Redacting a Time-honored Civic Ritual

Redacting a Time-honored Civic Ritual

By

Jay B. Gaskill

The Pledge of Allegiance case has reached the end of the road in the 9th Circuit Court of Appeal. Plaintiff Michael Newdow, an atheist, won standing to sue on his daughter’s behalf, even as his daughter remained in the custody of his ex wife, Sandra Banning, a believer. Now Newdow has prevailed and the next stop is the US Supreme Court. As I write this, another federal court has forbidden the display of the Ten Commandments on public grounds outside a courthouse. Both cases raise the fundamental question whether the radical separation of secular institutions from religious ones advocated by the Newdows of this country is strictly required by the constitution. And it raises a second question: Is the secular world view to become the de facto state religion of the United States?

The author of the original pledge opinion, Judge Alfred Goodwin, wrote that “under God” part of our Pledge violates the metaphorical wall between church and state. Actually the “wall” erected by prior court decisions is not mentioned in the constitution, yet (for some jurists), stands between any implied endorsement of deity and all governmental institutions. This is a hot button issue in a country where belief in God (in some form) is a virtual consensus. By implication, the pledge case could affect our “in God we trust” coinage, currency, even the “God save this honorable court” invocation at the beginning of US Supreme Court sessions.

I am by no means a conventional traditionalist where religion is concerned, nor do I think our liberties would flourish within a theocracy. But the real issue is whether we must create a secular order whose heavy hand on the engines of government is actively hostile to religion and its most benign symbols. The moral order depends on more than secular humanism. Surely, the Pledge of Allegiance, in its present form, is a legitimate civic ritual. Its ordered redaction by the 9th Circuit was a breach of judicial restraint. Reasonable minds should question this decision’s appropriateness and wisdom on at least five grounds:

History: The authors of the First Amendment were crafting this protection for a population consisting initially and significantly of religious émigrés from the state established Church of England. The “no law respecting an establishment of religion” clause was originally designed only to bar a state-established religion. Recall that the Church of England was the official, government-supported church in the mother country. The New American Idea rejected that establishment, protecting religious pluralism and tolerance for secularism, not secular pluralism and intolerance for religion itself.

Theology: The “under God” part of the Pledge, wisely, remains undefined. One’s notion of God (indeed, the very meaning of that word) is ultimately an individual matter. What is generally meant in this culture by “God” long ago broke out of narrow Judeo-Christian boundaries. Think of the physicists and cosmologists who talk of the “Mind of God” as shorthand for the supreme ordering principle in the universe. In the Pledge, the word under is the key term. All government is ideally subordinate to ultimate moral authority, in shorthand, to God. Really, which would you rather affirm: The ideal of a nation subordinate to ultimate moral law, or to its leaders of the moment?

Timing: Why now, after Americans have recited the Pledge with “under God” for 48 years? Why now, just as our culture’s notions of “God” are expanding and becoming at once more individual and more inclusive? And why do this at a time when voices in the Middle East disparage our decadent, godless, secular society? Why now when Americans of all persuasions came together in places of worship in the dreadful moments following the 9-11 assaults?

The false implication the free exercise of belief is at stake. The Free Speech and Free Exercise clauses of the First Amendment provide robust protection for all religious and anti-religious elements in our society. Atheists and the adherents of non-monotheistic religions are free to worship or refrain from worship. No one can be required to recite the pledge, and no one who does recite it can be required to recite the “under God” portion.

Perspective: Who could have been surprised at the fierce popular reaction to this decision? The Declaration of Independence is a reality check for those who have forgotten this country’s intellectual legacy:

“When in the Course of human events, it becomes necessary for one people to … assume … the separate and equal station to which the Laws of Nature and of Nature’s God entitle them… [A]ll men are created equal, [in] that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

This country was founded by patriots steeped in the tolerant, but theistic branch of 18th century Enlightenment. This is an occasion for celebration, not redaction of one of our cherished civic rituals.

Copyright © 2003 by Jay B. Gaskill

For permission to reprint, copy and distribute, contact → Jay B. Gaskill

Attorney at Law: Office@jaygaskill.com

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