We Represent the Entrepreneurial Spirit ®    



Vision Courage Tenacity
Do you have what it takes? We can help you succeed. excellence@zegarelli.com
25 Years of Trust. 25 Years of Bonded Team Relationships. 25 Years of Excellence.

In a special edition for this 2014 Memorial Day, we sat with Attorney Gregg Zegarelli, Esq. to discuss one of the most controversial legal and political topics in America today: the existence of "under God" in the Pledge of Allegiance.  With the ruling this month by the Massachusetts Supreme Court in Jane Doe vs. Acton-Boxborough Regional School District, SJC 11317 (2014), it is a perfect time to reflect on this important subject.

TEV Law Group Gregg Zegarelli, Esq.
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. 
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.
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.

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. 

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.

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 mindThe 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 sameThis 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.

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?"

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.

I want to thank you.  We have traversed a number of very interesting points for consideration.  Is there anything you want to add?

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.

Thank you again. My pleasure.  Thank you.

[Home]  [Search]  [Terms of Use]  [Mailing List]  [Feedback]  [Payment]  [Contact Us Now]


Unless otherwise specified above, Copyright © 2004-2014 TEV Law Group, PC. All rights reserved.  Use of this Website governed by our Terms and Conditions. "We Represent the Entrepreneurial Spirit®," "The Entrepreneurial Spirit®," "The Cardinal Entrepreneurial Virtues™," "Vote for the Quote®," and "We will appreciate your business" among others, are marks and registered marks of TEV Law Group, PC.