(Host) In constitutional law, commentator Peter Gilbert suggests that the internet may make it harder for us to say, “Enough of facts; let’s get back to strict emotion.”
(Gilbert) On March 24, the Supreme Court will hear oral arguments in a case regarding the constitutionality of a public school policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, including the words “under God.”
A problem with reading Supreme Court decisions is that their logic and outcome often look self-evident. After all, the way they are written naturally reflects the outcome the Court reached, and so we see a decision as a fait accompli. But before there was a decision, there was a case, and few easy cases get to the Supreme Court. Thanks to the internet, it’s easy to consider the competing arguments. The website of the American Bar Association lets you read the briefs of the opposing parties.
In this case, Michael Newdow, an atheist and father of an elementary student in California, argues that the words “under God” in the Pledge state that God exists and that the nation is under that deity; that, he argues, violates the First Amendment’s Establishment Clause, which says, “Congress shall make no law respecting an establishment of religion.” “Under God,” he says, is not just a governmental acknowledgment of religion, but an endorsement.
The Pledge was created in 1892, but “under God” was not added until 1954, during the McCarthy era. Newdow asserts that was done expressly to endorse Monotheism and condemn Atheism – including “Godless communism.” Newdow argues, moreover, that “voluntary” teacher-led daily recitations by classes of students are, in fact, coercive.
The school district, on the other hand, argues that the Pledge is not a religious act or a professing of religious belief. Rather it’s “simply a patriotic expression” — what Justice Brennan called a form of “ceremonial diesm” that’s constitutional because it’s lost any significant religious content through rote repetition and because it serves entirely secular purposes of solemnizing public occasions and inspiring commitment to national challenges.
The school district argues, moreover, that the voluntary recitation of the Pledge isn’t coercive; the policy has a secular purpose and its primary effect is not to advance religion; it doesn’t get government excessively entangled with religion, and doesn’t endorse religion.
But, they add that, as the Court itself recognized, “common sense and historical analysis” is the best guide here. Given that the Founding Fathers didn’t have a problem with ceremonial references to God, they say common sense and historical analysis argue for upholding the policy.
Which side do you find more persuasive?
This is Peter Gilbert in Montpelier.
American Bar Association briefs
Peter Gilbert is the Executive Director of the Vermont Humanities Council. He spoke from our studio in Montpelier.