The Ninth Circuit apparently has decided that it would rather be reversed by the Supreme Court than reverse its own three-judge panel on the question of whether schoolchildren can be required to say the Pledge of Allegiance with the phrase “under God” in it. I think I’m with Justice Frankfurter on the underlying issue: such laws are disgusting, but the courts shouldn’t be the ones to get rid of them.
Of course, the Frankfurter opinion was about a Godless pledge; that last bit of oppressive civil religion wasn’t added until the 1950s. The principle of making children recite a formula and make a ritual gesture toward a venerated symbol remains the same, though the proportion of kids who don’t want to say, or whose parents don’t want them saying, “under God” is probably larger than the proportion with scruples about the flag salute itself.
And no, thank you, I’m not buying the argument that making the observance “voluntary” solves anything: if offering young children the option of being hassled by their teachers and ostracized and beaten up by their schoolmates in lieu of a forced religious observance is enough to salve your conscience, then all I can say is that you have a tougher conscience than I do.
But put all that aside for the moment. What fascinates me is the reaction from the head of the school district:
Supt. David W. Gordon said the district was “very disappointed” and plans to ask for a stay and for review by the Supreme Court.
He said the pledge would not be recited without the words “under God” because “we want our kids to say the pledge as it is.”
Let’s think about the choice Superintendent Gordon has just made. Given the choice between having his students express their patriotism without also expressing their piety and having them not express their patriotism at all, he has chosen to have them be silent. Assuming for the moment that he thinks (as I do not) that a required daily loyalty oath is a good thing, isn’t it strange that he prefers not to have it at all if he can’t also make it an act of forced worship? Is his religion more important to him than his country?
Doesn’t that seem a little bit … disloyal?
UPDATE
How Appealing links to three law professors’ comments. I find Jack Balkin’s especially illuminating on the legal issues.