A Sterling man who objects to Loudoun County students reciting the Pledge of Allegiance plans to make his case Friday in the 4th Circuit of Appeals Court in North Carolina, which encompasses Maryland, Virginia and North Carolina.
Ed Myers, who represented himself in a lawsuit against the school district, has hired legal counsel to make oral arguments in the appeal. He will be taking his three children to North Carolina to hear the case.
FIVE-AND-A-HALF years ago, Myers complained to the school administration that his eldest child, in first grade then, was “forced to stand, salute the American flag and say the Pledge of Allegiance.” The father cited his own religious reasons for his opposition to the ritual.
Myers, who was brought up in a Mennonite home, said Tuesday that the flag had been converted into a “sacred symbol.” Mennonites and Quakers believe excessive adoration of symbols can be mistaken for idolatry or worshipping of idols, he said.
He argued that the separation of state and religion means that there must be a separation between the sacred and the secular. For Christians, symbols like the cross are sacred. For Jewish people, it is the Star of David. So when the government selects symbols, such as flags or the Pledge of Allegiance, it is establishing a religion, he said.
Myers, 46, said parents have the right to bring up their children in whatever religion they wish. “I don’t want a ‘God and Country’ civil religion,” he said.
HIS ATTORNEY, David Remes of Covington & Burling in Washington, D.C., said the United States, School Board and the commonwealth have countered there is nothing religious about the pledge. “They pretend the phrase ‘Under God’ is a form of code language referring to the role religion has played in our history or culture,” he said. “That’s pure fiction that has been devised in an attempt to avoid the constitutional problem. The words speak for themselves.”
The basis of Myers argument is that pledging allegiance to one nation under God is an affirmation of religion and religious belief, Remes said. “And to lead children through this ritual affirmation, day in and day out, is something the establishment clause does not permit.”
The establishment clause prohibits the government from favoring some religions over others and religion over non-religion. “Here we not only have the government favoring religion. In addition, we have the government favoring monotheism, the belief that there is only one God, … so the practice is doubly problematic.”
Remes is representing Myers pro bono or without charge. Thirty states have filed briefs in support of the government’s stance on this issue.
U.S. Attorney Robert Loeb said virtually every single reference to the pledge in the Supreme Court’s cases has confirmed the pledge is constitutional. He referred to the legal brief in the case. “Rather than establishing religion, such practices are part of an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789,” the brief said.
Loeb said Myers objected to the pledge, and recommended the reading of the Gettysburg Address as one alternative. The term, ‘under God’ is in the address, Loeb said. “The plaintiff was embracing the notion that you could use the code word. … If he has no problem reciting the Gettysburg Address, it seems to me unproblematic.”
A DISTRICT COURT JUDGE, dismissed Myers’ initial complaint in 2003. Myers appealed, and has decided to attack the issue from a different angle.
“Before I was arguing in a general sense that the Pledge of Allegiance and the ‘In God We Trust’ posters with a flag backdrop were making nationalism an unconstitutional religion, because of the inclusion of religious symbols,” he said. “The posters’ flag background gives a message that the schools adopt the idea that patriotism and religion are yoked together. The school district hung them … to remind students of the connection between God and government.”
Myers said he will not appeal on the basis of whether his children can opt out of reciting the pledge nor focus on the debate over the posters. Instead, he will focus on the pledge and its reference to ‘under God,’ because it will make a better legal case, he said.
He explained his strategy. The pledge was secular in 1943, when in the court case West Virginia v. Barnette, the U.S. Supreme Court said that willing children could recite the pledge in public schools provided they could opt out by not standing. In 1954, ‘Under God’ was added to make the pledge a “religious prayer,” he said. Since then "the Supreme Court has invalidated school-sponsored religious activity in public schools."
WAYDE BYARD, Loudoun school district spokesman, said school officials cannot address the issue publicly. “We’re in litigation now. We’ll have no comment.”
Myers acknowledged that most people support the schools’ Pledge of Allegiance ritual. “I don’t begrudge the majority’s wishes provided it is not at the expense of religious minorities like myself.”
He said the flag took on more importance after the terrorist attacks of Sept. 11, 2001. “It’s still a display in the courthouse that reinforces the concept that the flag is sacred. … It reminds me of the Ten Commandments monument that was in the courthouse in Alabama.”
Myers said he has been falsely accused of being an atheist as a result of his lawsuit. Despite his Mennonite upbringing, he said he attends a Catholic church. “I see myself as a prophet of sorts, maybe a false prophet. We won’t know until the future.”
Myers was called to make legal arguments after the 9th Circuit Court in California dismissed a similar case, Elk Grove v. Newdow. The court decided not to rule on the case because Newdow does not have legal custody of his daughter.