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TEV Law Group |
Gregg Zegarelli,
Esq. |
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Good morning.
Thank you, Gregg, for taking the time to talk. Why
is "under God" in the Pledge of Allegiance such an important
topic? |
In
1954, the United States Congress added the phrase "under
God" to the Pledge of Allegiance, which has been
legally and politically controversial ever since. The Pledge is
important in the same way the
Declaration of Independence is
important. Not necessarily because of the legal effect,
but because of the statement it makes about what patriotism
means in the United States of America. |
| This
month, the Massachusetts Supreme Court ruled
that "under God" was not a
violation of the Massachusetts Constitution. Can you
provide a short summary? |
Certainly. This case
was in the Massachusetts state court, not the Federal
Court. The parties agreed to the facts, so no trial
was needed. The lower court dismissed the case on a
summary judgment, and it was appealed directly to the state high
court. The claim was for a violation of the Massachusetts
Constitution and Massachusetts statute, GL c. 76, §5.
Essentially, the case was about "equal rights" under the law. The School District was
implementing the daily recitation of the National Pledge of
Allegiance, which includes the closing phrase, "one Nation,
under God, indivisible, with liberty and justice for all." |
| Why
did the plaintiffs
contest that "under God" should be in the Pledge of Allegiance? |
The plaintiffs were atheists and humanists. They do not
believe that America, or any country, is "under God."
The children were not required to
say the Pledge, and could refuse to say it, although the
evidence was that they did say the Pledge without saying "under
God." No one disputed the Flag ceremony or its basic
importance to instill patriotism and good citizenship. |
| So,
if children can refuse to say the Pledge of Allegiance, or even just not say
the "under God" words, what is the big deal? |
The
plaintiffs argued that the inclusion of the words, "under God" "suggests
that all good Americans believe in God" and that children "who
don't believe in God, aren't as good as others who do believe."
Plaintiffs argued it marginalizes the children,
separates them
and classifies them as unpatriotic, creating "bullying" effects;
however, there was no evidence that these circumstances actually
manifested in this case.
You might want to know that the voluntary nature of saying the
Pledge is the result of the
West Virginia State Board of Education v. Barnette case.
In that case, the issue was that Jehovah's Witnesses were forced
to salute the Flag and to say the Pledge. The U.S. Supreme
Court, reversing a 1940 decision, held that such forced
actions were in violation of the U.S. Constitution. This is
why saying the Pledge cannot be made mandatory. |
| What
did the Massachusetts Court do in the Acton-Boxborough
case; did it rule to keep "under God" in the Pledge of
Allegiance? |
Effectively, yes. The lower court dismissal of plaintiffs'
case was upheld on appeal. It is important to note that
the claim and the Court's analysis were based upon an "equal
protection" basis. The Court performed a
reasonably detailed exposition of the legal history and
precedent, and dismissed the case, with one concurring opinion.
[Ed. "Concurring" is agreeing with the result for a
different reason.] The
Court summarized, "[A]s we have stated, reciting the pledge
is a voluntary patriotic exercise, but it is not a litmus test
for defining who is or is not patriotic. The schools confer no
"privilege" or "advantage" of patriotism within the meaning of
the statute to those who recite the pledge in its entirety." |
You
mentioned that "under God" was added to the Pledge in 1954?
I did not know that fact. Please explain. |
Prior to 1954, the Pledge closed simply with, "one
Nation, indivisible, with liberty and justice for all."
The inclusion of "under God" had failed to be
included in previous attempts to add it. The timing
context is rather clear. In 1954, we had just completed
World War II and the
Korean Conflict. Suffice it to say that the country
was ripe for the presentation, and the majority ruled. If
you want to see the common implementation of the Pledge prior to
1954, check
out the old Warner Bros. cartoon,
Old Glory,
which exemplifies the recitation of patriotism that we were teaching our children at the time; that is,
without
"under God" in the Pledge. |
|
People who support "under God" in the Pledge often say that
to remove the words is just another example of the demise of
our great country? |
That is not really
a legal question. That is for each citizen to judge.
