We Pledge Allegiance to the Flag, Don’t Help Us God
Compelled speech is any declaration the government requires the utterance of whose truth we reject or find offensive. It can take the form of a prayer, oath, or of a pledge of allegiance to flag or country. Although deemed unconstitutional by the Supreme Court, the government often asks citizens to make declarations that include religious speech, such as “under God” or “So help me God.” Citizens have the constitutional right to amend their oaths or refrain from participating in the Pledge of Allegiance on the basis of religious freedom. For people with no religious beliefs, this becomes a free speech issue. To fully safeguard First Amendment free speech protections for non-believers and believers alike, the government should take the neutral position and omit any reference to God or religious belief from all government prescribed oaths and pledges unless requested by an individual who recites them. In short, the government should allow the choice for religious individuals to ‘opt-in’ rather than requiring non-religious individuals to ‘opt-out.’
In West Virginia State Board of Education v. Barnette (319 U.S. 624 ) the Supreme Court determined compelled speech to be unconstitutional. Writing for the majority, Justice Robert Jackson states, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Additionally, the Supreme Court has interpreted the Establishment Clause to mean that Government must be neutral among religions, as well as between religious and non-religious citizens. The government has the authority to limit speech when there is legitimate interest in doing so (e.g.. where public safety is at stake), but there is no constitutionally allowable interest in the government compelling religion or religious speech.
Yet the government continues to compell declarations of belief. The Oaths of Office made by government officials and oaths sworn by prospective citizens, jurors, and military officers and enlistees all include the phrase “So help me God.” The Pledge of Allegiance includes the phrase “under God.” Non-neutral references to a deity are so commonplace as to imply the assumption of universal belief in a god-- specifically, to a belief in the Christian God. Outdated, misinformed, and discriminatory policy allows ‘tradition’ to dictate governmental customs that violate the free speech and expression rights of non-believers.
The Constitution requires an oath from all government officials and military personnel, but the President’s Oath of Office is the only oath explicitly detailed therein. Article II, Section 1, Clause 8 of the Constitution states that before a president assumes office, the following must be repeated: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.” Noticeably absent is the phrase ‘So help me God,’ though by congressional mandate it is included in every other oath recited by federal employees.
As outlined by Article VI, Paragraph 3 of the Constitution, religious tests for holding public office are prohibited. This was reaffirmed by the Supreme Court in Torcaso v. Watkins (367 U.S. 488 ). In this case, the appellant was denied his commission as an appointed Notary Public for the State of Maryland because he refused to declare his belief in God, as required by the Maryland Constitution. In the majority opinion, Justice Hugo Black writes,
Nothing decided or written … lends support to the idea that the Court there intended to open up the way for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.
The Court decided the portion of Maryland’s Constitution in question violated the appellant’s freedom of religion and was unenforceable. Justice Black goes on to say, “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’” Although cases involving declaration of belief are usually approached from the ‘Freedom of Religion’ standpoint, these words by Justice Black show compelled speech is also a ‘Freedom of Speech’ issue.
Citizens with moral or personal objections may omit “So help me God,” but in doing so are faced with the undue burden of making their objection public. This subjects them to potential discrimination from individuals and institutions with an underlying religious agenda, as in the case of former West Point cadet Blake Page, who dropped out the United States Military Academy five months before his graduation. He describes “an institution which willfully disregards the Constitution of the United States of America while enforcing policies which run counter to the same.” The compelled speech problems at West Point went far beyond a requirement to include religious language in the oath. Page describes mandatory prayer events, proselytizing by officers at all levels of command, rewarding and requiring religious participation, and punishments for non-participants including humiliation of cadets who were openly non-religious.
West Point is not a church-affiliated private university, but a division of the military, making these alleged violations of the First Amendment even more disturbing. In recent years, he military has been at the center of numerous controversies over religious proselytization and compulsory participation in religious activities. In August 2014, an airman was allegedly barred from reenlisting in the Air Force when he scratched out the phrase “So help me God” from his reenlistment contract. Chris Hoyler, the Public Affairs Officer for the Air Force, said that “reciting 'So help me God' in the reenlistment and commissioning oaths is a statutory requirement” and that a 2013 update to Air Force Instruction 36-2606 “no longer authorized [airmen] to omit the words ‘So help me God’” (qtd. in Ashtari, “U.S. Airman…”). Hoyler was referring to the part of the United States Code which details the Enlistment oath, including ‘So help me God,’ with no mention of any allowable omission of the phrase (10 USC 502, 2006). It would appear that Hoyler was incorrect; United States Code also states that an “‘oath’ includes affirmation, and ‘sworn’ includes affirmed” (1 USC 1, 2012). As defined by the Ninth Circuit Court of Appeals, an affirmation is “a pledge equivalent to an oath but without reference to a supreme being or to ‘swearing’” (United States v. Bueno-Vargas, 383 F.3d 1104 ). These two pieces of law, read together, make explicit that omitting “So help me God” is allowable so long as the person intends to follow through with the obligation to which he or she is affirming.
