Tuesday, September 20, 2005

Defending an Absurdity

The two religious words that became part of the Pledge of Allegiance in 1954 are hardly the most important issue before the courts these days. And yes, people have gotten used to them over time. But the reasoning on display in Monday’s New York Times editorial on the subject has me scratching my head.

According to the Times, the 1954 Act of Congress that inserted the words “under God” into the Pledge was “absurd” and “should never have happened.” I’m in complete agreement.

However, the editorial goes on to defend the phrase on the grounds that it “has become part of the backdrop of life”, that it “hardly amounts to a prayer”, and that “[n]o child is required” to say it.

Perhaps there is, or should be, a legal grandfather clause for absurdities that should never have happened. On the other hand, perhaps it makes sense to revisit old mistakes and correct them if possible. That’s a question that’s up to the courts to decide, and so far, at least the Ninth Circuit seems to incline to the latter view.

(It’s interesting to speculate on what would have happened had Congress tried its Pledge tinkering only ten years later, after the Supreme Court had ruled, in Abington School District v. Schempp, 1963, that the First Amendment prohibited legislation that did not have a “secular legislative purpose”.)

What’s stranger is the implication that “under God” is Constitutionally inoffensive because it’s not a prayer. This totally misreads the history of church/state jurisprudence, perhaps under the influence of the popular framing of the issue as one of “school prayer”. In fact, prayer has never been the only issue; Abington dealt with Bible readings as well:

Because of the prohibition of the First Amendment against the enactment by Congress of any law “respecting an establishment of religion,” which is made applicable to the States by the Fourteenth Amendment, no state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in the public schools . . . .

But even if the case law weren't so clear on the issue, the defense of “under God” as “hardly . . . a prayer” would make little sense. No one has ever claimed that prayer is the only form of religious speech. And if “under God” does not directly address the Deity, it still has a perfectly recognizable religious function: it’s a creed.

It's hard to imagine any court objecting to the Lord’s Prayer in public school while assenting to, say, the daily recitation of the Nicene Creed (“I believe in one God, the Father Almighty, Maker of heaven and earth . . . .”). While “under God” pales in comparison to any of the full-blown Christian creeds, it does asserts at least two theological propositions: first, that there exists a being properly designated as God, and second, that the United States has a specific (and perhaps special) relationship with this being.

President Eisenhower, who signed the 1954 legislation in the Pledge and presumably understood its intent, said it more eloquently, but his interpretation was the same:

From this day forward, the millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.

As to the Times’ final argument, that in any case no child is required to say “under God” when reciting the Pledge (or, for that matter, to recite the Pledge at all), this is an old argument with an equally old answer. It was addressed 42 years ago in the Abington decision, which endorsed as “altogether dispositive” the lower court’s opinion that:

The fact that some pupils, or theoretically all pupils, might be excused from attendance at the exercises [i.e., Bible readings] does not mitigate the obligatory nature of the ceremony . . . . The exercises are held in the school buildings and perforce are conducted by and under the authority of the local school authorities and during school sessions.

If the New York Times is going to set itself up as a better interpreter of the First Amendment than the Ninth Circuit Court of Appeals, it would be nice if it could find a less obviously flawed set of arguments.