BRIA 20 4 c Should We Take God out of the Pledge of Allegiance?

In 2000, Newdow filed a lawsuit in a federal court in California. He claimed that the words “under God” in the Pledge of Allegiance violated the First Amendment’s establishment clause.

One fact complicated Newdow’s lawsuit: He did not have full custody of his 6-year-old daughter. Newdow and the child’s mother, Sandra Banning, were never married. California’s family court awarded “joint legal custody” to both parents but with some significant conditions.

The California court granted Banning physical custody of the child most of the time, while allowing Newdow visitation rights. The two were supposed to consult with each other over the health, education, and welfare of their daughter. If they disagreed, however, Banning was the final decision-maker.

The main defendant in Newdow’s lawsuit was the Elk Grove Unified School District in Sacramento, California, where Newdow’s daughter attended school. The defendant school district argued that Newdow, the plaintiff, had no “standing.” This is the legal requirement that the person bringing a lawsuit must have a legal interest at stake. Without standing in a legal dispute, one cannot sue.

At first, Newdow attempted to secure standing by saying he was suing on behalf of his daughter, who recited the Pledge of Allegiance at school. But the state family court ruled that it was not in her best interest to be thrust into the middle of such a controversy. The court ruled, however, that Newdow could proceed on his own behalf as a parent.

Newdow filed suit in federal district court. After losing, he appealed to the Ninth Circuit Court of Appeals. In 2002, much to the surprise of almost everyone, Newdow won his case by a 2–1 vote of the appellate court judges. The majority held that he had standing and that the words “under God” made the pledge an unconstitutional “government endorsement of religion.” The losing defendants in the case then appealed both matters to the U.S. Supreme Court.

History of the Pledge

In 1892, Francis Bellamy, an official of the National Education Association, wrote the following Pledge of Allegiance to help celebrate the 400th anniversary of the landing of Columbus in America:

I pledge allegiance to my Flag [later changed to “the flag”] and the Republic for which it stands; one nation indivisible, with liberty and justice for all.

The pledge caught on. By the Second World War, most schools required students to recite it. Some churches, however, objected because they believed that the Bible prohibited such a declaration of allegiance. In 1943, the Supreme Court ruled that schools could not force students to recite the pledge. By an 8–1 vote, the justices said that “no official, high or petty, can prescribe [order] what shall be orthodox [correct] in politics, nationalism, religion or other matters of opinion. . . .” West Virginia v. Barnette.

During the Cold War, patriotic and religious groups began to lobby Congress to include a mention of God in the pledge to contrast the United States from atheistic communist countries. In 1954, Congress passed a law that inserted “under God” in the pledge.

The Establishment Clause

The First Amendment requires that “Congress shall make no law respecting an establishment of religion . . . .” This is known as the establishment clause of the First Amendment. Its purpose is to separate church and state, preventing government and religion from interfering in each other’s affairs.

The meaning of the establishment clause continues to be hotly debated. The U.S. Supreme Court, however, has ruled that the First Amendment prohibits prayers and other religious observances in public schools because they amount to an establishment of religion.

In deciding what is and is not legally permitted under the establishment clause, the Supreme Court has developed several tests in its decisions (Lemon v. Kurtzman, 1971; Lynch v. Donnelly, 1984, and Lee v. Weisman, 1992). According to these decisions, an act violates the establishment clause if it:

·          has a religious purpose or effect;

·          endorses, advances, or hinders religion;

·          excessively entangles religion and government; or

·          forces anyone to accept a religious belief.

 The U.S. Supreme Court had never directly ruled on the constitutionality of the Pledge of Allegiance. Only one other federal appeals court has made a decision on the pledge. In 1992, the Seventh Circuit Court of Appeals decided that “under God” in the pledge was merely ceremonial and did not aim to establish religion.

Elk Grove Unified School District v. Newdow

On March 24, 2004, the U.S. Supreme Court heard oral arguments on the appeal of the Ninth Circuit Court’s decision. The “petitioners” (those appealing the case), now also included the U.S. government. Michael Newdow led the “respondents” (those responding to the appeal). Newdow argued his own case before the highest court in the land.

The following summary of the arguments in this case come from the written briefs and oral arguments presented by both sides.

Part I Arguments–-Does Newdow Have Standing?

The petitioners argued that Sandra Banning was the final decision-maker. Only she could object to her daughter reciting the pledge. In fact, Banning was raising her daughter as a Christian who believed in God and willingly participated in the pledge.

Newdow insisted that he was injured when his daughter recited “under God” in the pledge. By her saying the pledge, Newdow stated, she was essentially saying her father was wrong about there not being a God. The government, Newdow said, was interfering with his right to teach his daughter about religion as he saw fit.

