An Idea Who’s Time Is Yet To Come

By Arnold Fishman

I write in response to the commentary I Pray Allegiance To The Flag... (N. J. L. J. 3/16/15) - first the disclaimer. I had the privilege to act as local counsel for the American Humanist Association and the individual plaintiffs in that suit challenging the constitutionality of the statute requiring the recitation of the pledge in every classroom every day because of the inclusion of the words "under god". The existence of an omniscient, omnipotent, omnipresent force (i. e. god) is a burning question throughout the ages. Its answer is a matter of faith. It is inherently a religious question. As such, government is not free to take sides in the debate.

The pledge was initially formulated (not in its current form) following the civil war - a war that put the divisibility of our nation very much in the forefront. It was an attempt to unite the people under the flag, the symbol of our "one nation indivisible". It succeeded in that regard until 1954 when the phrase "under god" was added. I, like the author of the commentary, recited the pledge both before and after. I agree, "[t]he difference was enormous." He claims: "It made me, and my classmates, feel so proud to be part of a country that officially thanked 'Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy.'" (emphasis supplied) Allowing for the personal pride of the author, by what warrant does he deem to speak for his "classmates"? For those for whom the existence of a god is an open question - not to mention those for whom it is the equivalence of believing in the tooth fairy - pride was not their experience. Shame, disappointment and frustration at injecting an unnecessary, patronizing and deeply divisive concept into our secular, patriotic, unifying exercise was the reaction of some.

Of course, Judge Bauman got it right. It is not for a trial court to plough new ground. The precedents are overwhelmingly in favor of not finding the pledge unconstitutional. They will remain that way, until some high court has the insight and the courage to recognize that it is in the interest of both the state and the church to resurrect the wall of separation so as to include the growing multitude of those for whom the source of our rights is our humanity. Unlike women's rights, the rights of people of color, LGBT rights, etc, the rights of nontheists is an idea whose time is yet to come. But, come it will.

Send comments to:

arnold@fishmanandfishmanlaw.com

(April 2015)