The “under God” Pledge and the Law – 2004  

Part Two 

    Declaration of Independence
    Revolutionary Nature of the Constitution 
    Acknowledgment and Solemnization 
    The Judicial Invocation
    The Judicial Oath
    So Help You God?

The Declaration of Independence  

The origins of democracy, natural philosophy, and the systematic documentation and study of history owe a large dept to ancient Greek culture with its polytheistic underpinnings.  That origin is in contrast to monotheistic biblical religion with its roots in ancient Middle Eastern tribal lore.  Whatever else is observable about the narrow historical underpinnings involved, ancient biblical religion is neither pluralistic nor democratic.  With biblical theocracy having dominated western civilization for well over a thousand years, advances in science, civil law, and democratic government have endured a long difficult uphill struggle.   It is an ongoing struggle against ignorance and superstition carried into the present time against indiscriminate cherishment and veneration of antiquities relics, with religion all too frequently the underlying culprit (Reference 53).  

In historical perspective, a claimed belief in a deity called "God" provided some shielding in an old world culture where heretical views could be terminally dangerous baggage to carry.  Even in the last few centuries it remained dangerous business to question the authority of biblical scripture let alone the existence or exclusive supremacy of “Almighty God” (Reference 33).  This is the oppressive heritage of the old world's indoctrinated and frequently brutally enforced theistic status quo. 

Regardless of the side taken, issues of heritage and tradition are central to the "under God" controversy. It is particularly the issue of religious heritage that the EFELDF and other right wing factions have stakes their defense of the "under God" pledge upon.  Defenders of the pledge typically cite a variety of historical documents, ceremonies, political speeches, and patriotic songs that employ the term “God” to justify the pledge. The EFELDF appeal claimed,  "Our founding documents, from the Declaration of Independence to the Articles of Confederation, expressly defer to a Supreme Being" (page 2).  There is no dispute that the term “Supreme Being” has been used and that the deity "God" has been claimed to be that being.  However, that fact provides no justification for using government statute to endorse or mandate such a belief.  The answer that typically comes back is that the Nation was founded on a fundamental belief in “God” and that provides all the justification that is necessary.  The  weakness of the argument is evident in the fact that nowhere in the Constitution is there any mention of a deity called "God".

Heedless of this rather decisive omission, the EFELDF appeal claims that the Declaration of Independence, “refers to God numerous times" (page 10).  Is that true?  Actually, the Declaration contains only four phrases that allude to anything supernatural.  Those phrases are “their Creator”, “Nature’s God”,  “Supreme Judge of the World”, and "divine Providence", each used only once.  It obviously suits the biblical agenda to “interpret” all four as denoting the same higher power and a male no doubt.  However, there is nothing in the Declaration’s literal message that should force anyone to that conclusion.  For example, the phraseology employs "their Creator", not "the Creator".  More notably still, the term “God” appears only once but is not used in the singular sense. If only one god was assumed, then what purpose did Jefferson have in using the phrase "Nature's God" rather than just "God"?  In view of this, a legitimate interpretation of the Declaration's metaphysics is one of multiple supernatural influences, rather then just one singular omnipotent deity.  

"But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket, nor breaks my leg," (Thomas Jefferson, 1776, Reference 3)

Some might protest against a polytheistic interpretation because Jefferson himself, the Declaration’s primary author, was claimed to be a deist.  He probably never claimed it of himself, but regardless of whether he was, he was indisputably a critic of biblicalism throughout his public life, as was Madison, Adams, Franklin, Lincoln, and others (Reference 3).  Whatever it was that Jefferson intended by the use of “their Creator” and “Nature’s God”, it was not in respect for biblical deity.  

In addition, the initial draft of the Declaration was different in some significant regards from the one finally endorsed by the Continental Congress.  For example, Jefferson’s first draft of the manuscript included a section condemning slavery.  This was omitted because not all members of the Continental Congress agreed and unanimous support of the manuscript was the strategic goal.  In addition, the terms “Supreme Judge of the World” and “divine Providence” were not Jefferson’s handiwork.  The Continental Congress added them prior to signature. Thus they were possibly not entirely consistent with Jefferson’s personal metaphysical insight regarding matters of divinity (Reference 21).  

Regardless of one's disposition toward the metaphysical side of the issues, the signed version of the Declaration provides one inescapable truth.   Nowhere within are any phrases like “Almighty God” or  “In God We Trust”, or “under God” to be found.  Similarly, nowhere within is the term “God” used even once as the stand-alone identifier for any entity.  The Declaration clearly does not substantiate the claim that the Nation was founded on a fundamental belief in a deity called “God”.  

