A New Pledge of Allegiance Controversy

by Ronald Rychlak - October 15, 2010

Reprinted with permission.

A local attorney has made national news: Danny Lampley of Oxford, Mississippi, was found to be in criminal contempt of court because he refused to recite the Pledge of Allegiance at the beginning of a session of Chancery Court. Judge Talmadge D. Littlejohn wrote: "The court having ordered all present in the courtroom to stand and recite the Pledge of Allegiance, and having found that Danny Lampley, attorney at law, failed and refused to do so, finds said Danny Lampley to be in criminal contempt of court."

Judge Littlejohn threw Lampley in jail and said that he could get out "by standing and reciting the Pledge of Allegiance in open court." I don't think Lampley ever recited the Pledge in the courtroom, but he got out of jail within five hours. The issue, however, is far from resolved.

There are a few different reasons why one might object to the pledge. It could be a way of protesting the United States, or some action undertaken by the nation (like a war). It could also be a protest about the phrase "under God" that was added to the pledge in 1954, due in part to the efforts of the Knights of Columbus. In recent years, there has been a fair amount of litigation over that phrase, primarily in California. The most recent decision, however, upheld its use. (Interestingly, comedian Red Skelton predicted this controversy years ago.)

Lampley had previously refused to say the Pledge in front of Judge Littlejohn. That time, he was asked to leave the courtroom, and he returned after the Pledge. This time, Lampley respectfully stood, but his hands were at his side, and he did not recite the words. Judge Littlejohn then specifically asked Lampley to recite the pledge. When Lampley refused, he was held in contempt.

Lampley has not tried to make this a "cause." He declined most interview requests. He did, however, explain: "I don't have to say it [the Pledge] because I'm an American." Talking to a local TV station, he said: "Judge Littlejohn is very sincere. We have different world views, different viewpoints. What I am afraid is… [that] he is resolved as I am resolved. I'd rather talk to him privately because I like him."

Locally, Judge Littlejohn is well respected and known for running an orderly, professional courtroom. He is in his mid 70s and has been a chancery judge for eight years. In Mississippi, that means that he has presided mainly over divorce and child-custody disputes. (Lampley was representing a client in a divorce case when he was found in contempt.) Judge Littlejohn has run unsuccessfully for Congress (as a Democrat), and he has served as a state lawmaker, a prosecutor, and a city judge. He is also a Baptist deacon and Sunday-school teacher.

Lampley, on the other hand, is about 50 years old. In the 1990s, on behalf of the ACLU, he represented plaintiffs who successfully sued a school district here in northern Mississippi to stop students from praying over the intercom. He also successfully represented the Ku Klux Klan when a county in the Mississippi Delta tried to prevent a rally.

The juxtaposition of a judge/deacon/Sunday-school teacher on one side, and an ACLU lawyer who brings cases to help the KKK and to stop public prayer on the other, causes me to stop and think. Nine times out of ten, based on that information alone, I'd be inclined to side with the judge. This time, however, I have to support the attorney.

In 1943, the Supreme Court held that Jehovah's Witness schoolchildren who claimed a religious objection to compulsory recitation of the Pledge could not be forced to do so. The Court held: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." Of course, Lampley is not a Jehovah's Witness, nor is he a child. As he explained, however, he is an American. That gives him the right to speak or to remain silent.

Judge Littlejohn may have been motivated by a sense of patriotism, and that is all well and good – but he overstepped his authority. Judges have wide-ranging authority, but it is not absolute. In a famous case from the 1830s, Judge James H. Peck faced impeachment for abusing the judicial power of contempt. In this case, Judge Littlejohn did the same thing.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).