'Under God' stays for all the wrong reasons.
On Monday, June 14, the U.S. Supreme Court offered its ruling on the controversial Newdow case, which argued that inclusion of the words "under God" in the Pledge of Allegiance violated the constitutional principle requiring separation of church and state.
As if to heighten the drama, the court announced its decision on Flag Day - the 50th anniversary of the Flag Day in 1954 when the words "under God" were officially added to the pledge. But the court's ruling, despite the fanfare, was a dud - inconclusive and disappointing. On a procedural point, arguing that the plaintiff lacked standing, the court overturned the 2002 decision of the 9th Circuit Court of Appeals. The words "under God" thus remain in the pledge for now. Why is this a bad idea?
In an election year, the court's sidestep has certain benefits. It spares the American public the inevitable posturing of politicians. While the reversal might seem a victory for conservatives, it could actually benefit liberals by removing the pledge as a distracting campaign issue, and by undermining conservatives' efforts to paint liberals as "unpatriotic" or indifferent to religion. Clearly, foreign policy, the economy, energy policy, the environment and other pressing matters are more weighty and worthy of consideration by candidates. Still, it would be good to settle the pledge controversy once and for all and to get it right, consistent with constitutional principles.
Of the eight judges who participated in the decision (Justice Antonin Scalia recused himself), only three spoke to the substance of the challenge, and they affirmed the post-1954 language. (In 1954, the pledge was more than 60 years old, but it was revised in a Cold War reaction to distinguish America from "godless communism.') The court's reasoning is convoluted, but its partial defense of the "one nation under God" phrase comes down essentially to what Justice Sandra Day O'Connor terms "ceremonial deism." O'Connor and others distinguish "ceremonial deism," which she finds permissible, from meaningful religious expression. For O'Connor, language such as "one nation under God" is merely ceremonial, empty of significance, and only generically associated with a higher being.
The concept is flawed. On the one hand, God in the pledge is not particularly "deistic," implying a supreme being who is vague, removed, impersonal, a God who sets the natural world in motion but does not intervene in day-to-day affairs. Based on the legislative history of the pledge and common usage by public officials such as George W. Bush, this is not the sort of God that proponents have in mind. Their God - the God of the pledge - is one who sees America as a promised land, who intervenes in history repeatedly, and who is on our side as Americans. This is the revealed God whose laws religious conservatives believe we should live by. This is not deism but Christianity.
On the other hand, if the God of the pledge is really not sacred, then why defend the phrase "one nation under God" at all? Hollow references to God might be troubling to some taking God's name in vain and unnecessary verbiage to others. But, of course, the reference to God in the pledge is not insignificant; why else would supporters invest so much to defend his presence?
Consider the phrase "one nation under God." No comma separates the words "nation" and "under." The lack of a comma matters (a June 15 Register-Guard editorial supporting the Supreme Court ruling added a comma here, where none exists). Without a comma, the phrase indicates that the central characteristic of the United States as a political community is its subordination to God. In short, the political community is defined by its religious charge. A pledge that states this becomes, in the words of the 9th Circuit, "impermissible government endorsement of religion," functioning to "enforce a religious orthodoxy of mono- theism."
In 1943, even before insertion of "under God," the Supreme Court ruled that public schools cannot compel students to recite the pledge. As Justice Robert Jackson stated then: "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 politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
With the addition of religious language, in the view of the 9th Circuit, the pledge crossed a threshold to become a prayer. Prayer in schools has been constitutionally prohibited since the 1960s. It thus violates the First Amendment for states to compel public school children to recite the pledge, and the pledge might be banned from schools altogether if its status as prayer was ever affirmed by the Supreme Court.
Defenders of the religious language claim that schoolchildren are not forced to say the pledge. But is that really the case? Is the pledge a voluntary ritual? The 9th Circuit ruled no; the pledge failed the coercion test, placing students in "the untenable position of choosing between participating in an exercise with religious content or protesting." Context is critical. In the setting of a compulsory state institution, among impressionable children, led by an authority figure to stand and repeat the pledge, resistance becomes almost impossible.
The arguments mustered in favor of the "under God" phrase are weak and contradictory: If the reference to God has no meaning, then it should be eliminated in deference to those who find it offensive. If the reference to God is meaningful because it asserts America's godliness, then it should be eliminated in deference to the First Amendment of the Constitution. Why, then, is it likely to remain ensconced in the pledge? It will endure, ironically, not because it's unreligious or merely ceremonial, not because it's actually consistent with the Constitution, but because it's a sacred ritual of American civic religion. For many Americans, patriotism is inherently religious, and the religiously infused patriotic meaning of the Pledge of Allegiance makes it a creed too important to the majority to allow sensitivity to the rights of religious minorities or the Constitution itself.
Matthew Dennis is a professor of history at the University of Oregon.