In Minnesota, the ever-controversial Governor Jesse Ventura is under fire for declaring this 4th of July "Indivisible Day" at the suggestion of the Atheists of Minnesota for Human Rights. In the wake of a federal Ninth Circuit Court of Appeals panel decision declaring that the language "under God" in the Pledge of Allegiance violates the Establishment Clause of the United States Constitution in school settings, his remarks have not been taken kindly, particularly in light of his previous Playboy comment "religion is a sham and crutch for weak-minded people."
 Ventura has also received criticism for vetoing a bill passed by the Minnesota legislature, which required public schoolchildren to recite the Pledge of Allegiance once a week, though the school board could opt out of the law, as could any particular student. Ventura was quoted by the Associated Press as saying, "I am vetoing this bill because I believe patriotism comes from the heart. Patriotism is voluntary. It is a feeling of loyalty and allegiance that is the result of knowledge and belief. A patriot shows their patriotism through their actions, by their choice [such as voting, attending community meetings and speaking out when needed]. No law will make a citizen a patriot."
 The Governor's declaration of 4th of July as "Indivisible Day" was both jeered and cheered. According to the Pioneer Press, the spokesperson for the Minnesota Family Council said, "This process is continuing the governor's hostility towards religion that was originally revealed in [the Playboy] interview. He's continuing that attack in a more politically correct way using his public office.'' Gubernatorial spokesperson David Ruth, a spokesman for the governor is reported to have replied, "The governor thought it was a good idea. The [Indivisible Day] proclamation really talks about unity. A lot of people are thinking it's about religion, and they're mistaken. It's talking about bringing people together on a very important day. It's not in any way meant to divide people." The Pioneer Press itself headlined the story Ventura's "church-state proclamation."
 However, the Governor's declaration points out what is at stake in the debate over the Pledge case. The narrow question is whether schoolchildren should be required to say the pledge, or to stand silently or be dismissed from class as their teacher and other children do so. The larger question raised by the debate is this: should the United States to be recognized by our government-sponsored public institutions as a "nation under God," or is it a government that has the duty of signaling to "many faiths, and none at all" that there is no preferred religious belief in this country?
 A brief history of the pledge and the addition of the words "under God" is probably necessary to understand what is NOT at stake. For example, many younger people may be under a misconception that the pledge language including the words "under God" is a time-honored tradition. As Newsweek reports, the pledge was a grassroots effort by a preacher-teacher-socialist (!) named Francis Bellamy, whose 1892 family magazine article spread his pledge through leaflets to most of the nation's schools, so that by Columbus Day of that year, about 12 million students were pledging allegiance to "my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all." Before 1954, the Pledge did not include words "under God."
 However, that omission did not prevent the Pledge from being controversial. In 1918, a Mennonite was convicted for his daughter's truancy after she was sent home by her school for refusing to pledge, and 38 Mennonite children in Delaware were expelled from school in 1928 for refusing to salute. Members of the Church of God and Elijah Voice Society churches were among those denominations punished for refusing to salute the flag, even before the words "under God" were added, and perhaps most prominently, they were joined by the Jehovah's Witnesses.
 During World War II, in particular, as the nation felt itself under threat, it was dangerous to be a "non-pledger." In 1935, according to historian Chuck Smith (citing David Manwaring's book, Render Unto Caesar: The Flag Salute Controversy, 1962), the Jehovah's Witnesses began to teach that the flag salute violated the Bible's prohibition against worshipping graven images. Ironically, this teaching immediately followed Jehovah's Witness leader Judge Rutherford's denunciation of the "Heil Hitler" salute in Germany as idolatrous; one might surmise that he saw some parallels in the two pledges. About 120 Witnesses were expelled from public school before a year was out for failing to say the pledge.
 Schmidt, quoting historian M. James Penton, notes that as a result of this teaching and the denomination's other religious activities including proselytizing, the Witnesses suffered 18,866 arrests and 1500 incidents of mob violence between 1933 and 1951. As just one example, working Witnesses who refused to pledge after President Roosevelt announced the Pearl Harbor attack were ostracized by their fellow employees, who refused to work with them; ultimately some Witnesses were fired for that reason, while others quit under the pressure. Similarly, Jehovah's Witness schoolchildren who refused to pledge continued to be expelled from school in 31 states, and their parents were subject to prosecution, including jail, while the children could be adjudicated delinquent.
