With all the debate about whether the Pledge of Allegiance, with its expression of belief in “one nation, under God,” violates the First Amendment’s prohibition against government endorsement of religion, and with oral arguments on the topic scheduled for March 24 before the U.S. Supreme Court, we’ve lost sight of another fundamental question: Whether any pledge or loyalty oath, with or without “under God,” is appropriate to our public schools and to the concept of “liberty and justice for all.”
The answer is no.
The Pledge of Allegiance, albeit pervasive, is new to our history. It made its first appearance in 1892 in a boy’s magazine but wasn’t widely used in public schools until the 1920s. In fact, it wasn’t until 1942, in the burst of patriotic fervor accompanying World War II, that Congress made the pledge official by codifying it. It was also in 1942 that the original American way of saluting the flag — with the right hand fully extended toward the flag and distinguished from the “Heil Hitler” salute only by a palm facing upward instead of downward — was altered to differentiate it from the salute of Nazi Germany.
This triumph of form over substance came with interesting instructions. In California, for example, assemblies of school children, including this writer, were taught that henceforth, devotion symbolized by placing the right hand over the heart would replace the blind obedience represented by the rigid Nazi salute.
Perhaps recognizing the authoritarian implications of a government-mandated pledge, which in those days didn’t say “under God,” the U.S. Supreme Court in 1943 — the middle of World War II — ruled that local governments and school boards may not compel children to salute the flag.
In an earlier decision, of 1940, the Court had ruled just the opposite. However, some Americans had refused to comply. Jehovah’s Witnesses, for example, saw saluting the flag as a violation of the Biblical injunction in Exodus 20:4-5 not to take any idols or graven images. As one young Jehovah’s Witness wrote to the Court, “I love my country, but I love my God more.”
The Court, in 1943, changed its mind. Wrote Justice Robert H. Jackson, “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”
It’s still the law of the land that local governments and school boards may not compel students to recite the pledge and salute the flag. However, 35 states now attempt to accomplish what the Constitution forbids by requiring teachers to lead “willing students” in the pledge on a daily basis. Six other states “encourage” their schools to provide a daily recitation to willing students. One state, Texas, requires not only a daily salute to the American flag but also a separate salute to the flag of Texas.
Hawai‘i, on the other hand, may have the better idea. I hesitate to mention this for fear that some of our legislators will see a need for mind-bending legislation, but Hawai‘i is one of only eleven states without a statute requiring or encouraging a daily salute to the flag in public schools.
Likewise, Hawai‘i’s Department of Education has no policy on the pledge. The decision is left entirely to individual principals and teachers. The director for civil rights compliance at the DOE, Tom Yamashita, emphasizes that teachers who lead a daily recitation of the pledge are instructed to make it voluntary, with no adverse impact on those who choose not to participate.
‘Only a Hackneyed Slogan’?
When Congress added religion to the pledge by inserting “under God” in 1954, things got more complex. Because the stated purpose of the change was to differentiate America from the godless states of Communism, some saw the revision as a violation of the separation of church and state. When President Eisenhower signed the order for a revised pledge, he couldn’t have made its intent any plainer: “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.”
To some, this was thrilling. To others, it was chilling. In those pre-multicultural days there was no need for a Lt. Gen. William Boykin, the current deputy under secretary of defense for intelligence, to remind us that the U.S. is “a Christian nation” that worships “a real God” and not “the idol” of Islam.
Ironically, the daily recitation of “under God” arrived too late to help what is now referred to as “America’s Greatest Generation,” those who led us out of the Depression and through World War II. This group had to muddle through without. It was only the later generations — beatniks, hippies and yuppies — who reaped the benefits of repeating “under God” on every school-day morning.
Some objected from the start that the revised pledge of 1954 was a subterfuge for state endorsement of religion. However, in 1992, the Seventh U.S. Circuit Court of Appeals ruled otherwise. The phrase “under God,” said the court, had been rendered meaningless and sapped of any religious significance by repetitive use. Like the phrase “In God We Trust” on coins, the court found, it was only a hackneyed slogan and not a religious utterance.
