Those two words are at the heart of the battle over the future of the Pledge of Allegiance, the most talked-about Supreme Court case in the 2003-04 term.
Now the White House has stepped in, filing its own brief in the case and arguing that public school recitation of the pledge is constitutional.
The Justice Department has filed a 63-page brief asking the Supreme Court to overturn the 9th U.S. Circuit Court of Appeals’ ruling that the words “under God” in the pledge violate the First Amendment’s religious-freedom guarantees.
“The reference to a ‘nation under God’ in the Pledge of Allegiance is an official patriotic acknowledgment of what all students Jewish, Christian, Muslim or atheist may properly be taught in the public schools,” the Justice Department argued.
The case stems from a challenge to the pledge by atheist Michael Newdow, of Sacramento, Calif. He objected to public school teachers’ leading the recitation each day in his daughter’s 2nd-grade classroom.
The 9th Circuit agreed, saying that government can’t endorse a faith in a public classroom. Judge Alfred T. Goodwin wrote that the reference to God was as unconstitutional as saying “that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no God.’”
The case has already had a remarkable number of twists and turns.
First, the 9th Circuit’s controversial decision survived a review by the circuit’s 24 judges. Supreme Court Justice Antonin Scalia then excused himself from the case because of earlier public statements that the high court had intervened too often in matters involving public schools and religion and that the pledge decision was best addressed by legislatures.
Though some Americans believe religious exercises should be part of a public school education, that’s not the argument being made by the Justice Department.
Rather, the government contends that “the Pledge of Allegiance is a patriotic exercise, not a religious testimonial. The reference to God permissibly acknowledges the role that faith in God has played in the formation, political foundation, and continuing development of this Country. Children may be taught about that heritage in their History classes; acknowledging the same in the Pledge is equally permissible.”
In other words, the Justice Department is arguing that over the past 226 years, the United States and its leaders have frequently acknowledged God as an inspiration; the Pledge does no more than provide a mini-history lesson.
Many Americans feel the same way. In the 2003 survey conducted by the First Amendment Center, about 73% of those surveyed said “one nation under God” was “primarily a statement related to the American political tradition.” Fewer than 20% said they thought this was “primarily a religious statement.”
Actually, it’s a little surprising that Americans feel so strongly about the Pledge of Allegiance.
After all, this was a journalistic invention in 1892, not something hammered out by James Madison and Thomas Jefferson over the breakfast table.
In fact, it was written by a socialist and former minister named Francis Bellamy to help promote the celebration of the 400th anniversary of Christopher Columbus’ landing in the Western Hemisphere.
The pledge became popular and a staple of America’s public schools, but not without challenges. In 1943 before the words “under God” were added to the pledge the Supreme Court ruled that the government may not compel students to recite the Pledge of Allegiance. That remains the law today and is a component of the California law now before the Supreme Court. California requires patriotic ceremonies in its public schools, but does not require individual students to participate.
During the height of the Cold War and the nation’s concern about “Godless communism,” Congress rewrote the pledge to add the words “under God.”
Over the past 50 years, courts grappling with “In God We Trust” as our national motto and its presence on our currency have characterized such references to God as “ceremonial” and not religious in nature.
The Supreme Court may do the same, concluding that the rote recitation of the pledge during the past 50 years has turned a religious reference into a civic one. Or it may overturn the pledge as a prohibited religious exercise, recalling the words of President Eisenhower, who put a spiritual spin on it the day he signed the legislation adding “under God”: “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 Supreme Court may also dismiss the case on procedural grounds, a move that would dishearten some and come as a relief to others. Passions will run high no matter what the decision.
This will not be the most important Supreme Court decision of the new year, but it may well be the most fascinating. It’s ironic that the pledge that asserts our “indivisibility” has left us so divided.