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This season is all about the complicated history of the Pledge of Allegiance and the legal controversies it spawned.
Episode 4 (the final episode of this season) is now available online, and a transcript is below.
The Pledge of Allegiance has gone through four revisions since Francis Bellamy first wrote it. A couple of them are minor and don’t need much explanation. Revision #2, in 1923, was meant to make the Pledge more patriotic by changing the phrase I pledge allegiance to my flag to I pledge allegiance to the flag of the United States. Why? Because the American Legion wanted to clarify for immigrants that we were not talking about their original country’s flag. As if anyone had any doubts. But Revision #4 in 1954 was the only one that had nothing to do with clarity or grammar.
Inserting the phrase Under God into the Pledge was about religion. Obviously. And the politicians who voted for that change made no secret about their intentions. Even President Eisenhower explained his support for the change by saying “we are reaffirming the transcendence of religious faith in America’s heritage and future.” So the intent was religious. And so was the end result. The Pledge had turned into a prayer.
Decades later, one man attempted to single-handedly change that.
That instigator was Michael Newdow, a physician and non-practicing attorney from California who believed it was wrong for the public schools to say the Pledge because it acknowledged the existence of God to his daughter, whom he was raising as an atheist. You may argue that the school wasn’t forcing her to say it, but Newdow felt that having her stand silently, or sitting it out, or leaving the classroom while everyone else said it was a form of ostracism that was also unfair.
The truth is he began fighting this battle before she even entered school. In 1998, he was living in Broward County, Florida when he decided to sue the county school district… even though his four-year-old daughter wasn’t old enough to go to school, and even though she didn’t even live in Florida at the time. She was living with her mother in another state. Newdow and the mother were no longer together.
So it wasn’t surprising when a judge dismissed the lawsuit saying Newdow didn’t have legal standing. He was just suing for the hell of it, even though he couldn’t claim to speak on behalf of anyone who was actually affected by it. He argued he was a taxpayer, and that ought to be good enough, but no. It wasn’t.
He later moved to California, where his daughter lived, and tried to sue again in 2000. She was attending kindergarten now, and her class said the Pledge. But that lawsuit was also dismissed. As professor Richard Ellis put it, “Newdow was not just losing, he was not even being taken seriously.” But all it took was two judges in one court to change that losing streak and infuriate a nation.
It’s hard to overstate how little support Newdow had. Groups like the ACLU and Americans United for Separation of Church and State wanted nothing to do with his lawsuits. It wasn’t that they didn’t agree with him in principle, but they didn’t want to use their resources to fight a battle that they thought they were going to lose. Why bother? They have to pick and choose their battles, and they only step in when they believe they have a legitimate shot at winning or that there’s a benefit to even pushing an issue.
They also worried about what might happen if Newdow won. If the courts said the Pledge was illegal, the Republican-dominated Congress might step in and write a law keeping the Pledge in school. And you know they wouldn’t stop there; they would see if there were other ways to push God in the classroom. Hey, if the Pledge is allowed, let’s see what else we can get kids to say.
Another reason they didn’t want this fight was because they knew this would become a culture war battle at a time when conservatives would be all too eager to use it to win elections. We’re on the side of the Pledge! Our opponents hate God! That’s not what you wanted voters to hear in 2004, when George W. Bush came up for re-election. They feared that Newdow fighting this battle, even if he was right on the substance, would give conservatives a talking point that would help their side in the elections. Why repeat what happened to Michael Dukakis in 1988? And if Republicans held on to power, that would mean more conservative justices with lifetime appointments at the federal courts, and that in turn would hurt their other efforts at church/state separation in the long run. Why give them all that ammunition? In a sense, they kind of hoped Newdow would just lose and go away.
But that wasn’t going to happen without a fight. Newdow was on his own and he didn’t care what anyone said. So back to his lawsuit in 2000, against the Elk Grove Unified School District in California. He wasn’t looking for money. He just wanted them to stop. He said that, every day, his now-five-year-old daughter was “compelled to watch and listen as her state-employed teacher in her state-run school leads her and her classmates in a ritual proclaiming that there is a God, and that ours is ‘one Nation under God.’” To ever do that would raise questions about its constitutionality. Then Newdow added, “For it to do this every single school day for thirteen years — using Plaintiff’s tax dollars, no less to accomplish the affront — is an outrageous and manifest abuse of power in direct violation of the Religion Clauses of the constitutionals of both the United States and the State of California.”