To the contrary, the document’s overriding message is not about theism. Rather, it is about the right of people to be free of tyranny and injustice.  The strongest supportable conclusion that the Declaration allows, is that the Nation was founded on a fundamental belief in liberty and equality.  That is, a fundamental belief in the existence of fundamental human rights.   As testament to the Nation’s historical struggle to liberate itself from the autocratic establishments of the old world, the Declaration’s advocacy of unalienable rights most certainly encompasses freedom from involuntary conscription to biblicalism, or to its idols, belief systems, or to its institutions and clergy.

The Declaration of Independence is a critical benchmark in our historical ledger. It establishes the fundamental ideals underlying the Nation’s will to emancipation from the dogmas of the old world.  In verifiable fact, the Constitution, Bill of Rights, and many subsequent Amendments were enacted in direct pursuance of those ideals.  Still, to guard against abuses of  interpretation, recognize that the Declaration is not the supreme law of the land.  That exclusive status belongs to the Constitution, Bill of Rights, and all other amendments pursuant to them (Article Six).  If the claim that the Nation was founded on a fundamental belief in God were truly tenable, then we would expect the Constitution to support it, but it does not.  

Whatever the personal religious beliefs of the Constitution's Framers actually were as individuals, they collectively did not intend that God or any other deity ever hold the status of deity of State.  What they did intend, was complete separation between the spheres of government and religion, and matters of deity belong to the sphere of religion.  Among all other considerations, the Framers intended to protect this nation from the inequity of government ruled by the establishments of religion as Europe was for more than a millennium.   If the Nation was truly founded on such a belief, then the Framers would have designed the government to be a theocracy dedicated to that end, whereas, they did not.

The Revolutionary Nature of the Constitution

Today, the number of people in the United States not subscribing to any religion, actually outnumber all other religious classifications save Catholics and Baptists (Reference 17).  Undoubtedly, their counterparts were present at the founding of the Nation as well.   For example, Thomas Paine, one of earliest advocates of both independence from Britain and the abolishment of slavery, was considered to have crossed into the forbidden territory of atheism (Reference 18).   In historical retrospect, the issue of whether he was strictly an atheist is less important than the fact that he was labeled as such because of the views he espoused.  

A glimpse into times more ancient shows that the term “atheist” was by no means a recent addition to language.  Then as now, the status of atheist is a relative thing depending on one’s religious centrism.  For example, the early Christians were themselves viewed as atheists because of their failure to get along in the polytheistic culture of the Roman Empire.  After all, the biblical god demands, "no other gods before me", an attitude that was certain to put Jews and then Christians in conflict with a Roman world that was predominately polytheistic.  Later, the balance of religious power in Roman government was dramatically altered.  With the agenda of Emperor Constantine set in motion in the fourth centaury and then carried to the extreme by Theodosius, anyone not subscribing to the “one true biblical god and doctrine" was eventually relegated to the status of heretic, pagan, barbarian, or heathen.   They were branded as infidels and atheists all, deserving only to be killed or converted (Reference 19).  Even in America today with a vast diversity of beliefs about religious matters, anyone not claiming belief in “Almighty God” the biblical deity is still inevitably classified as godless and atheistic by the rank and file faithful and their pulpits.   

Then as now, the religious and intellectual environment at the Nation’s beginnings was diverse.   There were deists, atheists, agnostics, and non-theists, as well as others of non-biblical religious persuasion who had a hand in standing up the Nation.  With diversity of religious beliefs came the age-old problem of conflicts over matters of the status of religion in the governmental order of things.  The Framers of the Constitution were certainly well acquainted with the history of European and Middle Eastern civilization as well as with the pre-Constitution history of the American colonies (Reference 20).  Respecting those histories  for what they endorsed or repudiated about matters of organic law, the Framers clearly held that liberty of religious belief was a fundamental and essential right.  

