An editorial from 2002:
Loving God and loving country -- separately
ARNOLD H. LOEWY
Perceived judicial attacks on God or country are not taken kindly by the populace or politicians. This point has been illustrated over and over again by attempts to amend the Constitution to allow school prayer and punish flag burners. So it should come as no great surprise that when God and country appear to be under attack in one fell judicial swoop, the politicians will indeed become restless. Consequently, the senate's 99-0 rejection of the 9th Circuit Court's decision invalidating the phrase "under God" in the flag salute was not unexpected. It was, however, unfortunate.
I know of no more important duties than the support of God and country. But they don't mix well. We elect senators and congressmen to enact laws describing reciprocal duties between ourselves and our country. We do not elect them to prescribe our duty to God. For that we have priests, ministers, rabbis and other clerical or lay church leaders.
Roger Williams, one of our most pious founders, insisted on separation of church and state because of his firm belief that civil leaders were unqualified to lead us in the ways of God.
More recently, the Supreme Court has emphasized the importance of government neither endorsing nor disapproving one's religious beliefs.
Put differently, one's devotion (or lack thereof) to God is irrelevant to her status as a citizen. The phrase "under God" in a patriotic pledge certainly disapproves of Buddhists, Taoists, ethical culturalists, secular humanists and, of course, atheists.
One might be tempted to respond: "So what? We're right and they're wrong. Who cares if a few heathen are offended?" That, however, is just the point. You and I might know that we're right and they're wrong, but the government is not permitted to know that. The government must remain neutral.
In some ways, the public pledge in school is worse than public prayer. With prayer, the nonbeliever must identify herself as a nonbeliever by not participating. But with the pledge, a devoutly patriotic American atheist may appear to be unpatriotic when he was merely ungodly. Compelling the atheistic patriot to either appear unpatriotic or betray his religious convictions is precisely the choice that the establishment clause forbids government to impose on its citizens.
For those who think that "under God" is merely political and not religious, imagine a hypothetical future when America is controlled by a majority of atheists, who decide to substitute "without God" for "under God" in the flag salute. I would hope that the Supreme Court (even if then also controlled by atheists) would hold that unconstitutional. I would argue that however atheistic the majority of the country may be, our fundamental charter demands that the majority's religious philosophy not be the basis of our country's politics.
Ironically, it was the Soviet Union's dictatorial infusion of atheism into the warp and woof of Soviet society that prompted us to add "under God" to the flag salute in the first place. Perhaps we should have added "with freedom of religion" instead. That would have properly highlighted the difference between us and the Soviet Union.
Those who worry that invalidation of "under God" in the pledge might lead to the eventual demise of "In God we trust" on our coins and currency should recall Jesus' admonition in regard to the propriety of Caesar's likeness on the coins and currency of the realm. He famously remarked: "Render unto Caesar what is Caesar's and unto God what is God's." God most assuredly deserves our trust, but he doesn't need "Caesar" to provide it. Our alternative motto, e pluribus unum, from the many one, describes both our diversity and, in pledge terms, our indivisibility. And, it lacks the divisiveness of a motto spiritually offensive to some and theoretically offensive to others.
The love of both God and country are characteristic of most good American citizens. It is my fondest hope that this will continue to be the way we are. But countries that seriously integrate the two are not among those that we like to emulate. The Shiites of Iran and Islamic Jihad are two recent examples of the harm that can come from excessive intermixing.
While America would never go down that path, we would do well to remove ourselves as far as possible from the Theocratic State. As Justice Jackson, the Nuremberg prosecutor, once observed: "It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar."
Arnold H. Loewy is Graham Kenan Professor of Law at the University of North Carolina School of Law, Chapel Hill, NC 27599-3380