Part II Arguments—Does “Under God” Violate the Establishment Clause?

The arguments over the establishment clause can be grouped under six issues:

1. Historical: Whether the pledge is the same as references to God in other documents in U.S. history.

2. Ceremonial: Whether the pledge serves a harmless ceremonial function.

3. Purpose: Whether the pledge serves a religious purpose.

4. Endorsement: Whether the pledge endorses religion.

5. Entanglement: Whether the pledge entangles religion and education.

6. Coercion: Whether children are forced to say the pledge.

Petitioners Argued: No, It Does Not Violate the Establishment Clause

Historical: The petitioners argued that mere references to the role of God and religion in American history do not establish a religion. Examples include the mention of God or the Creator in the Declaration of Independence and Gettysburg Address; our national motto (“In God We Trust”); and even the opening of the Supreme Court itself (“God save the United States and this Honorable Court”).

Ceremonial: The mention of God in such things as the Pledge of Allegiance is a ceremonial activity that lends seriousness to public occasions like presidential Thanksgiving proclamations.

Purpose: The purpose of the pledge is to promote patriotism. It is not a pledge to God but to the flag and “the Republic for which it stands.”

Endorsement: The pledge does not endorse any church, sect, or religious doctrine. If the pledge said “under Jesus,” that would be a different matter.

Entanglement: Saying a school prayer is religious. Reciting the pledge is not religious. It does not excessively entangle religion with public education.

Coercion: No child can be required to say “under God” or any other part of the pledge.

Respondents Argued: Yes, It Does Violate the Establishment Clause

Historical: References to God in historical documents or in other public expressions are not the same as young children standing in a classroom and swearing in unison their allegiance to both the nation and God. In addition, Congress only added “under God” in 1954 as a way to condemn atheism.

Ceremonial: The pledge is not some harmless ceremony, but a declaration that excludes and fosters prejudice against atheists. The original pledge included every American.

Purpose: The pledge is a means for the government to convince children to accept the religious belief that there is a God. This interferes with atheist parents who teach their children there is no God.

Endorsement: The pledge endorses monotheism while rejecting atheism and polytheistic religions like Hinduism. Government has no business taking sides on religious matters.

Entanglement: The original pledge was purely patriotic. The current pledge mixes religion and patriotism.

Coercion: Students may not legally be required to recite the pledge but as a practical matter are forced to say it anyway. Young children are heavily influenced by peer pressure, the attitude of the teacher, and the fear of becoming a classroom “outsider.”

The Supreme Court Decision

The Supreme Court ruled by a 5–3 vote that Newdow did not have legal standing to bring his lawsuit. The majority did not address the establishment clause issue.

The three justices who believed Newdow had standing wrote opinions on the establishment clause issue. They found, for different reasons, that the current wording of the Pledge of Allegiance was constitutional.

The ninth justice, Antonin Scalia, had removed himself from this decision because he had previously publicly criticized the Ninth Circuit Court’s ruling.

In short, Newdow was forced to drop his case for lack of standing, and the constitutionality of “under God” in the pledge remains undecided.

For Discussion and Writing

1.         Do you think Michael Newdow had standing in this case? Why?

2.         What about religion do you think should and should not be permitted in public schools? Why?

3.         Some local governments include a Christian cross on their official seals. Defenders of these seals say they merely reflect the historic origins of the place. Opponents say such seals violate the establishment clause. Use the four tests listed in the article to decide this issue for yourself.


Moot Court on the Pledge of Allegiance

Moot Court Question: Does “under God” in the Pledge of Allegiance violate the establishment clause?

1.         Form the class into three groups: those who will argue “no” to the question above; those who will argue “yes”; and nine Supreme Court justices who will decide the question.

2.         The students in the “no” and “yes” groups should divide responsibility for presenting the following arguments: Historical, Ceremonial, Purpose, Endorsement, Entanglement, and Coercion. The arguments summarized in the article are a beginning point (see Part II Arguments). The following web sites contain more material to support these arguments:

Pew Forum on Religion & Public Life: Pledge of Allegiance Resources

            Under God Pro/Con

3.         The Supreme Court justices should also look at these web sites to prepare questions to ask about the six arguments presented by each side.

4.         During the moot court, the “no” side will present each argument first followed by the “yes” side.

5.         The Supreme Court justices should be prepared with questions to ask each presenter.

6.        After both sides have finished their arguments, the justices should discuss in front of the class their views on the moot-court question. Finally, the justices should vote on this question and give the reasons for their decisions.