Great countries have fallen from the beginning of time.
Babylon, Greece, Rome. There are many reasons for this
fact. Collective political
health is nothing more than an aggregation of individual citizen
health. Countries get weak when citizens get weak.
The United States did
quite well for itself in prior to
1954, prior to "under God" being in the Pledge.
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Well, then let's just talk about you for a minute. You are an
attorney, of course, but you are also author of
ONE: The Unified Gospel of Jesus. I expect that
you are pleased with the Massachusetts ruling. Yes? |
That is
actually a pointed question of some complexity. I think we
need to stay rational on the question, for the long-term good of our
country. There are practical points and philosophical
points. The question must be thought through with the
trinity of law, common morality and civil wisdom. |
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Okay, let's just start with the practical and philosophical
points. |
Because this talk is for Memorial Day, may I tell you a short story
about my experience with "flag burning"
legislation? |
"Under God" and "Flag Burning"? I can't pass that one up.
You're right, this is the
Memorial Day Special Edition, please tell the story. |
In 1988, I was a
Councilman. I was a young man at 26 years old. I was
completely Catholic
school educated, even receiving my higher degree in History,
Political Science and Philosophy,
and my Juris Doctorate at
Duquesne University and the Duquesne University School of
Law, which is, of course, a Catholic university.
I had just become an attorney.
At that time, the "flag burning"
Texas v. Johnson case was pending for a decision before the
United States Supreme
Court. One of my fellow Council members introduced an "anti-flag burning" ordinance in our municipality,
resulting, I expect, from the emotional flow of the public
opinion on that issue.
So, here I am, the youngest person in the room, sitting at the
big table in front of a room filled with citizens, a new
attorney. And, now, it is time for the
citizens' right to speak on the issue. So, it gets
interesting...
A war veteran gets up to the podium
as says, "I fought for the Flag, and my men died for the Flag.
You must not allow burning of the American Flag!"
Now, I ask you, who am I to say
anything to a revered war veteran? I was nothing compared to that
type of unselfish service to our country. Apart from
the vote itself, as a new
attorney and young man, was I going to
philosophically banter with a war veteran over whether he
risked his life and limb for the cloth of the Flag itself, or to preserve an
individual's free speech right that the cloth of the Flag represents? |
Okay, as a practical matter, in a democracy, I can see why it
would be really tough for an elected politician to argue with a
war veteran over the purpose of dying. But, how does this
relate to "under God" in the Pledge of Allegiance? |
The conversation regarding "under
God" in the Pledge has the same practical dynamics of law, logic
and emotion. We need to be rational and restrained on
these type of topics, because they are naturally personal,
explosive and emotive.
There is some wonderful argument
on these types of pointed questions in the
Lincoln-Douglas Debates. Douglas kept saying he was
for the high-ground for "freedom of choice" by allowing each new
territory voluntarily to elect to be free or slave-based.
But, Lincoln saw the trick and exposed that, while that sounds
good to the masses, it plays out such that every territory will
end up being a slave territory, because, as a practical matter,
the slavers would enter the territories and pressure the
legislatures.
Arguing with a war veteran is not
good politics for a politician. This is the reason the
Forefathers created the
Electoral College; that is, to prevent
the effects on emotional demagoguery on the democratic process. |
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And, what of your statement
about the "philosophical" grounding for
the question of "under God" in the Pledge of Allegiance? |
There are certain rules that only apply at the moment we
detest to apply them. For example, we are taught to
forgive our enemies, because anyone can forgive friends.
It is at the exact point that we cannot stand to do the act, that the
rule springs into applicability.
It is the same with freedom of
speech. The point at which the rule of freedom of speech
springs into applicability is at the very moment we begin to
detest the other person's speech. In America, we
may disagree with what a man says, but we fight for his freedom
to say it. The more we don't want to forgive, the more the
rule applies; the more we detest the speech, the more the rule
applies. If the Flag represents the greatest of American
political freedoms, then we do an ironic injustice to the Flag
to prevent people from being free to peacefully protest in the
most detested and distasteful of ways.
