Newdow v. U.S.
Commentary by Jon Roland

The decision and opinion of Ninth Circuit Justice Goodwin in this case are essentially correct, and I commend the judges of this court for having the courage to take the case and render this decision and opinion. I hope this decision will be sustained, and that other judges will not be intimidated by the wave of public denunciations that have followed the somewhat misleading press reports of the decision. Since I am taking a position contrary to that of many of my friends, however, it is appropriate that I offer some explanation that they might find convincing.

Like most Americans, I have recited the Pledge of Allegiance since I was a child, first without the words "under God', but when those words were added after 1954, I chose to omit them, while everyone else said them. No one noticed, and I didn't feel the need to explain why I remained silent at that moment, but now it is time to confront the issue raised by those words, and beyond that, the issue of pressuring people, and children in particular, into performing any kind of ritual declaration of belief or devotion, no matter what the object might be.

I served my country during an undeclared war, in the US Air Force, which is arguably not authorized by the U.S. Constitution, so my position is not entirely clean. However, I admit to a thrill when I see the U.S. flag, not for the piece of cloth, but for what it is supposed to stand for, and too often does not, the principles and ideals embodied in the Constitution. I doubt I would love my country the way I do without that Constitution. I would love the people, because I love people, of whatever nationality or ethnicity, and I would love the land, because I love the Earth and the beauties of it, but what sets this country apart, what demands a special devotion, is that Constitution. If this country were to abandon the Constitution and its principles, and another country take them up, it would be that other country that would command my devotion, until this country could be won back to its constitutional heritage.

It is for that reason that I recommend a different pledge:

I pledge allegiance to the Constitution
for the United States of America,
and to the principles for which it stands:
one Supreme Law [under God], indivisible,
with liberty and justice for all.

You will notice I include the words "under God" as optional, for those who want to say them, but enclose them in brackets to indicate they are optional.

But what I do not recommend, and would steadfastly oppose, would be any attempt to pressure people into reciting that pledge, or any other kind of ritual declaration of belief or devotion. Any such declaration, to be meaningful, must be made at the initiative of the person saying it, not under any kind of pressure, and not as a way to hypocritically avoid criticism, as so many politicians have been doing in the wake of this court decision. For that reason, it is better that people say such things in private, when no one else is present.

Many people attacking the decision protest that saying the Pledge is voluntary,[1] that no one will be punished for not saying it, that people are free to leave the room, and, anyway, this is about children, and it is okay to coerce children into performing rituals, that parents, and by extension, their teachers, in loco parentis, have some "right" to coerce them in that way.

Wrong. It may be a good way to raise hypocrites, or persons who delude themselves into thinking they have some belief, but real belief doesn't happen that way. It is okay to present ideas and beliefs, but real acceptance can never be coerced, even by social pressure, even if that social pressure is only one-on-one and not organized and led by an agent of the government. It doesn't matter what the belief system is, whether it be some form of monotheism, or devotion to country, leaders, school, or even parents. The only legitimate objective of social pressure or law is the behavior of persons that might adversely affect other persons. Beliefs might support behaviors, but it is only the behaviors, and not the beliefs, that are any business of society or government.

Some will argue that it is better to coerce the many into performing ritual acts of obeisance, as a tool for social control, than to have only a few who truly come to belief on their own. That is the crux of the issue. Social control, driven by the fear of what people might do if they do not make gestures of submission. Sorry, but it is better to have one true believer than a world of hypocrites and self-deluded fools. Everything begins with truth, including the truth of what we really think and feel, and ritual acts just interfere with that.

There is a larger issue: whether it is constitutional for government agents to pressure anyone into saying any kind of ritual devotional words, even secular ones. In other words, is coercion, direct or indirect, to say the entire pledge, barred under a similar doctrine to that under which the words "under God" may be barred. I maintain that it is.

The Lemon precedent[2] opens the way to barring indirect coercion, such as organizing social pressure or imposing a demand on a government contractor or a party engaged in interstate commerce to make civilians do what the government does not have the authority to require directly with the threat of sanctions, but the main basis is not the First Amendment, but the Ninth and Tenth. The government has no delegated authority to require anyone to utter ritual words of belief or devotion, and we have an unenumerated right to not have it do that.

The issue becomes more clear if we consider some of the things that the government might try to get people to say or do:

Recall the loyalty oath cases for precedents, not necessarily good ones.

This line of argument raises another issue: whether it is constitutional to require anyone to take an oath or affirmation before they offer compelled testimony. The case can be made that while the testimony may be compelled, the oath or affirmation may not (which would put the court on notice concerning the credibility of the witness, but not deprive it of the information it might contain). Getting testimony given under the sense of obligation to tell the truth can be done by due notice to the witness that if he is found to have lied, he will be punished for doing so. Then if prosecuted for false testimony (fraud, not perjury, because no oath or affirmation was made), he would not have a defense of lack of notice. I can envision the witness taking the position: "I am here and willing to testify. I have a history of telling the truth, and I intend to tell the truth, but I will not promise to tell the truth. I acknowledge being on notice that if I am found to have falsely testified, I am subject to penalties therefor."

Those who pretend to defend freedom would do well to guard against yielding to their impulses to practice the kinds of social control that they object to when done by others with beliefs different than their own.

[1] See West Virginia v. Barnette, 319 U.S. 624 (1943), which held a student could not be compelled to salute the flag.

[2] Lemon v. Kurtzman, 411 U.S. 192 (1973). Also see Everson v. Board of Education, 330 U.S. 1 (1947); Agostini v. Felton, No. 96-552 (1997); Allegheny County v. ACLU, 492 U.S. 573 (1989); Lee v. Weisman, 505 U.S. 577 (1992); Lynch v. Donnelly, 465 U.S. 668 (1984);

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