Council Files Amicus Brief in Pledge Case

by Edward Tabash

The following article is from the Secular Humanist Bulletin, Volume 20, Number 1.

In February, I filed a brief with the United States Supreme Court on behalf of the Council for Secular Humanism, supporting the removal of the phrase “under God” from the Pledge of Allegiance. I was assisted by CSH Executive Director David Koepsell; Washington, D.C.-based attorney Ronald Lindsay; and Chicago-based attorney Adam Walker. We argued that the insertion into the Pledge of the words “under God” by the Congress and president in 1954 violated the Establishment Clause of the First Amendment. We pointed out how, in 1789 when the Bill of Rights was written, the First Congress rejected earlier drafts that would have simply prohibited government from establishing any religion. The final version prohibited any law that even pertained to establishment of a religion. Thus, if a law were to even refer to establishment of a religion, let alone establish a religion, it is unconstitutional. The main author of the First Amendment, James Madison, guided by Thomas Jefferson, had always wanted government to not just avoid favoring one religion over another, but to avoid favoring religion in general. This can be seen in his 1785 “Memorial and Remonstrance Against Religious Assessments” and by the “Virginia Statute for Religious Liberty,” enacted in 1786, which was the joint project of  Madison and Jefferson. The Virginia Statute declared that our civil rights should no more depend on our views on religion than they do on our views on physics and geometry. Also, the only mention of religion in the original U.S. Constitution of 1787 was a negative one: a prohibition against any religious test for public office.

This is all strong evidence that the Framers intended a government in which the believer and nonbeliever are equal. As this concept of equality began to evolve, we reached a point at which from 1947 onward the Supreme Court clearly required that no branch of government betray any favoritism for belief over nonbelief. This perspective can be seen in Torcaso v. Watkins, 367 U.S. 488, 495 (1961), in which the Court said: “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to ‘profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers.”

In succeeding cases, the Court has been particularly vigilant about blocking public schools from coercing impressionable children into any form of religious expression. This was the underlying concern that motivated holding unconstitutional officially organized prayer and Bible reading in public schools, in 1962 and 1963. The culmination of the Court’s vigilance in shielding public school children from religious coercion was in Lee v. Weisman, 505 U.S. 577 (1992), in which the Court prohibited even nonsectarian prayers, delivered by a clergy person, at public high school graduation ceremonies. The Court has also always recognized that, the younger children are, the more susceptible they are to coercion to conform.

Everything the Court has said to date, both in terms of requiring government neutrality in matters of religion and in terms of protecting school children from pressure to conform to any kind of religious acknowledgment, would require removing the words “under God” from the Pledge of Allegiance. For the government to formally take sides on the question of whether or not there is a deity by inserting an affirmation of one in its officially designated pronouncement of patriotism, violates every principle of such government neutrality. For the government to put young and impressionable school children in a default position of being expected to recite the Pledge containing an acknowledgment of a deity is to place our nation’s children in a religiously coercive environment.

Our opponents claim that a child can always opt out of reciting the Pledge.   Even if a very few intrepid children could do this, it is still not the business of government to put any child in the position of having to call attention to a worldview regarding religion that so dramatically varies from that of other children  and their families. A government that should be neutral in matters of religion and that should be vigilant in guarding children against religious coercion should not be creating environments in which children have to display unusual courage in the face of peer pressure in order to assert a right not to participate in an acknowledgment of God.

The degree to which we nonbelievers are unjustly despised by society at large can be seen by the horrendous outcry against the Ninth Circuit Court of Appeals decision in our favor. The plaintiff, Michael Newdow, is to be commended for his extraordinary valor in facing the wrath of our nation’s religious mob mentality in pursuing a case that calls our nation back to its proper purpose of preserving a legal system in which the believer and nonbeliever are equal.

In our brief, we told the Court that we would equally oppose a Pledge that would formally say “one nation under no God.” What we want is a society, and a Pledge, that is equally inclusive of both believers and us. This can be accomplished by simply having the Pledge fall silent with respect to God.

We will soon know if the Court has the will and courage to uphold the clear meaning of the Constitution and of its own line of precedents.

Edward Tabash is a constitutional lawyer in Beverly Hills, California, a contributing editor of Free Inquiry, a member of the board of directors for the Council for Secular Humanism, chair of the Council’s First Amendment Task Force, and honorary chair of Center for  Inquiry–West.