Religion & American Law

Last week, a New Jersey state court dismissed a lawsuit that challenged the daily recital of the Pledge of Allegiance which includes the phrase under God. John and Jane Doe are parents of a child in the Matawan-Aberdeen School District and happen to be atheists and Humanists who do deny the existence of any kind of deity. They insist that because of their humanist beliefs, their child is unable to fully recite the pledge and feels excluded from other children when the Pledge of Allegiance is recited even though the recitation of the pledge is voluntary. The American Humanist Association, who filed the suit with the Doe family, argues that the pledges portrayal of a belief in a god implies that people who do not believe in a god are less patriotic.

In 1942, the United States Congress officially adopted the Pledge of Allegiance but the phrase “under God” was not officially added to the pledge until 1954. The court noted that the House Report for that amendment to the pledge indicated the intent to emphasize that political authority comes from God but that the language “under God” was not attempting to establish a religious institution. The House Report states that “A distinction must be made between the existence of a religion as an institution and a belief in the sovereignty of God. The phrase ‘under God’ recognizes only the guidance of God in our national affairs.”  The court stated that following the Plaintiff’s reasoning, the very Constitution that they are appealing to could be deemed unconstitutional due to the acknowledgement of a God. The court stated that this would be “an absurd proposition which the Plaintiffs do not and cannot advance here.”

During the preceding, the court heard from Samantha Jones, a high school student who argued that students have the right to say under God in the Pledge of Allegiance. In response to the court’s decision, Jones said, “We all have the right to remain silent, but nobody has the right to silence anybody else.” Eric Rassbach from the Becket Fund, which supported Jones, argued “The Pledge is not a prayer to God, but a statement about who we are as a nation. Dissenters have every right to sit out the Pledge, but they can’t silence everyone else.”

I disagree with the arguments put forth by Jones and Rassbach and believe the court was wrong in dismissing this case. The language under God may not be establishing a particular sect of religion but it does establish the sects of religions that believe in God. Therefore, it excludes those who do not have that same belief. The writers of the amended Pledge may not have had the intent to establish religion but the intent is largely irrelevant to its actual effect. One can be a firm believer in a certain principle but can be imperfect in applying that principle. The fact that the phrase under God and other language have been accepted as religiously tolerant in the past should not be an excuse to avoid taking steps to ensuring greater religious freedom today.

As noted above, it has been argued that removing under God from the pledge would be a violation of the rights of students who wish to remain reciting the current version of the Pledge. A similar argument was made in Engel v. Vitale (1962) in the defense of the daily recital of a prayer in a New York school district. In the court’s ruling that this practice was a violation of the Establishment Clause, the court reminded us that it is “neither sacrilegious nor antireligious” for the government to stay out of writing or sanctioning prayers. Taking under God out of the Pledge would not be an attack on anyone’s freedom. Students do not need the school to lead them in the Pledge in order for them to say it. Individuals would still be able to freely say their own version of the Pledge on their own time. The fact that the government does not sponsor something does not mean that they are attacking it.

In Samantha Jones’ defense of the current version of the Pledge, she says “The phrase ‘under God’ protects all Americans – including atheists – because it reminds the government that it can’t take away basic human rights because it didn’t create them.”  While the dialogue in court decisions has a different take on the purpose of the Pledge, I would suggest that the use of under God is not necessary to remind the government of the natural freedoms we have. The version of the Pledge before the amendment in 1954 reads as follows:

"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."

I believe that this version of the Pledge accomplishes all the same goals of promoting freedom and patriotism without establishing any religion. Since the original version of the Pledge did not have the phrase under God it would be natural for the country to readopt an older version of the Pledge

Do you think that the phrase under God violates the Establishment Clause? Please share your thoughts in the comment section below.