A bill aimed at forcing Arizona's public school students to recite the Pledge of Alliance each day passed the state House this week. Despite opponents citing that the measure is clearly unconstitutional, the House's Republican majority is pressing forward.
"We stand and recite the Pledge of Allegiance every day on this floor. What's good for us is good for the children," Rep. Barbara Parker (R–Mesa), who sponsored House Bill 2523, said during a hearing for the bill.
H.B. 2523, which was introduced last month, seeks to require that the state's public primary and secondary schools "set aside a specific time each day for students who wish to recite the pledge of allegiance to the United States flag," adding that "each student shall recite the pledge of allegiance to the United States at this time." The bill allows students to refuse only when they are over 18 or have parental permission to refuse to recite the pledge.
"This is to make sure that students growing up understand the country in which they live and embrace the citizenship and the founding principles that we hold so dear," said state Sen. Wendy Rogers (R–Flagstaff).
The bill passed on Tuesday along party lines, with Republicans exclusively supporting the measure. It will likely pass the Republican-controlled state Senate. However, the bill is blatantly illegal, and even if it manages to somehow overcome a veto from the state's Democratic governor, it would likely be quickly overturned in federal court.
As much as Arizona Republicans want to enforce this "citizenship" exercise, the Supreme Court decisively ruled in 1943 that schoolchildren cannot be forced to say the Pledge of Allegiance. In West Virginia State Board of Education v. Barnette, the Court ruled that the state cannot compel anyone—even schoolchildren—to profess or vow a belief they do not hold.
"Compulsory unification of opinion achieves only the unanimity of the graveyard," wrote Justice Robert H. Jackson in the Court's opinion, famously adding, "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 matters of politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Constitutional law doesn't seem to bother the bill's supporters, who argue that the provision allowing parents to permit their children to sit out the pledge is sufficient protection for free speech. "The current law is that parents have a right to direct the education of their child," Parker said during the floor debate over the bill. "And this is a parents' rights state."
Regardless of Arizona Republicans' insistence, they don't have the power to singlehandedly quash the First Amendment rights of Arizona schoolchildren. If the bill becomes law, they'll likely learn this in court.
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]]>Bladen County, North Carolina, Board of Elections Chairman Louella Thompson has rescinded a threat to have anyone who recites the "Pledge of Allegiance" at a board meeting arrested. At the January board meeting, some people in the audience were upset that the board does not say the pledge. During the public comments part of the meeting, one man led the crowd in reciting the pledge, and Thompson said she would have people arrested if they did that again. She repeated the threat days later when interviewed by media. But she came under fire, including from Gov. Roy Cooper, the man who appointed her to the board, and she later backed down.
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]]>School district officials in Texas have settled with a student who sued for her right not to stand for the Pledge of Allegiance. The Cypress-Fairbanks Independent School District has acknowledged her right to sit and promises to inform future students that they also have the right to refuse to stand, according to the Houston Chronicle.
India Landry, a student at Windfern High School in Harris County, Texas, was expelled from the school because she refused to stand for the pledge, showing her support for NFL players who had been kneeling to protest police violence. She sued last fall, arguing that the expulsion was racially motivated and violated her constitutional rights.
Supreme Court precedents appear to be entirely on her side with rulings going all the way back to 1943. Public schools can't force students to stand for or recite the Pledge of Allegiance. It's compelled speech that violates the student's First Amendment rights.
But apparently the school district put a policy in place where students were required to get official written permission from their parents in order to refuse to stand for the pledge. That's not how the First Amendment works, but in any event Landry's mother has supported her this whole time.
The fight became a national news story because Texas Attorney General Ken Paxton publicly took the school district's side in defiance of years of Constitutional law. He quoted precedents from Supreme Court decisions on the school district's behalf, but very strangely, the case he cited saw the Supreme Court uphold a citizen's right to desecrate the flag.
In any event, it's terrible that it took so much time, effort, and attention for the school district to acknowledge that it has no authority to force students to recite the Pledge of Allegiance.
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]]>Texas Attorney General Ken Paxton's website says "Liberty and Justice for Texas" in big letters at the top. He seems to have a funny idea of what "liberty" means, though. He thinks the State of Texas can force students to stand for the Pledge of Allegiance.
India Landry, 18, was expelled from a high school in Katy, Texas, because she has repeatedly refused to stand for the Pledge. Landry is suing the school district in federal court, arguing violations of her civil rights. Now Paxton, as the state's top prosecutor, is asking to intervene in the federal case.
To say that court precedent is on Landry's side may understate things. A Supreme Court decision from all the way back in 1943 makes it very clear that public schools cannot force students to salute the flag or recite the pledge.
