Why believers may have to say "Under God" when they pledge allegi ance

Tue Apr 6 21:55:42 PDT 2004

In response to Robin Charlow's question below:  I agree that people can have
different allegiances that are not incompatible.  But there is at least an
argument, which I expect will move many people, that the state is not just
any old object of allegiance.  It's not like belonging to the Rotary at the
same time as one belongs to a church or synagogue.  The state, as the only
legitimate employer of force in a society, tends to have grander ambitions
than clubs or other claimants to individuals' loyalty.  States, from ancient
Rome to modern totalitarian regimes, have frequently claimed to be the
highest authority over individuals (especially children); religious
believers have frequently challenged that claim; and states have frequently
responded by trying to subordinate the religious allegiance.  As a result,
loyalty oaths to the government have always been very serious business for,
at least, Christians (others on list can offer assessments concerning other
faiths).  Christians have historically affirmed loyalty to various states,
but have also often insisted that the state recognize that it is a limited
institution.  In modern America, the state seldom explicitly claims to be
the highest authority.  But I expect that many believers will not find that
fact sufficient, given that in its actual reach the state exercises power in
so many different areas of life, including (in Newdow) the education of
children.

Some may still answer to all of this, "Yes, but pledging allegiance to the
nation still doesn't have to mean one is treating the nation as the highest
authority."  But with respect, to say that shows just as much disregard for
the perspective of the dissenting religious believer as the inclusion of
"under God" shows disregard for the perspective of the dissenting
non-believer.  Lee v. Weisman holds that a dissenter who has to stand
silently during a brief prayer might reasonably worry (from her dissenting
perspective) that others will take that as participation in the prayer.  The
Weisman majority rejected the argument that "standing silently doesn't have
to imply acceptance, but only shows respect for the opinions of others."  It
seems just as clear to me that a reasonable dissenting religious believer
might think that for her to say the Pledge without "under God" is to make an
unqualified commitment to the nation that is unacceptable, and that her
saying the Pledge might be interpreted by others that way.  If the latter
person's attitude seems prickly, then the former's is as well.  It is not
consistent or fair to question the logic in the believer's claim of
conscience but not question it in the nonbeliever's claim.

Whatever the Court holds, then, I think that the fairest approach in
principle (if it's workable) is a format -- like a pause in the Pledge -- in
which both believers and non-believers can affirm loyalty to the nation
while also expressing somehow the distinctive terms on which they give that
loyalty. 

Tom Berg
University of St. Thomas School of Law (Minnesota)

  _____  

From: Robin Charlow [mailto:LAWRDC at mail1.hofstra.edu]
Sent: Thu 4/1/2004 12:08 PM
To: religionlaw at lists.ucla.edu
Subject: RE: "Under God"

>>> TCBERG at stthomas.edu 4/1/2004 11:12:26 AM >>> 
If opt-outs are insufficient on that score, however, I suggest that we 
should see them as insufficient to protect the believer who cannot 
pledge loyalty to the nation without explicitly stating that it is under 
God.  (In some ways, the situation is worse for the believer; a 
non-believer can more easily omit the phrase while others say it, than a 
believer can affirmatively add it when there is no room provided for 
it.) 

I know this was raised before, but I still don't quite understand why 
pledging allegiance to the country and it's flag says or implies 
anything about any other allegiances one may have, whether or not they 
are of overriding significance.  The words of the Pledge (without "under 
God") are a statement about one thing, and they contain no reference or 
allusion to other, related things. 

Robin Charlow 
Hofstra University School of Law 
Hempstead, New York  11549 
email: lawrdc at hofstra.edu 
phone (516) 463-5166 

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