Can There Be a Rational Compromise on the Pledge of Allegiance?

April 23rd, 2014

(RNS) Yet another Pledge of Allegiance lawsuit has been filed, this time with New Jersey humanists challenging the requirement that each school day begin with recitation of the pledge describing the United States as one nation, “under God.”

This case joins a bevy of previous cases that have wended their way through the courts, costing school districts and states millions of taxpayer dollars and contributing to bitter disputes across the country. To date, the Supreme Court has studiously avoided ruling on such cases, but if this continues, eventually, the court will be required to join the fray.

I am always sorry to see these cases: On the one hand, I am sympathetic with the students and parents who do not want their children indoctrinated in religion by a government, even with a very general declaration of the existence of God. (And I am always disappointed that so many people who vehemently insist that government is incompetent want government to lead prayer.)

I am also sympathetic that current law, which permits a student who objects to the pledge to sit quietly, without standing or reciting it, is not entirely adequate. Repeatedly, states and school districts have ignored these limits, and even when enforced, students face enormous peer pressure to participate in this civic exercise.

This concerned Thomas Jefferson when he explained his reasons for refusing to issue a proclamation for a national day of fasting and prayer during a national crisis. Jefferson understood that such a proclamation would have no sanction; those who refused to join in public prayer would face no fine or imprisonment. Still, he was adamant that a proclamation would violate the words and spirit of the First Amendment by creating “some degree of proscription perhaps in public opinion” against those who did not participate.

Jefferson understood that the government had no business promoting religion or even suggesting that those who did not believe in God, or some other particular of religion, were somehow less patriotic or less committed citizens. (This is even truer with schoolchildren.)

In the Jeffersonian tradition, we should not force any citizen, much less a child, to choose between making a religious declaration and appearing to be unpatriotic and facing the negative opinion of his or her peers.

And it is worth remembering that the pledge originally written in 1892 did not include the “under God” language. It was only added in 1954, not coincidentally in the midst of the Red Scare and McCarthyism and the effort to distinguish our nation, supported by God, from the “godless communists.”

At the same time, as a lawyer, historian, parent and citizen, I wonder whether a lawsuit is the best way to resolve these disputes. In addition to wasting enormous amounts of tax dollars and time, the litigation risks further dividing Americans, forcing us to “choose sides” against one another.

For some time, I have been enamored by a suggestion by Christopher L. Eisgruber and Lawrence G. Sager in their book “Religious Freedom and the Constitution”: Why not have two “proper” forms of the pledge, one saying “under God” and one saying “under law,” and permit students to choose which they prefer?

I realize that this would not solve all the problems. Certainly, those wishing not to “pledge allegiance” to any earthly form would still be exempt. Nor do I mean to suggest that the parents who are complaining should not have their day in court.

When the Bill of Rights was being debated, Jefferson and James Madison argued that one of the primary reasons that we needed a Bill of Rights was to permit the courts to protect us against overbearing legislators.

A little rational compromise, though, would go a long way not only in protecting the legitimate rights of students, but in contributing to a sense of national unity rather than division, something we could sorely use. Since that is what the pledge is intended to do, perhaps it is time to seek a compromise rather than continuing the fight in the courts.

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