Secular Coalition files Amicus Letter in Newdow's "under God" Pledge Case
July 14, 2006 - The Secular Coalition for America filed a friend of the court letter in Newdow v. Carey. As stated in the brief, this litigation, to remove "under God" from the Pledge of Allegiance in public schools, is supported by the nontheist community who "object most vociferously to the idea of children being subjected to daily, government-imposed declarations that the United States of America is a nation 'under God' ."
Michael Newdow, et al. v. John Carey, et al., No. 05-17257 (DC CV-05-00017-LKK)
In accordance with Rule 29 of the Federal Rules of Appellate Procedure and the Circuit Advisory Committee Note to Rule 29-1 of the Rules of this Court, the Secular Coalition for America respectfully submits this letter of amicus curiae supporting plaintiff-appellees in the above-referenced case.
I. Applicant's Interest
The Secular Coalition for America (SCA) is the first lobbying organization in Congress whose constituency is nontheistic Americans. We are a 501 (c) (4) advocacy non-profit whose mission is to increase the visibility and respectability of nontheistic viewpoints in the United States and to protect and strengthen the secular character of our government as the best guarantee of freedom for all. SCA's member groups include seven national Humanist, atheist, and freethought organizations.
The litigation at hand will greatly affect the individuals who constitute the SCA's member groups. Nontheistic Americans -- atheists, agnostics, humanists, and others who do not embrace a belief in a supernatural divinity -- are among those who object most vociferously to the idea of children being subjected to daily, government-imposed declarations that the United States of America is a nation "under God." The SCA groups represent Americans who claim a right to send their children to school with the assurance that their government will not impose religious beliefs on them. Moreover, even nontheistic Americans who do not have children have the right to know that their tax dollars are not being used to promote theistic religious beliefs in public schools through daily recitations.
Furthermore, a number of arguments put forth by the defendant-appellants further the marginalization and demonization of nontheistic Americans. Thus, the pleadings themselves imply decreasing respectability of nontheistic viewpoints, and warrant argument from the SCA.
II. The Merits
The Pledge of Allegiance is currently recited in public schools with the words "under God" as added by Congressional action in 1954. Public school recitation that we are "under God" is an unconstitutional endorsement of religion.
A. Removal of "under God" Does Not Show Hostility Toward Religion
The United State of America argues in its opening brief (P. 47) that removing the words "under God" from the pledge after some 50 years of its inclusion would show hostility toward religion. This argument wrongly equates neutrality with hostility, and it wrongly assumes that all religions involve belief in a singular deity: Inclusion in the Pledge of the statement, "there is no God," is what would demonstrate hostility toward monotheistic religion -- just as inclusion of the term "under God" clearly indicates an official preference for monotheistic religion. Removing a reference to God in the pledge would restore official neutrality toward religion.
For over 50 years, nontheistic schoolchildren have been denigrated during the daily recitation of our nation's patriotic exercise. Finally including them in such exercise by returning to the original version of the pledge is no more anti-religious than requiring traditionally all-male military academies to accept women is anti-male or requiring traditionally segregated public schools to integrate is anti-white.
B. The Actual Wording of the Added Phrase "Under God" in the Pledge is Clearly Religious, Not Historical as the Defendants Argue
The history of our nation may legitimately be taught in our public schools' history classes, and patriotic exercises may legitimately be conducted in those same schools. An accurate history lesson would note that the founders specifically excluded God from the Constitution, and it would also acknowledge some horrific behavior on the part of some of the settlers as a result of firmly held religious belief (e.g., burning "witches" at the stake). To be even more thorough, such a lesson might include the arguments regarding slavery during the Constitutional Convention and the religious justifications given for allowing slavery (as well as the religious arguments given against slavery).
The clear language of the current form of the pledge does not indicate an intention to teach history (even a partial history that ignores the efforts of nontheists in founding our nation). The section of the pledge in which "under God" was inserted contains a list of celebrated national values: our indivisibility, the liberty we afford our citizens, and justice for all. There is no justification for singling out one phrase in the list as a historical reference to the founders, especially when the rest of the list refers to values that were not shared at the time of our founding. For example, originally we did not guarantee liberty for all; the Constitution did not prohibit slavery. And between the time of our founding and the writing of the Pledge of Allegiance in 1892, our nation was divided by a Civil War. Thus, the reference to our indivisibility spoke to late 19th century hope for the future, not the experience of the past.
