Consider the atheist, who acknowledges no God at all. And consider the Pledge of Allegiance. Those who recite it promise fealty to "one nation, under God." To what extent, if any, may the pledge be heard in a public school?
Great constitutional issues never die. They keep coming back. Last November the U.S. Court of Appeals for the 7th Circuit ringingly upheld the power of an Illinois town to require that pupils be given an opportunity voluntarily to recite the pledge.The Wheeling School District was acting in obedience to a state law adopted in 1979. The law requires that a teacher lead pupils in reciting the pledge, but it does not require that all pupils - or indeed, any pupil - join in the exercise.
Robert Ian Sherman is president of the atheistic Society of Separationists. When his son Richard entered the first grade at Riley School, his father filed suit to forbid recitation of the pledge. The township defended the law. Riley's principal filed an affidavit stating that neither Richard nor any other pupil was compelled to recite the pledge.
The District Court ruled against Sherman, and the 7th Circuit, speaking through Chief Judge Frank H. Eas-ter-brook, upheld that decision. Sherman has petitioned the Supreme Court for review.
Easterbrook acknowledged that the case again raises the question of implicit coercion. Even though there are no penalties for remaining silent, and no inducements to join in, "there remains social pressure to do so and a sense of exclusion." On the other hand, social pressure is not legal pressure, and the public schools are entitled to transmit public virtues and values - including the virtue of patriotism.
"Government retains the right to set the curriculum in its own schools and to insist that those who cannot accept the result exercise their right to select private schools at their own expense. . . . So long as the school does not compel pupils to espouse the content of the pledge as their own belief, it may carry on with patriotic exercises.
"Objection by the few does not reduce to silence the many who WANT to pledge allegiance to the flag `and to the Republic for which it stands.' "
On the matter of "under God," Eas-ter-brook remarked that the Supreme Court many times has approved such ceremonial phrases as "In God we trust" and "God save this honorable court."
The court will have an opportunity for one more look at the pledge if it accepts the Sherman case for review next term. Oral argument would evoke memories of one of the greatest opinions in the court's history. This was Justice Robert Jackson's opinion in West Virginia vs. Barnette, handed down in June 1943.
Fifty years have not dimmed its luster. West Virginia had adopted a law requiring every pupil, under pain of expulsion, to recite the Pledge of Allegiance every day. In 1940 the court had upheld a similar law in Pennsylvania, but in the intervening three years Justices Black and Douglas had changed their minds.
With three justices dissenting, the court in 1943 overruled its 1940 action. The Jehovah's Witness children in West Virginia could not be compelled to recite the pledge. A compulsory pledge, said Jackson, requires affirmation of a belief. Public officials have no power to compel such an utterance.
Justice Felix Frankfurter filed a dissenting opinion in the case that was equally eloquent in its own way. His point was that unelected federal judges should exercise great restraint in nullifying laws enacted by the people's legislatures.
If I could wave a magic wand, I would strive to make recitation of the pledge truly voluntary. But I would make West Virginia vs. Barnette required reading in every high school in the land.