THE BLOG
09/02/2014 03:16 pm ET Updated Nov 02, 2014

Reframing the Debate Over the Pledge of Allegiance: Make God Optional

Children are back in school and, as part of their daily routine, most of them will be expected to participate in the reciting of the Pledge of Allegiance. Recitation of the Pledge is a requirement under the laws of over forty states.

Mandatory recitation of the Pledge in our schools is something that troubles, indeed outrages, many of this country's nonreligious. And it should also trouble anyone concerned about the separation of church and state and religious indoctrination of children. Recitation of the Pledge is a solemn ceremony in which students are to affirm, among other things, that this is one nation "under God." So, effectively, every school day we require children to state that they believe in God.

Oh, I'm aware that students who object to the Pledge cannot be compelled to take part. If they object to the Pledge, they have the option of standing or sitting at their desks quietly--and of being stigmatized as unpatriotic and un-American.

I'm also aware that, with one exception , every single federal and state court--and there have been many--that has considered challenges to the legality of the mandatory recitation of the Pledge under its current wording (the phrase "under God" was added only in 1954) has found that inclusion of the "under God" phrase does not violate the Establishment Clause of the First Amendment. Nor has any state court found that the Pledge practice violates any state constitutional guarantees relating to religious liberty. The rationale for all these decisions is that the Pledge is a patriotic exercise, not a religious one, and therefore, it cannot be analogized to mandatory recitation of prayer in public schools, which has been found unconstitutional.

The sole exception was the 2002 decision of the U.S. Court of Appeals for the Ninth Circuit which found that mandatory recitation of the Pledge does impermissibly convey government endorsement of a religious belief. This decision was subsequently vacated by the Supreme Court on the ground that the plaintiff, Michael Newdow, lacked standing. (The Supreme Court itself has never expressly ruled on the constitutionality of the Pledge practice--although several justices have stated they would find it constitutional.) In a subsequent case, the Ninth Circuit held that mandatory recitation of the Pledge did not violate the Establishment Clause. Along with every other court that has examined the issue, the Ninth Circuit found the Pledge's primary purpose was to instill patriotism not religion.

Undoubtedly, the Pledge is supposed to instill patriotic sentiments. To atheists and other nonbelievers that's part of the problem: it equates being a patriot with belief in God. Moreover, that the Pledge taken as a whole might be described as a patriotic exercise doesn't eliminate the statement of religious belief contained therein. There is no question that a solemn avowal that this is a nation "under God" is inherently a religious affirmation.

However, it's pretty clear no court is going to rule the Pledge unconstitutional any time soon. So it appears that the choices for nonreligious Americans are to keep filing losing lawsuits or accept the status quo.

Except there's a third way.

All the lawsuits to date have asked the courts to eliminate the phrase "under God" from the Pledge. Instead, I suggest an appropriate plaintiff request that the phrase be explicitly made optional. In other words, students would be informed by their schools that they can recite the Pledge with or without the words "under God." Their choice.

Bear in mind that the defenders of the Pledge, and many of the courts that have upheld its legality, have maintained that the Pledge is not only a patriotic exercise, but an important patriotic exercise: it's considered a critical part of a student's formation as a good citizen. Therefore--at least according to defenders of the Pledge--some students are being denied a critical component of their education merely because they refuse to abjure their religious beliefs. Students who want to obtain the benefit of participating in the Pledge exercise should not be denied this important aspect of their education merely because they cannot honestly affirm there is a God.

Frankly, it's difficult to see how a request for making the religious avowal in the Pledge optional could be refused. Compare it to other situations where religious avowals were once employed as a pretext for barring atheists from participating in important civic activities. Until the mid-twentieth century, some states barred atheists from testifying, serving in public office, or serving on juries on the ground that they could not take a religious oath. All such provisions are now recognized as unconstitutional. Witnesses, for example, have the option of swearing on some sacred book to tell the truth "so help me God" or of simply making a solemn affirmation to tell the truth under penalties of perjury. If this country no longer requires witnesses, jurors, or public officials to affirm belief in God to participate in civic activities, how can a state require schoolchildren to affirm belief in God to participate in an important civic activity?

I can think of three objections to my proposal, one from defenders of the status quo and two from atheists who will regard my proposal as a surrender. The defenders of the status quo might argue that inclusion of the phrase "under God" is essential. But as Justice Sandra Day O'Connor observed in the Newdow Pledge case:

[T]he presence of these words is not absolutely essential to the Pledge as demonstrated by the fact that it existed without them for over 50 years.

Furthermore, if defenders of the current Pledge are going to maintain that "under God" is absolutely essential, then this undercuts the claim that the Pledge is not primarily a religious exercise. You can't have it both ways. You can't claim the Pledge is not principally a religious exercise and then insist it must contain an avowal of belief in God.

Turning to potential atheist critics, some will say I'm giving up too easily and am compromising on some fundamental points. We should keep filing lawsuits until some court recognizes that by including "under God" in the Pledge the government is endorsing monotheism. All I can say is, "Good luck with that." Sure if you spin the litigation roulette wheel often enough, maybe you'll get lucky. You may also trigger a movement for a constitutional amendment to enshrine the current language of the Pledge. As to compromising principles, it seems to me atheists' primary goal in the Pledge dispute should be to have public schools acknowledge that the nonreligious are patriots and citizens in good standing just like the religious. Having school officials inform the students that it is perfectly acceptable to omit God from the Pledge accomplishes that purpose.

Finally, there would be the concern that those students who say the Pledge without "under God" will become the targets of bullying and harassment. That could happen, but the situation of nonreligious students will be no worse than it is now. Today, the conscientious nonreligious students who decline to say the Pledge are made conspicuous by having to remain completely silent, effectively putting a target on their backs. Plus, because they are barred from participating unless they affirm belief in God, they are stigmatized as unpatriotic individuals who hold views incompatible with pledging allegiance to their country. Official recognition that saying the Pledge without "under God" is perfectly appropriate should remove some of that stigma.

Battles over the Pledge have resulted in multiple acrimonious lawsuits and disputes, with no change to the law, only increasing resentment and hostility on both sides of the dispute. It's time to reframe the debate. We should not look at the Pledge issue as a controversy over whether to eliminate God from the Pledge, but rather as a challenge to consider how the Pledge practice can be modified to accommodate the religious diversity of this country, allowing both believer and nonbeliever to participate in pledging allegiance to their country. We are part of "one nation" whether or not we believe in God.