Donald L. Drakeman, JD, PhD, Lecturer in the Department of Politics at Princeton University, wrote in his 1991 book Church-State Constitutional Issues: Making Sense of the Establishment Clause:
"The Supreme Court's reliance on the Founding Fathers' intent has made the establishment clause's background fertile ground for argumentative excavation, with strict separationists and accommodationists alike wielding their historical picks and shovels in search of support for their favored interpretations...
The weight of current authority, both judicial and in terms of sheer volume, seems to lie with the strict separationists... Their motto is 'wall of separation,' and their theme is perhaps succinctly stated in Justice Black's opinion in Everson v. Board of Education...
In this view, we must look to the writings of James Madison and Thomas Jefferson, especially Madison 'Memorial and Remonstrance' and the Bill for Establishing Religious Freedom, to guide (if not control) our interpretation of the establishment clause. In so doing, we find Madison and Jefferson leading us to a strict separation of church and state that will not brook any support of religion by the government.
The opposing school of thought [accommodationist or nonpreferentialist] argues that the First Congress intended to allow government support of religion, at least as long as that support did not discriminate in favor of one particular religion."
Does the phrase "under God" in the Pledge of Allegiance violate the First Amendment's Establishment Clause?
PRO (yes)
CON (no)
Jesse H. Choper, LLB, Earl Warren Professor of Public Law at the University's of California 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 her support for her above stated position.]
John E. Thompson, JD, Associate at Shearman & Sterling, wrote in the 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, wrote in the Oct. 15, 2003 article "Court Must Buck Political Pressure in Pledge Case," published in the Los Angeles Times that:
"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."
Marci A. Hamilton, JD, Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, wrote in a Mar. 25, 2004 Findlaw.com article:
"It is becoming increasingly necessary to pose the question: Has anybody in the White House ever read the First Amendment past the Free Exercise Clause? The Establishment Clause is just as crucial in preserving liberty for all, even if following it does not serve some narrow interest group.
There has never been a time in United States history when it was more important for the government to maintain scrupulous neutrality with respect to religion. It is abidingly important to show that this country stands for freedom for every faith. Here, every conceivable belief can be accommodated, and the number of denominations, sects, and beliefs that inhabit this country is breathtaking. That is what makes the United States distinctive--better--if you will.
...For these reasons, it is not only the right thing for the Court to find in favor of Mr. Newdow and the principle of neutrality toward religion in the First Amendment's Free Exercise and Establishment Clauses. It is also in the national interest to do so. "
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. "
Noah Feldman, JD, PhD, Professor of Law at Harvard Law School, stated in his article, "Intellectual Origins of the Establishment Clause," published in the May 2002 N.Y.U. Law Review:
"...[T]he Establishment Clause only bars the government from doing things that violate the conscience in a way that could be understood to fall within the model that the Framers would have thought of as establishing religion.
...To the eighteenth-century mind, liberty of conscience meant that the individual must not be coerced into performing religious actions or subscribing to religious beliefs that he believed were sinful in the eyes of God and that could therefore endanger his salvation. Indeed, it was, following Locke, literally absurd, to speak of allowing Atheists Liberty of Conscience, because conscience necessarily related to one's salvation, in which atheists presumably disbelieved altogether."
William Rehnquist, JD, former Associate Justice of the U.S. Supreme Court, wrote a June 4, 1985 dissent in the case of Wallace v. Jaffree that stated:
"It would seem...that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations...The Establishment Clause did not require neutrality between religion and irreligion nor did it prohibit the federal government from providing non-discriminatory aid to religion. "
