My new show The Supreme Court vs. Church/State Separation is now available wherever you get your podcasts. Please consider subscribing and giving it all the best reviews. If you like this episode, please consider supporting my work on Patreon.
This season is all about the complicated history of the Pledge of Allegiance and the legal controversies it spawned.
Episode 3 is now available online, and a transcript is below.
In 2006, a woman named Gathie Edmonds told an audience that her son did not salute the flag or say the Pledge of Allegiance and that, one time, he was even sent to the principal’s office for his disobedience. When the principal stepped into the office, he said to the boy, your teacher obviously doesn’t remember the Supreme Court decision.
He was referring to the 1943 case of West Virginia State Board of Education vs. Barnette. And the reason Gathie’s anecdote got such a huge laugh from the crowd that day is because her full name is Gathie Barnett Edmonds.
It was her protest that helped overturn that unjust law that almost got her son in trouble.
In 1943, there were four Supreme Court justices on record as saying they would overturn the Gobitis decision that required kids to say the Pledge of Allegiance. But four is not a majority on the Court. There were other changes, though. Two of the old justices who ruled against the Gobitas family had been replaced. And through the shifting and shuffling that sometimes occurs on the court, the new Chief Justice was none other than Harlan Stone, the lone dissenter from the Gobitis case. So there were four justices who said they wanted to overturn the decision, one of whom had some power as Chief Justice, and two new justices whose positions we would soon discover. And there were three returning members who still believed they were right the first time around. The only question was what did those two new guys think?
One of those new justices was Wiley Rutledge, whom the New York Times described as a humanist. In the last episode, I mentioned a case in which the three justices admitted they made a mistake in the Gobitis decision. That case involved the Jehovah’s Witnesses having to pay licensing fees to distribute their materials. Before it got to the Supreme Court, that case went through the courtroom of Wiley Rutledge, and he had written in defense of the Witnesses before the Supreme Court overturned his decision. He actually wrote that it was unfair for Witnesses to have to choose between following their religious beliefs and receiving public education for their kids. Now it looked like the side of common sense had five people.
But wait, there’s more. The other new justice was Robert H. Jackson, who used to be the attorney general under President Franklin Roosevelt. Just before joining the Court, Jackson had written a book called The Struggle for Judicial Supremacy in which he included a footnote that singled out the Gobitis decision as a bad one because the Court usually stopped local authorities from suppressing unpopular ideas. It’s a lot like modern gerrymandering cases: At times when public opinion or the ballot box is not likely to fix a problem, the Court has a duty to right the wrong. Jackson implied that they failed to do that in Minersville when the board of education required kids to say the Pledge. So maybe the side of common sense had six people. An extra vote just in case of a defection!
The Barnette case was almost identical to the earlier one in terms of how they were argued — with one exception. While the Gobitis case was more about religion and the family’s ability to retain their faith despite what the school district wanted, the Barnette case was more about freedom of speech. The Witnesses now talked about the importance of their First Amendment rights. They addressed the idea of judicial restraint that Felix Frankfurter loved so much, saying that the Supreme Court had a responsibility to overturn unjust laws. You don’t restrain yourself when there’s an obvious problem right in front of you, Felix. To do nothing would be, to put it mildly, treasonous.
You know who didn’t like that argument? Frankfurter. He railed against the Axis and made the infamous now-conservative argument about how it’s not the Court’s responsibility to write new laws or overturn local laws, but rather to interpret the Constitution. In modern terms, he wanted to call balls and strikes — but the Witnesses were saying the whole game was rigged and the only people who could do something about it were the umpires.
Frankfurter’s rants did not work this time around. On June 14, 1943, which not coincidentally also happened to be Flag Day, the Court voted 6-3 overturning the earlier decision. Chief Justice Stone finally got his way. The three justices who acknowledged their earlier mistake finally got to make things right. And both of the new guys voted with them, too. One of them, Justice Robert H. Jackson, wrote the majority’s decision in Barnette and he pointed out how forced patriotism wasn’t patriotism at all. His opinion has been cited by several legal scholars as one of the most important in all of First Amendment law. I want you to just imagine Frankfurter’s face reading this decision. Here’s Jackson:
“It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings… To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions.”
That is what we now call a mic drop. A historical mistake had finally been resolved.
If you want to get a little more technical, and trust me, you do, the Gobitis decision written by Frankfurter rested on four main arguments, each of which Jackson completely dismantled in his Barnette decision.
