Ron Lindsay, the CEO of the Center for Inquiry and an attorney, has an interesting essay suggesting a new approach to legal challenges to the pledge of allegiance in schools. Noting that we have filed numerous lawsuits against the inclusion of “under God” in the pledge and lost them all, he suggests demanding that the phrase be made explicitly optional rather than taken out entirely.
Undoubtedly, the Pledge is supposed to instill patriotic sentiments. To those of us who are atheists, that’s part of the problem: it equates being a patriot with belief in God. Moreover, that the Pledge taken as a whole might be described as a patriotic exercise doesn’t eliminate the statement of religious belief contained therein. There is no question that a solemn avowal that this is a nation “under God” is inherently a religious affirmation.
However, it’s pretty clear no court is going to rule the Pledge unconstitutional any time soon. So it appears that the choices for nonreligious Americans are to keep filing losing lawsuits or accept the status quo.
Except there’s a third way. We need to rethink our approach to the Pledge.
All the lawsuits to date have asked the courts to eliminate the phrase “under God” from the Pledge. Instead, I suggest an appropriate plaintiff request that the phrase be explicitly made optional. In other words, students would be informed by their schools that they can recite the Pledge with or without the words “under God.” Their choice.
Bear in mind that the defenders of the Pledge, and many of the courts that have upheld its legality, have maintained that the Pledge is not only a patriotic exercise, but an important patriotic exercise: it’s considered a critical part of a student’s formation as a good citizen. Therefore—according to defenders of the Pledge— some students are being denied a critical component of their education merely because they refuse to abjure their religious beliefs. Students who want to obtain the benefit of participating in the Pledge exercise should not be denied this important aspect of their education merely because they cannot honestly affirm there is a God.
Frankly, it’s difficult to see how a request for making the religious avowal in the Pledge optional could be refused. Compare it to other situations where religious avowals embedded in certain ceremonies were once employed as a pretext for barring atheists from participating in important civic activities. Until the mid-twentieth century, some states barred atheists from testifying, serving in public office, or serving on juries on the ground that they could not take a religious oath. All such provisions are now recognized as unconstitutional. Witnesses, for example, have the option of swearing on some sacred book to tell the truth “so help me God” or of simply making a solemn affirmation to tell the truth under penalties of perjury. If this country no longer requires witnesses, jurors, or public officials to affirm belief in God to participate in civic activities, how can a state require schoolchildren to affirm belief in God to participate in an important civic activity?
Turning to potential atheist critics, some will say I’m giving up too easily and am compromising on some fundamental points. We should keep filing lawsuits until some court recognizes that by including “under God” in the Pledge the government is endorsing monotheism and stigmatizing nonbelievers. Indeed, our friends at the American Humanist Association have a lawsuit pending now in New Jersey alleging that the Pledge practice constitutes a denial of equal protection under the New Jersey constitution. I sincerely hope their case succeeds. But I’m afraid it will meet the same fate as their recent Massachusetts lawsuit, which advanced a similar theory. (By the way, in case one doubts my sincere good wishes, I note that CFI was the only secular organization to file an amicus brief supporting AHA in the Massachusetts case.) At some point we need to acknowledge that an unbroken losing streak of about a dozen cases indicates we’re not going to persuade the courts to remove the phrase “under God.”
As to compromising principles, it seems to me atheists’ primary goal in the Pledge dispute should be to have public schools acknowledge that the nonreligious are patriots and citizens in good standing just like the religious. Having school officials inform the students that it is perfectly acceptable to omit God from the Pledge accomplishes that purpose.
I’d like to see a plaintiff file a suit using this tactic. I think Ron is right, that’s far more likely to succeed than our previous cases. But it’s not what I would ideally want to happen. I largely agree with Nathan, who left this comment on the post:
There is, however, one objection I’ve heard that you’ve left out, which takes two related forms. The first: that the pledge as a whole is, at best, a bankrupt exercise in teaching students a rote chant they’re unlikely to be able to comprehend, and doesn’t actually serve to make anybody more patriotic. The second: the pledge as a whole is a creepily totalitarian institution; loyalty oaths are something we should have left behind when we grew beyond McCarthyism; patriotism itself is a fundamentally rotten concept, tribalism writ large, fealty to an empty concept that should have no place in civilized society.
In short, the pledge needs to go away because its fundamental premise is rotten. The two words “under god” constitute a state-enforced prayer to a deity, which is bad, but the rest of the pledge is itself a prayer to the state, which isn’t any better.
I do not say the pledge of allegiance at all, under any circumstances. I will not pledge allegiance to any flag or to a country either. My allegiance is to a set of principles. When my country’s actions are in line with those principles, I support it; when they aren’t, I don’t. But that isn’t really an argument against Ron’s new legal strategy. This is a good example of where, as a legal strategy, we should not let the perfect be the enemy of the good.