the pledge recitation in classrooms, not the pledge itself. It seems clear to me having this phrase in the pledge is not "neutral" in both senses of the word. It is not neutral among all religious denominations because it is embracing a monotheistic idea, and it is not neutral among religion and non-religion because it is clearly supporting theistic and religious belief. Furthermore, I think it is helpful to think about the intent of the pledge recitation here. What is the purpose of the pledge? To foster and facilitate patriotic unity among Americans, who may otherwise be very different but have the pride of a great nation to connect them. Imagine the pledge without this controversial phrase: "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." With the omission of the two words "under God" I do not see the intent or meaning of the pledge taken away. It is still a great patriotic phrase that creates unity and a sense of pride in America. 

So what do you all think? Is this phrase a violation under the Establishment clause for public school children? Would it be more "neutral" (the intent of the state) to non-religious groups to take it out?