 Gaffney and Noonan note that two women were sentenced to prison terms of 2 to 10 years for "flag desecration" because they distributed literature opposing the salute, though the courts later overturned their convictions. Mississippi made it a felony punishable by imprisonment to distribute literature "which reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag," and the state supreme court refused to overturn Witness R.E. Taylor's conviction under the statute.
 The controversy over the mandatory Pledge went all the way to the Supreme Court. In its first decision on this matter, the U.S. Supreme Court declared that the mandatory flag salute statute was constitutional in Minersville School District v. Gobitis, 310 U.S. 386 (1940.) Yet, in a stunning reversal only three years later, the Court held that forcing a child to salute the flag in public school violated her First Amendment right to free speech, West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 (1943). That case produced one of the Court's most famous statements: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein."
 In 1954, Congress, under pressure from anti-communist/religious groups, first introduced the language "under God" to the Pledge by federal statute. According to the Ninth Circuit court that recently ruled the "under God" language unconstitutional in some settings, "the legislative history of the 1954 Act shows that the 'under God' language was not meant to sit passively in the federal code unbeknownst to the public; rather, the sponsors of the amendment knew about and capitalized on the state laws and school district rules that mandate recitation of the Pledge. The legislation's House sponsor, Representative Louis C. Rabaut, testified at the Congressional hearing that 'the children of our land, in the daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its origins,' and this statement was incorporated into the report of the House Judiciary. Taken within its context, the 1954 addendum was designed to result in the recitation of the words "under God" in school classrooms throughout the land on a daily basis. . . .'" In invalidating the "under God" language in the Pledge, the Ninth Circuit noted that these words took on special political meaning as well: it noted, "the words 'under God' were intended to recognize a Supreme Being, at a time when the government was publicly inveighing against atheistic communism."
 In holding the language "under God" unconstitutional under the Establishment Clause in the recent Newdow case, the Ninth Circuit hearkened back to three key Supreme Court rulings on school prayer and other cases involving government - not public, but government - recognition of religion. In Wallace v. Jaffree in 1985, the Supreme Court held that state legislators' attempts to amend a moment of silence law to add the words "or prayer" were unconstitutional, because the lawmakers were motivated solely by a religious purpose ("to return voluntary prayer to the public schools", in the sponsor's words), not a secular one.
 In a second case the Newdow court relied upon, Lee v. Weisman in 1992, the Supreme Court held that a public school organized prayer at middle school and high school graduation violated the Establishment Clause because it placed "public pressure, as well as peer pressure" or psychological coercion, on a high school student to participate in the prayer. The Court relied on the largely uncontroversial proposition that, "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." In Doe v. Santa Fe Independent School District, decided in 2000, the school's sponsorship of a student prayer at football games was unconstitutional because it coerced students, forcing them to choose between attending their school's football game and "risk facing a personally offensive religious ritual."
 This form of the "non-coercion" test, one of three currently used by the Supreme Court to decide Establishment Clause cases, has been ridiculed by commentators and judges, among them Justice Scalia. In their view, the Establishment Clause and Free Exercise Clause were meant only to protect religious dissenters from tangible coercive measures such as those which Lutherans and others endured before the Revolutionary War, e.g., criminal laws requiring church attendance and payment of taxes to the Anglican church. Some have scoffed at the idea that the public or peer pressure that high school or grade school students may feel to conform to religious practices is something that the courts should take seriously as a constitutional harm.
 This "psychological coercion" test that Justice Kennedy relied on to decide the Lee case has, however, played a significant, if not always explicit, role in the Supreme Court's modern cases on religion in the public schools as well as several cases involving public funds for parochial schools, sometimes under the rubric of a concern for state sponsorship of the "indoctrination" or "proselytization" of children into religious faiths. In this sense, Justice Kennedy merely echoed a traditional Court concern when he stated in Lee, "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Moreover, testimonies of countless Christian and non-Christian religious minorities about their experiences in the days when school-sponsored Protestant religious activity was common in public schools attest to the fact that many of these children suffered ostracism by peers, were shamed by teachers, and felt that they, as well as their religion, were considered inferior to the children whose religion was part of the school day. Still other children participated in these rituals in order not to be set apart from religious majority children, even though they did not believe in them.
 A larger issue in these cases, however, is what religious speech in schools, including the language "under God" in the Pledge, communicates about the kind of nation we are and who can be a citizen in the U.S. In Lynch v. Donnelly, which upheld the use of a creche in a holiday display in Pawtucket, Rhode Island, Justice Sandra Day O'Connor argued that even if government religious action does not coerce dissenters, the courts must scrutinize the message that government-sponsored religious speech sends to its religiously diverse citizens. In her view, government speech can be construed as an (unconstitutional) "endorsement [of religion if it] sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." This "non-endorsement" legal test, the second of the three used by the Court in Establishment Clause cases, also was pivotal in the Doe case, and now the Newdow case as well. (The third test, the so-called Lemon test, was held to be violated by the Newdow court because "the Act's sole purpose was to advance religion, in order to differentiate the United States from nations under communist rule.")