For some, this rationale brought to mind Joseph Heller’s novel of 1961, Catch-22, when Captain Black explained his “Glorious Loyalty Oath Crusade.” It’s not understanding or meaning that count, expounded the captain, but loyal repetition, as when “we make little kids pledge allegiance even before they know what ‘pledge’ and ‘allegiance’ mean.”
Recently, however, there was a successful attempt to persuade a different court, the Ninth Circuit Court, with jurisdiction over nine western states, including Hawai‘i, to view “under God” as meaningful and therefore as unconstitutional. In Elk Grove Unified School District v. Newdow, the Ninth Circuit ruled that “under God,” when combined with even voluntary recitation in public schools, “is an impermissible government endorsement of religion.”
Why are even voluntary recitations suspect? Part of the Ninth Circuit’s reasoning was an earlier decision of the U.S. Supreme Court that delivery of a nonsectarian prayer at a middle-school graduation puts those who object “in an untenable position.” Ruled the Supreme Court in Lee v. Weisman, “As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”
‘The Ruling is Ridiculous’
The Ninth Circuit, summarizing its view of the flag salute as unconstitutional in a 2-1 decision of June 26, 2002, ruled, “To recite the flag… is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice and — since 1954 — monotheism.”
All Hell Broke Loose
President George W. Bush’s press secretary, Ari Fleischer, quickly and solemnly announced, “The President believes the ruling is ridiculous.”
This seemed appropriate because it was Bush’s father, George H. Bush, who vilified Democratic opponent Michael Dukakis over Dukakis’ opposition as governor of Massachusetts to a state law requiring public school teachers to lead students in the pledge. In a letter to speechwriter Peggy Noonan, George H. Bush cited his belief that “it is right for teachers to say the Pledge of Allegiance to the flag of our country” as one of the three main differences separating him from his opponent.
In line with George W. Bush’s pronouncement of “ridiculous,” the U.S. Senate, by a vote of 99-0, resolved against the Ninth Circuit’s decision the day after it was announced. The U.S. House of Representatives, by a vote of 414-3, followed suit.
Under siege, the Ninth Circuit bent but didn’t break. On Feb. 28, 2003, the court declined to review its earlier ruling but did amend the decision so that it restricts the use of the pledge only in public schools. Enforcement was delayed pending appeals to the U.S. Supreme Court.
Among those pushing for review by the Supreme Court were all 50 state attorneys general. In spite of Hawai‘i’s progressively different and tolerant approach, Attorney General Mark Bennett, on behalf of the citizens of Hawai‘i, joined a “friend of the court” brief that asks the Supreme Court to review the decision that “defies a nation.”
How could Bennett single-handedly defy Hawai‘i’s legislative history and cultural tradition?
“My view,” Bennett says, “is that this is a decision made using the legal judgment of the attorney general.”
Unfortunately, this is the same “I am the law” rationale used by the Hawai‘i attorney general’s office a decade ago when it unsuccessfully tried to tell the U.S. Supreme Court that beating a prison inmate does not constitute cruel and unusual punishment.
Faced with outcry and, more importantly, with two conflicting decisions from separate circuit courts, the U.S. Supreme Court agreed to hear the case.
The court will consider two questions. The first is whether the respondent, Michael Newdow, has standing. When he filed, he was a noncustodial parent.
The mother of the child, Sandra Banning — in an unwitting illustration of what the court means by “coercive pressure” — is opposed to the lawsuit because she says she doesn’t want the public to think her daughter is an atheist. (In a “friend of the court” brief, Banning describes herself as “a committed Christian.”)
If the Court rules Newdow lacks standing, the Ninth Circuit’s decision will be vacated and everything will be as it was. Some, including the Washington Post, have urged the Court to take this path as “the easiest way out.”
If the Supreme Court does go beyond the first question, the second is whether “a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words ‘under God,’ violates the Establishment Clause of the First Amendment.”
Based on the current mood of the American people, the answer to this is no. However, based on history, intent, plain meaning and our Constitution, the answer is a resounding yes.
As it considers this question, the Supreme Court should heed the words of the Ninth Circuit. Wrote Justice Stephen Reinhardt, “We may not — we must not — allow public sentiment or outcry to guide our decisions.
“It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis. It is then that our freedoms and our liberties are in the greatest peril.”
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