Civil Liberties

Mandating "Voluntary" Recitation of the Pledge of Allegiance: Christians v. Atheists in Massachusetts


Tobkatrina: dreamstime

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.