In response to the recent decision striking “under God” from the Pledge, Joe penned a post that was harshly critical. However, I think it glosses over some critical aspects of Church/State jurisprudence and minority rights in general that require further examination.
Before I go on though, I just want to note how few sites would geniune positive clash between their co-bloggers. Especially considering Joe pretty much runs this show and we are here at his invitation, it just goes to show how special a place this is (cue: “awwwww”).
I’ve written a lot on the Pledge and it’s relation to Church/State law. It was the topic of the essay I wrote for my National Merit scholarship, and again to get into college. It also was the subject of my very first substantive blog post. So it’s a subject I feel qualified to talk about.
The first place to start is also the place where almost nobody ever does start: as a matter of law, was the decision correct? As Eric Jaffe points out, everybody talks about judicial decision solely from the lens of whether or not they agree with the policy. So liberal senators will condemn a judge for weakening civil rights protections or environmental restrictions, and conservatives will criticize a judge for strengthening church/state separation or abortion rights, without the slightest regard for whether the decision made sense as a matter of law.
Within the confines of modern Church/State jurisprudence, it seems indisputably clear that the Pledge violates the 1st amendment. Even Justice Thomas concedes this–in his opinion in Newdow, he took the position that under the prevailing interpretation of the 1st amendment the Pledge has to be unconstitutional–he just took this as a good excuse to attempt to overturn decades of unbroken precedent. For those of us who take seriously the theme behind Church/State law, the Pledge isn’t really a difficult case. It clearly privileges certain religious views (specifically, monotheism) over others (atheism and polytheism). It does it primarily in an environment (schools) where the Court concedes that the coercive authority of the state is at it’s pinnacle and thus it draws the toughest line against religious coercion. And the text of the pledge belies its claim as something neutral or harmless. As Judge Stephen Reinhardt wrote in the 9th Circuit Newdow opinion:
In the context of the Pledge, the statement that the United States is a nation “under God” is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation “under God” is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase “one nation under God” in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and–since 1954–monotheism. A profession that we are a nation “under God” is identical, for Establishment Clause purposes, to a profession that we are a nation “under Jesus,” a nation “under Vishnu,” a nation “under Zeus,” or a nation “under no god,” because none of these professions can be neutral with respect to religion. The school district’s practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates.
Furthermore, properly construed the Pledge should be considered offensive to people who do believe in God (and to be fair, it is to some, such as the Jehovah’s Witnesses). As I argued in a previous post:
Religion is a deeply personal matter, and there is tremendous variance amongst Americans, even those who do believe in one God, on how to articulate their faith…. So when the government proclaims one methodology of expressing faith to be paramount or proper, it has the effect of commoditizing religion, of turning it into a “one size fits all” proposition. I think that is tremendously patronizing of the deep personal and spiritual bound that religion represents, and I think that’s what Justice Hugo Black meant when he said that “a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country…showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” (Engel v. Vitale, 370 US 421, 431)
It is arguments like that which belie the simplistic pro-religion/anti-religion dualism that these cases are so often forced into. As a person of faith, I know that my faith is offended by the commodification of religion and the idea that my belief in God is somehow jepordized by the removal of government sponsored training wheels (not that I think Joe made that particular argument, but it is a common one).