For Further Information

History of the Pledge | West Virginia v. Barnette | Lemon v. Kurtzman | Ninth Circuit: Newdow v. U.S. Congress | Supreme Court: Elk Grove Unified School District v. Newdow | Continuing Debate Over the Pledge

History of the Pledge

Encyclopedia Articles:

Wikipedia: Pledge of Allegiance

Encarta: Pledge of Allegiance

InfoPlease: Pledge of Allegiance Pledge of Allegiance

CRF: History of the Pledge

Ask Dr. Dave: The Pledge Issue A long article reciting the history of the pledge.

The Pledge of Allegiance: A Revised History and Analysis, 2007 An online book by Dr. John W. Baer.


Google Directory: The Pledge of Allegiance

Yahoo Directory: The Pledge of Allegiance

Open Directory Project: The Pledge of Allegiance

West Virginia Board of Education v. Barnette (1943)

Encyclopedia Articles:

Wikipedia: West Virginia State Board of Education v. Barnette West Virginia State Board of Education v. Barnette

Text of the case:

FindLaw: West Virginia Board of Education v. Barnette

Legal Information Institute: West Virginia State Board of Education v. Barnette

Yahoo Directory: West Virginia v. Barnette Links.

Lemon v. Kurtzman (1971)

Encyclopedia Articles:

Wikipedia: Lemon v. Kurtzman Lemon v. Kurtzman

Oyez: Lemon v. Kurtzman A brief summary of the case.

Text of the case:

            FindLaw: Lemon v. Kurtzman

            Legal Information Institute: Lemon v. Kurtzman

            Justia: Lemon v. Kurtzman

Ninth Circuit Ruling in Newdow v. U.S. Congress Ninth Circuit Court Ruling A brief look at the case.

Religious The U.S. Pledge of Allegiance, the “Under God” Phrase Background on the case before it went to the Ninth Circuit.

Ninth Circuit Court of Appeals Ruling Text of the court’s decision.

Lawmakers Blast Pledge Ruling A news story on reaction to the Ninth Circuit opinion but also has links to other stories on the case.

U.S. Supreme Court Ruling in Elk Grove Unified School District v. Newdow

Encyclopedia Articles:

Wikipedia: Elk Grove Unified School District v. Newdow Elk Grove Unified School District v. Newdow

Pew Forum on Religion & Public Life: One Nation Under God? A Constitutional Question (PDF file) A 2004 background paper on the case prior to the decision.


CNN: Court Dismisses Pledge Case News article from June 15, 2004.

Oyez: Elk Grove Unified School District vs. Newdow Brief summary and background.

American Bar Association: Briefs in Elk Grove USD v. Newdow

Petitioner’s brief (PDF file)

Respondent’s brief (PDF file)

Petitioner’s reply brief (PDF file)

Oyez: Elk Grove Unified School District v. Newdow A brief summary of the case with links to the oral argument, briefs, and written opinion.

Text of the case:

            FindLaw: Elk Grove Unified School District v. Newdow

            Legal Information Institute: Elk Grove Unified School District v. Newdow

            Justia: Elk Grove Unified School District v. Newdow


            Google Directory: Elk Grove Unified School District v. Newdow

            Yahoo Directory: Newdow v. U.S. Congress

Continuing Debate Over the Pledge

Under God ProCon In simple pro-con format, the site examines responses to the question: Should the words “under God” be in the U.S. Pledge of Allegiance?

News articles about the Pledge of Allegiance:

New York Times Topics: Pledge of Allegiance

LexisNexis News: Pledge of Allegiance

Restore our Pledge of Allegiance The web site of Mike Newdow, the plaintiff in Elk Grove Unified School District v. Newdow.

FindLaw Writ: What the Recent Pledge of Allegiance Decision Really Means An opinion piece by U.C. Davis law professor Tobias Barrington Wolff.

Slate: The Pledge of Allegiance: Why We’re not One Nation ‘Under God’ By David Greenberg. Person of the Week, Michael Newdow Opinion piece on the ridiculousness of the pledge case.

National Review Online: Still “Under God”? Argues that Supreme Court must clearly strike down the Ninth Circuit’s opinion.

National Review Online: “Under God” and Meaning It Argues that the Supreme Court should not only strike down the Ninth Circuit opinion but also other precedents.

Harvard University Gazette: Heavyweights battle over the Pledge of Allegiance Debate over “under God” between law professors.

The Record: Dershowitz, Catholic Law Dean debate pledge of allegiance Another account of the debate.

Hoover Institution: Heaven Can Wait: Is the Pledge of Allegiance Unconstitutional? Streaming video of another debate by two law professors.

News & Observer: Schools stumble over pledge: New state law fuels a scramble for flags; students debate value of recitation



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