No, We Are Not All ‘One Nation, Under God,’ And That’s Fine

A lot of people around the country have been debating whether Colin Kaepernick’s refusal to stand during the national anthem prior to games is an appropriate form of silent protest against racial injustice.

As with any debate this country has about social issues, the level of craziness in public opinion varied. One radio host took a big leap into the abyss by insisting that Kaepernick is breaking the law. Bryan Fischer, who hosts Focal Point on American Family Radio, wrote a bizarre column making a case for forced patriotism.

(Fischer, you might recall, is the guy whose views are so extreme that even the Values Voter Summit stopped inviting him.)

“Will he get thrown in jail for it? No,” Fischer wrote. “There is no question that Kaepernick is violating federal law by kneeling or sitting rather than standing and placing his hand over his heart while the national anthem is played.”

Wait, his explanation is even better.

According to Wikipedia, the U.S. Code is ‘The Code of Laws of the United States of America is the official compilation and codification of the general and permanent federal statutes of the United States,” he continued.

While I admire his laziness to cite Wikipedia sources and then put his byline on it like it’s scholarly, this column was a downward spiral that made my brain hurt. Fischer goes on to rant about how non-military members have to stand and put their right hand over their heart, based on language in 36 U.S. Code Section 301, which suggests they “should.” 

“I find nothing remotely ambiguous about this statute. Americans ‘should’ stand with their right hand over the heart during the anthem,” Fischer wrote. “If you look up the word ‘should’ in the dictionary, the first meaning you’ll read identifies it as a word ‘used to indicate obligation (or) duty.’ In other words, it’s not a suggestion.”

Not doing this is illegal, Fischer seriously argues. 

Although he’s entitled to a wrong interpretation of the English language, “should” doesn’t mean “must.” You should eat vegetables and fruits to balance your diet, but quite frankly, you don’t have to, and your doctor can’t force you.

So when it comes to standing during the National Anthem or Pledge of Allegiance, the First Amendment grants Kaepernick the option of sitting or kneeling instead of standing. It’s not unpatriotic, but even if it was, it’s unconstitutional to force patriotism onto someone.

But Fischer is really into enforcing patriotism and God onto everybody in this country.

“To paraphrase Mark Twain, patriotism means loving your country all the time and supporting your government when it’s right,” he wrote. “The flag doesn’t stand for this administration or any other, it stands for our one indivisible nation under God.”

Except for some people, Fischer, “under God,” isn’t applicable; therefore forcing them to stand violates their First Amendment right to religious freedom.

Previous Supreme Court dealing with mandatory flag salutes and Pledge recitations don’t help Fischer’s stance, which was apparently too much research beyond Wikipedia for him to conduct. 

Although the Supreme Court upheld the expulsion of Jehovah's Witnesses public school students in the 1940 case, Minersville School District v. Gobitis, for refusing to salute the flag or recite the Pledge, they quickly changed their course.

In the 1943 West Virginia State Board of Education v. Barnette case, they overturned a West Virginia law that required public school students to salute the flag and recite the pledge of allegiance, declaring such requirements a violation of their First Amendment rights.  

Perhaps Fischer didn’t get that far in his Wikipedia history course, though.