The Pledge Issue: Consider It Again For The First Time

August 22, 2013

I probably don't have to tell most readers of this blog that many nonreligious individuals strongly object to state laws that mandate recitation of the Pledge of Allegiance in public schools. I probably also don't have to tell most readers that all legal challenges to these laws have heretofore failed. However, there may now be at least a slim chance that this losing streak will come to an end.

To recap: in recent years there have been a number of lawsuits challenging state laws requiring recitation of the Pledge. These lawsuits have relied principally on the Establishment Clause of the First Amendment, arguing that statutes requiring recitation of the Pledge have the effect of favoring or endorsing theistic beliefs because of the words "under God"—which were inserted into the Pledge at the height of the Cold War in 1954. Four federal courts of appeals, as well as some other courts, have now flatly rejected this argument, concluding that the Pledge "as a whole" is a patriotic exercise and does not implicate the Establishment Clause. They also have found it significant that recitation of the Pledge is voluntary. Students cannot be compelled to say the Pledge; they have the option of not participating in the ceremony.

Not helping matters is the fact that in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a majority of the justices on the Supreme Court indicated they also thought recitation of the Pledge was a "patriotic exercise designed to foster national unity." Because Newdow's case was tossed for lack of standing, this conclusion regarding the nature of the Pledge is technically not binding, but you can bet it has an influence on lower court judges.

A recent lawsuit brought by some anonymous schoolchildren in Massachusetts and our friends at the American Humanist Association aspires to distinguish these cases by arguing that, regardless of whether the Pledge violates the Establishment Clause, it discriminates against nontheists and violates the equal protection guarantees of the Massachusetts Constitution and relevant Massachusetts statutory law. The discrimination consists in the stigmatizing of atheists and other nontheists, because the Pledge as currently worded implies that being an atheist is inconsistent with being an American. Moreover, the law effectively bars atheist schoolchildren from participating in the Pledge exercise because they can do so only if they affirm this is "one Nation under God."

CFI has filed a friend of the court brief supporting this lawsuit. We believe both prongs of the plaintiffs' argument have merit, but frankly we believe the "bar to participation" argument is the stronger of the two. As indicated, every court case has so far concluded the Pledge is a patriotic exercise. Indeed, it is usually described as an important patriotic exercise. If that is the case, then presumably children who are excluded from participation are being denied an important benefit. Furthermore, if the exclusion is based on religious beliefs, then it’s a palpable violation of equal protection. (I recognize some may disagree that the Pledge ceremony is an important patriotic exercise; bear in mind that this is what the defendants maintain, and to prevail in litigation, one must often concede certain points.)

So are the children being excluded based on their nontheistic beliefs? Seems to me the best way to see that they are is to compare their situation to that of witnesses, jurors, and public officials. Used to be that in many states in this country one had to acknowledge belief in God to be a witness, serve as a juror, or hold public office. That situation did not really change definitively until the mid-twentieth century. Now, of course, there is no legal bar to atheists discharging these functions. Any reference to God in juror or witness oaths or oaths of office is optional. (In fact, to be technical, atheists don’t take oaths; they affirm.)

Note also that the oaths formerly required for public office or other public responsibilities were not considered prayers; indeed, taken “as a whole” they could be described as civic ceremonies. Nonetheless, they had a religious component and that religious component had to be modified (eliminated or made optional) to allow atheists to assume these public responsibilities.

I think a strong argument can be made that resolution of the witness/juror/public office set of issues shows exactly how the dispute over the Pledge should be resolved. Or as CFI argued in its brief:

The key claim in this case is that the State is denying schoolchildren the right to participate in an important patriotic ceremony if they refuse to affirm belief in God.  This is much more than a denial of equal protection.  Not to put too fine a point on it: this practice is a remnant of bigotry that this country must overcome.  This country no longer requires witnesses to affirm belief in God; this country no longer requires jurors to affirm belief in God; this country no longer requires public officials to affirm belief in God.  Is it not time for the State to allow children to pledge allegiance to their country without affirming belief in God? 

Will this argument prevail? Well, Massachusetts is the state that first recognized same-sex marriage, so the Massachusetts Supreme Court has shown that it is willing to decide cases based on reason and considerations of equitable treatment, not blind adherence to tradition. So there is room for hope. Any decision would only affect Massachusetts, of course, but just as Massachusetts set an example for the country on the same-sex marriage issue, it could lead the way in turning the Pledge into a vehicle for religious tolerance instead of religious divisiveness.

The case will be heard on September 4.