Indeed, Congress made clear its intention that "under God" be a religious statement when it inserted the phrase into the pledge in 1954. The words "under God" were added at a time when Americans who did not believe in God were reviled as "godless Communists". These words intentionally demonized us and made us outsiders in our own nation. The sponsor of the 1954 change, Rep. Louis C. Rabaut, stated in the Congressional Record (100 Cong. Rec. 2, 1700, Feb. 12, 1954), "An atheist American … is a contradiction in terms."
Distorting or disregarding the purpose of the 1954 addition of "under God" in the pledge is, thus, especially disheartening for nontheistic Americans. The historical evidence makes clear the exclusionary meaning of "under God." In Santa Fe Independent School District v. Doe (530 US 290, 2000), Justice Stevens, writing for the majority, stated, "We refuse to turn a blind eye to the context in which this policy arose ..." In that case, the Supreme Court determined that student-led prayers at high school football games were no less solemn, and no less an infringement upon the Establishment Clause, than prayers in a more formal circumstance.
Daily public school led proclamations that we are a nation "under God" are not history lessons, but public school endorsements of monotheism and implicit assertions that patriotism requires belief in one God. Equating the reference to God in the pledge with a history lesson is like equating daily official proclamations that the world was created in six days with the teaching of creationism in a comparative religions class.
C. Public School Recitation of the Pledge Involves Impressionable Children Which Distinguishes it From Ceremonial Mentions of a Deity to Adults
The U.S. Supreme Court in Bethel School District v. Fraser (478 US 675, 1986) recognized the responsibility of public schools to shield youngsters from even one instance of indecent speech, noting that 14 year old girls might be insulted or embarrassed by double entendres regarding male sexuality in a student-delivered speech. In upholding a public high school's right to censor a student newspaper, the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier (484 US 260, 1988), Justice White writing the majority opinion states:
... [A] school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting.
What topic is more sensitive than individual Americans' theological beliefs? Students who cannot afford tuition for private schools are required to attend public schools whether they are of a majority religion, a minority religion, or no religion. Certainly theistic parents would not find it acceptable to have their own impressionable youngsters inculcated with a daily dose of "there is no God" in a public school.
We recognize that some monotheists consider the inclusion of "under God" in our otherwise patriotic pledge a harmless, minimally religious reference, but to nontheistic Americans, it turns the pledge into a prayer and reminds our children of our marginalization. The fact that students are not legally required to recite the pledge does not alleviate the coercive social pressure on children to participate in pledging allegiance or soften the message linking patriotism to monotheistic religious belief. As long as the pledge includes a reference to God, children from nontheistic families are given the choice of participating in a religious exercise, or being ostracized or harassed for not participating. At the very least, they are required to listen to religious declarations contrary to their parents' teachings and beliefs.
Our children are often made the pawns of religious conflicts and efforts to limit or eliminate separation of church and state. Religious exercises in the public school setting are inherently divisive and threaten First Amendment freedoms, as the Supreme Court has recognized. Commenting on the use of a student vote to decide who would deliver football game prayers, Justice Stevens noted in Santa Fe Independent School District (530 US 290) that encouraging "divisiveness along religious lines in a public school setting [is] a result at odds with the Establishment Clause." We agree wholeheartedly and are saddened that public school children have borne the brunt of efforts to politicize religion, which include the 1954 addition of "under God" to the pledge.
D. Policy Issues
1. Longstanding Practice Does Not Make an Unconstitutional Act Constitutional
Obviously, an unconstitutional practice is not redeemed by its longevity. Students were required to pray in public school for many years before the Supreme Court recognized the unconstitutionality of official school prayers. Sex and race discrimination were tolerated for generations before the Court recognized that they violated guarantees of equal protection. Besides, the original Pledge of Allegiance was used over a longer period of time (62 years) than the revised religious version (52 years), and neither religious belief nor the republic suffered because of the absence of "under God" in the pledge.
