Is Including "Under God" in The Pledge of Allegiance Lawful?: An

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2003
Is Including "Under God" in The Pledge of
Allegiance Lawful?: An Impeccably Correct Ruling
Peter Brandon Bayer
University of Nevada, Las Vegas -- William S. Boyd School of Law
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Recommended Citation
Bayer, Peter Brandon, "Is Including "Under God" in The Pledge of Allegiance Lawful?: An Impeccably Correct Ruling" (2003).
Scholarly Works. Paper 342.
http://scholars.law.unlv.edu/facpub/342
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IS INCLUDING "UNDER GOD" IN THE
PLEDGE OF ALLEGIANCE LAWFUL?
AN IMPECCABLY CORRECT RULING
By Prof. Peter Brandon Bayer, Boyd School of Law
On June 26, 2002, in Newdow v. U.S. Congress,1 a divided
panel of the United States Court of Appeals for the Ninth Circuit
held that the 1954 Congressional amendment adding the words
"under God" to the Pledge of Allegiance violated the First
Amendment's proscription that, "Congress shall make no law
respecting an establishment of religion." Because the First
Amendment's Establishment Clause applies to the States via the
due process clause of the Fourteenth Amendment,2 the Ninth
Circuit likewise found unlawful a California school district's
policy encouraging public school students to utter the words
"under God" as part of teacher-led daily recitals of the Pledge.
Eight months later, the still divided Ninth Circuit panel issued an
amended opinion reaffirming its ruling that the school district's
policy coerces students to perform a "religious act" in
contravention of the Establishment Clause. However, holding
that it had exceeded the legal analysis necessary to review the
lawfulness of the policy, the Newdow Court vacated its
determination that the words "under God" in the Pledge are per
se unconstitutional.3
The Ninth Circuit's ruling would have been controversial in
tranquil times. To a nation reeling under post-9/11 reality,
however, the Newdow decision resurrected the often rancorous
debate on the lawfulness of governmentally sponsored
invocations of God to promote patriotism, unity, morality and
national pride. Newdow is not, as some decry, the melancholy
triumph of ungracious, unreflective First Amendment literalism.
Rather, at this singular juncture when America's fundamental
precepts are being challenged with unfamiliar ferocity, Newdow is
a courageous, momentous and propitious reaffirmation of the
purposes and policies of the Establishment Clause, entirely in step
with the Supreme Court's contemporary First Amendment
jurisprudence.4 This article urges, therefore, that the original
Newdow decision rightly understood that adding the words
"under God" to the Pledge violates the Constitution's antiestablishment principles. Accordingly, government policy
encouraging public school students to avow via the Pledge that
ours is a nation dependent on or ruled by God, likewise
contravenes the First Amendment.
Although space constraints preclude a full discussion of the
Newdow majority's seamless legal reasoning, the core is readily
expressed. The overarching objective of the Establishment
Clause is to promote to the fullest possible extent, "... a course of
complete [governmental] neutrality toward religion."5 While
some legal historians dispute whether that sentiment accurately
reflects the disposition of the Framers, experience with both the
actuality and the threat of neutrality's antithesis - government
favoritism for religion - inspired the Supreme Court to affirm
that,
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... individual freedom of conscience protected by the First
Amendment embraces the right to select any religious faith or
none at all. [Rieligious beliefs worthy of respect are the product of
free and voluntary choice by the faithful ... [MoreoverI the
political interest in forestalling intolerance extends beyond ...
intolerance among "religions" - to encompass intolerance of the
6
disbelievers and the uncertain.
Thus, according to the Court, the marrow of the antiestablishment neutrality principle is: religions should flourish or
fail based on how well their theologies independently capture
hearts and minds, an impossibility when a leviathan weighs into
the merits of sectarian debates. Indeed, any government stance
approving or disapproving sectarian matters exerts an undue
influence intimating, if not outright conveying official disfavor
with, and possible negative consequences against, persons who
disagree.7
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coninued on page 10
Pledae of Alleaiance bv
Prof. Peter Brandnn Bav/&r
continued from page 8
Because government can maximize
freedom of conscience only by taking no
sides in any substantive religious dispute,
even the seemingly innocuous stance of
merely encouraging religious faith can
induce atheists, agnostics and members of
non-traditional creeds to feel separated
from and in conflict with the authority
that governs them.8 Similarly, absent
constitutionally mandated neutrality, the
intolerant
may
practice
invidious
discrimination against atheists, agnostics
and members of non-traditional faiths,
emboldened by what they perceive to be
governmental policy of favoring the
mainstream religious among us.