The only way to protect that right was never to allow any religion or its deity(s) to claim sovereign status.  For this, Constantine's monotheistic solution definitely would not suffice, nor would the pre-Constantine entanglements of Roman or Greek polytheism either.   The only viable solution was an absolute separation between the spheres of government and religion.  In greater detail, however, that mandate would apply just as equally to deism and biblicalism.   Commitment to that historically revolutionary stand is substantiated by the wording of both the Sixth Article and the First Amendment.  These critical elements of constitutional law invalidate any suggestion that the Nation was founded on either a fundamental or exclusive belief in or allegiance to God of any interpretation, or to any other deity.  As the founders realized, it is simply beyond the competency and license of government to determine such things or to allow any religion or sectarian coalition to use government as a proxy to dictate such things.   The modern day ideological conflict between deism and biblicalism, as it is manifest on the bench of the Nation's highest court, substantives  the compelling need to keep matters of deity out of the hands of  government.  This emphasizes why the statutes that bind the Nation to the "under God" pledge are so grossly unconstitutional.

There can be no dispute that the Nation was founded on the fundamental right to believe in God, if that is what one freely chooses to do.  Along with this comes the right to proclaim it as a matter of free self-expression (within reasonable civil bounds), and to establish and voluntarily attend houses of worship to that end.  Very significantly, however, it was also founded on the fundamental right not to have one's beliefs about matters of divinity and religion dictated either by government or by biblicalism or its pulpits.  It follows from this that the Nation was also founded on the fundamental right to believe in other deities, or not to believe in any deity or religious institution at all, this including the right to embrace a purely naturalistic view of the world.  In vital balance, therefore, it was also grounded in the people’s right to be protected against involuntary conscription to religion, biblical or otherwise, or conscription to any other totalitarian ideological faction.  The only way to protect this liberty, is to prohibit government from either endorsing or prohibiting belief in any religion or its objects of veneration. Hence the Sixth Article's religious test clause and the First Amendment's endorsement and free exercise clauses.   

Not so far removed in time and circumstance from the making of Constitution and Bill of Rights, the renowned jurist David Dudley Field (1805–1894) wrote,

“The greatest achievement ever made in the cause of human progress is the total and final separation of church and state. If we have nothing else to boast of, we could lay claim with justice that the first among the nations we of this country made it an article of organic law that the relations between man and his maker were a private concern, into which other men have no right to intrude. To measure the stride thus made for the Emancipation of the race, we have only to look back over the centuries that have gone before us, and recall the dreadful persecutions in the name of religion that have filled the world.” (Reference 8)  

True religious liberty demands government neutrality towards religion and therefore encompasses both the people's right to be free of conscription to religious belief as well as freedom of religious belief.  Therefore it is not acceptable that our pledge be made hostage to an artifact of ceremonial monotheism, biblical or otherwise, no more then it should be made hostage to ceremonial polytheism or atheism. Our nation is not a biblical or Christian nation, and more inclusively not a theocracy.  It is a constitutional nation with a diversity of cultural roots and beliefs existing among its peoples, one dedicated to a high standard of religious freedom for all of the Nation's people, not just some of them.  The pledge was originally embedded in statute to serve as the core ceremonial oath of allegiance to Nation and to no other establishment or institution.  The 1954 adjustment turned the pledge into a religious oath test in contravention of constitutional law. 

Acknowledgment and Solemnization

One of the arguments used to justify ceremonial references to God, originates from the notion that they serve a secular purpose of "acknowledging religion" and  “solemnizing” formal proceedings.  For example, Justice O’Connor wrote the following in reference to Justice Rehnquist’s dissenting comments in the 1985 case against school prayer.

THE CHIEF JUSTICE suggests that one consequence of the Court's emphasis on the difference between § 16-1-20.1 and its predecessor statute might be to render the Pledge of Allegiance unconstitutional because Congress amended it in 1954 to add the words "under God." Post at 88. I disagree. In my view, the words "under God" in the Pledge, as codified at 36 U.S.C. § 172, serve as an acknowledgment of religion with "the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future." Lynch v. Donnelly, 1984 (concurring opinion).

Justice O’Connor’s views about "solemnization" and "acknowledgment" deserve close scrutiny because they showed up in her pro-pledge dicta in the Court's ruling against standing (Reference 49). To begin, why should it be considered necessary to invoke the supernatural to properly solemnize anything? The notion is not constitutionally supported, nor universally accepted, and thus highly preferential by any legitimate standard.    Where the Pledge is concerned, it simply cannot matter that someone thinks that such a device is needed to create a solemnizing effect.  The Sixth Article guarantees that belief in God or any other deity is not required as a qualification to either public office or of the public trust, and thus also not of common citizenship either.  The government has no legitimate business peddling a pledge whose wording clearly implies that belief in God is required.  If the pledge issue were really only one of acknowledging religion in general, then the term "religion" would appear in the pledge rather then the clearly exclusive "under God" phraseology.  Using a government endorsed pledge as a device to compel acknowledgment of any religious history or religious ideology, is in effect to create the conditions of a religious test.  