If you’re like me, one question comes to mind when you hear all that: What did his daughter think about all of this? Did she have a problem with the Pledge? She’s well into her 20s now but she’s never spoken publicly about the case as far as I can tell. But in 2002, Newdow was asked at what point his daughter began to feel ostracized because of the Pledge. His response boiled down to Who cares?
“My daughter is in the lawsuit because you need that for standing. I brought the case because I am an atheist and this offends me, and I have the right to bring-up my daughter without God being imposed into her life by her school teachers. So she did not come and say she was ostracized.”
It’s an interesting quirk about our legal system that this entire Pledge case, which hinged on the idea that a little girl was being pressured to do something by the government against her father’s will, actually had nothing to do with the little girl’s feelings. She was basically irrelevant to this case except to fulfill a requirement of the law. She was the warm body he needed and Newdow freely admitted that. He was arguing as a parent who thought the public school was breaking the law, and he felt he had a compelling case to get them to stop.
Now, to nobody’s surprise, as I mentioned earlier, the district court judge did not see it that way and dismissed the case. He just didn’t buy the argument that the Pledge violated the Establishment Clause. In other circumstances, that would’ve been the end of the story. But Newdow appealed the decision. He wasn’t going away like church/state separation groups might have hoped. He was his own lawyer so it’s not like this was costing him a ton of money, only time.
Now, if you were hoping for a legal victory, the relatively progressive Ninth Circuit Court of Appeals is where you’d want to go. But even this case seemed like a long shot over there. To get a random group of three judges, and to have at least two of them sympathetic to your case? It wasn’t likely. No reporters even attended the oral arguments — why waste your time when you knew how this was going to end? But one of those judges, Alfred T. Goodwin, approached the case systematically.
When he wrote his decision, he looked at three different tests that courts had used to determine if something illegally promoted religion.
The first was the endorsement test: Was the Pledge an endorsement of religion? Did it send a message to non-religious people that they were outsiders? Yes it was and yes it did, Goodwin said. He wrote, “The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion.” He went on to say that it would be silly to argue that an atheist would not feel less than a full member of society when hearing the Pledge. What else were atheists supposed to think?
So already the Pledge went too far. But there were other tests they could use. So Goodwin kept writing.
The second was the coercion test: Was the government pressuring people to support or participate in religion? And remember that courts took this especially seriously when talking about children. Once again, Goodwin said the Pledge ritual could “reasonably appear to be an attempt to enforce a ‘religious orthodoxy’ of monotheism, and is therefore impermissible.” Even if kids didn’t have to say the Pledge, having to listen to it every day was still a problem.
That was strike two. And remember, in this game, one strike means you’re out!
But for the sake of it, there was a third test. The famous Lemon test. This is a three-step approach to determining if a policy involving religion violates the Constitution. It asks: Does the law have a secular purpose? Was the main purpose of the law to promote religion? And did the law create excessive entanglement with religion? Right off the bat, Goodwin said the addition of the words “Under God” to the Pledge in 1954 was all about recognizing a Supreme Being. That was the whole reason that phrase was added — to distinguish us from those godless Communists. He wasn’t pulling that out of the air; the politicians said it when they endorsed the change. So the Pledge failed the Lemon Test.
But maybe, you argue, that’s not fair. The school board’s policy wasn’t about promoting religion. They wanted to foster patriotism. So their rules did have a secular purpose. Okay, said Judge Goodwin, but the district still failed the Lemon Test because telling kids to say the Pledge was still about promoting religion like those politicians said they wanted. Strike three.
Incredibly, a judge said Newdow was right. And not just any judge, but a Republican judge who was nominated by Richard Nixon. And — and this is crucial — not just one judge. Stephen Reinhardt concurred with the ruling, making them the majority. The other judge, Ferdinand Fernandez, saw all of this as a slippery slope that would end with people prohibited from singing God Bless America or even using currency with In God We Trust on it. I think he obviously went too far, but he was in the minority here. Michael Newdow had, improbably, won his case. He did what decades of church/state separation activists had failed to do — or even failed to try to do because they figured it was a lost cause.
Rarely do you see an appellate court decision that generates so much backlash across the country. Members of Congress gathered outside the Capitol that June afternoon to recite the Pledge for the cameras. Anyone who didn’t participate could easily be seen as unpatriotic — and that was dangerous in 2002 since that was a midterm election year.