In sum, the very government
entrusted to protect individual freedom
should neither intimidate, nor pressure,
nor so much as extol anyone, especially
susceptible youth, to choose or to reject
religion.9 The Supreme Court aptly
reasoned, therefore, that the three
essential Establishment Clause concerns freedom of conscience, volitional worship,
and tolerance - cannot be promoted
effectively
if government
forsakes
neutrality to impose its considerable
dominion into decisions that rightfully
and exclusively belong to, "the home, the
church and the inviolable citadel of the
individual heart[. l''
Accordingly, the
Court has adopted, inter alia, two discrete
but
related
tests:
coercion
and
endorsement. An official policy or
practice violates the Establishment Clause
if, even subtly, it coerces individuals
toward adopting religious behavior or if it
endorses religion in any meaningful
fashion."
In light of these sound precepts, the
Supreme Court has invalidated programs
and mandates that evince official religious
indoctrination, particularly when directed
to minors, often the most impressionable
members of a community. 12 For instance,
the Court famously ruled that public
school sponsored prayers and other
invocations of devotion to God constitute
unconstitutional proselytizing.13 Even a
seemingly neutral mandated moment of
silence is unlawful if effectuated to
promote prayer. 14 Consistent with its
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jurisprudence, the Court recently struck
officially sanctioned prayers at public high
school graduations15 and at public school
football games,16 concluding that although not compelled to do so, students
nonetheless may feel strongly coerced by an
apparent governmental policy inducing
them at least to feign respect, if not
actually pray at a public event.
Furthermore, the inclusion of prayers as
part of a public school program evinces
government endorsement of piety, thereby
impliedly segregating as outsiders those
who, for whatever reasons, decline to
embrace officially sponsored religiosity. In
telling contrast, permitting religious
groups use of public school facilities under
the same terms and conditions as enjoyed
by secular associations fosters freedom of
conscience through impartiality, that is,
the government treats the religious group
neutrally - no better or worse than any
other student organization.17
Viewed in the paradigm of neutrality
it is no puzzle why the original Newdown
decision correctly ruled that the inclusion
of "under God" in the Pledge violates the
Establishment Clause. The language of the
Pledge is familiar: "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."'s The unique
significance of the Pledge and every phrase
therein is evidenced by the very fact that
this vow of fealty to the Nation has been
solemnized as an Act of Congress.
Although neither an exhaustive nor
detailed
iteration
of fundamental
Americanism, the Pledge distills the
quintessence of patriotism, domestic
loyalty and national purpose. Reciting the
Pledge is not merely to list in a detached
fashion a few significant American
precepts. Rather, recitation is a profoundly
normative act by which the affiant
deliberately, purposefully and affirmatively
swears devotion both to America itself and
to four bedrock secular objectives: our
republican form of government, the
indivisibility of the nation as a conceptual
entity, unmixed liberty and undiluted
justice.19
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In 1954, Congress added a new
prescription: ours is "one nation under
God." As the Ninth Circuit sensibly
deduced, there is no plausible explanation
for the addition of the words "under God"
except to establish a national endorsement
of and preference for practicing faith in
God. In a remarkably vaporous attempt to
evade the Establishment Clause problem,
Congress offered, "The phrase 'under God'
recognizes only the guidance of God in our
national affairs."20 The assertion that
"under God" merely is descriptive defies
credulity because, as noted earlier, nothing
in the Pledge may be taken as bare
description because the overarching
Congressional aim is instrumental - to
foster national pride, to inspire belief in
American ideals. Responding to the
perceived
threat
of encroaching
Communism, Congress intended "the
inclusion of God in our pledge ... [to]
further acknowledge the dependence of our
people and our Government upon the
moral directions of the Creator."2l
Specifically referring to its hoped for effect
on America's youth, President Eisenhower
exclaimed during the amendment's
signing ceremony, "From this day forward,
the millions of our school children will
daily proclaim ... the dedication of our
Nation and our people to the Almighty."22
Thus, understanding the term "under
God" merely to express a detached
observation of widespread American
theism - "by the way, many of us are
religious" - not only confounds the very
purpose of the Pledge to inculcate values
but actually demeans religious faith by
removing it from the list of values worth
inculcating, thereby according belief in
God less importance than the Pledge's
secular precepts. Rather, as the abovequoted legislative record reveals, to pledge
allegiance "under God" is to avow "the
guidance of God in our national affairs"
and to embrace "the dedication of our
Nation and our people to the Almighty" in
light of "the dependence of our people and
our Government upon the moral
directions of the Creator." No less than
republicanism, indivisibility, liberty and
continued on page 12
Pledae of Alleaiance by Prof. Peter Brandon Bayer
continued from page 10
justice, the inclusion of "under God" in
the Pledge must be understood both to
propound and to promote an integral
national purpose, specifically, belief in a
supreme being.23
Given the 1954 amendment's
meaning, persons who either question the
existence of God or believe that
Government should take no position on
the matter disagree with a Congressionally
established tenet of Americanism. To
borrow from Justice O'Connor, such
dissenters become "outsiders, not full
members of the political community."24
They should refrain from taking the
Pledge of Allegiance, for uttering an oath
of fidelity to "one nation under God"
would be deceitful, bordering on perjury.
