Pledge of Allegiance and the First Amendment

When Congress first adopted an official ‘‘Pledge of Allegiance’’ in 1942 as part of the U.S. Flag Code, it based the pledge on the words of Francis Bellamy, who penned them for a Columbus Day ceremony in 1892. States thereafter enacted laws stipulating that teachers in public schools should lead their students in daily recitations of the pledge. In 1954, however, after legislators felt the need to distinguish the pledge from slogans propagated by communist governments, Congress amended it by adding the words ‘‘under God’’ so that it would read in full: ‘‘I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.’’

With this amendment, Congress made more explicit the pledge’s rhetorical resonances with Lincoln’s Gettysburg Address. Congress also wished to use the pledge’s image of a nation standing under the sovereignty of God to ‘‘acknowledge the dependence of our people and our Government upon the moral directions of the Creator.’’ These moral directions, Congress noted in the House report, were the basis for individuals’ ‘‘inalienable rights,’’ which the American government recognized ‘‘no civil authority may usurp.’’ Congress’s invocation of this natural law tradition was to provide a direct counterpoint to ‘‘the atheistic and materialistic concepts of Communismwith its attendant subservience of the individual.’’

States’ policies enforcing the recitation of the pledge in public schools promptly raised constitutional challenges over the freedom of religious exercise. Soon after the pledge was first codified, Jehovah’s Witnesses brought suit against schools that expelled or punished them for refusing to recite the pledge. Jehovah’s Witnesses regarded such an act as an idolatrous misplacement of allegiance. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court acknowledged the potential for expressions of patriotic devotion to place the same burden upon the conscience as expressions of religious devotion. It was inconsistent with free exercise of religion to force students to participate in a civic exercise contrary to their faith. Students could freely refrain from reciting the pledge by remaining silent in class.

Since the 1954 amendment, the Pledge has also been scrutinized for potential violations of the Establishment Clause because it leads school children to invoke the name of God. In Sherman v. Cnty. Consol. Sch. Dist., 21, 980 F2d 437 (1992), the Seventh Circuit ruled that official recitation of the pledge does not compel religious expression so long as students are entitled to remain silent. The Ninth Circuit, however, ruled in Newdow v. U.S. Congress, 292 F.3d 597 (2002), that the pledge is unconstitutional because Congress left the impression, when codifying the amendment, that it endorsed or preferred monotheism over other beliefs such as Atheism. It also applied a definition of coercion, used to ban prayer at school ceremonies in Lee v. Weisman, 505 U.S. 577 (1992), that embraced situations of potential peer pressure. Although the Supreme Court did not overturn the latter ruling on its merits, it has acknowledged in dicta in prior opinions that the pledge is not inconsistent with the First Amendment because it qualifies as a civic act rather than a prayer.

HANS LEAMAN

References and Further Reading

• Ellis, Richard. To the Flag: The Unlikely History of the Pledge of Allegiance. Lawrence: University Press of Kansas, 2004.

Cases and Statutes Cited

• Elk GroveUnified Sch. Dist. v.Newdow, 124 S. Ct. 2301 (2004)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Newdow v. U.S. Congress, 292 F.3d 597 (2002)
• Sherman v. Cnty. Consol. Sch. Dist., 21, 980 F2d 437 (1992)
• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
• 4 U.S.C.S. Chapter 1. H.R.Rep. 83- 1693, 1-3 (83rd Cong. 1954)

See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clauses; Free Exercise Clause Doctrine: Supreme Court Jurisprudence