You might expect that as the state's attorney general, Paxton would be defending Landry's free speech rights here. Nope: He wants to argue that Landry cannot refuse to stand for the flag without her parent's permission. It seems that Texas schools have opt-out forms that parents are expected to sign to give children "permission" to not stand. In a press release, he claims, quite incorrectly, "School children cannot unilaterally refuse to participate in the pledge."
Landry's mother is supporting her lawsuit, which makes Paxton's approach more than a little strange. Even stranger is the Supreme Court precedents he's attempting to use in his motion to justify his position. He quotes Texas v. Johnson and Spence v. Washington, in which the Court said, "there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to 'preserv[e] the national flag as an unalloyed symbol of our country.'" But this quote comes from a Supreme Court case affirming the right to desecrate the flag as a form of protected speech! The decision specifically forbids the government from punishing citizens for disrespecting the flag.
This unconstitutional wankery can be explained by election-year politics and by the fact that Landry is reportedly refusing to stand for the pledge to show her support for kneeling NFL players. In other words, Paxton is supporting the school district punishing a black student for participating in a protest that is fundamentally about how people in authority abuse their power to punish black people.
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]]>Anne Daigle-McDonald, a middle school teacher in Spring Hill, Florida, was suspended for five days, without pay, for trying to physically force a fourth grade Jehovah's Witness to recite the pledge of allegiance on September 11. Jehovah's Witnesses believe it is against their faith to pledge allegiance to temporal powers, or the objects that represent them, and the child had never recited the pledge of allegiance in class before. Nevertheless, on 9/11 Daigle-McDonald apparently wanted to teach him what America means. Via the Tampa Bay Times:
As the students recited, teacher Anne Daigle-McDonald took the boy's wrist and placed his hand over his heart. He protested, pulling his arm down, and reminded her he was a Jehovah's Witness.
"You are an American, and you are supposed to salute the flag," Daigle-McDonald said, according to a statement the boy gave to a school administrator.
The next day, Daigle-McDonald again placed the boy's hand over his heart.
She then addressed the class.
"In my classroom, everyone will do the pledge; no religion says that you can't do the pledge," several students told a school administrator, according to a report. "If you can't put your hand on your heart, then you need to move out of the country."
The fourth-grader, of course, likely knows a lot more about his own religion than his teacher does.
A 2005 DOJ memo on the constitutionality of the Postal Service's oath of office does explain the government's belief that a requirement to "affirm" (but not "swear") an oath to the Constitution does not violate religious belief, largely because it "requires only that a person abide by the nation's constitutional system of government and its laws."
Daigle-McDonald, who sounds like an ignoramus, was probably not referring to this, and the Jehovah's Witnesses, in fact, were among the first Americans to object to "the contradiction inherent in a compulsory oath lauding individual liberty," as Greg Beato wrote for Reason in 2010. The Jehovah's Witnesses efforts against the mandatory pledge culminated in a 1940 Supreme Court decision, Minersville v. Gobitis, that ruled schools could force Jehovah's Witnesses to recite the pledge. The decision, Beato notes, was followed by tar and featherings, public beatings, and even the castration of one Jehovah's Witness in Nebraska. The plainly wrong decision was overturned by the Supreme Court just three years later.
Today, young children are largely free to decline to pledge allegiance to the flag, except when, for example, they're being bullied by their teachers. Now, the fight over the pledge of allegiance is over the inclusion of the phrase "under God," added in the 1950s. Ronald Bailey wrote about the recent skirmishes in that battle, and how it squares with a statute-mandated "voluntary" pledge in the first place, which you can read here, and read Greg Beato's "Face the Flag" on the history of the pledge of allegiance, penned by a Christian Socialist who believed in forcible wealth redistribution, here.
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]]>Atheists and Christians are fighting again over reciting the Pledge of Allegiance in public schools—this time in Massachusetts. They are arguing over the words "under God" in the Pledge, but the real argument is why should any state mandate the "voluntary" recitation of the Pledge in any public institution? A federal district court judge noted way back in a 1938 Pledge case the irony of the "totalitarian idea of forcing all citizens into one common mold of thinking."
Look, I am the kind of guy who gets misty-eyed when I hear the Star-Spangled Banner and when I drive along flag-lined streets in the little central Virginia towns near my house on Memorial Day. Although my primary loyalty is to human liberty everywhere, I am not immune to having my heartstrings tugged by American tribalism.