In its original ruling, the Ninth
Circuit correctly concluded, therefore,
that "under God" is an unconstitutional
establishment of monotheism as a national
objective.25 Furthermore, that unconstitutionality,
"...
is
particularly
pronounced in the school setting given
the age and impressionability of
schoolchildren, and their understanding
that they are required to adhere to the
norms set by their school, their teacher
and their fellow students."26 Thus, official
encouragement of public school children
to recite the phrase "under God" in the
Pledge violates at least the Supreme
Court's "coercion test."
Although correct, Newdow's original
rationale was too limited. Even if
understood to encourage belief in any
faith, including creeds that either are
polytheistic or eschew a supreme being,
"under God" would still be an unlawful
endorsement favoring religion over
atheism and agnosticism. Of equal
importance, as the above-discussed
legislative history shows, the drafters of
the 1954 amendment intended recitation
of the term "under God" to evince
acceptance of and dependence on a
supreme being. It is not too much to assert,
therefore, that the phrase "under God," in
fact, is a prayer of adoration sandwiched
among the Pledge's secular affirmations. In
that regard, the phrase "under God" recalls
the constitutional infirmity described in
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Engel v. Vitale, the premier Supreme Court
decision invalidating officially mandated
prayer in public schools. Adapting the
dispositions of Engel, uttering "under
God," "is a religious activity. It is a solemn
avowal of divine faith [.]"27 In that regard,
reciting "under God" is a greater
Constitutional offense than a seemingly
neutral minute of silent contemplation
which the Wallace v. Jaffree court
invalidated due to its overarching religious
purpose. Conceivably, a minute of silence
may be nonsectarian depending on the
discrete inclination of the particular silent
individual. But, formal recitation of the
Pledge always connotes the reciter's
personal allegiance to its teachings,
including believing that our nation is
"under God."
It is no retort to suppose that "under
God" expresses a harmless national
tradition with de minimis if any actual
religious impact. 28 As explained above,
the 1954 amendments converted the
Pledge into a national prayer of devotion
to God. Surely, Congress cannot draft a
national prayer regardless whether that
prayer actually inspires any religious
adherents.29 Furthermore, not withstanding the probability that adults and
children alike often recite the Pledge
carelessly, taking little note of its depth
and meaning, that very formality and
regularity comprises State coercion to
conform with religious advocacy or risk
the stigma of becoming an outsider.30
Indeed, daily recital is more likely to have
a religious impact on susceptible students
than occasional prayers during football
games or graduation ceremonies, two
practices
struck
as
unequivocal
establishments of religion.31 Moreover, to
atheists, agnostics and believers in nonJudeo-Christian
creeds,
encouraging
children to pledge allegiance to a nation
"under God" "may reasonably appear to be
an attempt to enforce a 'religious
Independence, the Gettysburg Address
and similar documents of significant
national importance. 33 Because each such
document is a "reflection of the author's
profession of faith," discussing a particular
document requires neither embracing nor
feigning to embrace the author's
predilections, sectarian or otherwise.34 By
contrast, the Pledge of Allegiance is this
Nation's Congressionally legislated official
oath by which persons confirm their
national loyalty - an oath now containing
an avowal that belief in God is a precept of
the very Americanism to which the affiant
swears.
The Ninth Circuit understood that
enforcing the Constitution's provision
that forestalls State sponsorship of religion
requires an unrelenting commitment to
the principle that Government must not
promote religion. More than cogent legal
analysis, for a nation undergoing a somber
reevaluation of core precepts, the Newdow
opinions are impeccably correct. N.
ENDNOTES
1. 292 E3d 597(9th Cir. 2002), amended, 321 E
3d. 772 (9th Cir. 2003). At the time of submission
no page numbers have been assigned to the new
opinion in the Federal Reporter, nor did Lexis and
Westlaw provide specific page cites. The new
opinion can be found by accessing the Ninth
Circuit's website: www.ca9.uscourts.gov/ca9/
newopinionsinsf/1 Cq8E7FEB98DB6D88256CDBO00
AFCF4/$file/OO16423.pdf?openelement, Page
numbers to the revised Newdow decision come from
designations provided by the Circuit at its website.