President George W. Bush said the decision was ridiculous and added “We need commonsense judges who understand that our rights were derived from God.” The Democratic Senate majority leader Tom Daschle said the decision was “just nuts.” Fellow Democratic Senator Robert Byrd went even further: “I hope the Senate will waste no time in throwing this decision back in the face of these stupid judges. That’s what they are, stupid.” Classy, that guy. Byrd went on to say he was “not going to stand for this country’s being ruled by a bunch of atheists. If they do not like it, let them leave.” Have I mentioned that guy was a Democrat? But it worked. The Senate unanimously passed a resolution, with every senator as a sponsor, condemning the decision. The House voted 416-3 in support of a resolution that said the Pledge, including the phrase One Nation, under God, reflected the fact that God “permeated the Founding and development of our Nation.” In case you’re wondering, the three legislators who voted against that bill were all Democrats from very, very safe districts. One of them, Rep. Pete Stark of California, went on to become the first openly non-theistic member of Congress in history.
All of these symbolic acts, I would add, only served to strengthen Newdow’s position that the Pledge really was just another way to push religion onto kids. They weren’t celebrating patriotism; they were celebrating the mention of God in a supposedly patriotic ritual.
As you’d expect, the Ninth Circuit’s ruling was challenged. And the biggest challenge didn’t come from some conservative legal group. One of the key battles involved Newdow’s daughter, who was essentially at the center of this case, even if Newdow was doing all the talking on her behalf. As I said, he and the girl’s mother were not together, and in fact, she argued that she had full legal custody of the girl, even if they shared physical custody, and that meant she had the final say in representing her daughter. And since the mother was a Christian, and she didn’t want anyone to think Newdow’s atheism was shared by their daughter, she said the whole case should be dismissed.
The Ninth Circuit had to go back and essentially reassess their decision on those grounds.
Now, the two judges who initially voted in favor of Newdow didn’t think his situation changed their arguments. They came back and said, okay, Newdow doesn’t represent his child in this case, however he still technically has legal standing as a parent. California law allows for that. Even the one dissenter, Judge Fernandez, agreed that Newdow still had the ability to fight this case.
So that crisis was averted. But then the school district asked the entire Ninth Circuit to rehear the case, which is a typical way to push back on an appellate court’s ruling. The idea here was that those three judges were a fluke, and maybe if every judge on the Ninth Circuit heard this case, they would come to a different conclusion. The Ninth Circuit narrowly said no, we’re not doing this again, the decision stands, but only if some changes are made to Goodwin’s opinion. In other words, the Ninth Circuit said, Look, Goodwin, we won’t override you if you make some edits to that decision of yours. You said some things that were a little out there, legally speaking, so if you want this opinion to stay intact, you need to fix the problems.
There were two big edits he agreed to make. First, he got rid of all the parts that said the original 1954 Pledge Act wasn’t constitutional because it advanced religion. That was a good move since critics could easily say the Pledge Act was really about fighting Communism. Instead, Goodwin now said the school board’s policy was unconstitutional. He wasn’t touching the Pledge itself. That actually narrowed how far this case would go. He wasn’t saying the Pledge was illegal or that other government officials couldn’t use it at public functions; he was only saying that the school board urging kids to say it was a problem. At most, this decision was only going to affect public school students. So that was the first big change.
The other change was that instead of writing about how the Pledge policy failed all three of those different religious tests, he limited his new decision to only the coercion test. So instead of saying the 1954 Pledge Act was obviously promoting religion, the decision now said the school board’s policy pressured children to express a belief in God, and that alone was the big problem. It wasn’t the fact that “Under God” promoted religion; it’s that the school district urged kids to say something that did.
That was also a good move since it at least allowed for some consistency with the Supreme Court. They had already ruled, pretty recently, that you cannot have a prayer at a public school graduation since that puts kids in the position of having to choose between praying during an important ceremony or protesting or violating their conscience. And if a one-time prayer for 18-year-old students at an optional graduation ceremony delivered by some pastor they’ve never seen before is problematic on the basis of public pressure, then surely a daily Pledge that includes a mention of God for little kids who have to go to school every day that is led by their teachers is way more coercive, right? Logic!