The arguments Joe does make are twofold. Actually, there is a third argument that deals with the political backlash–but I consider that a separate issue (how the public will react to a ruling bears no relation to whether it is correct. As a matter of “pure politics” I agree with Joe’s analysis that it will aid conservatives seeking to turn the judiciary to the Right. I just think that reflects a political distortion, not an accurate view of how the law “should” be). First, he draws a comparison between Christian conservatives seeking to interject creationism in our public schools, and atheists who wish to remove “under God,” on the grounds that they both are appealing to tradition (the original text of the Pledge did not include the phrase, it was added in 1954). But this is a) only a minor facet of Newdow’s argument and b) not a sustainable argument in of itself. Expanding on the latter, just because something is traditional doesn’t make it bad per se. If Newdow can prove that the absence of Under God is more in keeping with our principles of religious tolerance than it’s presence, it is fundamentally irrelevant whether that was the original wording or the modification. The reference to the pledge “as it was” is merely to denote that this would not constitute some radical shift but rather a return to a prior standard which was more fair and equitable than the current one. This encompasses the former as well–the question on a normative level is whether or not the Pledge acts to degrade and marginalize atheist students in the classroom–and the evidence suggests it does (see, e.g., Frack Ravitch, “A Crack in the Wall” in Law and Religion: A Critical Anthology (Steven M. Feldman, ed.); Complaint in Newdow, Appendix I). When the government undertakes to specifically sanction a particular religious viewpoint (especially when dealing with impressionable schoolchildren), that carries a lot of weight. Students who do not fit the mold are forced to “participate or protest” in the religious activity–they either have to deny their beliefs and “pledge allegience…to the republic [which] stands [for] one nation under God,” or they have to actively reject that formulation, protest it, lending themselves to charges that they are unpatriotic, satanic, or worse. The Ravitch article documents in horrifying detail the type of physical and psychological intimidation inflicted on children and families which dissent from religious practices in school (and heaven help them if they sue to stop them!). This is not just a minor inconvienance–in many locations, it can be physically dangerous. The passions aroused by religion are particularly difficult to harness–children should not be placed in this sort of situation.
The other argument Joe makes is that “few except Newdow feel the Pledge as it exists is somehow dangerous.” This is a pecuilar argument to make for two reasons. For one, the passage immediately above that (which Joe is responding to) seems to take it out rather convincingly. That is, if the Pledge was modified to invert its religious endorsement from monotheism to atheism (“one nation that denies God exists”) then everybody would be arguing about the critical relevance of the Pledge. It would be seen (rightly) as a slap in the face to those Americans who DO believe in God and should not have to endure the indignity of government explicitly casting them outside the political community.
What seems to be distinctive is that as Joe says, with the pledge “as it exists,” is that there are “few except Newdow” who feel “the pledge…is dangerous.” In other words, Newdow’s status as part of a relatively small minority (atheists and polytheists) should be seen to delegitimize his claim for minority rights. But if small minorities aren’t protected by constitutional prohibitions…who is? The majority? Large minorities with significant political clout? This is a complete inversion of the classical understanding of constitutional law–which is supposed to be especially formidable when dealing with “discrete and insular minorities” (U.S. v. Carolene Products, 304 US 144, 152, n.4, (1938)). It may, however, be a realistic view of how minority rights are treated in constitutional discourse (albeit an extremely harmful one). As Yale Law Professor Jack Balkin (who blogs at Balkinization) persuasively argues:
Law students are usually taught that it is the job of courts to protect…’discrete and insular minorities.’ These are groups that have suffered a long history of discrimination, are relatively politically powerless, and are unable to protect themselves in the political process. This portrait is quite misleading. In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously. [Jack Balkin, What Brown Teaches us about Constitutional Theory. 90 Va. L. Rev. 1531, 1551-52 (2004)]
In other words, in order to get the “benefits” of being a discrete and insular minority, one must first become at least somewhat non-discrete and somewhat non-minority–otherwise you won’t be recognized at all! The claim will be brushed aside as the rantings of a tiny group of over-sensitive agitators, out of step with “mainstream” society. This misses the point: of COURSE they’re a tiny group whose views are not in line with mainstream society. If they were a large group which had mainstream support, they wouldn’t be in the position where they had to challenge the offending law in Court–it would have been changed in the legislature as most laws which are out of step with large group holding mainstream values are. The twist of the knife, of course, is that as a group begins to gain political ground and support to meet this standard, it becomes correspondingly more difficult to claim the type of marginalization necessary to show a geniune harm. I.E., if atheists took Joe’s implicit advice and sought to become politically mainstream and then sued again–this time with a sizable body of support in both sheer numbers and the political victories to back it up–the Courts would likely respond that their growth had proved they weren’t marginalized at all, that it posed no barrier to success, and that the suit was therefore frivilous. Thus, except in the most extreme cases where a sizable group has been kept completely suppressed over a long period of time (like Blacks in America), this threshold requirement would effectively destroy any claims for minority rights that would come before the Court.
For those reasons, I believe that the Pledge case was correctly decided, that it properly reflects both constitutional law and moral theory, and that it should be (though probably won’t be) upheld.