2. E.g., Zelman v. Simmons-Harris, 122 S.Ct. 2460,
2465 (2002).
3. Newdow, at 2725. With nine judges dissenting,
the Ninth Circuit denied en banc rehearing. Id.
4. Granted, in dicta, the Supreme Court has posited
that reciting the Pledge presents no First
Amendment difficulties. E.g., Co. of Allegheny v.
ACLU, 492 U.S. 573, 602-03 (1989). However,
unlike the Ninth Circuit, the Court has never
squarely addressed the matter based on a full record
orthodoxy' [.1"32
of evidence and thoroughgoing argument.
Turning to another argument, despite
the protestations of the dissenters,
pledging allegiance to a nation "under
God" is hardly akin to studying references
to God contained in the Declaration of
5. Wallace v. Jaffrey, 472 U.S. 38, 60 (1985). See
also, e.g., Good News Club v. Milford Central School
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District, 533 U.S. 98, 114 (2001); Rosenberger v.
Rector and Visitors of Univ. of Virginia, 515 U.S. 819,
continued on page 14
Pledcie of Alleciance
bv Prof. Peter Brandon Bayer
continued from page 12
839 (1995).
6. Wallace, 472 U.S. at 53-54.
7. Cf., Lee v. Wiseman, 505 U.S. 577, 590-93
Ind. Sch. Dist. v. Doe, 530 U.S. 290, 315-17 (2000).
12. "[Tlhere are heightened concerns with
protecting freedom of conscience from subtle
(1992).
8. Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(O'Connor, J., concurring).
coercive pressure in the elementary and secondary
public schools." Lee, 505 U.S. at 592.
13. Engel v. Vitale, 370 U.S. 421 (1962)(prayers);
9. E.g., Lee, 505 U.S. at 590-93.
10. Sch. Dist. of Abington v. Schempp, 374 U.S. 203,
Schempp, 374 U.S. at 223 (recitation of biblical
verses and the Lord's Prayer).
225-26 (1963).
14. Wallace, 472 U.S. at 40-58.
15. Lee v. Wiseman, 505 U.S. 577 (1992).
11. E.g., Lee, 505 U.S. at 587, 590-93; Santa Fe
16. Santa Fee Ind. Sch. Dist. v. Doe, 530 U.S. 290,
312 (2000).
17. E.g., Good News Club v. Milford Central School,
533 U.S. 98 (2001); Lamb's Chapel v. Central
Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
18. 4 U.S.C. § 4 (1998).
19. Newdow, at 2807-08; see also. e.g., Board of
Education v. Barnette, 319 U.S. 624, 633-34
(1943)(government may not compel public school
student to recite the Pledge or to salute the
American flag).
20. H.R. Rep. No. 1693, 83d Cong., 2d sess., p. 3 .
21. 1954 U.S.C.C.A.N. 2340 (emphasis added).
22. 100 Cong. Rec. 8618 (1954)(Eisenhower quote
entered into the Congressional Record by Sen.
Ferguson) (emphasis added).
23. Newdow, at 2807.
24. Lynch, 465 U.S. at 688 (opinion of O'Connor,
J., explaining, inter alia, why government must be
neutral towards religion).
25. Newdow, 292 E3d at 607-08, vacated in relevant
part, 2002 U.S. App. Lexis 28040 (9th Cir.
2/28/03).
26. Id., Ninth Circuit Website, at 2809 (footnote
omitted).
27. 370 U.S. 421, 424-25 (1962).
28. Newdow, at 2814-18 (Fernandez, J., dissenting
in part).
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29. Cf, Lee, 505 U.S. at 588 (constitutional
infirmity of public high school's sponsorship of
prayer at graduation ceremony included the fact
that the principal "directed and controlled the
content" of the prayer).
30.
31.
505
32.
Newdow, at 2808-09.
Santa Fee Ind. Sch. Dist., 530 U.S. at 312; Lee,
U.S. at 592.
Newdow, at 2808-09 (discussing, Lee, 505 U.S.
at 592).
33. Id., 2003 U.S. App. LEXIS 3665, at 33-34
(O'Scannlain, J., dissenting from denial of rehearing
en banc).
34. Id., Ninth Circuit Website at 2811 (majority
opinion).
[see rebuttal on pg. 16]