Despite my patriotic impulses, I have long been troubled by the semi-mandatory rote recitation of the Pledge of Allegiance by students in public schools. In 1919, Washington State was the first jurisdiction to make reciting the Pledge mandatory in public schools. Jehovah's Witnesses objected (and the pledge didn't even contain the words "under God" back then) and filed suit against the mandates on First Amendment grounds and won in federal district court. The case, Minersville School District v. Gobitis, was appealed to the Supreme Court. As Reason Contributor Greg Beato explained back in 2010:
In 1940, however, the Supreme Court agreed to hear an appeal of the case, and ultimately reversed the lower court's original ruling by an 8 to 1 margin. National unity, it concluded, trumped individual liberty. In the wake of this decision, unified Americans tarred and feathered a Jehovah's Witness in Wyoming, castrated another in Nebraska, and publicly beat others in Texas and Illinois as police and city officials watched.
Three years later, with the U.S. in the midst of war, the Supreme Court reversed its decision. Since then, recitation of the Pledge has not been mandatory, at least from the perspective of the highest court of the land.
I vividly recall how uncomfortable our daily recitation of the Pledge made Jehovah's Witness kids in my elementary school classes. Of course, when I became an "out" atheist in high school, I rather ostentatiously refused to say the words "under God" although I still stood and pledged.
Without going into the history of the Pledge, the words "under God" where added in 1954, evidently as a way to distinguish our country from those ruled by Godless communists. One would think that liberty, rule of law, and freedom of speech and religion would be more than enough to make that distinction clear.
As noted above, the Massachusetts Supreme Judicial Court is now considering a case in which an atheist is suing to eliminate the words "under God" from the Pledge arguing that it violates the equal rights amendment of the state's constitution. The relevant section reads:
All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.
So what is at issue? After all, kids in public school may opt of reciting the Pledge. According to the Washington Post:
Attorney David Niose, representing anonymous atheist parents, told justices that atheist children "are denied meaningful participation in this patriotic exercise" because the language refers to God.
"Children every morning are pledging their national unity and loyalty in an indoctrinating format, in a way that that validates God belief as truly patriotic and actually invalidates atheism," said Niose, former president of the American Humanist Association and now president of the Secular Coalition of America.
Pledge advocates hit back. No one has to say the pledge, they noted, citing a court ruling that confirms the pledge must always be voluntary. What's more, they said, reference to "one nation under God" does not necessarily affirm theistic belief.
"It's not an affirmation of religion?" asked Associate Justice Barbara Lenk.
"It's a statement of our political philosophy," answered Geoffrey Bok, attorney for the defendants. "It's the founding thing upon which our country was founded. Our rights did not come from the king or the tsar or the queen. They come from something higher."
Something higher? Natural law as devised by a super race of Giant Purple Space Squids [Youtube] perhaps? In any case, the defenders of the Pledge are asserting that reciting the Pledge is a "patriotic activity" not a religious one. That convoluted claim was affirmed in 2005 by the Fourth Circuit Federal Appeals Court decision in Myers v. Loudon County Public Schools. In that case, a Mennonite father of two kids in public school sued arguing that the daily voluntary recitation of the Pledge of Allegiance in Virginia's public schools, violates the Establishment Clause of the U.S. Constitution. The Court ruled:
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 … Even assuming that the recitation of the Pledge contains a risk of indirect coercion, the indirect coercion is not threatening to establish religion, but patriotism… The fact that indirect coercion may result from voluntary recitation of the Pledge in school classrooms is of no moment under the Establishment Clause. Because the Pledge is by its nature a patriotic exercise, not a religious exercise….
Just how the words "under God" make reciting the Pledge more "patriotic" is not at all obvious to me, but then-again I am not a constitutional law scholar. I do note, however, that the U.S. Constitution does not have a single reference to any deity at all. Without evident irony, the Becket Fund for Religious Liberty has intervened in the Massachusetts case to protect the "patriotic" right of believers to continue to say the Pledge in public schools with the words "under God" in it.
So why mandate "voluntary" recitation of the Pledge at all? In his lonely dissent in the infamous 1940 case of Minersville v. Gobitis, Justice Harlan Stone correctly argued:
The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion (emphasis added).And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents' religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion. The very terms of the Bill of Rights preclude, it seems to me, any reconciliation of such compulsions with the constitutional guaranties by a legislative declaration that they are more important to the public welfare than the Bill of Rights.
Remember that Stone wrote his dissent before the words "under God" were added to the Pledge. Of course, one way to avoid this fight is to privatize the school system and let parents and kids choose to attend Pledge-free schools or not. But that is an argument for another time.
The post Mandating "Voluntary" Recitation of the Pledge of Allegiance: Christians v. Atheists in Massachusetts appeared first on Reason.com.
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