One pledge, hold the 'under God'
NEW HAVEN, CONN. — The Supreme Court heard oral arguments Wednesday regarding whether it is constitutional for public schools to make students recite "under God" as part of the Pledge of Allegiance. The original ruling, which a federal appellate court handed down in 2002, forbade mandatory recitation of the phrase. Virtually the entire political galaxy condemned the decision. Experts predicted that, given public opinion, the Supreme Court would overturn it.
The high court will almost certainly capitulate to popular sentiment and let the phrase stand. But if the justices scrutinize the claims of the Bush administration, which is defending the God-infused pledge, and look at the history of the matter, they should reach a different verdict.
The immediate precedent is a 2000 Supreme Court ruling, Santa Fe Independent School District v. Jane Doe, which held that prayers at school athletic events - even voluntary, student-led ones - are unconstitutional. Such prayers, the court ruled, force students to choose between avowing beliefs they don't possess or publicly absenting themselves from the group.
The only reason this precedent might not pertain would be if the Bush administration can prove that the phrase "under God" doesn't amount to a profession of religious belief, the way a prayer does. Thus, the administration has taken to arguing that the two words are just a ritualized "backdrop," bereft of religious content.
History, however, shows the reverse. An examination of the context in which Congress amended the pledge in 1954 to include the phrase proves that the very purpose was to promote religion. It's often forgotten that the pledge originally did not mention God. Francis Bellamy, who wrote the vow in 1892, intended it as an oath of patriotism, not faith.
But during the Red Scare of the 1950s, America underwent a bout of religiosity. Many Americans argued that the US had to distinguish itself from the Soviet Union, not just through its democracy, freedoms, and capitalist economy - which one might think were distinctive enough - but also through its belief in religion, in contrast to the Soviet Union's official atheism.
Hence, President Eisenhower began hosting prayer breakfasts. Congress created a prayer room in the Capitol. "In God We Trust" - already on coins - was added to all paper money and also became the country's official motto, replacing "E Pluribus Unum." Legislators proposed constitutional amendments to declare that Americans obeyed "the authority and law of Jesus Christ."
The drive to insert "under God" into the pledge, first proposed in April 1953 by a congressman from Michigan, belonged to this campaign. The next February, the Rev. George M. Docherty, minister of the church Eisenhower attended, delivered a homily urging the inclusion of the words. He said the change was needed to differentiate the US from what were often called "the godless Communists." "I could hear little Moscovites [sic] repeat a similar pledge to their hammer and sickle flag with equal solemnity," he said.
Eisenhower, who was sitting in his pew, agreed. So did most of Congress, which set to work on a new law. The purpose was clear: to "acknowledge," as the legislative history of the act stated, "the dependence of our people and our Government upon ... the Creator ... [and] deny the atheistic and materialistic concept of communism." Eisenhower signed the bill on June 14, 1954 - Flag Day - offering similar sentiments.
All of this was of dubious constitutionality even in 1954. After all, America's founders deliberately made no reference to God or religion in the Constitution except to forbid religious tests for office. But it wasn't until 1971, in Lemon v. Kurtzman, that the Supreme Court explicitly clarified that the government may not take any action that would advance religion.
Since then, a series of rulings have refined what kinds of public support for religion are and are not permissible. Especially notable was Lee v. Weisman in 1992, which held that prayers at public school graduations, even if technically voluntary, in effect coerced children into praying. The 2000 Santa Fe ruling elaborated upon Lee v. Weisman.
Given these rulings and the history of the decision to put "under God" in the pledge, the Supreme Court should, in theory, have an easy time this week. The only intellectually honest course is to forbid the public-school recital of the religious version of the oath. That verdict won't be popular. But then again, the need to uphold rights against popular pressures is the reason we have an independent judiciary in the first place.
• David Greenberg is the author of "Nixon's Shadow: The History of an Image." He teaches history and political science at Yale University.