‘Under God,’ and Under the Constitution

Like millions of Americans, Sandy Banning strongly supports the Pledge of Allegiance. As a single mother, she encourages her 9-year-old daughter to participate in this familiar daily ritual at her child’s public elementary school in suburban Sacramento. As Banning sees it, the pledge represents a succinct but powerful statement of the nation’s foundational principles and values.

But her daughter’s father, Michael Newdow, vehemently disagrees. In his view, the pledge’s inclusion of the words “under God” violates the 1st Amendment’s prohibition of the law “respecting an establishment of religion.” So he went to court to ask that the offending phrase be removed.

The constitutionality of the pledge, at least in the public school setting, is now in the hands of the U.S. Supreme Court. We will presumably know the court’s answer before its summer recess. The case is complicated by issues of “standing” -- that is, whether Newdow has the right to sue because child custody proceedings had awarded Banning the final say in the child’s educational and religious training. But judging from the arguments in the court in late March, it is more likely that the justices will weigh -- and decide -- the underlying constitutional issue that divides the mother, a devout Christian, from the father, an ardent atheist.

Remarkably, in our closely divided nation, where the voting in a single state can decide the presidency, the American people have been overwhelmingly of one mind: The pledge is appropriate and unobjectionable. The virtual consensus of our vast representative democracy was reflected in the U.S. Senate’s 99-0 vote disagreeing with the U.S. 9th Circuit Court of Appeals’ invalidation of the pledge’s inclusion of the words “under God.”

Consensus, of course, doesn’t translate automatically into constitutionality, and one of the glories of our system is the power of the Supreme Court to “say what the law is,” in the words of Chief Justice John Marshall. But, in an otherwise divided nation, the nigh-universal acceptance of the pledge -- including the addition (in 1954) of the words “under God” -- will probably not go entirely unnoticed by the court as it comes to judgment.

Banning -- whom I represent -- sees the pledge as an important avowal of American values, and I think most Americans agree. As the Cold War was unfolding, Congress added the words “under God” as a more complete and decidedly relevant statement of the nation’s political philosophy. That philosophy was famously embodied in the Declaration of Independence and given renewed voice by Abraham Lincoln at Gettysburg as he spoke of a new birth of freedom. In contrast to the world view animating the then-Soviet Union, the American political philosophy placed paramount importance on the dignity and worth of the individual, not the state. The individual enjoyed “inalienable rights” because those rights came from “the Creator,” not the government.

Under the philosophy of the declaration, the bedrock purpose of government was to secure the rights of individuals. This worldview represented the intellectual justification for separation from Britain and paved the way for the unique American experiment in limiting governmental power over the individual, through separated powers and the Bill of Rights at the federal level and through the preservation of the states. Limit and divide government, the idea went, and better preserve liberty, including the fundamental rights granted by the Creator.

The dilemma comes when nonbelievers (and their children) are confronted with this philosophical statement recognizing God as the foundation of our governmental architecture. What to do when nonbelievers object?

The best answer lies in the protection of the freedom of individual conscience. Respect for the dignity of the individual is embodied in the Supreme Court’s landmark case half a century ago protecting individual conscience in the context of flag-salute ceremonies at public schools. The compromise was simple and elegant: The nation gets to have its traditions lifted up in the form of patriotic exercises, but the individual conscience cannot be required to participate.

Compromises are by nature imperfect, and it will rightly be said that schoolchildren will doubtless feel peer pressure to participate in an exercise in which they (or their parents) emphatically disagree. This objection should not be lightly dismissed, but at a constitutional level, the better answer is not to abolish the exercise itself. Instead, a more balanced approach allows the nation to continue honoring its traditions, educating the young in those traditions but also respecting the rights of objectors not to participate in a patriotic exercise that represents a source of unity in a deeply divided nation.

Kenneth W. Starr, a lawyer, former U.S. solicitor general and former independent counsel who investigated the Clintons, is the dean-designate of Pepperdine Law School in Malibu.