The Texas Pledge of Allegiance
posted by Caroline Mala Corbin
A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.
I do not. Am I an unreasonable person? Before you answer, consider some feminist critiques of another reasonable person standard – specifically the reasonable person standard in Title VII sexual harassment cases. Early sexual harassment plaintiffs would have their claims dismissed when courts held that a reasonable person would not find that the work environment was hostile or abusive. For example, a court dismissed a claim even though it conceded that the humor in the workplace was “rough-hewn and vulgar” and that sexual jokes and “girlie magazines” were plentiful.
Feminist commentators identified three problems with these early sexual harassment decisions. First, feminists noted that due to societal inequalities that affected men’s and women’s life experiences, men and women have different perceptions of what constitutes harassment. For example, because women are at much more risk of sexual violence than men, sexual conduct that may seem like harmless fun to reasonable men can seem like a threat of violence to reasonable women. Second, feminists pointed out that the courts tended to equate the reasonable man’s reaction with a reasonable person’s reaction, and that this male norm was invisible to the usually male judges applying it. In other words, judges were unaware that they were presenting a subjective male perspective as an objective universal perspective. Third, the failure to recognize use of the unstated male norm perpetuated male privilege and power asymmetries instead of rectifying them – the actual goal of Title VII of the Civil Rights Act.
Each of these critiques applies equally to the Fifth Circuit’s analysis of “under God” in the pledge. First, just as your sex may inform your evaluation of sexual harassment, your religion may matter when evaluating government endorsement of religion. The phrase “under God” may seem perfectly harmless and totally nonsectarian to Jews, Catholics, Protestants, and Greek Orthodox. Such a reading is less likely if you are a Hindu, or a Buddhist, or an atheist, however, and do not worship or believe in God.
Second, the reasonable person in current Establishment Clause analysis is really a person belonging to the Judeo-Christian tradition. Like the unstated male norm in early sexual harassment evaluations, this unstated norm is presented as the universal, objective norm and is often invisible to those applying it. Thus, the Fifth Circuit can concede that a state reference to God “may not reach every belief system” but nonetheless still characterize it as “tolerable attempt at acknowledging religion without favoring a particular sect or belief.”
The third feminist insight — that the failure to recognize the unstated norm perpetuates power asymmetries and privilege — is also true here. Just as tolerance of sexual harassment made it easier to exclude women from the workplace and reinforced their second-class status, the proliferation of state invocations of God makes it easier to exclude religious outsiders from the political and social community and reinforces their second-class status. Yet one of the major goals of the Establishment Clause is supposed to be to protect religious minorities from precisely this result.
For more, please check out my new article: Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. REV. 1545 (2010).
October 18, 2010 at 12:38 pm
Tags: Establishment Clause, pledge, reasonable person, sexual harassment
Posted in: Constitutional Law, Feminism and Gender, First Amendment, Religion
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Responses (8)
Zach - October 18, 2010 at 12:54 pm
Good argument, except many (if not most) Hindus believe in God without qualification, and would not likely find the pledge unreasonable on the grounds you discuss.
The many gods that Hindus venerate are best understood as aspects of an overarching godhead or divine principle, referred to as Brahman, theologically almost indistinguishable from the Abrahamic God.
Patrick S. O'Donnell - October 18, 2010 at 1:29 pm
One quibble: the attempt to distance the Islamic conception of God from “the God” of Judaism and Christianity is rather silly. Muslims generally understand Allah to be the God of both the Jews and Christians (hence the characterization of Islam as one of the semitic, Abrahamic faiths), which is clear in their understanding of revelations and prophecy, Muhammad is thus the “Seal of the Prophets,” that is, the last of a succession of prophets from Judaism through Christianity, all of which received revelations from the same God! Indeed, the Judaic and Muslim conceptions of divinity (leaving aside mystical formulations from both traditions) are virtually identical (in the latter, the technical term accounting for this is tawhid), both united in rejecting the triune conception of God in Christianity (the Trinity doctrine), including the notion of the Incarnation. Muslims would generally characterize the Incarnation and Trinity doctrines as mistaken if not shirk (idolatry of one kind or another), yet this does not prompt them to assert that Allah is different, in the end and properly understood, from the God of Jews and Christians.
