The federal court ruling prohibiting the Pledge of Allegiance from public schools came as a shock to many, but probably not to anyone familiar with the pledge's history. When it comes to the pledge in civic and religious life, the unexpected seems to be the norm. After all, this ruling comes mere months after the Pennsylvania House of Representatives passed a bill requiring all schools, public and private, to offer the pledge in every classroom on every day. Now, in a case unrelated to the Pennsylvania bill, we are told just the opposite: the pledge may never be recited in any classroom on any day. Such controversy is nothing new to the Pledge of Allegiance.
The pledge was written in 1892, and shortly thereafter dozens of school districts made its recitation mandatory. The first school children to refuse were Mennonites concerned that the pledge implied a military commitment. At that time, the pledge was part of a "flag salute ceremony" in which students raised their right arms toward the flag while reciting the wordsthe salute only reinforced Mennonite suspicions of military implications.
In the 1930s, Jehovah's Witnesses began to refuse the pledge as well as an act of solidarity with Witnesses in Germany facing Nazi persecution. How could American Witnesses salute a national flag when fellow believers were being sent to concentration camps for refusing much the same thing? The ACLU filed suit on behalf of Witness children who had been suspended for pledge refusal. In Minersville School District v. Gobitis (1940), the Supreme Court found mandatory pledges constitutional, resulting in an outbreak of violence against Witnesses. As a result of this violence, but also because forcing children to pledge looked a little too fascist for the times, the Court reversed itself three years later in West Virginia State Board of Education v. Barnette. Pledging has been optional ever since.
Using the pledge to distinguish America from its European enemies turns out to be a recurring theme. Hence in 1942 Congress noticed the disturbing similarity of the raised-arm salute to the stiff-arm Nazi salute and implemented the hand-over-heart posture. In 1954, Congress added the words "under God" to the pledge to distinguish America from the "godless" Soviet Union. It is this most recent modification that led to the controversial ban by the Ninth Circuit court.
What makes this case unlike past pledge controversies is that the plaintiff objects to his daughter even hearing the pledge. Hearing the reference to God is coercive, so the argument goes, and amounts to an established religionthe religion of monotheism, according to the court. This general type of argument is not altogether new. In a 1989 case involving a nativity scene and menorah on government property, the Supreme Court disagreed with the lower courts (who disagreed with each other) by prohibiting the nativity scene and permitting the less prominent menorah. As last week's decision found hearing coercive, the 1989 decision found seeing coercive.
Conservatives maintain that this latest ruling is a perversion of what the nation's founders intended. Liberals either agree with the conservatives, do not want to talk about it, or believe the decision is faithful to the founders. Yet surely the answer is not so simple when one branch of government demands pledge recitation, another branch prohibits it, and the highest court allows Hanukkah, but not Christmas, decorations. We must at least raise the possibility that neither conservatives nor liberals seem willing to consider: might all these disagreements and the accompanying court reversals be exactly what we should have expected the American system to produce?
Granted James Madison could not have predicted this precise outcome, but might not his assumptions have made something like this inevitable? According to Madison, protections such as the first amendment exist so that people are able to "pay homage" to the "Creator" freely, according to the "dictates of their conscience." The problem with Madison's reasoning, and the point at which it touches on the pledge controversy, is that it accepts the Enlightenment assumption that a conscience can actually and completely be "free." Under such an assumption it becomes increasingly difficult to avoid infringing on the dictates of everyone else's conscience.
Today, as such assumptions are called into question, it is no wonder that courts find themselves confused. Is a conscience free if it has seen Jesus in a manger at City Hall? Exactly how big can the Christ child be before my conscience has been coerced by seeing him sleep softly on public property? More to the point, can I hear my teacher say the words "under God" and still be sufficiently free to pay homage to God (or no god) according to my own conscience? At least within the Ninth Circuit, I cannot. But the conclusion to draw is neither that the decision is a perversion of the Constitution nor that it is good constitutional law. Rather, the presumption of a truly free conscience reflects an essential incoherence in the American understanding of church and state.
Legal scholars expect this ruling to be overturned either by the Supreme Court or, to save itself the indignity of such a reversal, by the Ninth Circuit itself. But from a larger perspective, the outcome of this particular case is irrelevant. Is it coercive to merely hear the pledge? These judges say yes, others will say no. What no one questions is whether this is the right question to be askingregardless of whether one is seeking to protect the state from the church or the church from the state. Perhaps in coming years, as the assumptions upon which Madison relied continue to give way, we will better understand what question we should be asking, and of whom we should ask it.
John Perry is a Ph.D. student in Christian Ethics at the University of Notre Dame.
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