Does the Phrase "under God" in the Pledge of Allegiance Violate the First Amendment's Establishment Clause?
Stephen R. Reinhardt, LLB, judge for the US Court of Appeals for the Ninth Circuit, stated in his dissenting opinion in Newdow v. Rio Linda Union School District (894 KB) , filed Mar. 11, 2010 and available at uscourts.gov:
"Under the plain meaning of the words of the amendment to the Pledge, its context, the legislative history of its enactment, and all of the surrounding circumstances, there can be no doubt that the purpose of adding the words 'under God' to the Pledge of Allegiance was predominantly, if not exclusively, religious and that the daily recitation in public schools of the Pledge in its amended form violates the Lemon test, and thus the Establishment Clause."
Jesse H. Choper, LLB, Earl Warren Professor of Public Law at the University of California at Berkeley's Boalt Hall School of Law, in the Fall/Winter 2003-2004 Boalt Hall's Transcript, wrote:
"As the 9th Circuit recognized, there is a strong argument that the Pledge violates the Establishment Clause under the endorsement test as well as Lemon. This is true, not in spite of, but rather because of, the Pledge’s primarily patriotic intent. As an affirmation of citizenship, the Pledge defines membership in the political community. As amended in 1954, the Pledge refers to a particular belief, monotheism, that many people—not only atheists, but members of religions such as Buddhism—do not share. This official reference to a single God may well strike nonbelievers as an act of exclusion.
...In adding 'under God' to the Pledge of Allegiance, Congress was unquestionably motivated by a religious purpose. To dismiss the phrase as trivial or ceremonial overlooks the special compulsive influences that exist in the context of public schools, which tend to induce schoolchildren to recite the Pledge, thus meaningfully endangering their religious liberty."
[Editor's Note: In a Apr. 18, 2007 email to ProCon.org, Jesse Choper, J.D., affirmed his support for his above stated position.]
John E. Thompson, JD, Associate at Shearman & Sterling, wrote in his article "What's the Big Deal? The Unconstitutionality of God in the Pledge of Allegiance" published in the Summer 2003 Harvard Civil Rights-Civil Liberties Law Review:
"...there is in the Establishment Clause a clear textual basis for a right of atheists and nontheists to be free from government endorsement and coercion. That right is reinforced by the Free Exercise Clause and the Equal Protection Clause. Together, these provisions ensure the rights of religious groups to exercise their beliefs and to be treated equally.
...the legislative history of the 1954 amendment to the Pledge indicates that the Pledge was decidedly not intended to be neutral with respect to religion. It takes sides on a controversial question: whether God exists and whether the nation is dependent on God. The federal law sends a message to nontheists that they are disfavored and outside the political community, while assuring theists that they are preferred. The recitation of the Pledge in schools amplifies this effect....
'Under God' may be only two words, but they reflect a pervasive pattern of government behavior that suppresses the development of atheistic and nontheistic beliefs. The words limit, rather than promote, religious pluralism."
Erwin Chemerinsky, JD, Alston & Bird Professor of Law at Duke University at the time of the quote, wrote in the Oct. 15, 2003 article "Court Must Buck Political Pressure in Pledge Case," published in the Los Angeles Times:
"Those who defend the words 'under God' in the pledge say it is just ceremonial and no different than the words 'In God We Trust' on money or 'God save this honorable court' being invoked before Supreme Court sessions. There is a huge difference: No one is required to say 'In God We Trust' in order to spend money or to utter 'God save this honorable court' in order to argue before the justices. But students are expected, or at least requested by the government, to say that this is a nation 'under God.'
Pressuring kids to affirm such a religious belief is the very essence of impermissible establishment of religion."
Newdow v. Rio Linda Union School District, in a majority opinion written by Carlos T. Bea, JD, judge for the US Court of Appeals for the Ninth Circuit, filed Mar. 11, 2010 and available at uscourts.gov, stated:
"[G]overnment action respects an establishment of religion only if the government coerces students to engage in a religious exercise. Coercion to engage in a patriotic activity, like the Pledge of Allegiance, does not run afoul of the Establishment Clause. The Supreme Court recognized this distinction in the earliest of the school prayer cases, Engel v. Vitale, 370 U.S. 421 (1962)...
The Court drew an explicit distinction between patriotic mentions of God on the one hand, and prayer, an 'unquestioned religious exercise,' on the other."
Lisa Shaw Roy, JD, Assistant Professor at the University of Mississippi School of Law, wrote in her article "The Establishment Clause and the Concept of Inclusion" published in the Spring 2004 Oregon Law Review:
"Many unfamiliar with the Supreme Court's Establishment Clause doctrine would not have supposed that being required to listen to a phrase such as 'under God' would amount to a constitutional harm. And those same persons, when posed with the question of whether they believed the Pledge of Allegiance to be a religious exercise, would have probably answered 'no.' Thus Michael Newdow's claim can be seen as doubly anomalous, resting on the feelings of a religious outsider when required to passively listen to a marginally religious message...
[T]he Establishment Clause should not be interpreted as requiring elimination of every religious message or practice. Demanding inclusion merely inverts the classifications of judicial winners and losers, but does little to promote the overall well-being of society's members."
The Center for Individual Freedom, in its Dec. 19, 2003 amicus brief for the case Elk Grove v. Newdow, wrote:
"Thus, one who voluntarily recites the Pledge does not affirm his or her belief in 'God' or even his or her belief that the United States is and will be 'one Nation under God,' rather the adherent affirms his allegiance 'to the Republic,' which is then described as constituting a single indivisible nation, historically founded upon a belief and by those who believed in God, and for the purpose of promoting and securing liberty and justice for all.
Such an affirmation is, no doubt, an exceptionally powerful statement of patriotism, but remains wholly secular, and hence consistent with the Establishment Clause, because the adherent is swearing his or her allegiance to this country and its primary symbol, not to any religion or Supreme Being."
Rod Paige, PhD, former Secretary of Education, in a June 27, 2002 Department of Education press release, wrote:
"While I am confident this opinion [Newdow v. Elk Grove] will be overturned, it is more than a little disturbing that our nation's Constitution could be read this way. It stretches the First Amendment beyond credulity, and it places the opinion of unelected judges above the plain meaning of the Constitution and the nation's history, let alone common sense. "