Thursday, November 03, 2011

The Motto, The Pledge, and "No Religious Test"

In the past, I have argued against "under God" in the Pledge of Allegiance and a national motto of "In God We Trust" as a moral issue.

The former equates atheism with rebellion, tyranny, and injustice and, as such, represents a bigoted attitude towards those who do believe that no God exists. The latter embraces a principle that governments may declare that its preferred citizens trust in God.

However, if I were to raise a legal objection against these practices, I would not ground it primarily on the First Amendment separation of church and state. I would instead ground it on Article 6, Section 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Because the intent and the effect of having a national motto that says "In God We Trust" and having "under God" in the Pledge of Allegiance is to create a de-facto religious test for public office.

In the case of the pledge, it is particularly relevant that the Constitution mentions that no religious test should be made a part of an oath or affirmation – or, we may assume – a pledge of allegiance.

Quite a few supporters of secular government demonstrated just how politically naive they are when they declared the recent passage of a resolution affirming "In God We Trust" as the national motto to be a waste of time. It was not a waste of time. It served a political purpose of reserving seats in the House of Representatives exclusively for those who trust in God. Or at least exclusively for those who refuse to admit that they do not trust in God.

"Vote against this resolution - reject the claim that America's preferred citizens trust in God - and we will use this against you in the next election. Seats in this body are reserved exclusively for those who affirm that America's preferred citizens trust in God."

How many affirmed atheists are running for public office in 2012?

One reason is obvious. They know it to be a waste of time. They know that government has effectively established a de-facto religious test for public office and they do not qualify.

"Under God" in the Pledge of Allegiance is an even more effective religious test.

Let's have a candidate run for public office while refusing to say the Pledge of Allegiance. Gerrymandering and partisan politics have created a few districts in which it may be possible. However, as a matter of fact the government has set up a system for effectively barring people who do not support a nation "under God" from holding public office.

A filter that is "only" 99.8% effective is still a filter.

It is also important to note that most people will take the fact that a candidate refuses to say the Pledge of Allegiance as evidence, not that he is an atheist, but that he professes no allegiance to America. The Pledge instantiates the attitude that atheists are, by that very fact, anti-American.

No power can prevent the people themselves from applying a religious test when they vote. This is true in the same sense that no government can prevent a person from voting for or against a candidate on the basis of race or gender.

However, this does not give the government authority to embrace or endorse those bigotries – as it does when it embraces a motto of “In God We Trust” or a pledge containing the words “under God”.

If I were standing in front of a judge arguing against "under God" or "In God We Trust," I would certainly mention the First Amendment arguments – briefly and in passing. However, I would spend the bulk of my allotted time on the "No Religious Test" argument. And my client would not be some parents of a school-age kid going to school where the Pledge is recited. My client would be an otherwise well-qualified candidate for public office.

One advantage of this tactic is that I can answer the judicial challenge, "Isn't this an issue best left to the legislature?" The answer to this being, "Not if the legislature is using this to stack the legislative deck in favor of those holding certain religious beliefs." This requires a judicial remedy - and the Constitution demands one as well.

We seem to have a lot of atheists out there eager to file lawsuits on things as trivial as a cross on government property. I would suggest filing this lawsuit instead. File a lawsuit to end state-sanctioned bigotry against atheists by using the national motto and Pledge of Allegiance to establish an effective religious test for public office.

Then, just maybe, we can actually stand a ghost of a chance of getting more than a token atheist elected to public office.


Rob said...

I certainly empathize with your sentiment here. The current Pledge of Allegiance, the motto adopted by the legislature, and the "In God We Trust" on our currency reduce the political liberty of nonbelievers. I agree with you that each one of these passages are an affront to atheists, and ought to be removed from the operations of our secular government.

However, I'm not convinced that you have a better legal strategy than prior cases by preferring the religious test clause above the establishment clause as a measure. I'm not an attorney, so I'm no expert. But I fail to see where any of these has forced a true religious test on anyone running for office. Can you cite a case where a congress-person or a President is REQUIRED BY LAW to take an oath involving the motto or to speak aloud the Pledge of Allegiance?

While it may be true that atheists are unpopular and don't generally get elected, and while it may be true that not reciting the Pledge would make a candidate unpopular with the people, those disadvantages don't constitute legally-required oath-taking. I would think that, under a strict definition of the law -- which is obviously needed to take a case to the Supreme Court -- one would have to show a requisite, legally-binding oath. I don't see that. Maybe you have certain cases or evidence I haven't seen, but if you do, I don't think you named it in your post.

Alonzo Fyfe said...


While I expect supporters of the law to argue that line, in cases of discrimination it is sufficient to argue that the law has the effect of discriminating, even if it is not discriminating on its face.

For example, gerrymandering that puts all of the blacks in a few districts to decrease their representation in Congress is considered a violation of anti-discrimination laws.

For example, poll taxes applied to everybody - black and white. But they were declared a violation of black civil rights because they had the effect of reducing the number of (poorer) black voters.

Segregation separated blacks from whites equally - and was defended using the principle "separate but equal". However, it was declared unconstitutional on the grounds that "separate" is not, in fact "equal" - its effect was discriminatory even though the law did not literally state that blacks were to hold an inferior position.

It is sufficient to show a constitutional violation to show that the law has the effect of a religious test for public office. A better (but not necessary) option is to show that this was also the intent.

Joshua Bennett said...

I live in Texas, where the state Constitution says, "No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being."

As an atheist, this bars me form holding any public office in the state. I'm surprised there hasn't been a powerful effort to overturn such a blatant violation of the Constitution.