Pledge of Allegiance

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I'm glad to see that the Ninth Circuit Appellate Court has denied the petition to rehear the Pledge of Allegiance case (Newdow). First of all, I think the case was decided correctly; second, I agree with the concurring opinion of Judge Reinhardt that there shouldn't be a rehearing of the case without some sort of reason. You don't get two bites at the apple, as I understand it, just because the decision is unpopular; if the decision is incorrect, the Supreme Court will say so.

I am going to write about Judge O'Scannlain's dissent at length and in some detail. So this would be a good time to stop reading this Tohu Bohu, and go read The Boondocks.

O'Scannlain's dissent (referred to as "disturbingly wrongheaded" by Reinhardt, in language I wouldn't have considered judicious) relies on two main thrusts, which come together in a position that I think is shared by most Americans, and is wrong. First, that if you get rid of the words "under God" in the Pledge, you are going against the will of the founding fathers and the whole history and culture of the US, from the Declaration of Independance to the Gettysburg Address to the motto on the money. Second, that it just isn't that big a deal to have the pledge, that is, that it doesn't rise to the level of something we should do something about.

The first one is simply bad logic. I mean, if the Founding Fathers held inconsistent views on Church and State, there is no reason for us to continue holding those views. I know that the Judiciary should pay special attention to precedent, and that they should in fact be somewhat reactionary by instinct, but mostly they should be analytical and impartial, and not simply keep what is because it is. It's one thing to say that a change needs to have a reason for a change, and that without a reason the precedent should stand. It's an entirely different thing to suggest that the precedent should stand no matter what.

A quick digression: The Founding Fathers were not, in fact, in agreement on this issue, any more than they were on most others. My man Madison felt so strongly on the separation of Church and State that he didn't want to allow people to put the profession of minister on census forms, as that let the government into the business of saying who did and did not have a religious vocation. His views influenced, but did not dictate, the magnificent compromise (but not tohu bohu) that became the rules for the US government.

The second plank of the argument is that voluntary recitation of the Pledge is not coercive enough, or religious enough, or some combination of the two, to be unconstitutional. O'Scannlain spends some time on this, saying that "the recitation of the Pledge is not a formal religious act, while patriotic invocations of God do not give rise to Establishment Clause violations." He goes so far as to define prayer: " In contrast [to the pledge], to pray is to speak directly to God, with bowed head, on bended knee, or some other reverent disposition. It is a solemn and humble approach to the divine in order to give thanks, to petition, to praise, to supplicate, or to ask for guidance."

My basic question is, and still remains: If the Pledge is not supposed to be religious, why were the words "under God" added? As a pledge, as a vow, an affirmation, an oath, an attestation, it doesn't have anything to do with the Divine. The pledger is asked to affirm that the nation is indivisible, if federal; that's a significant thing, but not a religious one. The pledger is asked to confirm the ideals of "liberty and justice for all," which certainly can be, but don't need to be, interpreted in a religious context. But we are also asked to attest that the nation is "under God," that the authority of the nation is subsidiary to, and derives from, divine authority, and that makes it a religious pledge.

If it's not supposed to be coercive, why do they do it every day in school, starting when children are too young to know what "pledge" and "allegiance" mean? I do understand that children can choose not to participate; when I was in school, I went a few years not saying it and sometimes said it while excising the "under God" part. For me, it was as much a part of rebellion against authority as anything else, but it did take a certain amount of courage, or at least willingness to be noticed, which for many people is the same thing. I also suggested, in twelfth grade, that if we didn't need to capitalize "god" in talking about the Greek gods, then I didn't need to capitalize "god" at all, since in those days I was an atheist. There was a substantial uproar in the class (not the only time I caused one, I'm afraid). I was seventeen then, and more articulate than most of my classmates, if my recollection doesn't flatter me too much; I can't really imagine a seven-year old defending a choice not to pledge.

That's the real criterion on this second point: Imagine a seven-year-old atheist (atheist, perhaps, because her parents are, and when I say atheist, I mean good old-fashioned Mencken you'd-have-to-be-some-sort-of-moron-to-believe atheist, not an agnostic, open to the value of other people's religious experience but without personal faith) in school, where the Pledge is said every day. Let's go so far as to say that this atheist is intensely patriotic, as many are, and would be happy to publicly state her allegiance to this republic. Is it fair, and just, and right, and in keeping with the principles that she is happy to pledge to, those principles of liberty and justice for all, to force her to choose between not pledging with her classmates with the attention that the withdrawal would draw, and falsely pledging that she believes her nation is under God?

So, I disagree with the first point, that a certain amount of religious involvement by the state is OK just because it has always happened. And I disagree with the second point, that there isn't enough harm done by things like the pledge to make it worth changing. The general position that these two points lead to, or perhaps come from, is that it's OK for the government to have a certain, fairly small, fairly vague endorsement of religion, as long as it isn't specifically endorsing one sect over another. I disagree totally with that. First of all, it puts atheists in a disadvantaged position, relative to believers (I intend to write more about atheism later, but this is long enough). Second, unless we try, and try hard, to keep Church and State separated, the biases of the majority will creep in, perhaps unintentionally, and the next thing you know, Judges on the Appellate bench will be defining prayer.

I have no problem with believers affirming that, in their belief, state authority is subject to divine authority. I have no problem anybody pledging allegiance, to their belief system or to their political system, in whatever terms they want. I have no problem with anybody doing so publicly, in the town square, or on the internet. But if the government is going to get involved, and particularly if the government is going to set up a structure for children to participate, it must think first of the liberties involved, and leave the smallest possible footprint on those liberties. It would do no harm to those who believe in God and Country to remove the words "under God" from the Pledge, and it would help those who believe in Country but not God. It's the obvious thing to do, the right thing to do, and the constitutional thing to do.

Thank you,