We Americans are legally
permitted to burn our flag, and we don't do it, because we
choose not to do so. What good is a kiss commanded by law?
It loses its beauty. The beauty is in our free choice to
restrain, from love and respect, not legal compulsion. We
do not burn our flag, because we love America. This is why
America is different.
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| And,
why... |
The Pledge says, "liberty and
justice for all." Freedom and justice for all; that
is, everyone. There is a natural self-righteous
inclination for people to want everyone to think and to believe
the same thing. This is not an inherently bad thing.
What is bad is the failure to recognize the tendency and to
control it. This country was founded to permit peaceful
free-thinking. That is our strength, not our weakness.
That is why some of the best and brightest minds in history
have immigrated to America, to escape slavery of the mind. |
Gregg, you've done it again. Somehow you've
managed to tie slavery to "under God" in the Pledge of
Allegiance. You even claimed "slavery" to the United
States Supreme Court in your case against
Google for invasion of privacy. Why do you keep mentioning
slavery? |
America is about freedom.
Protection of the weak from the oppression of the strong is
a concept of common morality, the foundation of many religions
and charities, and the very purpose of our courts. We
cannot talk about "freedom" like a Hallmark card.
Man's natural claim to be free is a common reason for war. America
is about living civilly in a context of different beliefs.
Slavery is the
antithesis of freedom. There is no way to talk about one
without necessary implication to the other. Slavery is
not all black and white, but shades of gray. It exists in
many forms and in many degrees. And, we fought two great
wars on this continent to end both types of slavery. |
I suppose Memorial Day is a good day to remember wars.
What two wars are you talking about? There was only one
war to end slavery, the
American Civil War. What am I missing here? |
There were two
wars. The Revolution, and the Civil War. Two
wars, two types of slavery.
The first kind of slavery, which
is naturally more obvious, is slavery over the body. It is
easy for anyone to see a man, his wife and his child writhing in
the shackles of pain. This physical slavery was ended by the
Civil War, which physically freed the slaves and produced the
13th Amendment to the United States Constitution.
The second kind of slavery is
less obvious and uses more insidious machinery. This is
the intangible slavery of the mind. This is the kind of
slavery that the church imposed upon Galileo during the
Inquisition, and the kind of slavery that the kings and queens
of England imposed upon the Puritans and others.
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| I never thought
of the Revolution as ending slavery... |
It was "The
Revolution," not "The Evolution." America changed
everything; it turned over all political history. Indeed, the very idea of America
was to end slavery of the mind. The revolution of a
free-thinking society, where each person is free to think as
they may without ridicule or other persecution by operation of
law. |
But, back to the Pledge of Allegiance. What does
slavery have to do with including "under God" in the Pledge
of Allegiance? |
Everything.
Before America, official government policy made inquisitions
into a man's faith. There are degrees and
different results, of course, for Joan of
Arc, Martin Luther, Galileo, the Puritans; dare I say, the Nazis. But, the
concept is the same. Inquisition by the government
regarding a peaceful belief. |
So, you've thrown
me off. In light of your work in consolidating the
Christian Gospels in
ONE, I was sure that you were going to argue for "under
God" to be in the Pledge. But, if I am hearing you
correctly, it would seem that you are saying that "under God" should not be in the
Pledge." Am I right? |
Let us be rational, such as our
Forefathers. There is a great confusion about political
systems and religion, and we need to be very, very, careful.
The Church and the American Political System have common
ground, but not common goals.
The goal of a church is to unify into
one
common religious thought and belief, almost always with the
goal of a particular non-worldly belief regarding the afterlife.
The goal of the American free-thinking political system is to
retain a rule-set that permits exactly the opposite: a system of
government that permits peaceful
free-thinking, without inquisitions into a person's personal
beliefs. The Church and the American Government both want
good and moral people, because it suits both of their
independent goals. But, their goals are not the same.
