Wampum

The Supreme Court heard oral argument in Elk Grove Unified School District v. Newdow , the Pledge of Allegiance case yesterday. I, for one, hope that the Court will resolve all issues surrounding the Pledge as it has caused me nothing but confusion for more than forty years.

Like many of my generation, I encountered the Pledge as an elementary school student. Unlike some, as we recited the Pledge each morning at the start of the school day, I thought about what we were saying and became hopelessly confused.

My first problem was with the last phrase, “with liberty and justice for all.” Now growing up is a small southern city in the early 1960s, it was as obvious to all that we did not provide “liberty and justice for all.” A large group of residents of our town, mostly on the east side, were not free to do many things and could not expect anything resembling justice. I was confused as to why we would keep claiming “liberty and justice for all” each morning and then forget all about it for the rest of the day.

I asked my mom about it. She patiently explained that “liberty and justice for all” was an aspiration and not a description. We hoped to provide liberty and justice for all and, when we fell short, as we did every day, we could always hope to improve in the future.

That made sense and even though only a very few people seemed to be trying hard to live up to the ideal, I thought I understood the Pledge. The more I thought about it, though, the less sense it made. Do we really aspire to provide liberty and justice for all? It seemed obvious that we did not. The whole purpose of the criminal courts was to provide justice by denying someone his liberty. If we provided liberty to people who broke the law, how could be we providing justice? It seemed to me that our goal was to provide “liberty or justice for all”. If you obeyed the law, you got liberty. If you did not, you got justice.

I started saying the Pledge the way that made sense until Ms. Keys, my third grade teacher, made me stop.

Pledging our allegiance to the flag also struck me as very dangerous. If Hitler had captured our flag and, brandishing it, ordered our soldiers to put down their arms, would they have to do it? If Lex Luthor stole the flag and ordered me to help with one of his nefarious plots, would it be my patriotic duty to help lure Superman into the room with the kryptonite? I actually worried about such things. Such is life when you are ten.

Now, with the appearance of Newdow before the Court I am again confused. When the 9th Circuit ruled the inclusion of the phrase “under God” in the Pledge unconstitutional, a firestorm broke out among conservatives.

According to some, removing the phrase would “would produce a public outrage … greater than any we’ve ever seen.” Why is that?

Alternet notes the reason for the firestorm:

Fundamentalist Protestants and conservative Catholics oppose Newdow because they want this godly Pledge affirmed as constitutional, but the truth is that they also believe it favors religion – and should. They are confident that America functions "under God," that the Founders believed this and that we should say so out loud.

In other words, removing the phrase from the Pledge would be dissing God and religion. Alternet continues:

Take the Roman Catholic Justice Antonin Scalia... he claims "that government – however you want to limit that concept – derives its moral authority from God," that this was "the consensus of Western thought until very recent times… That consensus has been upset, I think, by the emergence of democracy." His bizarre argument appeals to "people of faith" not to resign themselves to this deplorable "tendency of democracy to obscure the divine authority behind government" but "to combat it as effectively as possible."

Americans have already done this, he claims, "by preserving in our public life many visible reminders that – in the words of a Supreme Court opinion from the 1940s – 'we are a religious people, whose institutions presuppose a Supreme Being.'"

Religious people want “under God” in the Pledge because it affirms religion. I can understand that even if it poses some constitutional problems. Where I get confused is when the proponents of keeping the phrase in the Pledge deny that it has anything to do with religion.

As one report puts it:

Lawyers for the Elk Grove school district and the Bush administration countered that the pledge is a ceremonial, patriotic exercise and not religious, so it doesn't violate the Constitution's prohibition against state-sponsored religious activity.

In Slate, Dahlia Lithwick writes:

One of the thorns in this case is that supporters of the pledge say the words "under God" are political, historical, ceremonial—anything but religious.

Indeed, Solicitor Olson argues in his brief that:

The government, arguing to uphold the present language, argued in its brief that the pledge is a patriotic expression, not a religious testimonial. Theodore Olson, the administration's top attorney, said that the pledge's reference to God simply acknowledges the role that religion had played in the founding of the country.

"The purpose of reciting the Pledge is to promote patriotism and national unity, not a religious belief," he wrote.

If that is true then it is hard to see how removing the phrase disses God or religion. Perhaps it disses our history (all the way back to 1954 when the phrase was added to the Pledge) but if the Pledge is not a religious statement, then removing the phrase can have no effect on religion.

If removing the phrase is not harmful to religion, then it is hard to see what all the controversy is about.

No matter how old I get, I just can not seem to understand the Pledge.