First, Frankfurter said the flag was a national symbol. Jackson called symbols a primitive, albeit effective, mode of communication. He said, “A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”
Second, Frankfurter said the Pledge was an appropriate way to unite people. Jackson questioned whose unity mattered here. He even cited Romans trying to stamp out Christianity as a method of Pagan unity as an example of how unity alone may not be good justification for anything. He added, “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” Yikes. In other words, you were never going to get everyone to agree on an opinion, certainly one as controversial as the Pledge, until we were all dead.
Third, Frankfurter said expelling kids who don’t salute the flag was a permissible way to foster unity. But Jackson was having none of it. He did not think it was okay to make kids choose between religion and education. He famously wrote, “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Finally, Frankfurter said punishing kids who didn’t want to say the Pledge was a local issue. School districts could decide their own punishments, and it wasn’t the Supreme Court’s job to micromanage them. Jackson said it was absolutely their job to step in because this was about preserving civil rights. And this may be the most cited passage from his ruling. It’s the one passage you almost want to commit to memory because of how frequently it comes up in other decisions:
“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. If there are any circumstances which permit an exception, they do not now occur to us.”
You can see why that passage is so memorable. Jackson was saying the government doesn’t get to decide what the right ideas are when it comes to things like politics or religion… and they definitely can’t make you say you agree with those ideas. Sounds totally sensible. One magazine, The Christian Century, even recommended that passage “become part of the American scriptures, to be memorized and taken to heart by every patriot.”
A little side note here: Some legal scholars have actually criticized the interpretation of that passage that I just shared with you. They actually mock Robert Jackson for what he wrote there because, while it sounds great, it’s kind of contradictory. When he said no official can prescribe what shall be orthodox… well, isn’t that exactly what he’s doing? He’s a government official telling us the right way to think about a particular issue. It’s like a sign on the wall that says No Signs Allowed. Aren’t… you… doing… the same thing? A law professor named Steven Douglas Smith summed it up like this: “There shall be no official orthodoxy except this one.” And also, what about laws passed by Congress? I mean, aren’t those, by definition, the government’s idea of what’s right on matters of opinion? And what about saying we’re for capitalism, and for democracy, and all those other things politicians say all the time?
It’s a minor squabble, perhaps, but it’s a good point.
Frankfurter, by the way, wrote the dissent. And his dissent boiled down to how he was a Jew and he knew what persecution looked like, but his job was not to get drawn up in emotion but rather judge whether something was constitutional, and how dare his colleagues legislate from the bench based on their feelings?! Ironic, considering that the Gobitis decision hinged in part on his ability to generate emotions in his colleagues.
He also pointed out that every Supreme Court justice who had taken part in a Pledge case up to this point — including the Gobitis case and earlier ones that the Court chose not to hear because they felt they were decided correctly to begin with — had ruled just like him… except for now-Chief Justice Stone. Frankfurter wrote, “Only the two Justices sitting for the first time on this matter have not heretofore found this legislation inoffensive to the ‘liberty’ guaranteed by the Constitution. And among the Justices who sustained this measure were outstanding judicial leaders in the zealous enforcement of constitutional safeguards of civil liberties.” He was basically saying it was appalling for this new majority to treat him and all those former justices like they were opponents of civil rights when in fact they championed them. It’s like a politician today saying we shouldn’t call that guy a racist. He’s not a racist! He opposes racism! He just wants immigrants to come from… Norway.
Actually, his dissent sounds a lot like when Chief Justice John Roberts opposed the Obergefell ruling that legalized marriage equality throughout the country. Roberts admitted the equality argument had undeniable appeal but “this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” But this new Pledge majority in 1943, just as the marriage equality majority in 2015, was saying that the application of the law violated the Constitution, and it was their job to correct it.
The best part about Frankfurter’s dissent? It had no staying power. It was just a rant from a guy who lost. And unlike Justice Stone’s earlier dissent, which was influential for years to come, Frankfurter’s dissent has been all but forgotten. From now on, there was a clear difference between the way the U.S. celebrated patriotism — voluntarily — and the way the Germans did it — by force. We were the tolerant ones.
Constitutional scholar Robert Tsai summarized the reversal in a 2008 paper when he said, “The Court’s declaration of religious and intellectual freedoms in a time of war was every bit as forceful as its earlier call for domestic unity.“
After the Barnette ruling, dozens of Pledge cases that had languished in the courts were soon dropped or reversed. There was no rash of violence this time around. TIME magazine put it very succinctly with a headline reading, “Blot removed.” Perhaps the most unusual consequence of the ruling was that, by this point, it was completely expected. The reaction from the public wasn’t, Oh my god, they did a total 180 on a major First Amendment case! But rather, Yeah, we all saw this coming.