This world is the goal of the American Government, the
next world is the goal of the Church. America is
about life. Church is about after-life.
Thomas Jefferson, the primary author
of our Declaration (of Freedom), pointed out in his letter to
Horatio G. Spafford, March 17, 1814, that, “in every country and
in every age, the priest has been hostile to liberty.”
Thomas Jefferson had no dispute with the good works of priests, per se, of
course, but only exposes that there has always been, "in every age"
tension between the church and free-thinking.
Free-thinking and the church are not necessarily conjoined.
Of course, we know this fact when we consider it.
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But, then why are some courts holding that "under God" is
permitted in the Pledge of Allegiance? |
In Massachusetts,
the case argument and presentation appear to have been very
limited. That is unfortunate. There is a statement:
"The operation was a success, but the patient died." In
these cases, the correct question is not being asked:
"Is
it fair, indeed is it justice for all, in America, to make
inquisitions into the personal beliefs of a peaceful citizen, by
suggesting that a peaceful citizen should utter words regarding
"God," or any god, for the official American statement of patriotism?"
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| Let's step back a
minute.
This is America, a democracy, and the majority rules. Is
that not correct? |
Yes, and no.
Remember your Constitutional history. The
Bill of Rights
were "amendments" to the U.S. Constitution with the formation of
the country. Do you know why? |
Please explain the
Bill of Rights. |
The
Bill of Rights,
the first 10 "amendments" were part of the deal to get the U.S.
Constitution approved. These are "anti-majority,"
"anti-democracy" clauses. These clauses, and other
further amendments that came later, such as the
13th Amendment to the United States Constitution,
protect people from the majority rule. So,
in America, the majority rules on everything except the
amendments that exist to protect individual freedoms. How we
interpret the Bill of Rights and similar amendments is context for the courts. |
So, you are saying that the "majority" does not always rule in
America? |
Absolutely, that's
the way it works, and how it should work. Let's say you're
a Puritan. You leave England because of inquisitions and
oppressions of the King regarding your peaceful personal
beliefs. You come to America. Now, it is not a King,
but Congress that oppresses you. You would not care
whether it is a King or a Congress who oppresses you, you only
care that you can breathe free of oppression. In such a
case, a democracy is no better than a monarchy, either way
you're oppressed.
The Bill of Rights is exactly where
individual freedom rings; it protects the minority or individual
against the majority in our hybrid democracy. It seems ironic to me that any
minority person of race, color, creed, or other similar
characteristic, but now sitting in the majority regarding use of
the theistic term “under God,” would turn and desire to force
others to submit to their will on a matter of peaceful personal
belief. |
But, look, Gregg,
on U.S. currency it says, "In God We Trust," spiritual creator
murals are painted in our own American courthouses, for
hundreds of years. It's just a social nuance. |
No, it really is
not. There is a difference between walking past a nativity
scene or seeing a mural on a courthouse wall.
A "pledge" is different.
We are suggesting that a person "say" something, over and over,
in the government-endorsed pledge of allegiance. A
pledge
is an oath. |
So what if a
pledge is an oath, or if the Pledge of Allegiance is an "Oath of
Allegiance." It is what it is. |
Except in America.
The Forefathers were very clear about oaths as the issue relates to the
Constitution. Indeed, the
Act of Congress of 1789, our Forefathers stated, “Be it
enacted, etc., That the oath or affirmation
required by the sixth article of the constitution of the
United States, shall be administered in the form following, to
wit, ‘I, A B, do solemnly swear or affirm (as the case may
be) that I will support the constitution of the United
States.’”
One U.S. President,
Franklin Pierce, a
Quaker, chose to affirm rather than swear an oath
at his presidential inauguration. I wrote a
short article about the religious implications of oaths and
find it a fascinating subject, generally.
When testifying in
American tribunals, the proper statement to a witness is to
either swear an oath, or to merely affirm under penalty of
perjury. America does not require recognition of deities
in making an oath, a civil affirmation is all that is required. That is our historical
foundation.
