The Pledge as Sacred Political Ritual

INTRODUCTION The public and the media, along with Congress, reacted with outrage and disbelief to the Ninth Circuit's 2002 decision in Newdow v. United States Congress.1 In its initial version, Newdow broadly held that the inclusion in the Pledge of Allegiance of the phrase "one Nation under God"2 violated the Establishment Clause.3 Members of Congress demonstrated their displeasure by reciting the Pledge of Allegiance on the steps of the Capitol. Many inveighed, yet again, against a liberal federal judiciary that not only bore an anti-religious bias, but also had reached out to decide an inflammatory constitutional issue better left to the political process. The country had seen nothing like it since the Supreme Court's flag desecration decision in Texas v. Johnson4 twelve years earlier. Indeed, Newdow was considered by many to be an even more unpalatable decision than Johnson because, in addition to the flag, public school children and God were involved. Newdow and the reaction to the decision call attention to the significant role in the American political community of the Pledge as a sacred5 political ritual, one that is an important component of American civil religion.6 The Pledge reinforces patriotic myths, it organizes individuals into a political community, and it communicates values that provide individuals with important aspects of their sense of reality. As an exegesis of the Pledge demonstrates,7 the inclusion of the phrase "under God" expressly renders God foundational to the American political community and thereby sacralizes the Pledge in violation of the Establishment Clause. Nevertheless, the Pledge functioned as a powerful political ritual long before "under God" was inserted, and would do so even if the phrase were eliminated from the Pledge on Establishment Clause grounds. In Part I of this Article, which primarily relies on the work of David Kertzer,8 I first consider ritual in general - defined "as symbolic behavior that is socially standardized and repetitive"9 - and then political rituals in particular. In Part ?, which is the core of this Article, I engage in an exegesis of the Pledge and analyze it as a sacred political ritual. Parts ?? and IY address the Ninth Circuit's decision in Newdow and the Establishment Clause issues presented. Part IU briefly sets out the constitutional background of the Pledge,10 which includes the Supreme Court's decision in West Virginia Board of Education v. Barnette11 and the Court's school prayer decisions.12 Part IY discusses Newdow and argues that the Ninth Circuit got it right on the Establishment Clause issue, even though the Supreme Court later reversed on prudential standing grounds.13 I. POLITICAL RITUALS A. Ritual in General Catherine Bell14 suggests that three general theoretical perspectives, singly or in combination, have characterized the study of ritual.15 The first perspective emphasizes religion and focuses on the origins of ritual and the connections between the thing said, myth, and the thing done, ritual.16 The second, or functionalist perspective, focuses on how ritual works, that is, its role in social organization and the dynamics of human societies.17 In contrast, the third, or culturalist perspective, asks what ritual means and looks at ritual as a form of cultural connection "that transmits cognitive categories and dispositions that provide people with important aspects of their sense of reality."18 Bell maintains that no one perspective is superior to the others and that each of the three perspectives can still be found in ritual studies today.19 She then elaborates on her own preference, one that is similar to the culturalist perspective: ritual is, and should be studied as, a form of cultural practice.20 This entails the following: (1) ritual should be studied in its real context; (2) the central quality of ritual is the body moving in a specially constructed space, simultaneously imposing and receiving the values ordering the environment; and (3) ritualization is a form of acting that tends to promote the authority of forces deemed to derive from beyond the immediate situation. …