Vol. 21 No. 1 - Published by the Freedom From Religion Foundation, Inc. -
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FFRF Files "Friend of the Court" Brief in Pledge Case
Oral arguments have been scheduled before the U.S. Supreme Court for March 24 in Elk Grove Unified School District v. Michael A. Newdow, the challenge of the Ninth Circuit Court of Appeals decision ruling "under God" unconstitutional in the Pledge of Allegiance.
Among the many amicus briefs supporting plaintiff Michael Newdow, M.D., is one by the Freedom From Religion Foundation.
The brief, written on the Foundation's behalf by Denver attorney Robert R. Tiernan, states:
"It is an affront to [nonbelieving] citizens that their country's official Pledge of Allegiance includes specific reference to a divinity. Many of them want to affirm their devotion to the United States but they cannot, in conscience, declare loyalty and pay homage to a god in which they do not believe. As a consequence, they are seen as outsiders in their own country, even when they have risked their lives to defend it."
The Foundation noted the invocation of a god in the nation's pledge is also "disrespectful to many thoughtful, churchgoing Americans who are of the opinion that the merger of God and country cheapens the religion to which they subscribe. The phrase is anathema to many devoutly religious Americans who believe in Allah, some other divinity not known to them as God, or in multiple gods. The United States is a 'melting pot' of diverse cultures and religions. It is, indeed, 'unAmerican' to impose upon the society a Judeo-Christian God as a condition of pledging fealty to their country."
The Foundation brief contends that the addition of the phrase "under God" in the Pledge of Allegiance in the mid-1950s "undeniably turned a secular pledge into a prayer-like religious ritual . . . the pledge is not only a religious ritual, it is a ritual prescribed by government. God is not merely endorsed by the government; acknowledging God is commanded by the government."
The religious pledge is termed "especially harmful to nonbelieving parents who strive to pass their values and heritage on to their children."
"Excessive government involvement with religion is particularly sinister because it goes against the grain of the freedoms guaranteed by our Constitution which includes the freedom not to believe in God."
Tiernan also noted that the Pledge of Allegiance is "entirely different" from such documents as the Declaration of Independence with its references to a Nature's God.
The pledge, Tiernan writes, "is not 'educational.' It is a loyalty oath. To have God added to that oath offends our Constitution and the freedoms this country stands for. To force nonbelievers either to indulge in hypocrisy and voice the pledge or make them stand aside from the majority in silence is a Hobson's choice that is repugnant to our heritage of freedom. Certainly, for grade school students who are years away from adulthood, this can hardly be called a 'willing' exercise."
"Nonbelievers do not take the position that the government should be hostile to religion. It is not contended that the Pledge of Allegiance should affirmatively say that this is not one nation under God or that the national motto should be 'In God we do not trust.' Nonbelievers simply seek balance--and balance is best struck by neutrality."
A fascinating amicus brief was submitted by Peter Irons, director of the Earl Warren Bill of Rights Project, on behalf of sixteen theologians asserting that the insertion of "under God" makes the pledge a prayer. The theologians include Harvey Cox, Harvard Divinity School, Richard K. Fenn, Princeton Theological Seminary, and Fumitaka Matsuoka, of Graduate Theological Union in Berkeley.
They cite as evidence of religious intent the sectarian religious observance that took place on the steps of the U.S. Capitol on June 14, 1954, after Pres. Eisenhower signed the bill adding "under God" to the pledge. The observance included an instrumental of "Onward, Christian Soldiers."
"It would be hard to envision, outside the sanctuary of a Christian church, a more sectarian religious ceremony," write the theologians.
The brief argues that "the revision of the Pledge to include the words, 'under God,' reflects the sectarian religious doctrine of monotheism, a doctrine that is not shared by those Americans--who number in the millions--who adhere to non-theistic or polytheistic religions, or who profess no religious beliefs."
"In light of the issues raised in the cases before this court, it is significant and worth noting that the Pledge composed by Francis Bellamy included no reference to God, and was entirely secular in wording and intent, although he was a Baptist minister." The brief points out that the U.S. Constitution, like Bellamy's original pledge, "contained no mention of God."
"That loyalty was based upon affirmation of the values of 'liberty and justice' that distinguished the United States from its wartime enemies, who themselves employed slogans such as 'Gott Mit Uns' ('God is with us') to rally citizens behind their war efforts."
The Cold War brought about debate "infused with public religiosity," resulting from a campaign by the Roman Catholic Knights of Columbus to adopt the 1954 law amending the pledge to include "under God."
The theologians' brief shows that "God," in its singular, capitalized form, is "unique to monotheistic religions," and signifies "the creator and ruler of the universe."
"The invocation of God's name, in any setting, is a religious act, regardless of whatever 'ceremonial' aspects it may have. Recitation of the Pledge in classrooms, during which students are required to stand and face the flag, with hands over hearts, is certainly a ceremonial ritual. Amici suggest that, in this setting, recitation of the words 'under God' in the Pledge constitutes a religious ceremony that is akin to formal prayer."
Based on the American Religious Identification Survey 2002, also cited in the Foundation's brief, the theologians estimate "one out of five Americans does not subscribe to the monotheism reflected and endorsed in the 'under God' affirmation in the Pledge of Allegiance."
They point to the case of MaryKait Durkee, a high school student at Fallbrook High School in San Diego County, suspended from school in 1998 for refusing to stand for the Pledge as a nonbeliever.
They cite the famous admonition of Justice Robert Jackson in the Barnette Supreme Court decision of 1943, protecting the rights of dissident students not to stand for or recite the then-secular pledge:
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Note the theologians: "The addition of the words 'under God' to the Pledge invested that ritual, in the classroom setting, with a distinctive religious character.
Schoolchildren who are required to 'confess by word or act their faith' in the monotheistic 'orthodoxy' embodied in those words, but who do not share that faith, run the risk of being stigmatized as 'outsiders' in their classrooms if they object to reciting the Pledge."
Pointing to the Congressional rebukes of the Ninth Circuit decision, "Amici feel strongly, and hope that court agrees, that questions of religion and theology should never be decided by popular vote, no matter how overwhelming in numbers."
January/February 2004 Excerpts