 But perhaps, as some proponents have suggested, the government is not endorsing any religion by mandating the Pledge because the Pledge is not really religious in nature, but merely "ceremonial." Indeed, the Supreme Court has acknowledged other seemingly religious practices, including the language "in God We Trust" on our coins and the celebration of Christmas and Thanksgiving, on the theory that these practices merely acknowledge a religious heritage and are not used to advance any particular religious beliefs. One might say, to be extreme, that the Court recognizes that the word "God" has become a meaningless phrase referring to any recognition of a "Higher Power" supporting the nation.
 In response to the claim in the Newdow case that "under God" does not endorse particular religious beliefs, the Ninth Circuit said, "[The Pledge] is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation 'under God' is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase 'one nation under God' in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and - since 1954 - monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion."
 Religious people of all faiths have objected, and properly so, to the description of the recitation of the name of God as "merely ceremonial" and without any specific religious significance. In fact, the irony of many of these Establishment Clause cases is that the dissenters seem to take the religious language more seriously than the religious majority: Michael Newdow apparently actually believes that saying "under God" means saying that one believes there is one God at whose name every knee should bow, including the national government, while some who mock him effectively suggest that we don't really mean that God is sovereign when we say the pledge. Walter Barnette and his fellow Witnesses apparently took very seriously the possibility, scoffed at by many Americans, that his children might come to view their allegiance to the state as more important than their faith in God. Certainly, anyone who believes in the God of Israel, active in history, Who has describe His identity and work in the world in countless ways should be reluctant to agree that she is witnessing to that God in the same way as a Buddhist, or Hindu, or Wiccan when he is required to say the pledge, even if she believes that there is only one God to whom each of these faith traditions ultimately point.
 Another objection that is made in cases such as Newdow is that having teacher lead a pledge or prayer, is not really an endorsement of a particular idea if students know they can refuse to participate. Some would suggest that Newdow's lawsuit is silly for that reason. Yet, the Newdow court asked about the purpose of the pledge, and answered, "the school district's practice of teacher- led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge and thus amounts to state endorsement of these ideals. Although students cannot be forced to participate in recitation of the Pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge."
 Indeed, it is hard to know what else a young child would take from a teacher's request that everyone stand and say the pledge of allegiance than that the teacher, the school, and ultimately the State "believed in" the words of that pledge and that the child should as well. If the pledge were merely seen as a nice turn of phrase that should not command the allegiance of the schoolchildren who say it, it is hard to know what the value of mandating it by law would be.
 Others argue against the Supreme Court's Establishment Clause jurisprudence on majoritarian grounds: even if the Pledge does endorse a religious belief about God, the Constitution does not prohibit such an endorsement because most people in the U.S. do believe in God, notwithstanding the millions who do not or are unsure about God. Their rights to express their religious faith should trump the rights of atheists and others in the minority who don't believe in God, so long as they can convince a majority of Americans (and their legislators) to pass a law mandating religious expression. While a full discussion about the proper role of the Constitution and courts in protecting religious minorities is beyond the scope of this article, religious groups who have been in dissenting roles in the United States (including Lutherans) might, as a practical matter, want to be particularly careful about going along with any argument that says the majority may impose their religious will upon the minority so long as they can get the votes, apart from the theological or ethical problems with doing so that I have already alluded to.
 I do not mean, however, to suggest that the dilemma which Establishment Clause cases like the Pledge case pose is an easy one. On one hand, many in the U.S. religious majority, whether it is defined as Protestant, as Christian, or as those persons who adhere to monotheistic religions, are clamoring for more public recognition of the agency of God in daily life, especially in a time of national crisis. Lutherans must be sympathetic to that demand, given the Lutheran recognition of the fact that "religious liberty is rooted in our creation in the image of God and in God's continuing activity in the created world. . . . [W]e are creatures to whom God speaks and from whom God expects a response." (LCA Social Statement on Religious Liberty in the United States.) To fail to recognize that God is present and active in even these events of history, even though we see only the traces of God's hands and never God's face, is impossible for people of faith. Not to call on God for succor in time of trouble and ask for the courage to name and confront evil, our own as well as others', denies the Ground of human existence. For a Christian, to pledge allegiance to any state without personally acknowledging that it is "under God" may be impossible.
