by Matt Barr

A Christian flag

Colby Cosh has a fascinating series of hypothetical questions about how responsible Christian Americans would react to a change in the American flag, replacing stars with a cross. Illustration at the "semi-permalink" above. I'd like to answer as a constitutional textualist and vague Christian whose animus on these sorts of things is that the First Amendment isn't supposed to protect anybody's feelings.

Does this change, in itself, constitute an "establishment of religion" under the Constitution? If so, in what regard?

Under Supreme Court jurisprudence it's an obvious "excessive entanglement" with religion (not that plenty of other things the Supreme Court allows aren't). According to the text of the First Amendment, though, no, of course it's not an establishment of religion. Start throwing nonbelievers in jail and you'll get somewhere.

The practical question ends there, since it so obviously would be struck down under whatever the Court is saying its Establishment jurisprudence is these days that we wouldn't get any further. But on with Cosh:

Do you find the change objectionable? Is it consonant with what you regard as American traditions?

I do. We've had a flag with a star for each state since the founding. I wouldn't want an eagle head, a silhouette of the famous V-J Day kiss or purple mountains' majesty on the flag, either.

What course of action, if any, would you advise a patriotic atheist to undertake in response to this change?

Run to court to get an injunction or something. Fifty years ago I would have recommended agitating to get it changed by persuading people you're right and getting a new law passed. I would have cautioned that you're going to have to convince a lot of people who believe in God you're right, so no caterwauling about people with imaginary friends. Fortunately, none of that sort of thing -- debate, persuasion, mind-changing, legislation -- is necessary in today's American political system.

Would you feel comfortable expecting non-Christian fellow-citizens to pledge allegiance to such a flag? Indeed, could their basic loyalty to the United States still be expected after such a change?

The answer to the first question is no, but it's useful to remember in what obvious way this hypothetical differs from the Pledge. I also don't expect atheists or people who don't believe in a monotheistic God or entity who is ultimately to blame for our being on this marble to recite the Pledge of Allegiance. The hypothetical moves from vague invocations of God to Jesus Christ His only son.

What makes you think "vague invocations of God" are ok, anyway? They've been ok for a long time, haven't they? Lincoln vaguely promises that this nation, under God, will have a new birth of freedom after the War; Kennedy vaguely affirmed that liberty comes "not from the generosity of the state, but from the hand of God"; every President ever inaugurated has asked for God's help at his swearing in; our currency trusts Him, He saves this honorable Court, and here in Ohio, with Him, all things are possible. You could, of course, go on. Unless you subscribe to the extratextual idea that what is and isn't constitutional depends on how people feel about things at any given time, it's difficult to say that all of a sudden all these things were anti-American and improper.

Yes, their "basic loyalty" to the United States could still be expected. Congress does plenty of things I wish they wouldn't, the President and (really!) Supreme Court too, all of whom seem to be conspiring sometimes to make the country unrecognizable. But the team is bigger than any one player, as they say, and if I could still root for the Bills after they changed uniform colors a few years ago, I think we can still be Americans if they screw with the flag.

Would it be valid to reassure non-Christians on the Constitutional "establishment" issue by telling them that they don't have to personally fly, or even honour, the U.S. flag?--that they are free to opt out of ceremonies involving it, and that, if they like, they don't even really have to look at it? Do these "freedoms" suffice to make the change in the flag a non-establishment of religion?

The answer here flows from the answer to whether it's an "establishment" in the first place, which isn't a punt. I'm sure Cosh is not making the point that non-Christians probably feel so marginalized by this point that any remedial measure beyond restoring the stars to the flag will still leave everybody in tears. I think he's saying that the welding of the cross symbol onto the flag in and of itself, no matter who does what to whom afterward, is an improper entanglement with religion. He may be right, and on that basis it may be a very bad idea, but the question is really whether it violates the constitution of the United States.

Which is also not a punt. Generally speaking, the constitution allows and even encourages bad ideas. Once you have an elite bunch figuring out in advance what is and isn't a good idea you don't have the creative chaos of a republican democracy anymore, you have rule by four out of five experts. The world doesn't spin off its axis if we pass bad laws, we change them. Or, these days, run to court to get them struck down, I guess.

More importantly, is altering the standardized public profession of loyalty to the flag so that it contains the phrase "Under God" different, in any relevant way, from a change to the flag itself?

As phrased, the answer is no. Again, though, there is a qualitative difference between invoking God, such as they do in, say, the Declaration of Independence, and bolting the symbol of Christianity onto the flag.

If you were setting out to establish Christianity as the formal faith of the United States and its government, aren't places like the flag and the pledge of allegiance a natural starting point precisely because they are constitutionally ambiguous?

Not according to the frog-in-boiling-water theory, no. We have a case study: How has the left struck religion out of American society? At considerable risk of sounding like a Supreme Court crank, by convincing federal courts that a prohibition on Congress making a law respecting an establishment of religion means prayer and the Bible can't be taught in public schools, and graduates and high school football teams can't pray before the big event, and the Pledge creates a coercive environment (which, to be sure, public schools increasingly are not).

Government has become so much of children's lives that setting the rules in stone as to what the government is and is not allowed to do begets all sorts of opprobrious consequences, such as standardized testing and requiring everybody to teach elementary schoolers about the constitution on September 16 (Junior was shown a Charlie Brown movie involving George Washington somehow, I'm told). It also creates a generation of recyclin', global warming hatin', self esteemin' kids who aren't allowed to talk about things like "God" in public.

Conservatives (libertarians, if you prefer) are at a disadvantage, being unlikely to take advantage of the same infrastructure. I wouldn't start (were this my goal) with the flag, in other words, I'd start, like my archrivals, with the federal courts.

Would it be possible for any reasonable person to argue about the new flag, at one and the same time, that it was not meant to provoke unbelievers--but that it dare not be changed at their behest?

That wouldn't be reasonable, no. A different way to end this series of questions might be: "Is there any conceivable way beyond getting it struck down in court -- that is, deemed On High as unconstitutional -- to change either the Pledge or our cross-flag back to what it was, or even abolishing the Pledge altogether?" I would answer that yes, there is a conceivable different way, and in fact it would have been the only way people thought of as recently as 50 years ago. I would also argue that it's preferable by such an order of magnitude that the fact most people don't think of it today points to a grave dysfunction in our republic.

What if it doesn't work? I have a two-part answer. (1) If you can't persuade a majority you're right, one possible explanation is that the cards are stacked against you and the man is keepin' you down, but another, possibly more reasonable, one is that you're not. (2) Life, unlike public school, is a coercive environment, and my courts aren't there to make sure that every time it rains it rains pennies from heaven.

UPDATE: The above is read to attribute a "generation of recyclin', global warming hatin', self esteemin' kids who aren't allowed to talk about things like 'God' in public" to "the elimination of prayer from public schools" in an update by Cosh, which would indeed be "vastly overreaching," but I hope to make clear with this update that government micromanagement of schooling in general is to blame. I was careful to include "conservative" experiments like No Child Left Behind's standardized tests and this new law that schools that receive federal funds had to teach about the constitution Friday for just that reason.

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