Just to put that in context, according to the professor and religious liberty expert Shawn Francis Peters, between 1938 and 1946 — just 8 years — the Supreme Court handed down 23 opinions involving the Jehovah’s Witnesses. That’s a staggering amount in just a short time. And there were hundreds of other cases at the lower courts. A lot of the battles involving civil rights and our liberties really originated with this religious minority fighting for their constitutional rights.
Look: The Witnesses do a lot of things wrong. They hold a lot of disturbing views. And I personally believe their religion does more harm than good — just look at their irrational beliefs against blood transfusions and the way they shun even family members who are no longer Witnesses — but these legal cases make up a lot of that good side. Chief Justice Harlan Stone even once joked to a friend that the Witnesses “ought to have an endowment in [light] of the aid… they give [us] in solving the legal problems of civil liberties.”
All that said, the Witnesses were not doing what they did solely because of a principled fight for civil rights. They had selfish motives, too. In fact, according to a 2014 book called God’s Kingdom Rules!, put out by the Watch Tower Bible and Tract Society which oversees the Witnesses, all these legal cases, which reinforced the civil rights we all have, were treated as a side benefit. The book said, “As God’s people, we are not social reformers… Above all, Jehovah’s Witnesses have pursued their legal rights in the courts in an effort to establish and advance pure worship.” It’s weird, right? They had the chance to say, yeah, we’re amazing. We support religious freedom for all. We are David fighting against the oppressive Goliath. Instead, they said, We got what we wanted because now we can spread God’s message. And if other people benefitted from our legal fights, eh, I guess that fine.
That wasn’t the last Supreme Court case involving the Pledge, but it was the last one for several decades. And yet what happened just a few years later, outside of the Courts, would make the Pledge even more controversial than any point in its history.
Within a few years after the Barnette case, the flag salute was heading down two separate tracks. The Pledge itself was more popular than ever, especially with the end of World War II. Lawsuits mandating that students say the Pledge, however, were disappearing, mostly because the Supreme Court seemed unlikely to change its mind again anytime soon.
Now, as any church/state separation advocate will tell you, the early 1950s was a time when government officials promoted God any way they could, in order to distinguish us from those Godless Communists in the Soviet Union. This was the era when In God We Trust was placed on currency. It’s when that phrase replaced e pluribus unum as our national motto. It’s when the National Day of Prayer began. And, for our purposes, it’s when “Under God” was added to the Pledge.
Why did that change occur? Why did anyone think, after decades of the Pledge causing so many problems, that adding God to it would somehow make things better? And how come no one seemed to care that the guy who wrote the Pledge, the Baptist minister Francis Bellamy, saw no reason to include God in it even though he had no problem promoting God in everything else he did?
Part of that push for Under God came from a Catholic organization called the Knights of Columbus. They were big on patriotism and very anti-Communist. They even referred to Communism as the Satanic Scourge. So when they said the Pledge at their meetings — because they’re a patriotic, flag-loving group that always says the Pledge — they added the words Under God in their version. As the group grew larger, the revised Pledge became more popular. And by 1952, the Knights of Columbus was lobbying Congress to make the same change nationally.
They were not alone in wanting that change. A Gallup poll from 1953 asked people if they wanted “Under God” in the Pledge and a whopping 70% of people said yes. Only 20% opposed it. (Communists, obviously.) In fact, no matter how you sliced the data — by region, by age, by religion — people were more in favor of it than against it. The only exception were self-described atheists, but they represented fewer than 1% of participants in the survey.
The primary impetus for the change, though, can really be traced back to one event: a church service at the New York Avenue Presbyterian Church on February 7, 1954. It was a celebration of Abraham Lincoln’s birthday, and President Dwight D. Eisenhower was in the front pew along with his wife Mamie when Rev. George McPherson Docherty gave a sermon that tied together patriotism and allegiance to God.Docherty said that whenever he heard his kids reciting the Pledge, there was nothing distinguishing it from the hypothetical pledges to other nations. The Pledge was not uniquely American. In fact, he said, he could imagine Soviets saying the Pledge “to their hammer and sickle flag in Moscow with equal solemnity.” What we needed to do, he argued, was change the Pledge to make it distinctively patriotic.