In November 2014, Derek Giardina, a student at Merrill F. West High School in Tracy, California, was disciplined by his school after omitting “under God” from the Pledge of Allegiance. As part of an assignment for his Speech and Debate class, students were expected to recite the Pledge over the school’s intercom. Giardina, an agnostic, was uncomfortable with the phrase “under God,” and did not say it. Consequently, he was given detention and only half-credit for the assignment. Sam Strube, a spokesperson for the school district, said of the incident, “A public forum where you’re going to represent the school is not a place where you can voice a controversial issue and force that on other people” (“Tracy High School Student Punished”). Yet it was the school district attempting force Giardina to declare something he does not believe.
The question of whether the inclusion of “under God” is constitutionally permissible has appeared once before the Supreme Court, in Elk Grove Unified School District v. Newdow (542 U.S. 1). Michael Newdow filed a suit on his daughter’s behalf claiming that merely hearing the phrase ‘under God’ was a violation of the Constitution. The Ninth Circuit Court agreed that inclusion of the phrase was unconstitutional; however the Supreme Court determined that as a non-custodial parent, Newdow did not have standing. The lower court’s decision was struck as a matter of procedural law, and the constitutional question remains un-addressed. Various courts have ruled repeatedly that inclusion of “under God” does not violate the First Amendment’s Establishment Clause nor does it violate state constitutional guarantees of religious liberty. Ronald A. Lindsay, President of the Center for Inquiry, believes the rationale of the courts is that recitation of the Pledge is a patriotic, not a religious activity. The problem for atheists and other non-believers, as Lindsay puts it, is that “it equates being a patriot with belief in God.”
The United States is divided on the matter of religious references embedded within Constitutional oaths and expressions of patriotism. On one hand, there are rights to free exercise, free expression and protections within the Constitution against coerced speech. Barnette established that students who object to the Pledge cannot be compelled to take part. Wooley v. Maynard (430 U.S. 705 ) says the Court’s precedents “have established the principle that freedom of speech prohibits the government from telling people what they must say.” On the other hand, people use religious language, and many claim this country to be a Christian nation founded on Christian principles. There may be debate over what the intentions of the authors of our founding documents were, but this is certain: not one original oath contained references to God. The Presidential and the military oath were both adopted in 1789, and left out “So help me God” until the Officers’ oath was changed in 1862 during the Civil War. It wasn’t until 1950 that the oath for enlistees was changed, and the Pledge of Allegiance didn’t include “under God” until 1954. Since these words were not essential to the arguably important patriotism involved in uttering an oath or the Pledge, the argument that it is not a religious statement becomes less believable.
Michael Weinstein, President of the Military Religious Freedom Foundation, says that only eliminating “So help me God” from military oaths would be acceptable because those who choose not to say it feel pressure. “It exacts an unconstitutional toll on religious objectors,” Weinstein says (Losey, “Academy Makes ‘God’ Optional”). This logic applies to religious language in all Constitutional oaths and the Pledge of Allegiance. To avoid coerced speech, references to religion and belief in God should be omitted unless requested by participants. The inclusion of religious speech by the State is discriminatory against non-believers, which is a matter of free and coerced speech, not just of government endorsed religion.
Ashtari, Shadee. “U.S. Airman Denied Reenlistment for Omitting ‘So Help Me God,’ Humanist Group Claims.” Huff Post: Politics. Huffington Post, 04 Sep. 2014. Web. 08 Dec. 2014.
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). Oyez.org. Web. 09 Dec. 2014.
Lindsay, Ronald A. “Reframing the Debate Over the Pledge of Allegiance: Make God Optional.” Huff Post: Religion. Huffington Post, 02 Sep. 2014. Web. 17 Nov. 2014.
Losey, Stephen. “Academy Makes ‘God’ Optional in Cadets’ Oath.” Air Force Times. Gannett, 23 Oct. 2013. Web. 10 Dec. 2014.
Page, Blake. “Why I Don’t Want to Be a West Point Graduate.” Huff Post: Politics. Huffington Post, 03 Dec. 2012. Web. 16 Nov. 2014.
Torcaso v. Watkins, 367 U.S. 488 (1961). Justia.com. Web. 8 Dec. 2014.
“Tracy High School Student Punished for Refusing to Say ‘Under God’ When Leading the Pledge of Allegiance.” CBS SF Bay Area. CBS Local, 12 Nov. 2014. Web. 10 Dec. 2014.
United States v. Bueno-Vargas, 383 F.3d 1104 (2004). FindLaw.com. Web. 9 Dec. 2014.
West Virgina State Board of Education v. Barnette, 319 U.S. 624 (1943). Freedom of Expression in the United States. Ed. Terry Eastland. Lanham, MD.: Rowman and Littlefield, 2000. 56-64. Print.
Wooley v. Maynard, 430 U.S. 705 (1977). Oyez.org. Web. 19 Nov. 2014.
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