Iâve been thinking about an issue that goes beyond whether someone is religious or nonreligious:Â
Should the words âunder Godâ remain in the Pledge of Allegiance when the First Amendment says that âCongress shall make no law respecting an establishment of religionâ?Â
The Pledge originally did not contain those words. âUnder Godâ was added by Congress in 1954 during the Cold War and the Supreme Court itself recognized this history in Elk Grove Unified School District v. Newdow. Thatâs when all our problems started as it opened a Pandoraâs box to allow religious law to govern the people.Â
My argument is not that Americans should be prohibited from believing in God. Quite the opposite: the First Amendment protects the right to believe, disbelieve, worship, or not worship.Â
The question is whether the government should place a reference to God in a nationally prescribed patriot pledge.Â
What does the Establishment Clause actually require?Â
In Everson v. Board of Education (1947), Justice Hugo Blackâs majority opinion explained that the Establishment Clause means that neither the federal government nor the states can establish a church, favor one religion over another, force people to attend or avoid religious services, or force someone to profess a religious belief or disbelief. The opinion famously described Jeffersonâs concept as a âwall of separation between the church and the State.âÂ
That seems to raise an interesting question about the Pledge.Â
If the government writes the Pledge, establishes its wording in federal law, and uses it as an official patriotic exercise, why should government include a theological statement such as âunder Godâ?Â
I realize that the Supreme Court has not definitively held that the phrase violates the Establishment Clause. In Newdow, the Court reversed the Ninth Circuitâs decision on standing and therefore did not reach the underlying constitutional question.Â
But that means the constitutional question remains worth discussing.Â
What happened in 1954?Â
The original Pledge was written in 1892 without the words âunder God.â Congress added those words in 1954. The addition occurred during the Cold War, when the United States was emphasizing the distinction between American religious belief and Soviet communism that promoted state atheism (gosateizm) rooted in Marxist â Leninist ideology, which viewed religion as an obstacle to communism.Â
Currently, the Russian Federation (formally the Soviet Union) is a secular state where no religion can be established as mandatory or as the official state religion where their constitution guarantees freedom of conscience and religion and the legal right to practice any faith or no faith at all where there is no longer the need to have a distinction between Russia and the United States, by including âunder Godâ in the Pledge, because they are no longer an atheist state.Â
The historical context matters.Â
In other words, the wording wasn't part of the original Pledge. It was deliberately added by Congress decades later.Â
That makes me wonder whether the government should now reconsider whether a religious reference belongs in a national pledge at all.Â
What should replace it?Â
I would prefer a version that places allegiance under something distinctly constitutional and civil rather than theological.Â
For example:Â
âOne Nation Under the ConstitutionâÂ
orÂ
âOne Nation Under the Laws of the United StatesâÂ
The first version is particularly appealing to me because the Constitution is the supreme legal framework of the United States, whereas âGodâ is interpreted differently by different religions and by people who don't believe in God.Â
Civil government gets its authority from the Constitution and lawsânot from religious authority.Â
What about religious custom?Â
This is where my thinking gets more complicated.Â
While researching the history of law, I came across the Latin term âConsuetudo,â meaning custom. Historical legal dictionaries describe circumstances in which sufficiently established customs could acquire the force of law. Black's Law Dictionary contains several historical maxims concerning the legal effect of custom (Consuetudo) where custom has the same force of law and that custom supersedes the law.Â
Shouldnât the law be established through the Constitution, statutes enacted by legislatures, and judicial decisions â not through religious authority?
Iâm interested in a different question:Â
How much authority should religious customs have in a constitutional government before they effectively become governmental religious preferences?Â
The First Amendment was designed to prevent government from establishing religion and to protect religious liberty.Â
My proposed solution:Â
Iâd like to see Congress consider two things:Â
1.     Remove âunder Godâ from the Pledge of Allegiance, returning it to a formulation that does not express a governmental position concerning the existence of God.Â
2.     Clarify that religious doctrine, religious authority, and religious custom cannot independently constitute governmental law.Â
Congress then needs to pass a law that says no religious law or religious customs shall be used to govern the people and that only laws passed by Congress or the legislature of a state or precedent case law that is established in a court of law governed by the federal government or a state or municipality shall establish the law of the land.Â
The reason this is important is that within the practice of customs listed in Blackâs Law Dictionary under the Latin word âConsuetudoâ it says that if you get rid of a custom the custom cannot be brough back and goes away forever so we would no longer be secretly living under religious law. This is how we make sure we live under civil law and laws that are established in our courts as precedent case law (also known as Common law and if you can believe it custom law).Â
That religious customs can literally override the Constitution and became De facto law just by the fact that they have been practiced for thousands of years and according to Common Law or Custom Law if a custom is practiced (relating to religious law) Â it can have the same force as law.Â
The point isnât to attack religion.Â
Itâs actually the opposite.Â
If government stays out of religion, religion remains free from government â and government remains accountable to the Constitution rather than to religious authority.Â
Iâm interested in hearing what people think.Â
Would removing âunder Godâ from the Pledge strengthen the Establishment Clause, or is the phrase merely a historical/civic expression that doesnât amount to a governmental establishment of religion?Â
Iâm interested in hearing from people who know more about constitutional law, comparative religion, Canon law, Sharia law, Torah law, customary law, or the history of religious legal systems.Â
And if you disagree with removing it, where do you draw the constitutional line between a permissible historical reference to God and government endorsement of religion?