So, once again, America is unique.
There is no requirement to recognize any deity, or to swear an
oath to any god, to fulfill a patriotic duty. A civil oath must be no greater than the
common denominator necessary for the intended result.
Moreover, if the official government purports to present such an
oath, and will suggest to make people utter all or any part of
it, it must understand it, but "under God" itself is confusing
in the context of an American pledge of allegiance. |
What do you mean that "under God" is confusing in the context of
the National Pledge of Allegiance. What could be more
straight-forward than the two simple words "under God" in the
Pledge of Allegiance? |
In truth,
really, what
could be more confusing?
Putting aside the lesser implication of the term "under,"
it is legally confusing that the word "God" is
capitalized by our government as a proper noun. Used as a
proper noun and not a common noun, it is referring to something
distinct, such as "Nation" meaning "United States." But,
we need to be inquisitive. What or which god
does the word "God" refer for America? Since the government is
using the word, it must know.
Yet, there are many beautiful cultures in
America who believe in different gods, and some beautiful immigrated American cultures who believe in many gods.
Perhaps, therefore, as no precise god should be referenced as a
proper noun, it would be both grammatically correct and justice
for all citizens to pledge “one Nation, under some god,” or,
“one nation, under a variety of deities,” or, quite possibly,
the best rendition, “one nation, under one god or more, if any.”
That would be clumsy, but fair.
A free-thinking citizen of
America, and a civil patriot, may certainly legally believe in
Jesus, Ra, Rama, Thor, Yahweh or Zeus. And, such as the
law regards it in America, one god is no better than any other
god. All gods are equal in America. In America, we
can lawfully believe in a holy cat, or holy water, or no god at
all, with blind justice for all being the same. I would
like to meet any congressman who can profess or presume to know
the definition of the term "God" he or she suggests so as to place it
wisely into legislation as a social imposition upon all citizens
in a free-thinking country.
To each peaceful man, his own.
America should be proud to say, “the law regards a patriot as
a patriot” without regard to personal beliefs, just as
U.S. Supreme Court Justice Harlan said in his prophetic dissent,
“the law regards a man as a man” without regard to race.
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I want to thank you. We have traversed a number of very
interesting points for consideration. Is there anything
you want to add?
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For a moment, let us put law and
religion aside. Let us just consider the wisdom and "best
practice" of the question. In the
Republic of Plato, c.400 B.C.E., Socrates wisely observed, “I do to others as I would
have them do to me.” This is a civil wisdom shared by
many religions of goodness, and part of the traditional moral
fabric of America. It is copied or otherwise repeated afterwards in substance
by Jesus himself.
The real issue is whether "under
God" is necessary for the basic unifying pledge of
allegiance for a country that, at its core, invites and accepts, with
love and open
arms, all peaceful theisms and atheism. Are those words
regarding "God" actually "necessary" for the goal of the Pledge?
Do those words tend to "unify" or to divide?
I pledge allegiance to the
Flag of the United States of America, and to the republic
for which it stands; one Nation indivisible with liberty and
justice for all.
Perfect. And, so, for me, it reduces to a
simple common-sense wisdom: If I were an atheist or a
humanist, I would writhe
in detest for inquisitions made into my faith by the American
Government, or the even the slightest suggestion by the American
Government that my guaranteed free personal beliefs are being
tested. And I have mercy for the child who must stand all
alone in segregation.
It seems to me that the best
practice would be that we are properly re-united in the
traditional common denominator and goal of the Pre-1954 Pledge of
Allegiance, rather than divided under a
pretense of god. Let us do justice to our Pledge and not
make it a fool by irony. With justice for all theisms and
atheism equally respected before the law. I believe that
this view is legally correct, historically correct and morally
correct.
We should be strong, as
Americans, not to fall into the historical descensions from
which we were lifted by two great wars fought on this continent,
and we must remain vigilant to hold onto the ideals that our
American Forefathers have thus far so nobly advanced. |
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Thank you again. |
My pleasure.
Thank you. |
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