Fourth Circuit Upholds "Under God" In Pledge

[Brown]

Read the opinion here.

Myers, a man in Virginia acting without a lawyer, sued on behalf of himself and his kids to challenge a Virginia statute that required public school students to recite the Pledge of Allegiance. Myers was not an atheist, but an Anabaptist Mennonite, and his faith condemns the mixture of church and state.

After taking care of some procedural and housekeeping matters, the Fourth Circuit turned to the Establishment Clause. After reciting the typical list of religious references and practices that had been upheld in the past, the Court turned to the Pledge:

If the founders viewed legislative prayer and days of thanksgiving as consistent with the Establishment Clause, it is difficult to believe they would object to the Pledge, with its limited reference to God. The Pledge is much less of a threat to establish a religion than legislative prayer, the open prayers to God found in Washington’s prayer of thanksgiving, and the Declaration of Independence.

Curious. Washington wrote his own prayer and basically issued it once, by his own choice. When Jefferson wrote the Declaration of Independence just once, he was not urged by law to write the words he wrote. And the list goes on: there are plenty of instances of public officials making religious references, but none of them involved reciting words approved by the government and urged by law. By statute, students are required to recite the Pledge every school day (subject to an opt-out rule, under which a student can refrain from "participating in this exercise"). In terms of the number of invocations of the name of the Almighty, a Pledge recital for a single day easily outnumbers all of the other religious references that the Court cited.

The reference to the "limited reference" is also curious. It suggests that there are only two words at issue, so what's the big deal? And yet, it is hard to believe that the Fourth Circuit would permit an officially approved loyalty pledge to include the equally limited words, "under Jesus" or (gasp!) "under Allah."

Myers argued that there was a blatant religious purpose behind insertion of "under God" into the Pledge. In the recent Ten Commandments cases, the Supreme Court determined that religious purpose was really important, but the Court gave it short shrift:

Myers argues that Congress's addition of the phrase "under God" to the Pledge reflects an impermissible religious purpose. The dicta affirming the Pledge, of course, came after that amendment, and therefore undercuts Myers argument.

What kind of reasoning is that? It basically gives license to legislators to assert some sort of disingenuous secular purpose for a law. After the law passes, the legislators can come out and say "Yes! We really passed this law so that people would pay attention to God!" (which is basically what the legislators and President Eisenhower said when the Pledge was amended), but none of those pronouncements are given any weight.

The Fourth Circuit then said that there is no establishment problem with the Pledge because it is not a "religious exercise":

Undoubtedly, the Pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words "under God" contain no religious significance. The inclusion of those two words, however, does not alter the nature of the Pledge as a patriotic activity. The Pledge is a statement of loyalty to the flag of the United States and the Republic for which it stands; it is performed while standing at attention, facing the flag, with right hand held over heart. A prayer, by contrast, is "a solemn and humble approach to Divinity in word or thought." It is a personal communication between an individual and his deity, "with bowed head, on bended knee." (Authorities omitted, emphasis in original.)

Stunning. Under this logic, the state of Virginia could compel students--those who wished to be patriotic, that is, as opposed to those unpatriotic opt-outers--to pledge allegiance to the country and to the Lord and Savior Jesus Christ, just so long as the students do so while standing up. Such a pledge would be almost certainly be held unconstitutional, even though it is not a prayer and students recite it with an erect posture.

Because the Pledge is by its nature a patriotic exercise, not a religious exercise, the school prayer cases, Lee, Schempp, and Engel, are not controlling. Moreover, as the history of our nation makes clear, acknowledgments of religion by government simply do not threaten to establish religion in the same manner that even voluntary school prayer does.

No harm, no foul. Students are left with a difficult choice: Be a patriot, pledging loyalty to country and God, or don't pledge at all. And yet, those (1) who don't accept God, or (2) who don't accept that the nation is "under God," or (3) who don't accept the notion of mixing religion in a government-approved pledge, can be just as patriotic as anyone else. They can love their country, defend their country, support their country, and contribute to their country just as much as anyone else. They should not have to be faced with such an unpleasant choice.

Notably, one of the judges concurring in the decision said that the only indications from the Supreme Court were that the words "under God" were permissible, and therefore she agreed with the result. But she did not agree with the reasoning, saying "a pledge to a country 'under God' might be regarded as religious activity," and reminding everyone that "The government cannot 'force a person to profess a belief or disbelief in any religion,'" which is what the Pledge does. This concurring judge therefore did her duty as she saw it, applying "considerable authority" from Supreme Court justices, even though she thought that those same justices were wrong.