Religious Freedom and the Pledge of Allegiance

Event Recap

Every day millions of Americans, many of them schoolchildren, are asked to pledge their allegiance to the American flag and to “the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” By invoking God, does this familiar act of citizenship constitute a profession of faith or simply an acknowledgement that Americans have historically believed in God?  In either case, does it imply that a good citizen must believe in God?  On October 9 the Boisi Center hosted a panel to discuss the Pledge’s invocation of a nation “under God,” and its implications for religious freedom in this country.

First among the panelists was Michael Newdow, a lawyer, physician and First Amendment activist who sued the U.S. Congress over this issue and personally argued his case before the U.S. Supreme Court in 2004.  The Court ultimately declined, for technical legal reasons, to rule on the permissibility of “under God” in the Pledge, but Newdow has re-filed his case, which many expect to return to the Supreme Court in the coming years for final resolution.  At the panel discussion Newdow focused his remarks on the concept of equality, arguing that the First Amendment’s guarantee of religious freedom means that all citizens—including those who reject religion—must be treated equally. The inclusion of “under God” in the Pledge, he said, unconstitutionally signals government support for theistic (particularly Christian) religious beliefs, making belief in God a component of good citizenship. Atheists and other non-theists are treated as unequal citizens who must suffer in silence as the majority robustly declares its faith to be integral to its patriotism.

Author, attorney and social critic Wendy Kaminer sympathized with Newdow’s principled argument for equal treatment of atheists, but said that his legal challenge was doing more harm than good to that cause. As an atheist herself, Kaminer said, “We can’t afford to win this case” because the public backlash would likely result in passage of a constitutional amendment protecting religious language in this and many other circumstances. Furthermore, she noted, religious people should be much more worried about the Pledge’s form of “ceremonial deism” than non-religious people, since it signals a secularization of religious meaning.

Constitutional scholar Phillip Muñoz, professor of political science at Tufts University, argued that Newdow would have won his case if the Supreme Court had considered the substantive issues, because all their prevailing legal tests support his position. But while Newdow’s argument may be legally sound under present constitutional interpretation, he said, it conflicts with the Founders’ more capacious understanding of religious freedom. Muñoz, who is writing a book on religion and the American founding, argued that while the First Amendment prevents the state from rewarding or punishing people for being religious or not religious, such punishment does not include the psychological harm that comes from hearing religious people express their faith.

A vigorous discussion among panelists followed their initial presentations. When pressed by Newdow, Muñoz argued that it would be constitutionally permissible even to include the phrase “under Jesus Christ” in the Pledge of Allegiance—although it would be a bad idea. “Not all bad things are prohibited by the constitution,” Muñoz said. The audience left the session energized by the debate.