While many Hindus are theistic, their conceptions of deity are often significantly different from that found in the semitic monotheistic traditions (especially if we’re examining the philosophical schools: Samkhya and Yoga, Nyaya and Vaisesika, Mimamsa and Vedanta), but it may be true that Hindus on the ground as it were, would not be too troubled by invocations of ceremonial deism.
That said, on first perusal I find the argument sound if not persuasive.
Patrick S. O'Donnell - October 18, 2010 at 5:00 pm
One more comment: Perhaps I missed it, but I did not see a reference to Mayo Moran’s Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (New York: Oxford University Press, 2003). I think her book should be at least part of any discussion of the “reasonable person” standard,” in particular of how the interpretation of “reasonableness” is liable to be construed as equivalent to “ordinariness” (or, as here, historically commonplace), particularly in settings where inegalitarian norms predominate and thus the focus should be on precisely what is unreasonable (indifference to the salient or significant interests of others) and what is reasonable (attentiveness to such interests). It seems transparent that the reasonable person standard invoked here is indeed insufficiently attentive to the siginificant interests or religious and non-religious worldviews of those who are not monotheists of the Judeo-Christian-Islamic kind.
David Schraub - October 18, 2010 at 6:24 pm
I concur with Patrick’s point, but I think there’s also a critique of the usage of “Judeo-Christian” from another angle — the false conflation of the way Jews and Christians are likely to experience “under God”. I think the most defensible reason for reticence in lumping in “Islamic” is instructive: accepting that theoretically Muslims would be as included as Jews or Christians in “under God”, I think both they and we intuitively recognize that the persons pressing for “under God” don’t really consider it or intend it to be inclusive of Islam — at least in an egalitarian fashion. The specter of religious intolerance and violence (e.g., among school children on the playground) is magnified for Muslims when sectarian messages such as “under God” are presented — the fact that they too are monotheists notwithstanding.
And so it is with Jews. There’s a reason why Jews have tended to be strict separationists, and it’s because they understand that even “non-sectarian” or “Judeo-Christian” religious endorsements are meant to be Christian, and usually mean that their children are about to get beaten up on the playground.
So Patrick is correct that the monotheistic theory underlying “under God” would include Muslims as much as Jews or Christians (while excluding, among others, Wiccans, Atheists, or Agnostics). I would just add that in terms of the exclusionist consequences of the statement (which I take it is the true point of the post), Jews and Muslims both are rendered vulnerable by “under God”, and thus are quite a different situation from the Christian majority. From either perspective, the use of the phrase “Judeo-Christian” is a curious and problematic choice (as it usually is).
anon - October 18, 2010 at 9:28 pm
Patrick are you saying that the Muslim and Christian Gods are the same or just that Muslims see them as the same? The idea that the Muslim and Christian Gods are the same seems crazy to me (not your arguments…which make sense). The Christian God is three persons; the Muslim God is one. The Christian God is the Jesus; Muslims reject Jesus’ divinity. The Christian God invites reconcilation through the death of Jesus; the Muslim God does not. Even if Patrick is right that Muslims identify with the Christian God, this does not make the Gods remotely similar.
Patrick S. O'Donnell - October 18, 2010 at 11:53 pm
The God of Jews, Christians and Muslims is the God of Abraham—“our Father”—found in the Hebrew Bible, although Muslims look to a religious lineage that starts from Ibrāhīm, Hājar and Ismā‘īl, rather than Abraham, Sarah and Isaac. This God is abstractly understood in all three traditions to possess the attributes of omnipotence, omniscience, and omnibenevolence, hence the implications of the theodicy question in all three traditions. This God is at once and mysteriously or paradoxically both immanent and transcendent, both Creator and Judge. And believers of all three faiths can, with the Psalmist, look upon the hills, the heavens and the deep and find there the presence of the Lord. Of course Jews and Muslims deny the Christian doctrines of Incarnation and Trinity, but this only means the same God is differently conceived in the three traditions, not that this God is, literally, a different God in each of the three semitic faiths. In all three traditions we can appreciate the fact that there is a “correct” way of perceiving the world, “namely as being ‘charged with the grandeur of God,’ in the remarkable phrase of Gerald Manley Hopkins” (John Cottingham).
