Religious Freedom and the Pledge of Allegiance

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Michael Newdow, Plaintiff
Wendy Kaminer, Lawyer and social critic
Phillip Muñoz, Tufts University
Alan Wolfe, Boston College

Date: October 18, 2006

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Abstract

Every day millions of Americans, many of them schoolchildren, are asked to pledge their allegiance to the American flag and to "the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all." By invoking God, does this familiar act of citizenship constitute a profession of faith or simply an acknowledgement that Americans have historically believed in God? In either case, does it imply that a good citizen must believe in God? This panel will discuss the Pledge's invocation of a nation "under God," and its implications for religious freedom in this country.

Among the panelists is Michael Newdow, who sued the U.S. Congress over this issue and personally argued his case before the U.S. Supreme Court in 2004. A federal appeals court in California had caused a national uproar two years earlier when it agreed with Newdow in a ruling that would have banned the phrase "under God" from schoolhouse recitations of the Pledge. Despite hearing the case (Elk Grove v. Newdow), the U.S. Supreme Court ultimately declined to rule on the issue for technical legal reasons, but Mr. Newdow has re-filed his case, which many expect to return to the Supreme Court in the coming years for final resolution. Joining Mr. Newdow on the panel are lawyer and social critic Wendy Kaminer, and constitutional scholar Phillip Muñoz. Professor Alan Wolfe, Director of the Boisi Center for Religion and American Public Life, will moderate the event.

Speaker Bio

Wendy Kaminer

Wendy Kaminer, a lawyer and social critic, writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. A former Guggenheim fellow, she is the author of six previous books, including Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of PietyTrue Love Waits: Essays and CriticismIt's All the RageCrime and CultureI'm Dysfunctional, You're Dysfunctional: The Recovery Movement & Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Her articles and reviews have appeared in numerous publications including The New York Times, The Atlantic Monthly, The Wall Street Journal, The American Prospect, Dissent, The Nation, Newsweek, and Free Inquiry. She is currently working (slowly) on a book about ethics for Beacon Press. 

Michael Newdow

Michael Newdow is a lawyer, physician and First Amendment activist whose legal challenge to the words "under God" in the Pledge of Allegiance reached the Supreme Court in 2004 (Elk Grove v. Newdow). Newdow personally argued the case before the Court, and although he lost 5-3 on standing grounds, his performance was called "spellbinding" by The New York Times, "virtuoso" by NPR, and the "Best Oral Argument" of the entire Supreme Court term by the Daily Journal. He practices emergency medicine in Sacramento, California, where he has also filed a legal challenge in federal court to the national motto "In God We Trust." Newdow holds a B.A. from Brown University, an M.D. from the UCLA School of Medicine, and a J.D from the University of Michigan Law School.

Phillip Muñoz

Phillip Muñoz teaches and studies political philosophy and American constitutional law. His recent scholarly articles include, "James Madison's Principles of Religious Liberty" and "George Washington on Religious Liberty." His writings have appeared in American Political Science Review, The Review of Politics, First Things, The Claremont Review of Books, and The Wall Street Journal. In 2004 he testified before the Senate Judiciary Committee on the matter of "Religion in the Public Square." Professor Muñoz received his BA in Economics and Government from Claremont McKenna College, his MA in Political Science from Boston College, and his PhD in Political Science from Claremont Graduate School. He is currently completing a book on religious freedom and the American Founders. 

Alan Wolfe

Alan Wolfe is Professor of Political Science and Director of the Boisi Center for Religion and American Public Life at Boston College. His most recent books include Does American Democracy Still Work? (Yale University Press) Return to Greatness: How America Lost Its Sense of Purpose and What it Needs to Do to Recover It (Princeton University Press, 2005), The Transformation of American Religion: How We actually Practice our Faith (Free Press, 2003), and An Intellectual in Public (University of Michigan Press, 2003). Both One Nation, After All and Moral Freedom were selected as New York Times Notable Books of the Year.

Event Photos

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From left to right: Michael Newdow, Wendy Kaminer, Alan Wolfe, Phillip Muñoz

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Alan Wolfe

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Michael Newdow

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Wendy Kaminer

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Phillip Muñoz (Photos by Kerry Burke, BC Media Technology Services)

Event Recap

Every day millions of Americans, many of them schoolchildren, are asked to pledge their allegiance to the American flag and to “the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” By invoking God, does this familiar act of citizenship constitute a profession of faith or simply an acknowledgement that Americans have historically believed in God?  In either case, does it imply that a good citizen must believe in God?  On October 9 the Boisi Center hosted a panel to discuss the Pledge’s invocation of a nation “under God,” and its implications for religious freedom in this country.

First among the panelists was Michael Newdow, a lawyer, physician and First Amendment activist who sued the U.S. Congress over this issue and personally argued his case before the U.S. Supreme Court in 2004.  The Court ultimately declined, for technical legal reasons, to rule on the permissibility of “under God” in the Pledge, but Newdow has re-filed his case, which many expect to return to the Supreme Court in the coming years for final resolution.  At the panel discussion Newdow focused his remarks on the concept of equality, arguing that the First Amendment’s guarantee of religious freedom means that all citizens—including those who reject religion—must be treated equally. The inclusion of “under God” in the Pledge, he said, unconstitutionally signals government support for theistic (particularly Christian) religious beliefs, making belief in God a component of good citizenship. Atheists and other non-theists are treated as unequal citizens who must suffer in silence as the majority robustly declares its faith to be integral to its patriotism.

Author, attorney and social critic Wendy Kaminer sympathized with Newdow’s principled argument for equal treatment of atheists, but said that his legal challenge was doing more harm than good to that cause. As an atheist herself, Kaminer said, “We can’t afford to win this case” because the public backlash would likely result in passage of a constitutional amendment protecting religious language in this and many other circumstances. Furthermore, she noted, religious people should be much more worried about the Pledge’s form of “ceremonial deism” than non-religious people, since it signals a secularization of religious meaning.

Constitutional scholar Phillip Muñoz, professor of political science at Tufts University, argued that Newdow would have won his case if the Supreme Court had considered the substantive issues, because all their prevailing legal tests support his position. But while Newdow’s argument may be legally sound under present constitutional interpretation, he said, it conflicts with the Founders’ more capacious understanding of religious freedom. Muñoz, who is writing a book on religion and the American founding, argued that while the First Amendment prevents the state from rewarding or punishing people for being religious or not religious, such punishment does not include the psychological harm that comes from hearing religious people express their faith.

A vigorous discussion among panelists followed their initial presentations. When pressed by Newdow, Muñoz argued that it would be constitutionally permissible even to include the phrase “under Jesus Christ” in the Pledge of Allegiance—although it would be a bad idea. “Not all bad things are prohibited by the constitution,” Muñoz said. The audience left the session energized by the debate.

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Further Reading

  • Richard J. Ellis, To the Flag: The Unlikely History of the Pledge of Allegiance (Kansas, 2005) 
  • Elk Grove Unified School District v. Newdow [U.S. Supreme Court case], 542 U.S. 1 (2004). Available online with oral arguments at Oyez.com.
  • Michael Newdow, “Pledging Allegiance to My Daughter,” New York Times, 21 June 2004.
  • Kenneth C. Davis, “Jefferson, Madison, Newdow?” New York Times, 26 March 2004.
  • Wendy Kaminer, Free For All: Defending Liberty in America Today (Beacon Press, 2002).
  • Vincent Phillip Muñoz, “Still ‘Under God’?” National Review Online, 17 June 2004.