In late June two controversial legal rulings, one far more notorious than the other, considered the separation of church and state. On June 26 a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled that reciting the Pledge of Allegiance in a public school with the words "one nation, under God" amounts to state establishment of religion and thus is unconstitutional. The next day, the U.S. Supreme Court ruled, 5 to 4, that it does not violate the Constitution to let parents use publicly funded vouchers at parochial schools.
Most people who supported the Supreme Court's ruling on vouchers denounced the 9th Circuit ruling on the Pledge, and vice versa. But maybe both courts were right.
Figures from across the political spectrum denounced the first ruling as outrageous and crazy, and members of Congress trooped out onto the steps of the Capitol en masse to bravely recite the Pledge. The conservative columnist Cal Thomas opined that "the 9th Circuit Court of Appeals in San Francisco has inflicted on this nation what many will conclude is a greater injury than that caused by the terrorists" on 9/11.
Yet quite a few legal experts, not all of them left of center, say the opinion was based on logical, if debatable, constitutional reasoning with a good deal of precedent behind it. The disputed words do seem to turn the Pledge into a state-sanctioned endorsement of belief in God, and to exclude not only atheists and agnostics but followers of polytheistic religions such as Hinduism and nontheistic ones such as Buddhism.
Since constitutional doctrine and legal precedent can be interpreted either way, the courts that will hear the case on appeal are likely to go with the version that seems less divisive. Many liberals see this as a good way to avoid a nasty culture war over a minor issue. On the other hand, attorney Matthew Hoffman has argued in The New Republic that the vehement reaction to the Pledge ruling demonstrates that the court was right—and he has a paradoxical point. Much of this reaction reflects attitudes that bode ill for religious liberty, at least for the nonreligious.
Take President Bush's statement that the decision "points up the fact that we need commonsense judges who understand that our rights were derived from God." Does this mean that we now have a religious test for public office? When it comes to judgeships, should nonbelievers not apply?
Or take the suggestion—offered by several
conservative pundits, such as Bill O'Reilly—that if the Pledge in its current form excludes people who don't believe in a personal God, it's no big deal because such people are a small minority of Americans. Isn't it the most basic of American principles that even the tiniest minorities have rights that can't be trampled by the majority's preferences? If one were to go by numbers alone, there are more atheists and agnostics in this country than Jews and Muslims combined. Yet most of those who want public life to incorporate some officially sanctioned expression of belief in God stress that such expression should be acceptable to non-Christian believers.
Writing in Salon, the political scientist Alan Wolfe opined that the Pledge ruling "violates the beliefs of all those who insist that religion is more than a matter of personal conviction, that faith is essential to how we Americans define ourselves collectively." But this reasoning comes perilously close to suggesting that nonbelievers are not real Americans.
Indeed, the rising prominence of religious rhetoric in politics raises the question of whether the overtly non-religious have a place in public life. Yes, it would be intolerant to demand that politicians refrain from speaking publicly about their faith, but let's turn the tolerance issue around. Would any nonsuicidal political candidate dare to state openly that God should not be credited for the recent rescue of nine miners in Pennsylvania?
Public space should not be purged of all religious expression, as some zealots would have it. A student should be able to talk publicly about his or her faith, even at an official event such as a graduation speech, as long as such expression is not endorsed or imposed by school or state. But no one should be forced or pressured to participate even in a rote ritual affirmation of belief in God. Incidentally, one rarely noted fact is that while children can opt out of the Pledge of Allegiance, teachers frequently cannot: They are often required to lead the class in the recitation.
Removing the words "under God" from the Pledge would not, as Wolfe charges, amount to "official sponsorship of atheism." (That would be the case if the wording were changed to "one nation under no God.") Instead, it would affirm official neutrality between religion and nonreligion.
Whether that's consistent with the intent of the Founders is a complicated issue. While conservatives argue that our political order is based on a Judeo-Christian philosophy, it is noteworthy that the Constitution does not mention God. Two essays in the recent collection James Madison and the Future of Limited Government leave little doubt that Madison, the leading framer of the Constitution, wanted the government to be strictly neutral in religious matters. Interestingly, one of these essays is by the conservative scholar Walter Berns, who deplores Madison's position.
Does the Supreme Court's ruling on school vouchers violate this principle of neutrality? No. Under voucher programs, the government is not establishing religious schools, nor is it funding religious schools in preference to secular ones. It is giving stipends to parents who can then send their children to any private school, religious or secular. To exclude religious schools from these programs, as some liberals propose, would not be neutral—it would be a form of active discrimination against religion.
Some people argue that their tax money shouldn't be used to support schools that teach religious doctrines they find objectionable. But secular private schools—and, more important, public schools—teach plenty of things to which some taxpayers object, from the acceptability of non-marital sexual relationships to a quasi-religious environmentalism.
Right now, parents who are happy with secular schooling can have it for free while those who want religious schooling have to pay tuition on top of their school taxes. The voucher ruling allows parents to choose a secular or religious education for their children on an equal basis.
When balancing the rights of the religious majority and the nonreligious minority, the best approach is to maximize freedom of choice.