“It is the view of man as it came down to us from the Judeo-Christian civilization in mortal combat against modern, secularized, godless humanity… To omit the words ‘Under God’ in the Pledge of Allegiance is to omit the definitive character of the ‘American Way of Life.’”
You can already see where this is going, but just to hammer the point home, he also directly trashed atheists in the sermon:
“Philosophically speaking, an atheistic American is a contradiction in terms… These
men, and many have I known, are fine in character; and in their obligations as citizens and good neighbors, quite excellent.
But they really are spiritual parasites. And I mean no term of abuse in this. I’m simply classifying them. A parasite is an organism that lives upon the life force of another organism without contributing to the life of the other. These excellent ethical seculars are living upon the accumulated spiritual capital of Judeo-Christian civilization, and at the same time, deny the God who revealed the divine principles upon which the ethics of this country grow.”
What a pleasant guy, right? I have atheist friends. They’re good people, but seriously, no they’re not, and if they appear that way, it’s only because they’re piggybacking on the goodness of Christians.
He even said, basically winking at President Eisenhower, that adding those words would not violate the Constitution because the First Amendment prohibited the establishment of a national church — but it didn’t require the denial of a higher power.
As far as anything could go viral in the 1950s, that sermon went viral. It was re-published just about everywhere. Paramount Pictures had video of his speech and they played it for weeks in the newsreels before movies like it was a Marvel trailer. It was so powerful that the day after his sermon, Republican Rep. Charles Oakman of Michigan — who also belonged to Docherty’s church — introduced a resolution adding those two words to the existing Pledge. In fact, he was not the first congressman to do this. In the span of about a year between 1953 and 1954, there were 18 separate resolutions to change the Pledge to include “Under God.” Nine were sponsored by Republicans, eight by Democrats, one by an Independent. It was a bipartisan push by all accounts. But Oakman’s came at the exact right time, when religious sentiment was highest.
The resolution passed almost without opposition. One of the only people who voiced any sort of opposition to it was Congressman Kenneth Keating of New York, who said changing the Pledge would damage a work of American literature. He called the Pledge a “priceless gem of American prose, comparable in many respects to Lincoln’s Gettysburg Address.” It’s a weird thing to say you can’t change the Pledge, considering how many times the Pledge had been changed up to that point. But Keating was also speaking on behalf of one of his constituents, David Bellamy, the son of Francis. David did not want the Pledge changed. And historians have said that Francis wouldn’t have wanted the Pledge changed to include this mention of God. Francis Bellamy was for separation of church and state. Still, despite Keating’s concern, even he didn’t oppose the resolution. He said he just wanted everyone to tread carefully. He was kind of like the Jeff Flake of his time, saying something that sounds sensible while also refusing to do anything meaningful about it.
Politicians like Democratic Congressman Louis Rabaut of Michigan, who introduced an “Under God” resolution a year prior to Oakman, argued in a speech that this was a welcome move:
“From the root of atheism stems the evil weed of communism and its branches of
materialism and political dictatorship. Unless we are willing to affirm our belief in the existence of God and His creator-creature relation to man, we drop man himself to the significance of a grain of sand and open the floodgates to tyranny and oppression.”
How’s that for dramatic flair? Atheism is the root cause for Communism, materialism, dictatorship, tyranny, and oppression. And everything else I don’t like. There was a little back and forth over whose version of the resolution should pass, and therefore who would get credit for it, and Rabaut’s version eventually won out. It passed on June 14, 1954 — Flag Day, of course. It was such a foregone conclusion that it would pass that the magazine Christian Century said in an editorial that voting against it would be like voting against a resolution approving of motherhood.
Before that happened, though, lawmakers actually asked the Library of Congress for help. They said they wanted to insert Under God in the Pledge, but they wanted to make sure it was grammatically correct. Because that was the real concern here. Should it be one Nation — comma — under God? Or one Nation under God without a comma? Or one Nation indivisible under God? The Library of Congress responded by saying one Nation under God without a comma was appropriate because “the basic idea is a Nation founded on a belief in God.” Without the comma, it basically tied together the fact that our nation was a godly one, and that’s what the Founders wanted.
That’s what the legislators wanted too. One of the co-sponsors of the Pledge resolution, Senator Homer Ferguson, even said he supported the change because “Our Nation was founded on a fundamental belief in God.”