All of these changes were made with an eye toward the Supreme Court, since that was the last resort for the Pledge’s supporters. Goodwin was basically saying to the Supreme Court, if you take up this case, I am making my argument even simpler and even more airtight so you can’t overrule me without looking like complete hypocrites.
Normally, getting to the Supreme Court is a hard sell, but when pretty much every member of Congress says a court decision is wrong, and the president agrees, and the public is infuriated, and the Ninth Circuit’s decision is so different from what other courts have said in the past, those are pretty strong reasons for the Supreme Court to consider a case. So in March of 2004, they agreed to hear it.
What’s really amazing about Michael Newdow’s Supreme Court battle is that he had virtually no help. The ACLU and Americans United for Separation of Church and State still had little desire to work with him, but they submitted briefs in defense of his position. The thinking was basically, well, now that you got this far, you might as well win and we’ll try to guide the Court toward that outcome. Still, it’s not like they were in the courtroom during oral arguments.
That meant Newdow would be representing himself in front of the Supreme Court. That was really weird. There are a lot of hoops you have to jump through in order to get permission to argue in front of the Supreme Court, including a requirement that you practice law for at least three years. Newdow may have graduated from law school but he never officially practiced law. Still, he was given special permission to represent himself. Maybe the Court figured they were just setting this guy up for failure. Let’s give him enough rope; we’ll let him tie his own noose.
Newdow had at least one thing on his side, though. He would be speaking in front of eight justices, not nine. He had specifically asked Justice Antonin Scalia, arguably the most conservative justice on the bench, to step aside because he had criticized the Ninth Circuit’s decision in a speech the previous year. The idea here was that Scalia had already made up his mind on the issue without listening to Newdow’s argument so it was unfair for him to get a vote. It’s why every time a Supreme Court justice is nominated and has a hearing, they never want to say they’re for or against abortion or any other controversial issue. They don’t want people to think they’re going to rule a certain way no matter what even if it’s pretty obvious. Scalia, on the other hand, was practically bragging out in the open about how he would rule on this Under God case.
It’s ironic that Scalia gave that speech to a gathering sponsored by the Knights of Columbus, the very group that once lobbied to put “Under God” in the Pledge. It’s also surprising Scalia actually agreed to step aside, but perhaps he did it because he knew there were still plenty of conservative voices on the bench. Maybe he thought he wasn’t going to make or break this decision, so better to avoid controversy altogether. But the truth is, with him gone, there was the possibility of a 4-4 split on the Court, in which case the Ninth Circuit’s decision would remain in place.
Maybe the most shocking thing about the oral arguments is that it wasn’t a total disaster. Believe it or not, the general consensus seemed to be that Newdow performed remarkably well. He knew what he was talking about. Now, anyone who is both a doctor and a lawyer probably has some brain power, but you almost never see people representing themselves before the Supreme Court, much less doing a damn good job of it. A writer for the New York Times called it a “spellbinding performance,” which almost makes it sound like Newdow was acting on Broadway.
Here’s an example of how well he did: At one point, after he argued that the Pledge was divisive, Chief Justice William Rehnquist asked him what the vote was in 1954 to put Under God in the Pledge. You know, to show how non-controversial this was. Newdow took that applause line and turned it right back on Rehnquist. Listen to this; the first voice you’ll hear is the Chief Justice, then Newdow responds:
REHNQUIST: Do we know… do we know what the vote was in Congress apropos of divisiveness to adopt the under God phrase?
NEWDOW: In 1954?
NEWDOW: It was apparently unanimous. There was no objection. There’s no count of the vote.
REHNQUIST: Well, that doesn’t sound divisive.
NEWDOW: It doesn’t sound divisive if… that’s only because no atheist can get elected to public office. The studies show that 48 percent of the population cannot get elected.
REHNQUIST: The courtroom will be cleared if there’s any more clapping.
Newdow turned an argument about how the Pledge wasn’t controversial into evidence of how atheists are systematically looked down upon in our society and how the Pledge reinforces that. I love that long pause while people are laughing and clapping before Rehnquist has to quiet the gallery.
