How did ‘Under God’ survive this long?

Today marks the 59th anniversary of the introduction of the phrase “under God” to the Pledge of Allegiance. The Pledge of Allegiance, which predates its Congressional takeover by several decades, originally contained no particular theistic commitments, but since 1954 has forced schoolchildren to recite a very specific, very sectarian credo. “There is exactly one God, no more, no less; he is trustworthy; and we trust in his judgment,” goes the longhand version of “in God we trust.”

“In God we Trust” seems like the perfect storm for Constitutional objections. Students punished for not reciting this particular section of the Pledge face the rather unappetizing combination of forced speech, and forced sectarian endorsement. Where the First Amendment protects freedom of expression, the Pledge of Allegiance compels one form of patriotic expression over all others and over silence. Where the First Amendment forbids governmental intrusion into matters of religious opinion, the First Amendment compels expression of a specific sectarian interpretation of theism. If Congress passed a law tomorrow saying that every American must say that America is one nation under God, the law would last about an hour and a half in front of the courts, and most of that would be the time it takes Scalia to obfuscate an obvious truth.

So why has “under God” lasted so long in the Pledge?

The main reason is the relatively esoteric “standing” doctrine of Constitutional jurisprudence. Every case calling for the repeal of a law that reaches any court of consequence requires that somebody actually be harmed by the creation or enforcement of  that law. To date, the Supreme Court has managed to dodge the politically thorny “under God” question by dismissing challenge after challenge not on the merits of the case, but on the standing of the appellant – that being, almost universally, Michael Newdow, parent of a child routinely forced to make the aforementioned highly-specific theistic commitment every day. Eager as always to dodge controversy, the Supreme Court was happy to treat Newdow as more or less unrelated to his own daughter in the one case with promise for challenging the clearly unConstitutional compulsory theistic commitment forced onto your children five days a week.

On its merits, “under God” is a no-brainer. For the government to compel you, an American citizen endowed with freedom of speech, to say anything at all is unconscionable. For that compulsion to be on a matter of theistic commitment is insult atop injury. And yet the Pledge has survived from this day in 1954 onward. The reason is not Constitutional support. The reason is not jurisprudential consistency, it is not principle. It is jurisprudential cowardice, tied to ancient Congressional paranoia. Nothing more. Happy anniversary, and may you soon rest in peace, “under God.”

With paternalistic religious pandering still all the rage in some parts of America, the “under God” question is not a merely academic First Amendment question. It is a question of how many politically easy descriptions of American religiosity the courts are willing to accept before they realize that the Constitution is being truly offended. Given the absolutely obvious Constitutional question of whether or not American children can be compelled to recite a sectarian religious statement, the Supreme Court’s historical reticence to do the right thing is truly unsettling. But with the Circuit courts permitting a challenge to “under God” to rise through the ranks in 2012, we may actually have an opportunity to see the Court face its own historical reticence. As a secular person myself, I for one cannot wait for the courts to confront the obvious, and to make amends for its historical evasions.

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