The Pledge of Allegiance is back in play.
Just when it appeared that a federal appeals court might reconsider its ruling that use of the Pledge of Allegiance in public schools is unconstitutional, it instead affirmed the decision.
The decision last June by a three-judge panel caused a firestorm of controversy and led the 24 judges of the 9th U.S. Circuit Court of Appeals to consider whether to take a second look at the case before an “en banc” court. This larger court would have consisted of 11 judges.
The circuit judges considered whether to reconsider for seven months, prompting speculation that they would indeed reopen the matter. Instead, the judges let the original 2-to-1 ruling stand, making it illegal for schools in its nine-state jurisdiction to ask schoolchildren to recite the pledge. Now, the school district at the center of the case has decided to appeal to the U.S. Supreme Court.
This is an extraordinary case because it divides our society on many levels emotionally, politically, spiritually and legally. While there are strident voices on both sides of this debate, there’s a reasonable argument to be made for each viewpoint:
- Those who believe that the pledge is unconstitutional point to President Eisenhower’s public statement in 1954 when the words “under God” were added to the pledge by an act of the U.S. Congress. As he signed the bill, Eisenhower said, “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.” The president and Congress intended to recognize a deity in every government-run school. This clearly violated the First Amendment’s prohibition against the establishment of religion. In a country in which Americans are free to embrace any faith or no faith at all, government cannot ask schoolchildren who are required by law to attend classes to acknowledge a spiritual figure.
- Those who support the pledge and the “one nation under God” clause argue that the First Amendment was designed to prevent government from showing favoritism to a specific faith but doesn’t impose a ban on acknowledging some superior being in the universe. After all, they reason, the world we live in could not have come about without the guiding hand of superior intelligence. The reference to “under God” is an acknowledgment of this philosophy and embraces no specific ideology or religion. Students who recite the pledge in class could not fairly be described as having a religious experience.
The gulf between these viewpoints could be seen in last week’s vote by the 9th Circuit. The vote was 15 to 9 against further review, but six dissenting judges said the ruling was “wrong, very wrong.”
The 9th Circuit did narrow its earlier ruling a bit, opting not to declare the original 1954 law unconstitutional and instead simply declaring that using the pledge in public schools is unconstitutional.
Predictably, one congressman has already reintroduced a proposal that would amend the Constitution to give schoolchildren the right to recite the 1954 pledge.
In discussing his plan, U.S. Rep. Frank Lucas, R-Okla., told the Tulsa World, “Our forefathers understood that we are one nation, under God. Our judges need to understand that too. Maybe they could refer to the importance our country places on acknowledging the presence of a higher power by reading ‘In God We Trust’ on our money or by watching our president and other elected officials take their oath of office on the Bible.”
In truth, the nation’s forefathers had nothing to do with “In God We Trust” or the Pledge of Allegiance:
- “In God We Trust” did not appear on U.S. currency until 1864, on a two-cent piece, during the height of the Civil War. “In God We Trust” did not appear on paper money until 1957 during the height of the Cold War and our conflict with “godless communists.”
- The pledge itself was written by a socialist and former Baptist minister named Francis Bellamy in 1892 as part of a celebration of the 400th anniversary of Christopher Columbus’ landing in the Western Hemisphere. He wanted “equality for all” to be part of the pledge, but still saw opposition to the principle 30 years after the Emancipation Proclamation.
- The Pledge of Allegiance has existed for 111 years; its first 62 years included no reference to God. Students in the nine states of the 9th Circuit are still free to recite this pre-Eisenhower version. In fact, students in public schools remain free to say the “under God” pledge, or even utter prayers, during their free time at school or at after-school club meetings.
Now it’s up to the Supreme Court to decide whether it’s willing to hear the appeal and decide the fate of the pledge. The 9th Circuit has announced it won’t enforce its order until it hears from the highest court.
Will the Supreme Court take this opportunity to clarify the extent to which government can acknowledge God, or will it leave us “one nation, indivisible” with a separate Pledge of Allegiance for nine of its western states?
Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
First Amendment Center
1207 18th Ave. S.
Nashville, TN 37212