A Response to David Toy: "It's 'Under God,' for God's Sake!"

I. INTRODUCTION

"Perhaps the most frequent and repetitive violators of the Constitution are public school teachers." So begins David A. Toy in his well-researched article, The Pledge: The Constitutionality of an American Icon.1 With this statement, he sarcastically suggests that leading students

in claiming that we are "one Nation under God"-a practice regularly employed by an entire body of concerned and dedicated individuals - is not likely to controvert the principles of equality and liberty that form the basis of our freedoms. Interestingly, less than a month before Congress inserted "under God" into the Pledge of Allegiance the Supreme Court ruled that this very group of professionals were doing just that in schools throughout the nation. The case was Brown v. Board of Education,2 and Toy ought to re-read his article with that case in mind. As Thomas Paine wrote, "a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of custom."3 Toy's efforts are part of that formidable outcry which followed the Ninth Circuit's June 2002 opinion. Perhaps some day the myopia that now exists regarding the religious prejudice against atheists will be recognized as clearly as is the racial myopia that existed last century. When that occurs, the propriety of the Ninth Circuit's opinion will be understood.