The issues are undoubtedly difficult, but how does the "acknowledgement" argument square with the guff that Representative Jim McDermott recently received in Congress when he omitted the "under God" phrase while reciting the pledge? (article)  Through the mirror created by this incident, it should be evident that the pledge is a coercive endorsement of a particular religious view and thus in violation of the First Amendment free exercise clause.   The "under God" phrase only supports free exercise for those who subscribe to the "under God" ideology, while all others are at disadvantage.  For example, if the pre-1954 wording of the pledge had only been changed to read "with Civil and Religious Liberty and Justice for All", then perhaps the "acknowledgement" argument would have constitutional legitimacy, but with the "under God" phraseology, it does not.  In the light of this example, it might also be observed that the pledge's actual closing phrase, "with Liberty and Justice for All', always did imply both civil and religious liberty and thus required no help from the proponents of monotheism.  If an additional element of solemnization was really required, then other alternatives more agreeable to the Constitution were readily available, such as "under the Constitution" for example (Reference 26).   With all these things taken into consideration, the "under God" phraseology simply cannot validly serve a ritually necessary or constitutionally admissible purpose.  

The Judicial Invocation

Among the other facts of concession highlighted by the EFELDF appeal, there is the practice of having the Marshal of the Court open each judicial session with the intonation, “God save the United States and this Honorable Court”.  It should be noticeable that a rather decisive functional difference exists between the court's invocation versus using the pledge in the classroom and Congress as a daily communal ritual.  In the former, court protocol dictates that both the justices and all others present in the court remain essentially non-participant while the Marshal performs the brief invocation.  In addition, the invocation does not amount to an oath or command of allegiance to or under anything for anyone corporally present.  Still, even with a ritual act of oath taking not directly at issue, why should the court consider itself compelled to employ the term “God” as a preferred or even acceptable device of ceremonial ritual?  This issue deserves a level of scrutiny never adequately received.  It requires it in the light of the distinctly monotheistic and biblically preferential connotations that the term “God” carries.   Simply because the rules of law embedded in the Constitution were not instantly completely incorporated at the time of its ratification does not mean that they are made infirm by the errors and premeditated transgressions that managed to wiggle through the cracks.

As the EFELDF appeal itself attests, the history of using the term “God” as the subject of formal declaration is traceable back to the British Empire with its royal monarchy and national Anglican Church.  It is ironic that we fought the war of independence against that British Empire only to remain enslaved to the security blanket of its ecclesiastic artifacts.  It is especially ironic considering the existence of more pluralistic and thus less objectionable options.  I do not know how long the Court has used the invocation or who originally introduced it.  Notably anyway, it is definitely not deist in nature.  Classical deism does not subscribe to invoking any supernatural entity to do anything.  Moreover, the invocation was not introduced by congressional decree and thus had to be the unilateral product of some activist faction. In retrospect, if ceremonial supernaturalism must be indulged by the Court, then the invocation might just as well have been written to read,  “Devine Providence save the United States and this Honorable Court”.  This alternative salutation would eliminate any nagging problems of specific religious identity.  One might also think that there should be a place in the ceremonies of state for a salutation like "Divine Providence defend the United States and its Honorable Constitution. Considering the enormously detrimental impact that the use of ceremonial biblicalism is having on our constitutionally guaranteed protections against religious test, the above stated adjustments might deserve more then passing fancy.  One thing is certain, you do not hear the theocrats declaring, God save the Constitution. The glut of concessions that have crept into government statute over the years are obviously not motivating them to do so. 

In a very similar light, we might consider the oath required for ascendancy to the Supreme Court bench itself.

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.'' (Reference 22)

Again a nagging reference to God is found embedded in the closing sentence, but remarkably anyway, the ideology is one of “under the Constitution” not under God.   

To evaluate the significance of this oath still further, consider the words of Justice Marshal as found in the landmark case of Marberry versus Madison, from the year 1803.

From these and many other selections, which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.  Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.'

