Constitutional crossroads: where 'under God' meets 'justice for all'
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

A few days ago, a federal court found that the Pledge of Allegiance violates the First Amendment to the U.S. Constitution. Again.

This ode to America seems to run into legal trouble every 50 years or so. Written as a salute on the 400th anniversary of Christopher Columbus’ “discovery” of America in 1492, the pledge was at the heart of pivotal court decisions in 1940, 1943 and once again last week.

That 1892 pledge was published in The Youth’s Companion magazine and quickly caught on in the nation’s schools. Never hesitant to make patriotism mandatory, by 1935 40 state legislatures had passed laws requiring recitation of the pledge.

This posed a problem for young Jehovah’s Witnesses who objected to saluting the flag on religious grounds. The mandatory pledge was challenged in court, leading to a U.S. Supreme Court decision upholding its constitutionality in 1940. By a vote of 8 to 1, the Court ruled that the Jehovah’s Witnesses’ freedom of religion had to give way to a national need for unity and patriotism.

Then a horrifying series of events changed the Court’s mind. During the months following the decision, there were more than 300 physical attacks on Jehovah’s Witnesses, including an assault in Richwood, W.Va., where the sheriff had nine Witnesses tied together and placed before a flagpole. A mob surrounded the group, recited the Pledge of Allegiance, and spat on the victims before driving them out of town.

The vehemence of these attacks and public criticism prompted three justices to say they had reached the wrong conclusion.

In 1943 the Court reversed itself, ruling that government may not compel students to say the Pledge of Allegiance. It was a victory for the Jehovah’s Witnesses, freedom of religion and freedom of speech. It also carved out a reasonable middle ground. America’s schools could still recite the pledge, but students who objected could opt out. What could be more American than that?

But then came the 1950s and the intensification of the Cold War. Americans were up against “godless commies,” and our government felt compelled to edit the Pledge of Allegiance. After five decades, the pledge was modified by Congress to add the words “under God.” This, of course, is the version most Americans know today. This is also the version that was declared unconstitutional on June 26 by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco.

A Sacramento atheist had argued that the pledge — which was recited in his daughter’s second-grade classroom — violated the separation of church and state. The state of California requires patriotic ceremonies in its public schools but does not force individual students to participate.

Nonetheless, the panel concluded that Congress violated the Constitution in 1954 when it inserted “under God” in the pledge. Circuit Judge Alfred T. Goodwin concluded that the reference to God is 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.’”

There was an immediate and angry response to the court’s ruling. Senate Majority Leader Tom Daschle, D-S.D., described the decision as “just nuts.”

The decision isn’t “nuts,” but it’s odd, out of step with other courts and potentially destructive.

The establishment clause of the First Amendment states that government may not endorse a religious faith. Did Congress cross that line in 1954?

Of course.

When President Eisenhower signed the pledge legislation, he declared “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.”

This was a clear attempt by the federal government to insert religion in public classrooms. A court should have reached this conclusion in 1954, not 2002. To now declare the “under God” version of the pledge unconstitutional muddies the water and casts doubt on decades of decisions.

Over the years, many courts have had to grapple with whether references to God on our coins and in our national motto violate the First Amendment. For example, judges in this same 9th Circuit in 1970 concluded that the use of ‘In God We Trust’ was a ceremonial and patriotic gesture and not a religious one.

Over time, America’s courts have described historic references to God as “ceremonial,” and upheld their use. This rationale flies in the face of many devout citizens who believe the reference to God is anything but nominal, but it’s a legal construct that gives courts an out and preserves many of our traditions.

The irony is that when our government officials first put “In God We Trust” on coins in 1864 and “under God” in the pledge in 1954, they were actually engaged in an early form of political correctness. They understood that endorsing any one faith would be offensive and unconstitutional, but believed few would object to a generalized reference to a deity.

Times have changed. Atheism is more visible today in America than ever before, and many are asserting the right to be free of any faith. This, of course, is what led to this 9th Circuit decision.

The court’s decision has the feel of a state trooper pulling someone over for driving 66 in a 65 mph zone. It’s certainly a violation of the law, but giving the driver a little wiggle room is in everybody’s best interest.

Without wiggle room, politicians (always at the center of these things) feel compelled to react. Within hours, Sen. Joseph Lieberman, D-Conn., called for a constitutional amendment to keep “under God” in the pledge.

We don’t need a constitutional amendment. We need perspective.

The truth is that the full 9th Circuit is likely to overturn this case, embracing the same “ceremonial” argument that has served other courts so well. After all, though President Eisenhower and Congress may well have been endorsing religion in 1954, two generations of Americans have been exposed to the “under God” version to no apparent ill effect.

Yet amid all the outrage, it’s important to remember what drove this court decision. Despite the heated rhetoric, the court’s decision was not an assault on God. Like the 1943 decision, it was an effort to look out for young people who are not of the majority faith.

We can disagree with this decision, but we can’t dismiss the motive behind it.

We need only turn to the Pledge of Allegiance for guidance. We may indeed be one nation “under God,” but we are also a nation firmly committed to “liberty and justice for all.” These concepts are not mutually exclusive.