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

Impeccably Correct Ruling Impeccably Correct Ruling

Peter Brandon Bayer University of Nevada, Las Vegas -- William S. Boyd School of Law

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Recommended Citation Recommended Citation Bayer, Peter Brandon, "Is Including "Under God" in The Pledge of Allegiance Lawful?: An Impeccably Correct Ruling" (2003). Scholarly Works. 342. https://scholars.law.unlv.edu/facpub/342

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IS INCLUDING "UNDER GOD" IN THEPLEDGE 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 anti-

establishment 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 accuratelyreflects 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,

... 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

disbelievers and the uncertain.6

Thus, according to the Court, the marrow of the anti-

establishment 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

coninued on page 10

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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

jurisprudence, the Court recently struck

officially sanctioned prayers at public high

school graduations15 and at public school

football games,16 concluding that al-

though 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

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 detachedobservation 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 byremoving it from the list of values worth

inculcating, thereby according belief in

God less importance than the Pledge's

secular precepts. Rather, as the above-

quoted 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

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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 uncon-

stitutionality, "... 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," infact, 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

1 2 NEVADA LAWYER + MAY 2003

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 with-

standing 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 non-

Judeo-Christian creeds, encouraging

children to pledge allegiance to a nation"under God" "may reasonably appear to be

an attempt to enforce a 'religious

orthodoxy' [.1"32

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

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 Newdowopinions 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

of evidence and thoroughgoing argument.

5. Wallace v. Jaffrey, 472 U.S. 38, 60 (1985). See

also, e.g., Good News Club v. Milford Central School

District, 533 U.S. 98, 114 (2001); Rosenberger v.

Rector and Visitors of Univ. of Virginia, 515 U.S. 819,

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Pledcie of Alleciance bv Prof. Peter Brandon Bayer

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839 (1995).

6. Wallace, 472 U.S. at 53-54.

7. Cf., Lee v. Wiseman, 505 U.S. 577, 590-93

(1992).

8. Lynch v. Donnelly, 465 U.S. 668, 688 (1984)

(O'Connor, J., concurring).

9. E.g., Lee, 505 U.S. at 590-93.

10. Sch. Dist. of Abington v. Schempp, 374 U.S. 203,

225-26 (1963).

11. E.g., Lee, 505 U.S. at 587, 590-93; Santa Fe

Ind. Sch. Dist. v. Doe, 530 U.S. 290, 315-17 (2000).

12. "[Tlhere are heightened concerns with

protecting freedom of conscience from subtle

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);

Schempp, 374 U.S. at 223 (recitation of biblical

verses and the Lord's Prayer).

14. Wallace, 472 U.S. at 40-58.

15. Lee v. Wiseman, 505 U.S. 577 (1992).

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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).

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. Newdow, at 2808-09.

31. Santa Fee Ind. Sch. Dist., 530 U.S. at 312; Lee,

505 U.S. at 592.

32. 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]

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