Tradition muddies Pledge of Allegiance challenge

UC Davis Law School professor Alan Brownstein says the phrase “under God” will likely be difficult to extract from the Pledge of Allegiance.
UC Davis Law School professor Alan Brownstein says the phrase “under God” will likely be difficult to extract from the Pledge of Allegiance.

Constitutional, history scholars offer added perspective to case

A challenge to the Pledge of Allegiance is one of the most controversial cases at the U.S. Supreme Court this session, campus scholars say.

At issue are only two words -- "under God" -- a total of three syllables between them. But within these syllables rages a cultural, legal and political controversy certain to be divisive no matter which way the nation's highest court rules next year.

In October, the Supreme Court agreed to decide whether "under God" should be removed from the Pledge of Allegiance, which is recited daily in most schools nationwide. The case involves Michael Newdow, an atheist from Elk Grove who challenged the pledge on behalf of his 9-year-old daughter. Last year a San Francisco federal appeals court ruled that the phrase was an unconstitutional mix of church and state.

The Supreme Court will hear arguments in the case next spring, though without Justice Antonin Scalia, who has recused himself due to speaking out publicly on the pledge issue. A decision is expected by July.

Alan Brownstein, a law professor at UC Davis and constitutional scholar, says the Supreme Court justices face a difficult question. "Will the Court view the 'under God' reference as an example of ceremonial deism, or will it consider this phrase an overt expression of religiosity?" said Brownstein.

In years past, he said, the court has discussed, although it has not necessarily ruled on, a wide continuum of religious references in public life. These cases range from prayer in public schools, a clear violation of the Establishment Clause, to the use of the phrase "in God we trust" on money as well as the recitation in schools of historical documents containing religious acknowledgements.

The latter, he said, are not generally understood to violate the separation of church and state because of their ceremonial character and historical roots.

"This case probably falls somewhere in the middle," noted Brownstein.

"There's quite a significant gray area in the middle of this continuum. In other words, is the pledge a rote patriotic exercise that has limited religious significance for students, or is it a serious normative affirmation of a belief in a monotheistic deity that raises constitutional concerns?"

The professor said such constitutional issues are best examined in light of the written text, evolving case law, and the prevailing sentiment in society. The great majority of Americans favor the "under God phrase" in the pledge, he said.

Constitutional law involves something of a dialogue between the judiciary and the polity. Justices do not follow public opinion polls, but they cannot completely ignore the values of the community. A technically defensible decision may not be a prudent one.

Brownstein noted the brevity and general nature of "under God." If the phrase had used specific references to the God of Judaism, Christianity and/or Islam, for example, a stronger argument could be made that it infringes on peoples' rights.

"As it reads now, people can interpret 'under God' in many different ways," he said.

Brownstein won't guess how the court may rule. "If you try to predict the court, you usually get burned." But he hopes it reaches a narrow decision that speaks to the specific issues involved, and not a broad opinion that both sides will seek to exploit.

He suggests the court might decide to dismiss the case and avoid the thorny Constitutional issues on the grounds that Newdow does not have standing to file his legal action due to custody issues involving his daughter. "This might be one way out of it for the court."

Few may know that the original Pledge of Allegiance did not even have the words "under God" in it.

Brenda Schildgen, a professor in comparative literature, said, "In the 19-century when the pledge first began to be used, it did not have the 'under God' clause. In fact, 'with liberty and justice for all' was the focus to remind people of the civil rights of all, especially the African-American population which remained a victim of discrimination."

She added that the "under God" clause was added in 1954, a gesture designed to distinguish the United States from the Soviet Union in the midst of the Cold War. She is wary of the phrase's inclusion based on the history of the church-state relationship.

"The worst historic failures and most grievous harm to humanity, the Crusades, the Holy Roman Empire, forced conversions as in Spain in the early modern period, the religious wars in Europe, have been done in the name of God," she says. In her view, it's best to keep apart religion and the state -- "linked together they do incalculable damage."

Baki Tezcan, an assistant professor of history and religious studies, noted an irony in the issue -- the phrase in dispute describes the ideal Islamic state for some.

"If Khomeini, Bin Ladin or the Taliban had had the opportunity to write a pledge of allegiance," Tezcan observed, "they might well have used the same phrase."

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