Last week the U.S. Court of Appeals for the 1st Circuit, in Boston, upheld the New Hampshire School Patriot Act, which requires teacher-led recitations of the Pledge of Allegiance. The plaintiffs, The Freedom from Religion Foundation, Hanover, N.H. parents "Jan and Pat Doe" and the "Doe" children, argued that the phrase "under God," violates the so-called Establishment Clause of the Constitution. The Court ruled that the recitation of the Pledge in schools serves as "an advancement of patriotism" and does not actively establish or promote religion. The plaintiffs had appealed a similar 2009 District Court ruling.
In the 2009 opinion, District Court Judge Steven J. McAuliffe offered an opinion that should have, by any rudimentary application of logic, undermined his own argument. In his decision he lauded the purposes of instilling civic virtue and patriotism in young folks. He then contended that the phrase "under God" has been rendered ineffectual by virtue of its repetition. He wrote, "In the intervening half century since the words were added, rote repetition has... removed any significant religious content embodied in the words."
It is starkly illogical that the Courts cite the civic power of the pledge in defending the practice. If the Pledge instills patriotism by dint of its daily repetition, how can the phrase "under God" be judged meaningless by virtue of the same repetitive practice? Wouldn't its "rote repetition" have also removed any "significant patriotic content embodied in the words?" What's good for the patriotic goose must be good for the religious gander. It can't be both ways. The Pledge either promotes patriotism and religion or it does neither.
Perhaps the 1st Circuit might have looked to the language used by Supreme Court Associate Justice David Souter who wrote for the majority in a 1994 case, Board of Education of Kiryas Joel Village School District v. Grumet, " ...government should not prefer one religion to another, or religion to irreligion." This case was not specifically about the Pledge, but Souter's reasoning provides a fundamental test for interpreting the Establishment Clause. A mandatory daily expression of "Under God" is about as clear a preference of religion to irreligion as one could imagine.
Both decisions also dismiss the notion that non-believing children, including the "Doe" children, might feel excluded or socially at risk during Pledge time. McAuliffe wrote, "While I recognize that peer or social pressure probably does push students toward participation, by sheer dint of the number of students opting in rather than out, opting out of a Pledge recitation involves little more than exercising the right to demur."
Was the man never a child? The technicality that the Pledge is "voluntary" is of little comfort to a young child "exercising the right to demur," who will likely suffer the explicit or silent disapproval of peers and adults. There are myriad ways that children are loath to invite the scorn of classmates and teachers who wear their majority values on their sleeves. This post will likely draw angry responses, as have similar columns I've written in the past. Responses have included suggestions that I will or should burn in hell or that I should move to another country. And the Courts believe that children can "opt out" with emotional impunity?
Nineteenth Century English philosopher John Stuart Mill wrote this about the tyranny of the majority:
"Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism."
Why do McAuliffe and others go through such intellectual gymnastics to support the tyranny of the majority? Let's at least be honest here. The intent of the Pledge of Allegiance is, as Mill warned, "to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own."
In New Hampshire schools and in all schools where the Pledge of Allegiance is recited, non-believers are given a very clear message: "We who believe in God are the majority and you must fashion yourself upon this model or sit in humiliated silence."
Religion aside, children should not be required to utter pledges and oaths of any kind. Uncritical declarations of loyalty, to country or to God are anti-educational. The highest form of patriotism, as frequently declared by my late friend Reverend William Sloane Coffin, is to be a critical lover of your country.
Young children are ill-equipped to understand or examine the profound complexity of a republic promising "liberty and justice for all," particularly in an era where the promise is repeatedly broken. Why would we make children pledge allegiance to our republic when they don't even know what the word means?