So you had these two sides duking it out. Here’s what the school district and its lawyers were arguing. They said saying the Pledge was voluntary, so it wasn’t coercive. They said the inclusion of Under God was ceremonial. It was about patriotism, not promoting religion. They also said the Court shouldn’t be using any test about the constitutionality of the Pledge because they had the right to consider the history of the Pledge. Look at it in context, they were saying. Finally, they said this is all pointless because Newdow himself hasn’t suffered any injury. He’s doing this on behalf of his daughter, but his daughter’s not part of the case anymore, and he doesn’t get a say in her upbringing, so why are we even here?
Newdow was basically arguing what the Ninth Circuit had said earlier. The Pledge violated every conceivable test of the Establishment Clause. It’s not ceremonial because we know why people wanted the phrase in the Pledge. It perpetuated a nasty stereotype against atheists. It messed with his ability to raise his daughter as he saw fit. And if anyone thought Under God was generic and inclusive, Newdow made it clear that believing in no God did not fit under the umbrella of that terminology.
If you just looked at the questions posed by the justices that day, and their attitudes toward Michael Newdow, you came away with the feeling that things were not going to go his way. He performed brilliantly as a lawyer, but the deck was clearly stacked against him. The question wasn’t necessarily whether he would lose, but how he would lose. And what that would mean for church/state separation moving forward.
And then, on June 14, 2004, on Flag Day — because all court decisions about the Pledge come on Flag Day — the eight justices decided… nothing. They punted. They said Newdow did not have legal standing because he did not have full custody of his daughter. Perhaps he had a say in his daughter’s upbringing because he had joint legal custody, but someone else also had veto power. It’s as if the Supreme Court just threw up their hands and said We are not getting in the middle of your relationship drama. As to the merits of Under God in the Pledge, it wasn’t even brought up in the majority’s opinion. The end effect, however, was that the Ninth Circuit’s decision was reversed on a technicality. The Pledge was still legal in school districts across the country.
Three of the eight justices — Rehnquist, Sandra Day O’Connor, and Clarence Thomas — issued separate concurrences saying they were perfectly fine saying Newdow had legal standing because they really wanted to go on the record and also say Under God did not violate the Establishment Clause. Basically, they said if we had the chance to vote on this case, we would’ve voted against Newdow.
Rehnquist said he didn’t like the idea of giving a parent a heckler’s veto — those were his exact words — over a ritual that was already voluntary. Sandra Day O’Connor admitted it was probably a close call, but she felt the addition of Under God didn’t really make the Pledge a prayer in any sense of the word. It was an example of ceremonial deism. Which, to me, is just a fancy way of saying it’s religious, but everyone’s used to it, so just shut up. Clarence Thomas, surprisingly, admitted that if you looked at Supreme Court precedent, then Newdow had a point… except Thomas’ solution was to say that all of those previous decisions were wrong. Who cares about legal precedent? I’ll do what I want.
In a lot of ways, the Court’s decision not to rule on the merits means there’s still an open question about how our country should handle these kinds of Establishment Clause challenges. Which legal test is the right one to use to decide whether some policy concerning religion violates the law? We don’t know. At what point does a mention of God in the public sphere go from ceremonial to religious or from harmless to harmful? We don’t know. What should the lower courts do the next time this situation arises? We don’t know. The Supreme Court settled nothing.
If you were a liberal politician in the summer of 2004, this was a wonderful decision. It would not be a campaign issue because the whole thing became a non-issue. You could say the Supreme Court did the right thing without really alienating your core supporters.
But if you were Michael Newdow in 2004, you was furious. He said, “I have a right to make decisions for my child. I wonder, if she were being hit in the head with a 2-by-4 in school, would the Court also say I have no right to object? It just doesn’t make sense.”
So here’s a hypothetical question for you: If Newdow had legal standing, would the Supreme Court have ruled in his favor? Would the other five justices have said he had a point? We’ll never really know. One was them was Justice Anthony Kennedy who was famously liberal on some issues like LGBTQ rights but conservative on most others. And even for liberal justices who will never be up for re-election, to say the Pledge of Allegiance is unconstitutional for religious reasons would still be an incredibly big leap.
In theory, some other parent with legal standing could do exactly what Newdow did and bring the same case back to the Supreme Court where they would have to rule on the merits. But so many things would have to go right for that to happen, including getting a lower court to give you a victory, which is not a given. And we’re assuming that the Supreme Court’s makeup would be more progressive than not, and that’s absolutely not a given. Certainly not today.
