Pledge of Allegiance (‘‘Under God’’)

One of the more contentious legal issues in recent years has been the question whether the words ‘‘under God’’ in the Pledge of Allegiance render recitation of the pledge in public schools a violation of the Establishment Clause.

Francis Bellamy, a Baptist minister, drafted the initial Pledge of Allegiance in 1892 for use in the public schools. Fifty years later, in 1942, the U.S. Congress officially recognized the pledge as part of its efforts to ‘‘codify and emphasize existing rules and customs pertaining to the display and use of the flag of the United States of America.’’ In doing so, Congress approved the following language for the pledge: ‘‘I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all.’’ The following year, the U.S. Supreme Court decided that Jehovah Witness schoolchildren who had religious objections to reciting the Pledge of Allegiance could not be required to do (West Virginia v. Barnette, 319 U.S. 624, 1943).

In 1954, Congress amended the Pledge of Allegiance by joint resolution to include the words ‘‘under God’’ after the words ‘‘one Nation.’’ Enacted at the height of the cold war, many favored the change as a way of distinguishing the United States from the ‘‘godless’’ Soviet Union. The House report accompanying the legislation stated that the purpose of the new language was to ‘‘recognize the guidance of God in our national affairs’’ and to affirm ‘‘the dependence of our people and our Government upon the moral directions of a Creator.’’ The Senate sponsor of the amendment explained the purpose as recognizing ‘‘the Creator who we really believe is in control of the destinies of this great Republic.’’

Over the years, the pledge has been frequently recited on government property under the direction of government officials. For example, many public schools conduct a daily recitation of the pledge. Similarly, many governmental meetings, such as legislative sessions, begin with a recitation of the pledge. In recent years, however, questions have been raised whether the inclusion of the words ‘‘under God’’ in the pledge when recited under the direction of a governmental official such as a school teacher violates the Establishment Clause. The U.S. Supreme Court considered a case raising this issue in 2004, but ultimately dismissed it without reaching the constitutional question, concluding that the plaintiff, a noncustodial parent of a child in a school in which the pledge was recited, did not have standing to bring a legal challenge (Elk Grove Unified School District v. Newdow, 542 U.S. 1, 2004).

In that case, three justices—William Rehnquist, Sandra Day O’Connor, and Clarence Thomas— rejected the majority’s standing argument and considered the merits of the plaintiff’s claim. These justices concluded that the recitation of the pledge with the ‘‘under God’’ language did not offend the Establishment Clause. (A fourth justice, Antonin Scalia, recused himself in the case because of prior public comments critical of the lower court’s ruling that the pledge recitation with the ‘‘under God’’ language was unconstitutional.)

Chief Justice Rehnquist, in a concurring opinion joined by Justice O’Connor, concluded that the use of the ‘‘under God’’ language did not violate the Establishment Clause because the recitation of the pledge was not a ‘‘religious exercise.’’ ‘‘Instead,’’ wrote Rehnquist,

It is a declaration of belief in allegiance and loyalty to the U.S. flag and the Republic that it represents. The phrase ‘‘under God’’ is in no sense a prayer, nor an endorsement of any religion.... Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.

Justice O’Connor, in addition to joining the Rehnquist opinion, filed her own concurring opinion, arguing that the recitation of the pledge did not violate the endorsement test. O’Connor concluded that the ‘‘under God’’ language in the pledge constituted an expression of ‘‘Ceremonial Deism’’ that did not offend the Establishment Clause:

I believe that the government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of ‘‘Ceremonial Deism’’ most clearly encompasses such things as the national motto (‘‘In God We Trust’’), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (‘‘God save the United States and this honorable Court’’).

Finally, Justice Thomas filed his concurring opinion in which he argued that under the Court’s prior precedents, particularly Lee v. Weisman, 505 U.S. 577 (1992), the recitation of the pledge did violate the Establishment Clause because it ‘‘coerced’’ young children ‘‘to declare a belief’’ that this is ‘‘one Nation under God.’’ Hence, for Thomas, ‘‘as a matter of our precedent, the Pledge ... is unconstitutional.’’ But, Thomas went further, arguing that Lee v. Weisman was wrongly decided because the Establishment Clause does not apply to the states. Thomas recognized that the Court in prior cases had ‘‘incorporated’’ the Establishment Clause through the Fourteenth Amendment to apply to the states, but he concluded that that incorporation was inappropriate as a matter of history. Because, in Thomas’s view, the Establishment Clause does not apply to the states, the recitation of the pledge in the California public schools did not offend the Constitution.

Because the Supreme Court in the Newdow case dismissed the case on standing grounds, we do not have a conclusive decision from that court on the constitutionality of the recitation of the pledge in a governmental context. But some federal courts of appeal have also considered the question of the constitutionality of the ‘‘under God’’ language in the pledge. The U.S. Courts of Appeals for the Fourth and Seventh Circuits have found that the use of ‘‘under God’’ in the pledge recited by schoolchildren does not violate the Establishment Clause so long as the children are free to refrain from joining the recitation (Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437, 7th Cir.1992; Myers v. Loudon County Public Schools, 418 F.3d 395, 4th Cir. 2005). On the other hand, the U.S. Court of Appeals for the Ninth Circuit has found that the use of the phrase ‘‘under God’’ in the pledge does violate the Establishment Clause even if schoolchildren are free not to participate in the recitation (Newdow v. U.S. Congress, 292 F.3d 597, 2002).

The issue of the constitutionality of the Pledge of Allegiance remains highly controversial. In September 2005, a federal district court judge in California concluded that the recitation of the pledge in the public schools with the ‘‘under God’’ language violated the Establishment Clause (Newdow v. Congress of the United States, 383 F. Supp. 2d 1229, E.D. Cal., 2005). The controversy is likely to continue.

DAVISON M. DOUGLAS

References and Further Reading

• Sanford, Bill W., Jr., Perspective: Separation v. Patriotism: Expelling the Pledge from School, St. Mary’s Law Journal 34 (2003): 461–503.
• Thompson, John E., Note. What’s the Big Deal? The Unconstitutionality of God in the Pledge of Allegiance, Harvard Civil Rights–Civil Liberties Law Review 38 (2003): 563–597.
• Werhan, Keith, Navigating the New Neutrality: School Vouchers, the Pledge, and the Limits of a Purposive Establishment Clause, Brandeis Law Journal 41 (2003): 603–629.

Cases and Statutes Cited

• Elk GroveUnified School District v. Newdow, 542 U.S. 1 (2004)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Myers v. Loudon County Public Schools, 418 F.3d 395 (4th Cir. 2005)
• Newdow v. Congress of the United States, 383 F. Supp. 2d 1229 (E.D. Cal. 2005)
• Newdow v. U.S. Congress, 292 F.3d 597 (2002)
• Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7th Cir.1992)
• West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

See also Ceremonial Deism; Establishment Clause (I): History, Background, Framing