 On the other, modern Lutherans have recognized the dangers when the government dictates these responses, as the Supreme Court and the Ninth Circuit reflect in their opinions. (At the risk of trivializing a complicated theological and moral discussion, I will "laundry list" the concerns expressed in Lutheran as well as the constitutional documents.) First, in the words of the LCA statement, "Christian faith asserts that God will not force anyone into communion with God. If, then, God refuses to impose divine will on humanity, then persons exceed their prerogative if they try to use coercion of any kind on one another to obtain religious conformity." Another 1964 LCA statement notes, "Children are required to be in school by compulsion of public law . . . and the teacher - the symbol of authority in the classroom - supervises the exercises. These factors combine to operate with indirect coercive force on young and impressionable children to induce them to take part in these exercises, despite a freedom to be excused from participation. Even persons with a genuine regard for prayer and the Bible may object to having their children engage in these exercises when they are supported by the compulsion of law."
 Whether embarrassing a first grader or a teenager who does not pray or say the pledge with her classmates is an unconstitutional coercion is a point of law subject to debate, but it must be a matter of continuing concern to Lutherans and other Christians. As a practical matter, especially given humans' (Lutherans might say prideful) insistence on their own freedom, coercion (if embarrassment is such) is not likely to work: adults and even children who are forced into participation in a religious exercise are likely to rebel, and possibly not only against a particular religious doctrine but against the God whom they are forced to worship. Or, as James Madison and Thomas Jefferson noted - along with the ALC statement - forced religious participation may engender hypocritical assent, "those who honor me with their lips, while their hearts are far from me." (Is 29:13 RSV). In the words of the 1964 LCA statement, public recitation of prayers "easily becomes a formal, mechanical exercise that neither reflects nor contributes to genuine religious piety and reverence." To tempt any person to this form of disobedience is itself wrong.
 Or, a chief concern of the Framers of the Constitution, when government enmeshes itself in religious controversy, fights occur: although to many Americans, religious conflict seems far removed from the modern scene, a fact that has to be taken into consideration by the courts, conflicts still occur. Indeed, Newsweek reports that plaintiff Newdow himself has received threats of physical harm, ironically from people who are angry that the words "under God" might be removed from the Pledge.
 Moreover, as the Lutheran statements suggest, to arrogate to humans the ability to dictate the conversation between God and the sinner is to indulge in a form of idolatry, the assumption of a role God reserves for God's self. Luther called it "the height of folly" for human beings to attempt to impose "a man-made law . . . upon the soul to make it believe this or that as its human author may prescribe." For Luther, "[n]o one shall or can command the soul unless he is able to show it the way to heaven: but this no man can do, but God alone. . . . How can a mere man see, know, judge, condemn and change hearts? That is reserved for God alone. . . ."
 The second danger noted in the Supreme Court cases, that government-sponsored religious exercises communicate to religious dissenters that they are political outsiders, has also been acknowledged by the U.S. Lutheran churches. A 1966 ALC statement noted, "Government has an obligation to foster a climate conducive to the free exercise of religion, to give equal protection to all religious views, and to express its neutrality in terms of actions the probable consequences of which it has carefully weighed."
 Of course, the common response to these concerns is to suggest that the Pledge language, "under God," is so expansive as to include most of the polity of the United States, so that few children (or adults) will find themselves identified as political outsiders by the language of the pledge. Before Christians are tempted to conclude that the word "God" is a term that will include the beliefs of most Americans, I would suggest an experiment (one implied by the court opinion) that, for me, tends to smoke out whether any particular religious language used in government programs is really all that inclusive and harmless: would you be willing to have your child say the Pledge using the language of an American religious minority instead, e.g.: "One nation under Allah," "One nation under Vishnu," or "One Nation under the Divine Watchmaker?" If not, can you articulate the content of your understanding of the word "God" in the pledge, and why you believe that word is different from these names, and includes the beliefs of all traditions within it?
 More objective evidence that the Pledge is not fully inclusive of all citizens might be found in national surveys attempting to discern what religious groups Americans belong to. One web survey posted by adherents.com, noted that more than an estimated 29 million people in the U.S. identify themselves as non-religious, agnostic or atheistic, while numerous other non-monotheistic religions such as Buddhism and Hinduism are well-represented in the current population, constituting more than 1 million and over 700,000 persons, respectively. Even if the nearly 1 million declared "atheists" only were included, the impact on their children is clearly significant.