After all, it may be the case that Christians are mistaken, for they cannot be said to be in possession of absolute truth, being, by definition, fallible and fallen creatures, short of perfection by definition, as is everything in the created world (which is necessarily at least one remove from and thus not identical with God; were it identical, we could not speak of the created world as such). Christians can of course believe and act as if the tenets of their faith are true (after all, the heart has its reasons), but they can never possess the absolute certainty that belongs to omniscience alone (hence the role of faith in the lives of believers), in principle there is always the possibility that Christian conceptions of God as three “persons,” or Jesus as the “incarnation” of God (God made flesh) are mistaken, a product of ignorance. On the other hand, it could be that Jews and Muslims are mistaken, and therefore that Christians are in possession of the better (truer) conception of God. The different conceptions are allowable much in the same way we read early in the Hebrew Bible about the actions of a genocidal deity, a God who is fond of the smell of burning flesh and partial to the Hebrews or Israelites, to be the selfsame God later spoken in terms of love, justice and mercy. In short, same covenantal God, different conceptions: and no human tribunal this side of eternity is capable of definitively adjudicating the theological or metaphysical truth of the matter once and for all. In any case, it’s safe to say that whatever or whoever God is, it’s likely that he is in some sense infinitely beyond discursive reason or cognitive comprehension (as Job was reminded).
It’s a matter of reason, temperament and tradition, as well as context, as to whether our religious adherents choose to emphasize the commonalities or differences between their conceptions and understandings of God. In the interest of interfaith dialogue, reconciliation or toleration, one may choose to focus on the former while not denying the reality of the latter. The various parties can therefore grant that the referent is the same albeit differently understood, all the while believing in their heart of hearts that their particular construal of that referent is the true one, as they struggle to live their lives in accordance with their beliefs (in all three traditions, this means getting closer to God, becoming God-like, and so forth). What counts, in the end, is religious praxis, the spiritual life, and this goes beyond the cognitive dimension of religion and the question of truth-claims (which is why Pascal’s God was the God of Abraham and not the God of ‘philosophers and scholars’). Put differently, in the words of John Cottingham: “For anyone who subscribes to the authentic moral principles inherent in Christianity can hardly suppose that a surpassingly benevolent and loving creator could attach his favour to adherents purely in virtue of their doctrinal choices.” The imperatives of morality and spirituality that involve a change of heart, personal growth and increased self-awareness as part and parcel of virtuous living, trump doctrinal and metaphysical disputes.
A.J. Sutter - October 19, 2010 at 11:12 am
I concur with David Schraub; but, I also confess that even as a believing monotheist I don’t know what’s the force of the phrase “under G-d” in this context. Is it an assertion that whatever the Republic does is condoned by G-d? Does “under G-d” operate as a reservation, which tempers my allegiance if the country’s policies aren’t G-dly, as they have been from time to time (slavery, to pick just one obvious and, I hope, uncontroversial example)? Or is the phrase simply an assertion that the Republic will be judged by G-d? The problem with the first of these alternatives is that it’s implausible, with the second that it requires one to decide what G-d wants in each case (the sin of pride, as I think some other monotheists call it), and with the third that there’s no context to back up that interpretation. It seems prudent to leave it out. (BTW, are there any other monotheists out there who wonder whether pledging allegiance to a flag might be idolatrous? Might David or another reader know of any rabbinic responsa that have addressed this issue?)
Steven Lubet - October 19, 2010 at 3:55 pm
This is not nearly as significant as the nature of g-d, but it is interesting to note that the Texas Pledge of Allegiance, required by the state legislature, is as follows:
“Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible.”
Texas, however, is very much divisible according to the terms of the annexation resolution, which provides that “[n]ew States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution”
See, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=534382
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