"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; ..."
The First Amendment, more so than any other in our Constitution, has a long and complex history with respect to its interpretation. At issue frequently are the questions of what freedom of speech and the separation of church and state really mean, and, recently, whether or not the two are mutually exclusive - at least under certain circumstances.
In deciding to hear arguments about the constitutionality of reciting the Pledge of Allegiance with the phrase "under God" Tuesday, the U.S. Supreme Court has succeeded in further intensifying an already heated debate about religion's place in our country. Whether hearing this case is for better or worse, though, is not so clear.
Freedom of religious speech traditionally has been a gray area when the speech in question comes from a publicly funded source; hence, the recent trend of successful lawsuits over displaying the Ten Commandments and other religious symbols.
The most notable case of late was of the highly publicized dispute over Roy Moore's refusal to remove a monument of the Ten Commandments from the Alabama Supreme Court building. Moore, who was suspended following his steadfast assertion that the First Amendment does not prevent public religious displays, filed an appeal with the Supreme Court, which thus far has neglected to weigh in on this particular issue.
In cases where the Ten Commandments are at issue, one can make a convincing argument that their presence in a court of law is a breach of separating church and state and dismiss zealots like Roy Moore. Whatever historical significance these alleged orders from above might have does not nullify the inherent religious overtones, which are obviously out of place in a building where society judges one's guilt or innocence. Their presence in public parks, though, seems much less of an issue.
But sometimes the issue is not so clear-cut. A case in point: the Pledge of Allegiance. This case, an appeal of the 9th Circuit Court ruling last year that the addition of "under God" makes reciting the pledge unconstitutional in public schools, the Supreme Court did agree to add to its docket for some reason.
First, consider the context under which the Pledge of Allegiance came under existence. Francis Bellamy, a minister, wrote the original pledge in 1892 and deliberately avoided a reference to God. The two words in question were added in 1954 at the urging of President Eisenhower to distinguish the United States. from "godless communists" during the Cold War. Given the circumstances under which this reference to God needlessly was added, the simplest solution would be just to take it out and avoid a protracted legal battle altogether. But the unfounded support of this two-word phrase by the president and Congress prevent logic from prevailing.
So, we are left with a somewhat specious claim by Michael Newdow on behalf of his daughter: that is, that having teachers lead the pledge each morning infringes upon her rights.
Clearly, any pledge of one's allegiance to a country founded upon the principle of religious freedom should not contain a reference to a supreme being, nor should one be required to acknowledge such a being through recitation of the pledge.
However, in ruling the pledge unconstitutional, the 9th Circuit Court dealt a significant blow to free speech. As past rulings have already alleviated concerns about children being forced to recite the pledge, hindering them and their teachers from speaking it freely seems to be defending only one right at the expense of another far more imperative one.
In instances where the rights to freedom of religion and freedom of speech intersect, the right of free speech should ideally come out on top.
In the case of the pledge, this supercession might lead to a solution such as devising alternative pledges for those who desire them, something with lines like, "one nation that isn't under god," or "one nation under the freedom to say whatever the hell I want."
Of course, there's nothing stopping that from happening right now, which kind of begs the question: Why is this before the high court in the first place?
Scott Phillips is a justice studies senior. Reach him at scott.phillips@asu.edu.
