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The pledge flap: Let's brush up our civics
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

This article first appeared in The Christian Science Monitor on July 1, 2002. All rights reserved.

ARLINGTON, Va. — Fourth of July fireworks exploded early this year.

Just listen to the cacophony of patriotic outrage across America in the wake of a federal appeals court decision declaring the Pledge of Allegiance unconstitutional because of the words "under God."

From Capitol Hill to city hall, resolutions, speeches, and rallies praising the pledge — and condemning the court — fill the air. Not since the school prayer rulings of the 1960s has a court decision unleashed such an outpouring of emotion.

The timing couldn't be worse. After Sept. 11, most Americans don't want a federal judge telling kids they can't say "one nation, under God" in public schools. No doubt this decision would have stirred debate before 9/11. But during a time when "God Bless America" has become the de facto national anthem, feelings about being a nation "under God" run deep — even among Americans who are only nominally religious.

This is nothing new. Linking "God and country" in times of national crisis is a familiar theme. "In God We Trust," for example, was added to American coins in the wake of the Civil War. "Under God" was added to the Pledge of Allegiance in 1954 at the height of the cold war. Now the war on terrorism has provoked lawmakers to revive the flag salute in hundreds of school districts.

The fact that these references to God have been woven into the fabric of national life has, until now at least, made courts reluctant to disturb them. Rightly or wrongly, the courts view these practices as mere "ceremonial deism" that do not rise to the level of government establishment of religion, as prohibited by the First Amendment.

It's true that the courts are generally stricter when applying the establishment clause in public schools. But the Supreme Court is very unlikely to view a classroom patriotic exercise that mentions God as imposing religion, especially if those who object are allowed to opt out.

Then there's the slippery slope problem. If reciting "under God" violates the First Amendment, what about "America the Beautiful" or, for that matter, the last stanza of the "Star Spangled Banner" ("And this be our motto — In God is our trust.")?

For these reasons (and others), the panel of the Ninth Circuit Court of Appeals will soon be overruled — either by the full circuit court or by the US Supreme Court. Meanwhile, the order has been stayed by the judge who wrote the opinion.

This may satisfy patriotic fervor. But if religious Americans stop to think about it, they have little to cheer whenever the government appropriates "God" for civic purposes. Has religious faith won the day if "under God" remains in the pledge only because — as Justice William Brennan noted in 1963 — these patriotic exercises "no longer have a religious purpose or meaning?"

At this point, the courts would likely do more harm than good if they tried to erase all references to deity from patriotic exercises. But that doesn't mean the courts or Congress should permit new attempts to conflate God and country — the Ten Commandments movement comes to mind — by turning religious symbols into civic messages.

Keep in mind, it's not just nonbelievers who should worry about government endorsement of religion. People of faith also have a vital stake in maintaining what Roger Williams called a "wall of separation" between the "garden of the church" and the "wilderness of the world."

When all of the heated rhetoric and political posturing subside, this case will disappear. But the reverberations may last a long time.

For those religious conservatives already angry at public education, this decision — no matter how quickly reversed — will only confirm their worst nightmares about the direction of the "godless schools." Now they may have an alternative. Last week's Supreme Court decision upholding vouchers removes a major barrier for those advocating an exodus from public schools.

For nonbelievers, the aftershock of this decision is already being felt. Just listen to the threatening calls received by Michael Newdow, the father who challenged the pledge. How ironic and disturbing. Mr. Newdow was, after all, exercising his liberty of conscience and right to dissent — two of the most important principles represented by the American flag.

A far better outcome would be to turn this controversy into a civics lesson for the nation — starting with elected officials. Apparently many of us need to relearn Civics 101: Respecting the flag means respecting the rights of others, even those with whom we deeply disagree. So let's say the Pledge of Allegiance on Independence Day. But let's make sure we really mean what we say.


Judges surprised by furor over Pledge decision

Two 9th Circuit judges say politics, public fears have intensified controversy beyond their expectations. 07.18.02

Pledge plaintiff asks court to reinstate suit over inauguration prayers
Case against president is one of three First Amendment-related lawsuits Michael Newdow has in courts. 07.18.02

Attorneys general urge court to reconsider Pledge ruling
9th Circuit's decision is legally flawed, matter should be reheard by full court, say officials from 48 states, two territories in letter. 07.31.02

Florida school board rejects request to take Pledge out of classrooms
Two parents urge board to banish oath on grounds phrase 'under God' violates their children's free-speech, religious-liberty rights. 08.14.02

House reaffirms 'under God' in Pledge
Lawmakers pass resolution 401-5, also reiterate that 'In God We Trust' is national motto. 10.09.02

9th Circuit won't reconsider 'under God' ruling
Not yet clear when ban on reciting Pledge of Allegiance might take effect for millions of students in nine states. 03.03.03

'Under God' embraced in court of public opinion
9th Circuit ruled phrase unconstitutional in Pledge, but many Americans have made it clear those words embody their feelings toward the nation — no matter what the courts say. 09.06.02

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