The Pledge of Allegiance infringes on freedom of religious expression
From our first day of kindergarten in the United States, we are expected to recite daily those 31 words which solemnly declare our fidelity to the nation we call home: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”
The Pledge was a welcomed constant in the seemingly capricious changes in the school day as I progressed through the education system. Even today, I feel a certain affinity for the Pledge, although it seems the frequency with which I recite it appears to have diminished considerably after leaving high school. Two words of the Pledge, however, have drawn the ire of modern commentators: “under God.”
The Pledge has existed in some form since the late 19th century. It was not until 1942 that Congress officially recognized the Pledge as:
“I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all.”
The observant reader will note that the controversial phrase is absent from this version. That is because “under God” is a relatively recent addition to the Pledge. It was not until George Docherty, a minister at the New Your Avenue Presbyterian Church, made the suggestion in a sermon delivered to President Eisenhower, claiming that the “characteristic and definitive factor in the American way of life” was a monotheistic religiosity, manifested in a special, spiritually-branded belief in American exceptionalism. To some extent, Docherty was correct: at the height of the Second Red Scare, it was religion, not capitalism, which fundamentally separated the United States from the communist nations in the minds of many Americans. Eager perhaps to prove his fidelity to his newly adopted brand of Protestantism, Eisenhower took Docherty’s suggestion to heart, and “under God” was accepted into the Pledge on June 14, 1954.
In the half-century since the modification of the Pledge of Allegiance, several legal challenges have been brought against the phrase, with varying degrees of success. In 2010, however, the United States Court of Appeals for both the First and Ninth Circuits rendered decisions that reaffirmed the phrase’s place in the Pledge, noting that “under God” served only ceremonial purposes and did not constitute a state endorsement of monotheism, as the Pledge is voluntary.
Because of a recent challenge in the Supreme Judicial Court of Massachusetts, however, “under God” is under fire again. The case differs from others like it in that, rather than attack the phrase on the basis of governmental endorsement of monotheism, explicitly prohibited by the First Amendment, the plaintiff claims that the Pledge violates the quite extensive Equal Rights Amendment to the Massachusetts State Constitution. By providing an unpleasant alternative to the pledge, the so-called opt-out, the claimants argue that non-monotheists are not afforded equal protection under the law.
Per chapter 71, section 69 of the Massachusetts General Laws, “[e]ach teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the ‘Pledge of Allegiance to the Flag.’” At the time of writing, the Constitution of the Commonwealth of Massachusetts holds that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” At cursory glance, the optional Pledge enshrined in law appears to comply fully with this principle. The claimants in the new case against the Pledge hold, however, that there exists only the illusion of choice, as the alternative yields ostracism. While I think that such an argument can be made, I believe that a more powerful argument lies in the very purpose of the Pledge.
Why are students led in the Pledge of Allegiance? The frequent response is that the Pledge inculcates the youth of America with an appreciation for their country. At a more fundamental level, however, the Pledge exists to give students the ability to affirm their dignity as citizens. In publicly reciting the Pledge, students are allowed to accept the rights and responsibilities that American citizenship confers. In order to avoid the intricacies of religion entirely, I shall now focus upon students with no religious beliefs.
It is true that the Massachusetts State Constitution does not explicitly protect the rights of those without a creed. It’s a game of semantics to argue against this point, but I shall play devil’s advocate. The precedent exists, however, that the enumeration of protected characteristics in the commonwealth’s Constitution does not serve as an exhaustive list of so-called suspect classifications in the eyes of the law. Instead, the most recent criterion applied in the Supreme Judicial Court of Massachusetts in the identification of a suspect group is whether members constitute a “discrete and insular minority.” The application of such a standard against atheists is not without nuance; however, I believe the sociocultural identification of atheists as an interest group in modern society is compelling evidence that such a classification can be made.
If it is accepted that atheists constitute a discrete and insular minority and are therefore a suspect group under the law, then contemporary American jurisprudence holds that any law applying to atheists must pass strict scrutiny; that is, it must serve a compelling governmental interest, it must be narrowly tailored to furthering that interest, and it must make use of the least restrictive means to that end. Because the law affects all students enrolled in public schools in Massachusetts, and because some atheists are of school-age, it applies to atheists. The government of the state certainly has a compelling interest in the inculcation of students with a healthy dose of patriotism. The Pledge, in its current form, is not narrowly tailored to furthering that interest; it forces students to either accept a Pledge affirming that the nation exists under a single God or make no such affirmation. It effectively disallows atheists from making the Pledge and thus deprives them of their ability to make a solemn and public recognition of their dignity as citizens. It fails strict scrutiny.
The argument is trickier if atheists are not recognized as a suspect group; however, strict scrutiny should still be applied. The Pledge in its current form prevents some students from making a conscious and public declaration of their allegiance to the nation, and I posit that the ability to make such a statement is a fundamental right of American citizens. The current legal precedent regarding laws that infringe a fundamental constitutional right is that they must pass strict scrutiny, and, as detailed above, the law does not pass muster.
What should happen to the Pledge of Allegiance? It existed for decades without the assertion that America exists “under God.” When considering additionally that monotheism is no longer a unifying characteristic of the United States and that a plurality of systems of belief and non-belief have been fully incorporated into the spiritual culture of our nation, the phrase no longer has a place in any declaration of temporal allegiance. We are a nation of many gods and no gods, and every citizen should be able to affirm publicly her dignity as an American, regardless of her religious predilections. We are a nation indivisible, with liberty and justice for all.
Aaron Hammond is a member of the class of 2017.