The fact is, you would have to ignore mountains of evidence, and politicians own words, and common sense to pretend the addition of Under God is anything but religious. This is not always the case. In recent years, conservative politicians in many states have succeeded in getting public schools to put up signs saying In God We Trust, but they’re usually careful to say it’s about patriotism and the nation’s motto because they know that admitting they just want to promote Christianity would get them in trouble with the courts. But with Under God in the Pledge, there was none of that caution.
In the years that followed, the United States became polarized once again, this time as we entered very different, very controversial phases of our history. You had the Vietnam War. You had the civil rights movement. You had a lot of people with conscientious, not religious, objections to a Pledge of Allegiance to a country that many people believed was sending men to die in an unwinnable war and that many people said was inherently racist. On the other side, you had people who still felt that everyone needed to say the Pledge.
If you were a politician who thought saying the Pledge should not be mandatory, even if that’s what the law said, it would come back to bite you. And in fact, it did, at the worst possible time: during a presidential campaign.
The 1988 presidential race was between George H. W. Bush and Michael Dukakis. Bush was trying to continue the Republican Party’s hold on the White House where he had served as Ronald Reagan’s vice president for eight years. The Democrats were hoping to change that. Dukakis was the governor of Massachusetts, a position he held two separate times in his life. During that first term, in 1977, the legislature passed a bill requiring teachers to lead students in the Pledge every day. And if they didn’t do it, they would have to pay a daily fine of $5.
Remember Carleton Nicholls? He was that child of Jehovah’s Witnesses who was expelled for not saying the Pledge in the 1930s? And then the head of the Witnesses praised him on the radio and other Witnesses soon followed his lead, which later resulted in those Supreme Court battles? That happened in Massachusetts under the previous law that required teachers to lead the Pledge once a week. This new law in 1977 made them do it every day. It’s like the legislators learned nothing from U.S. history.
And their new law focused on teachers while the Supreme Court’s ruling in Barnette was all about students. So now imagine you’re Michael Dukakis and this bill comes to your desk. You can’t veto it by saying the Supreme Court has already nullified it because, technically, they had not ruled on what teachers should do. But if you don’t sign it, everyone and their mother will claim you’re not patriotic. So Dukakis took what he thought was the safe, sensible approach: He asked his attorney general and the Massachusetts Supreme Court for advice — and they both said, yes, this was unconstitutional. 5 of the 7 members of the Court even said the current law was unconstitutional but they couldn’t do anything about it unless someone challenged it.
So Dukakis vetoed the new law. Rather than have the courts strike it down, which is exactly what they would have done, he saved everyone a lot of time and trouble by just saying no on the spot. It was the right move. And then, unfortunately, the legislature overrode his veto. That law is actually still in the books today! It says, “Each teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the ‘’Pledge of Allegiance to the Flag,’” It also says if a teacher doesn’t do that for two consecutive weeks, the $5-a-day fine can be assessed.
But after the law passed, the attorney general said it was unenforceable, as we knew, so it’s just there. At least until some teacher gets punished for violating it and challenges the law in court. The point is that Dukakis was right to veto the bill. It wasn’t even that big of a deal at the time. When Dukakis ran for re-election in 1978, he lost in the Democratic primary, but the Pledge veto barely even came up.
But in 1988, a decade later, when Dukakis was running for president, Republicans used that incident as Exhibit A for why he didn’t really love the country. And the person who decided that would be the ideal attack? A Republican congressman from Georgia by the name of Newt Gingrich, who said, “When the country realizes that the lawyers who advised him to veto that bill are the people he’d put on the Supreme Court, we’ve won the South.” I can’t believe I’m saying this, but Newt Gingrich was right. Ugh. I feel dirty. His goal was to paint Dukakis as an extreme liberal, which is what Republicans today always do with anyone who’s even slightly to their left, and George H. W. Bush bought into the strategy. He even said in his acceptance speech at the Republican National Convention that year, “Should public school teachers be required to lead our children in the Pledge of Allegiance? My opponent says no — but I say yes.” And then they all said the Pledge together. The GOP is nothing if not great believers in the power of patriotic symbols.
There’s real irony in how Bush, the son of privilege who attended a private school where they didn’t even say the Pledge, was demanding that the son of immigrants do more to publicly show his love for the country. There was also irony in the idea that signing an unconstitutional law meant you loved the country more than the guy who respected legal precedent and was working off the advice of experts. Dukakis himself made that same argument: “If the vice-president is saying he’d sign an unconstitutional bill, then in my judgment he’s not fit to hold the office. It’s a violation of the law, and he knows it.” Bush’s response? If he were governor of Massachusetts, he would’ve signed the bill and let the Supreme Court decide.