2. Enforcement of Minority Protections in the Bill of Rights Must Not Be Left to Majority Rule
Recent attempts in Congress to strip the federal courts of jurisdiction to determine certain constitutional issues highlight the need for the courts to protect religious and nonreligious minorities. For example, the House recently passed the "Pledge Protection Act", HR2389, which would bar all federal courts from hearing cases dealing with the pledge. In fact, the School District defendants, in their Memorandum of Points and Authorities in Support of Their Motion to Dismiss, on page 27, reference approvingly Senate Joint Resolution 292, in which the U.S. Senate "disapproved" of the federal court decision in Newdow's 2003 case. Congressional attempts to deny the judiciary the power to determine the constitutionality of federal acts should be lamented, not celebrated.
If nontheistic Americans had to rely on elected theistic majorities to uphold our First Amendment freedoms, we would likely still be prohibited from testifying in court, or from holding public office. In fact, the South Carolina religious test for public office (in clear violation of the U.S. Constitution, Article VI) referenced in Plaintiff's Response to Motions to Dismiss, Appendix 2-D, required the President of the Secular Coalition for America, Herb Silverman, to win a lengthy court battle in the 1990's before being allowed to serve as a South Carolina notary public.
The United States, in its opening brief (P.3), notes that the 1954 law adding "under God" to the pledge stated that the law is "not an act establishing religion." But obviously, Congress cannot make unconstitutional laws constitutional by declaration. Like religious minorities, nonreligious Americans look to the courts, not to Congress, to protect their freedom of conscience from majority rule.
3. Placing and Continuing to Recite "Under God" in the Pledge Impugns the Patriotism and Values of Nontheistic Americans
The defendant United States in its opening brief (P.36) cites Fraser to point out that public school must teach "the shared values of a civilized social order." By adding "under God" to the patriotic exercise in which our public schools teach such values, the inverse assertion is obvious: students who don't believe our nation is "under God" do not share our values, and are not civilized. On page 37 of its opening brief, the United States cites a quote from the 1954 debate leading to "under God" being inserted into what had previously been a patriotic exercise: "[It is a] fundamental truth that a government deriving its powers from the consent of the governed must look to God for divine leadership." This statement ostracizes nontheistic Americans and tells them and their children that they will not be considered or included as full-fledged citizens. Defendants' claims that "under God" means we were founded by theists whose belief in God led them to craft our system of government (U.S. Opening Brief, pp.42-43) is historically inaccurate and comports with neither the plain language nor the specified purpose of the 1954 change.
But the SCA finds even more lamentable the exclusionary religious bias reflected in this claim: it implies that the concepts of liberty and justice for all derive from a belief in God and that nonbelievers cannot share these fundamental American values. We regard these as secular values and believe that the founders would understand that as nontheistic Americans we share a devotion to liberty and justice equal to that of our theistic neighbors.
4. Recitation of the Current Pledge Undermines Patriotism and Divides Americans Based on Beliefs of Conscience
The United States (Opening Brief, P.40) argues that the current pledge fosters "national unity, patriotism, and an appreciation for the values that define the Nation." The original pledge did all of those things; the current post-1954 version does just the opposite. It separates the believers from the nonbelievers. It implies that those who do not believe we are a nation "under God" must not be patriotic and do not share American values. Dividing Americans on the basis of their religious or nonreligious beliefs undermines the government's alleged purpose of promoting patriotism and unity. For these purposes, the original pledge should be restored, so that all Americans -- religious and non-religious alike -- are free to participate proudly in acknowledging their love of country.
III. Conclusion
For over 50 years, nontheistic Americans have been made to feel like outsiders during our nation's most heralded patriotic exercise, the Pledge of Allegiance. Nontheistic public school children have been told that they and their nontheistic parents are not patriotic Americans. With the inclusion of "under God," the Pledge divides rather than unites us. The First Amendment prohibits compulsory or coercive religious exercises in public schools and requires that these schools forego announcing whether we are a nation under one deity, many deities, or no deities at all. For this reason, we respectfully request that this court find in favor of plaintiff-appellees.
Sincerely,
Herb Silverman, President
Secular Coalition for America