Last week, the U.S. Supreme Court heard arguments about whether it is constitutional to require those who want to pledge allegiance to the flag of the United States to also affirm that the nation exists "under God." My colleague Douglas Laycock, primary author a number of years ago of the Religious Freedom Restoration Act (designed to enhance religious liberty protection beyond what the Supreme Court provides), submitted a brief on behalf of clergy arguing that the inclusion of "under God" in the pledge is unconstitutional. At a recent debate, he observed:
"In the Pledge of Allegiance, we ask every child in the public schools in America every morning for a personal profession of faith. You don't have to take out your coin and read and meditate on "In God We Trust." You don't have to pay any attention when the politician is talking, and lots of us don't.
"But this asks for a personal affirmation: I pledge allegiance to one nation under God. Now if God does not exist, or if I believe that God does not exist, then that isn't one nation under God. We can't have a nation under God unless there is a God. It doesn't say one nation under our god, or some gods, or one of the gods. It pretty clearly implies there is only one God, and if there is only one God, then the God of the Pledge is the one true God, and other alleged gods around the world are false gods.
"It says one other thing about this God – it doesn't say much, can't say much in two words – but the nation is "under God." God is of such a nature that God exercises some sort of broad superintending authority so that it is possible for a whole nation to be under Him. Now that doesn't exclude many folks, but it excludes some, right? This is not God as First Cause who set the universe in motion and doesn't intervene any more; this is not God as a metaphor for all the goodness imminent in the universe or immanent in the population. This is God exercising some kind of authority over at least this nation; maybe over all nations.
"It's a pretty generic concept of God, and it's comfortable for a lot of people. But we may overestimate how many people. The largest private opinion polls have about 15 percent of the population not subscribing to any monotheistic conception of God. Who is in that 15 percent? Buddhist and other non-theists, Hindus and other polytheists, those with no religion, atheist, agnostic, humanist, ethical culturalists. That's 15 percent of the population, with 7.2 million children in public schools who are being asked to personally affirm every morning a religious belief that is different from the religious belief that is taught or held in their home and by their parents. And it is the personal affirmation request in the Pledge, it seems to me, that makes the Pledge unique. It is different from all the other kinds of ceremonial deism that go on in the country.
"In the attempt to defend the Pledge, government and the various friends of the Court supporting the Pledge have said a remarkable variety of things, but probably the most common thing they've said is variations on what appears in the brief of the United States. It is not religious. We don't mean for them to take it literally. We ask the children to say the nation is under God, but we don't expect them to really believe that the nation is under God. Here is a quote from the government's brief: "What it really means is, I pledge allegiance to one nation, founded by individuals whose belief in God gave rise to the governmental institutions and political order they adopted, indivisible, with liberty and justice for all."
"Now if that were what it means, if anybody thought that was what it meant, we would not have had the great political outcry in response to the Ninth Circuit's decision. If people want to get mad about this because it had some recital about what the founders believed, or because of the other point the government makes – that it's in reference to historical and demographic facts that most Americans over time have believed in God – that would be one thing. But people don't get angry at a recital of historical and demographic facts. People get angry because they know what it means; it's plain English. They believe what it means, they want people to say what it means, they want their kids to say what it means. And I'll tell you a dirty little secret: They want to coerce other kids to say what it means and what they believe to be true. They know that "under God" means under God.
"And if it doesn't mean under God, if we were to take the government seriously for asking children every morning to say the nation is under God but not to mean the nation is under God, well, Christians and Jews have a teaching about that, too. "Thou shalt not take the name of the Lord Thy God in vain." If we don't mean it, if it's a vain form of words that doesn't mean what it says, then it is indeed a taking of the name of the Lord in vain. That is why the brief that I filed is on behalf of 32 Christian and Jewish clergy who do care, not only about not coercing other people to practice their religion, but also care that if we are going to practice religion, we mean it seriously. We don't want a watered down religion that we don't really believe."
Everyone who isn't a shill for theocracy knows that Laycock is right. Yet--and this is the truly remarkable part--everyone (including Laycock) knows that the Supreme Court will uphold the requirement that those who want to profess loyalty to the nation must do so to a nation "under God." This, by itself, could be a case study in the intellectual bankruptcy of American constitutional law. But putting that aside, the only real question now is how much damage the Supreme Court will do to the separation of church and state in the course of finding some tortured rationale for allowing the federal government to require every schoolchild to affirm the supremacy of the deity in order to affirm his or her patriotism. If we're lucky, the damage will be minimal. If we're not lucky...
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