All of that, not surprisingly, hurt Dukakis in the polls. One survey in Ohio found that 21% of people changed their minds about voting for him precisely because of that Pledge controversy. His attempts to respond to all this by saying he was just trying to follow the Constitution — and shouldn’t that substance count for more than mere symbolism? — didn’t exactly win over the American people, who overwhelmingly said teachers should always lead kids in the Pledge. Dukakis thought logic and reason would beat a cheap attempt at toying with the emotions of people who don’t know any better. It was the wrong bet. It’s always the wrong bet. Why would anyone listen to Dukakis explain his veto when Save the Pledge fits on a bumper sticker?
The former chair of the Democratic Party, Bob Strauss, actually summarized it perfectly well months before the election: “Dukakis made a major mistake. He captured the hearts of 17 lawyers and lost 3 million voters.” By the time Democrats realized this, and staged a photo op by the Statue of Liberty while reciting the Pledge, voters had already made up their minds.
It wasn’t the only reason Dukakis lost the election that year — there was also the infamous Willie Horton ad — but it was one of the big ones. There’s actually a history of that presidential race by the journalist Sidney Blumenthal titled Pledging Allegiance. These days, when a president can be criticized for not wearing a flag pin on his suit, every campaign seems to be a contest of whether a candidate’s religion is sufficiently Christian and whether that person expresses love of the country enough. Optics always matter. And the Pledge controversy was such a cheap political tool for Republicans. The idea being that opposing the Pledge means you oppose the flag. And when you oppose the flag, you oppose America.
When President Ronald Reagan was stumping for Bush, he even told crowds that if Dukakis won, “everything could be lost faster than you can say the Pledge of Allegiance.” The Republicans even put the Pledge in their party’s platform that year, saying they would protect it in all schools.
To be sure, Dukakis wasn’t alone in his opposition to forced patriotism. In the decades after “Under God” was added to the Pledge, there were voices of opposition to it. The Unitarian Ministers Association adopted a resolution rejecting the addition of the phrase just as Congress was adding it in. There were also multiple lawsuits brought by atheists. The Freethinkers of America sued the New York State Commissioner of Education in 1957 to have the phrase removed, but the judge in that case said atheists could just not say those words. By taking them out for everyone, she argued, the courts would be favoring the non-religious over the religious. As if neutrality is somehow anti-religious. The Freethinkers appealed, but both times, they failed to convince a single judge to take their side.
The famous atheist Madalyn Murray O’Hair also sued on behalf of her son — and this was shortly after she had become nationally known for being part of the Supreme Court case that removed mandatory Bible readings from public schools — but a federal judge dismissed her case, too.
There was one case that reached an appellate court in 1992 but only because an atheist wanted to keep fighting the case even after he lost. It happened in Illinois. There was a 1979 law in the state that said public elementary schools had to say the Pledge every day, but kids were permitted to sit out.
An atheist activist named Rob Sherman sued his son’s school district saying that the recitation of the Pledge itself was illegal because the government was pressuring his son to say it. It was coercive. But the judge said there just was no sufficient proof that the boy felt obligated to say it, or that he was punished for not doing it. At most, the judge said, there’s “indirect pressures because all the other children were conforming and saying the Pledge and he was not,” but that’s not illegal. Which is arguably a valid point. Every school — every class — has social outcasts for one reason or another; that’s not necessarily the fault of the school. And while that kind of peer pressure may be problematic if we’re talking about something illegal, like reading Bible passages in school, then we have a case. But the Pledge itself wasn’t illegal, so the pressure to say it wasn’t as big of a deal in the eyes of the judge.
So Sherman lost. And then he appealed the decision, But the Seventh Circuit judges weren’t any more sympathetic to his cause. They basically said the state’s law about saying the Pledge may be poorly written, but it clearly implies that saying it is voluntary. So it’s not a problem. Social pressure isn’t the same as government compulsion. Got that, Rob Sherman? It was a unanimous ruling. Not surprisingly, an appeal to the Supreme Court went nowhere.
There were additional challenges, but none of them were ever successful. It would take another decade before a court ever considered the phrase Under God as anything but patriotic and unifying.
It was only one court, I should say. It wasn’t even the Supreme Court. But that was enough to put the Pledge back in the national legal spotlight in a way we had not seen since the 1940s.