Law of the House #2: Watch your step

It's a good thing I don't have any heart problems or anything. I walked up to get the mail today, was shuffling through the mail, looked up just in time, saw this:*

*(photo from google, not actual snake)

Roughly three feet from where I was walking. In sandals. Had I had one more piece of mail to shuffle through, I probably would have stepped on it and been bitten before I even knew it was there. As it was, it scared the holy shit out of my enough that I almost stepped in front of a motorcycle coming at me at highway speed. And had there not been a car coming from the other direction which made me walk a little further down than I usually do before crossing the highway, I probably would have stepped on the little son of a bitch on my way to the mailbox.

Today's current event: Apparently, during its coverage of the U.S. Open golf tournament this weekend, as part of its coverage, included filmed footage of a group of children reciting the Pledge of Allegiance. When airing said coverage, it apparently edited out the phrase "under god." And now religious folks everywhere are in an uproar.

It's no secret that I'm a staunch separation of church and state advocate. I'm also not a fan of the Pledge of Allegiance in general because it smacks of the kind of blind, unquestioning patriotism from which totalitarian regimes are born. However, what has boggled me most today is the staggering number of people who, while raving about the "war on Christianity" and "godless liberals" are completely clueless about the history of the Pledge itself. I offer this so that readers may not join the ranks of the ranting uneducated (if you're going to rant, at least be accurate.) I will conclude with the reason I believe that "under god" in the pledge is not Constitutional with reference to Supreme Court precedent. (Again, remember readers, this is my personal opinion, not legal advice.)

The Pledge of Allegiance was drafted in 1892 by Francis Bellamy, a Baptist minister and avowed socialist (that fact seems to have been lost on the people who decry the 'socialist liberals trying to destroy tradition'). The pledge, as initially drafted, read as follows:

"I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all."

The initial pledge was published in a magazine with the intent that it would generate patriotism and help sell flags.

The pledge has been revised four times throughout its history. The first revision came later in 1892 and was proposed by Bellamy himself:

"I pledge allegiance to my flag and to the republic for which it stands: one nation indivisible with liberty and justice for all."

The next revision came in 1923:

"I pledge allegiance to the flag of the United States and to the republic for which it stands: one nation indivisible with liberty and justice for all."

And the next, 1924:

"I pledge allegiance to the flag of the United States of America, and to the republic for which it stands; one nation indivisible with liberty and justice for all."

Each of these revisions served as, for lack of a better term, linguistic streamlining or clarification. The pledge's only substantive revision was its last, the addition of the words "under god" in 1954. The addition of the phrase "under god" was campaigned for heavily by the Knights of Columbus. Interestingly enough, President Eisenhower, who was in the White House at the time, supported the addition but had until the year before been a Jehovah's Witness, a group which refuses to say the pledge at all because it considers the pledge to be a form of idolatry (and which has spearheaded litigation resulting in Supreme Court decisions to the effect that recitation of the Pledge of Allegiance cannot be made mandatory for schoolchildren and that children cannot be required to stand for its recitation even though speaking the words is voluntary). The addition gained support in Congress after Senator Joseph McCarthy advocated the addition as a possible tool for helping to ferret out 'godless communists.'

One further point of history: Bellamy initially proposed that recitation of the pledge be accompanied by an arm outstretched toward the flag. The current custom of placing the hand over the heart was adopted in 1942 when Congress decided the gesture looked a little too much like the Nazi salute.


So, with that history in mind, let's make sure that two things are crystal clear, since I've spent the day beating my head against a wall and muttering unkind things about the people that can't comprehend these two facts:
1) The Pledge of Allegiance was NOT drafted by our founding fathers.
2) A Pledge of Allegiance containing the words "under god" is NOT 'the way it's always been.'

Which brings me to the legal argument. I'm not going to be offended if you believe this argument is incorrect; the most recent federal circuit court to address the issue rejected it, so unless and until the Supreme Court takes up the issue, it is not the current law of the land. I simply offer it as a point for consideration.

The Pledge of Allegiance is codified in law as part of the Flag Code. Because of this, the government has officially adopted a religious reference, bringing the establishment clause of the First Amendment into play. One of the key cases in establishment clause jurisprudence is Lemon v. Kurtzman, establishes a three-prong test for determining whether a governmental action is a violation of the establishment clause. If the action fails any of the three prongs, it is unconstitutional.

1. The government's action must have a secular legislative purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion;
3. The government's action must not result in an "excessive government entanglement" with religion.

I'm going to ignore prong 3; while it arguably might apply, it would involve quite a bit of quibbling over what level of entanglement becomes 'excessive.'

Had the Pledge of Allegiance been adopted in its current form, from the beginning, it might possibly have been argued that its adoption had a secular legislative purpose of promoting patriotism and that its primary effect neither advanced nor inhibited religion. However, when Congress in 1954 passed a law with the sole purpose of adding the words "under god" to the Pledge of Allegiance, it took an action which advanced a religious ideal (the notion of the existence of a god). It further could not have had a secular purpose for doing so, because any purpose of promoting patriotism was adequately fulfilled by the Pledge of Allegiance in its previous form without the words "under god;" therefore, the only possible purpose for the addition of the words was a religious one. The addition of "under god" therefore violates the establishment clause because it fails prongs 1 and 2 of the Lemon v. Kurtzman test.

Past court rulings have upheld the presence of "under god" in the pledge by categorizing it as "ceremonial deism," a theory which states that the presence of the words has lost any religious meaning because of its rote repetition. I would argue that the intensity of the outcry by religious groups itself demonstrates that this is not so; one does not seek so intensely to protect a phrase which has no meaning. Again, simply my opinion, and I hope that whether you agree or disagree with it that this history lesson at least serves as food for thought and will generate more informed discussion if this issue remains prevalent.