 Moreover, the willingness to give up one's ability to coerce or shame another into confession is a sign of recognition and respect for each person as a good creation of God. To deny that God has given the ability to each person to have a direct relationship with God, even those who profess no faith in God, "threatens to dehumanize us all" for our common status as "creatures to whom God speaks" is "essential to our humanity," to quote the 1968 LCA statement.
 Third, the expansion of religious references to make them as inclusive as possible carries not insignificant theological dangers. The 1964 LCA statement notes the dangers that accompany "generic" religious exercises in public school, including identifying religion with patriotism. The statement suggests that "any religious exercise designed to minimize the sectarian element, whether it be a nonsectarian prayer or bible readings that ignore religious teachings, serves to promote a vague or a syncretistic religion that conveys none of the substance, the depth, and cutting edge of the historic Christian witness."
 Christians as well as non-Christians may well object to a public practice that suggests that their witness is identical to, rather than equally respected with, that of other monotheistic faiths. As just one illustration, on a recent "reality" TV program, one young woman after she had joined with her roommates in prayer on September 11, said (I paraphrase) "I had never prayed before. But it felt pretty good." If the Pledge reference to God, is used as a "feel-good" comfort to children who are distressed about terrorism without any further theological discussion about what it means to stand before God as "one nation, indivisible," the demand as well as the promise of the Gospel loses much of its power, and the Pledge risks becoming one more collective form of self-justification for the American way of life, both its promise as well as its sinfulness.
 In light of these concerns, Christians as well as courts must be more thoughtful in considering whether the need for a Pledge to "one nation under God" is more necessary than it is harmful to both civil and religious communities. One important result of decisions such as Newdow is that Americans are forced to re-consider the distinction between "government" and "public."
 "Public" religious expression is not in any way affected by constitutional decisions except to the extent that government cannot sponsor it: we have witnessed as much in interfaith prayer vigils in New York City and around the country in the wake of 9-11, as well as many forms of public religious protest, from the 1960's civil rights demonstrations to current protests against the School of the Americas. It is particularly noteworthy that many of these public expressions were inclusive in the sense that they brought together Americans lf many religious persuasions, even to prayer and repentance, in a hospitable show of unity without forcing religious people to give up the particularity of their religious expression or suggesting that Americans express their beliefs in God in only one form: indeed, these non-governmental public displays of faith were all the more politically compelling because people from different faith traditions freely came together to acknowledge the unity in their diversity.
 Moreover, even private religious expressions in government institutions are largely untouched by Supreme Court Establishment Clause rulings. Religious activities such as prayer circles and Bible readings in government offices and after-school activities are carried on by private individuals, and protected by federal law prohibiting religious discrimination, including the employment discrimination provisions of Title VII of the Civil Rights Act and the Equal Access Act providing equal treatment of student religious organizations with secular ones.
 The constitutional cases invalidating government sponsorship or endorsement of religious activity, then, have the potentially beneficial effect of putting the burden on religious believers to create public spaces where their faiths can be acknowledged in their particularity, where their witness can be heard voluntarily and thus effectively. Most immediately, that means that religious persons must refuse to equate "government" with "public," a distinction that has salutary political effects in a nation where government plays an increasing role in many aspects of our lives.
 More importantly, religious believers including Christians have to start believing that their congregations and faith traditions are a vital part of public life, not just a private group of friends they meet on Sunday morning or Friday at prayers. And they must invest the time and effort into making their religious communities active in public decisions. Religious (and other) Americans also have to re-imagine the public space by acknowledging and supporting the critical role of many public associations that are not the government, and yet are necessary to a flourishing public life, from issue advocacy groups to youth organizations to human service organizations. All of these organizations can pledge allegiance to a nation "under God," without demanding that a child pledge allegiance or ask to be excused while her classmates do so. I want to be careful not to collapse a complicated discussion about the role of public education in instilling citizenship and mutual respect into a blanket statement about what should be permissible in the public schools. Yet, the Newdow court points us back to two of the traditional American principles of religious freedom, voluntarism and toleration, when it notes that its decision "derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of a free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among "religions" - to encompass intolerance of the disbeliever and the uncertain." If, as Governor Ventura suggests, patriotism is indeed a matter of the heart, renewing our efforts to revitalize our public (especially non-governmental) life would seem to be better evidence of our patriotism than whether we can pass a mandatory Pledge law.
© June 2002
Journal of Lutheran Ethics
Volume 2, Issue 2