Not that Newdow didn’t try. Years later, he sued over the “Under God” issue in California once again, this time with other parents who definitely had legal standing. But in 2010, when the case got in front of the Ninth Circuit Court of Appeals, there was only one holdover from his previous attempt. Judge Stephen Reinhardt was still on his side and said the Pledge was unconstitutional. But the other two judges disagreed, and they had the majority. The case barely got any attention this time around.
And Congress, by the way, didn’t even want the chance of a repeat victory for someone like Newdow. In 2005, the Republican-led House passed a bill called the Pledge Protection Act that would’ve restricted the ability for most federal courts, including the Ninth Circuit, to deal with changes to the Pledge. It also banned the Supreme Court from accepting an appeal from any lower court regarding the Pledge. If that Act sounds illegal to you, you’re probably right… but the bill died in the Senate anyway, so it was never passed.
It’s not just Congress. Since the 9/11 attacks in 2001, about 15 states, by one count, adopted or changed their laws about the Pledge. In Colorado, in 2003, a law was passed saying kids were required to say it every day unless their parents wrote a note to get them out of it. Colorado also required teachers to say the Pledge unless they had a religious objection, and only a religious objection, to it. Anyone who objected on principle? Out of luck. It took a lawsuit to change both of those mandates.
A similar law was passed in Pennsylvania requiring students to get their parents’ permission before sitting out the Pledge, but that, too, was changed after a lawsuit. If you need someone else’s permission to exercise your rights, they’re not rights. And often, students who have objections to the Pledge don’t have their parents’ support! It’s ridiculous for politicians to say they get final say in what your thoughts are.
At least Minnesota Governor Jesse Ventura had the right idea when he vetoed a bill in 2002 that would’ve forced public schools to say the Pledge once a week. He said when he rejected the bill:
“I am vetoing this bill because I believe patriotism comes from the heart. Patriotism is voluntary. It is a feeling of loyalty and allegiance that is the result of knowledge and belief. A patriot shows their patriotism through their actions, by their choice… There is much more to being a patriot and a citizen than reciting the pledge or raising a flag. Patriots serve. Patriots vote. Patriots attend meetings in their community. Patriots pay attention to the actions of government and speak out when needed. Patriots teach their children about our history, our precious democracy and about citizenship. Being an active, engaged citizen means being a patriotic American every day. No law will make a citizen a patriot.”
Makes you want to stand up and cheer, doesn’t it? Unfortunately, a year later, Ventura was no longer in office and the next governor, Republican Tim Pawlenty, happened to be one of the legislators who had voted for that bill. So when the legislature passed it again, he was all too happy to sign it.
On the flip side, there have been other attempts to eliminate the Pledge of Allegiance, too, but they’ve taken various twists and turns. The most prominent case in the past decade took place in Massachusetts, the home of Michael Dukakis, and what made it unusual is that it didn’t fight the Under God phrase at all. It didn’t challenge the Establishment Clause of the Constitution. Partly because that approach had failed so many times in the legal system. It’s really hard to get judges to say the Pledge is religious! Instead, the argument was that the Pledge itself discriminated against children of atheist parents.
According to the 2010 lawsuit filed by the American Humanist Association, the Acton-Boxborough School District required students to say the Pledge every day, and because of its religious nature, saying the Pledge “marginalizes the Plaintiffs and reinforces the general public prejudice against atheists and Humanists, as it necessarily classifies them as outsiders, defines them as second-class citizens, and even suggests that they are unpatriotic.” Making kids say the Pledge, then, violated the Equal Protection clause of the Constitution.
By using that argument, it took the focus off of the intentions of the politicians who pushed Under God in the Pledge and put it on the treatment of the children. We can all argue about what a politician was trying to do, but it’s a lot harder to ignore kids who are actively being mistreated because of their views on religion.
Unfortunately, when the Massachusetts Supreme Judicial Court ruled on the case in 2014, they dismissed that argument. They said there was no clear evidence that the children had been mistreated. We don’t see any scars! It wasn’t that they lacked signs of physical abuse, but there also wasn’t evidence anyone perceived them as second-class citizens. The judges said You can’t prove people hate you because of the Pledge!
But that decision really ignored all the evidence that did exist. For decades, the Pledge has pushed the notion that being patriotic means being religious. That perception did not develop overnight, and the Pledge isn’t the only reason people think that, but the end result is that atheists are still perceived as insufficiently American in part because of it. And yet these judges were essentially saying there’s no way to challenge the Pledge because the damage it causes builds up over time instead of happening in one fell swoop. It’s like the judges were saying we can’t blame a few drops of rain just because you’re wet. Even though we probably wouldn’t be wet without those raindrops.