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.  If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. (Reference 23)

Justice Marshal’s words are quoted at length because they eloquently articulate what is so profoundly at stake in the present case.  In more detail, it is that the judicial oath he quoted is by no means identical to the one currently on record in civil code.  Most noteworthy of all, nowhere within the original is “God” to be found.  Sometime between 1803 and the present, some "helpful" faction evidently decided that the biblical artifact should be added.  In other words, the “so help me God” phrase is not part of the original tradition of the Court.   It’s inclusion, which also occurred in the 1950's, is yet another example of the insidious encroachment of biblicalism on the ceremonial proceedings of state (Reference 24).  It not known to me whether the "adjustments" to the oath have ever been formally challenged or what the requirements for standing would be.  Pursuant to the matter, it would be vitally interesting to know just how SCOTUS itself would square the ending inquiry, "so help you God" with the Sixth Article mandate against religious test.  Further, how would any pretense to same square against Senator Jeff Session's witch hunting during recent judicial confirmation hearings in Congress?  (Reference 24)

Anyway, most of the “facts” of concession cited in the EFELDF appeal are of the same category.  None of them having much legitimate claim to being authentic traditions within government.  The "historical" justification for invoking deity is further weakened by the observation that neither the framers of the Constitution, nor the authors of the original judicial oath, nor of the pre-1954 pledge, viewed such a device to be necessary for solemnization or for any other purpose.   Considered on other grounds, the use of the term "God" is both arbitrary and preferential.  If an embellished affirmation was truly required, then the judicial oath could be written, "So help my Sacred Honor as a United States Citizen and Officer of the Court".   Who could doubt either the constitutional legitimacy or strongly solemnizing affect of such wording? (Reference 25)  Reactionary  congressional lawmaking in the service of factional religious interests breeds terrible errors, which then become extremely difficult to overturn. 

So Help You God?

Central to the EFELDF appeal is the implicit notion that the “under God” phrase is constitutional because it is not significantly different from other concessions prior and after 1954.  Aside from the flaky historical claims mentioned above, the more telling problem is that virtually such concessions are unconstitutional from the strict standpoint of the Sixth Article or the First Amendment.  If they were not, then what need to concede anything?   The right wing agenda is to create pseudo legitimacy for the notion that every “fact” of concession to the term “God” is made legal by every other fact of concession and therefore, the more facts of concession established the more legal any one of them becomes.  This is much like arguing that every act of vandalism justifies every other act of vandalism ever carried out.  Therefore, the more facts of vandalism established, the more legal does vandalism become.  As such, the argument is an appeal to constitutional anarchy.

The EFELDF appeal claimed that the  “under God” wording is the least religious of all concessions (page 2), further claiming that the use of biblical prayer in some government proceedings is justification for it.  First, the notion that the "under God" pledge is less religious compared to other concessions is not tenable.  To the contrary, it is the most pointedly and universally influential religious concession of them all.  Second, biblical prayer and other related concessions are constitutionally repugnant regardless of where they entrenched themselves in government ceremony. At least regarding formally initiated school prayer, the Supreme Court itself has come out and said as much.  All such instances need to be strictly limited, not used as justification for still more.  

In consideration of these overarching issues, the current pledge either communicates a religious belief in the eyes of the court or it does not; so which is it?    Both the EFELDF appeal and much of the dicta from previous cases confirm that it does communicate a religious belief.  In the Court's recent ruling against standing, Justice Rehnquist's elusion to George Washington's bible kissing during the first Presidential inauguration (Reference 49) confirms that the "under God" pledge does in his view communicate a religious belief and a decidedly biblical one at that!  In such case, it must go the same way that formally initiated prayer among impressionable school age children justifiably went.   That is, removed from the ritual proceedings of the public classroom altogether.  

As shown, resistance to the above stated outcome leans heavily on the "concessions". "traditions" and "solemnization" arguments and what historical evidence exists in their favor.  George Washington's alleged act of kissing a bible and proclaiming, "so help me God" during his first term inauguration is a particular favorite for obvious reasons.  Since it is so frequently invoked in defense of the pledge, the other relevant historical facts surrounding Washington's act need to be spread out on the table for examination.  

To begin, Washington began his first term as President before ratification of the Constitution and Bill of Rights.  Therefore, the new laws prohibiting religious test and government endorsement of religion were not formally in effect.  Second, if the Continental Congress did  provide any guidance about the details of the first inauguration ceremony, it did not include using a bible or any oath to deity.  According to the historical ledger, the bible got included in the mix only at the last minute by a "helpful" clergyman (Reference 25).  The bible kissing and "so help me God" parts were not a premeditated aspect of the ceremony.   However, Washington was a frequent occupant of the pews of the Anglican Church.  The Anglican Church was the official Church of England and its official head the King of England himself.   Both the bible kissing and the oath to God were elements cloned directly out of the King's own coronation ceremony.  

  Part Three

References

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