So what do we do about that stereotype? Right now, 45 states have laws requiring schools to say the Pledge of Allegiance even if kids are allowed to opt out of it. That’s 45 states where kids hear, in many cases every day, that we are a religious nation.
When it comes down to it, the addition of Under God in the Pledge may be the most quintessential political move ever. Politicians took a phrase that said we were one nation indivisible — and then they divided it, using God. What is more American than that?
The truth is if you love something, you shouldn’t have to be pressured to constantly say how much you love it. Yet that’s all the Pledge is. It’s a constant reminder that symbols of patriotism matter more to some people than actual love of the country. Because actual love would include the ability to criticize it, to call attention to ways we can make it better, to point out how the very symbols we use for our country routinely leave people in the dust.
I know this sounds hokey, but the beauty of the United States is that it really can be a melting pot, where people from different ethnic and cultural and religious backgrounds come together. And yet the Pledge now takes one of the most divisive elements in our lives — religion — and promotes it as if one system of belief should satisfy everybody.
We know why government leaders like the Pledge, too. It’s a cheap and easy way to signal to voters that they love this country. It’s like offering thoughts and prayers after a tragedy. It achieves nothing but allows you to pretend you’ve done something. There’s virtually no political harm in saying schoolchildren should recite the Pledge. But the truth is the Pledge has always done more harm than good. Saying it doesn’t make our country stronger. It just creates a false sense of harmony.
The funny thing is that a lot of Americans would be appalled if, say, Saudi Arabia made every child say a loyalty pledge to the country that included a section about how all citizens are free and equal. You might call it brainwashing. You might say that’s not true because we know how you treat women, and we know how you treat people who criticize Islam, not to mention your country’s other policies. A loyalty pledge always sounds awful when you’re talking about any group that you’re not a part of. And yet the Pledge of Allegiance lives on, with plenty of public support.
In fact, in 2014, when that Massachusetts case was happening, LifeWay Research, which is affiliated with the Southern Baptist Convention, asked people if the phrase Under God should remain in the Pledge. 85% of people said yes. Only 8% of people said it should be removed.
But get this: Later that year, the American Humanist Association commissioned their own Pledge poll. Not because LifeWay’s research was wrong, per se, but because they felt the results might be different if people knew something about the Pledge’s history. So in their poll, which was conducted online, participants read the following before they were asked any questions: “For its first 62 years, the Pledge of Allegiance did not include the phrase ‘under God.’ During the Cold War, in 1954, the phrase ‘one nation indivisible’ was changed to read ‘one nation, under God, indivisible.’ Some people feel this phrase in our national pledge should focus on unity rather than religion.”
You may argue that that prelude leads people in a certain direction. But that’s exactly the point. When you know more of the facts, you may come to a different conclusion. And in that survey, 34% of people said we should remove Under God from the Pledge. Not 8% like LifeWay had found. When people knew more about why the phrase was inserted into the Pledge, they were more willing to say we should remove it.
That’s part of why I wanted to do this podcast. The more you know, the more you see why it’s so problematic.
I really like how Professor Richard Ellis puts it: “The Pledge ritual seems better suited to an insecure nation than a confident one, to a nation worried about change and fearful of the commitment of its young people and its newcomers. Backers of the Pledge are often cast as true patriots, but it is arguably those who would dispense with the daily Pledge who are the ones who harbor the greatest faith in the enduring power and strength of American institutions and American ideas.”
If you’ve learned nothing else from this series, I hope it’s the realization that a Pledge that was meant to bring people together has never truly done that. If it’s a symbol of anything, it’s one that shows how badly our nation handles internal criticism, especially during times of national crisis. It’s a reminder that we can delude ourselves into thinking our country is perfect when it is so far from that. It’s a reminder that patriotism has to be more than just saying the right words. It’s a reminder that we must always think for ourselves instead of letting someone else dictate that on our behalf.
It’s also a reminder that we owe a debt of gratitude to the courageous people out there who have refused to say the Pledge and have fought diligently, and at great personal cost, for that right. There are still brave students doing that, across the country, today. And they still need our support. At least until we can get rid of the ritual for good.