Last updated on: 3/11/2010 | Author:

Federal Appeals Court Upholds (2-1) “under God” in the Pledge of Allegiance

On Mar. 11, 2010, the 9th Circuit Court of Appeals rejected Michael Newdow’s latest attempt to remove the words “under God” from the Pledge of Allegiance. The federal appeals court’s 2-1 decision overrules District Court Judge Lawrence Karlton’s 2005 decision in Newdow’s favor.

Michael Newdow among protestors
in Washington, DC (accessed Mar. 12, 2010)

Writing for the majority, Federal Judge Carlos Bea stated:
“We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge – its wording as a whole, the preamble to the statute, and this nation’s history – demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase ‘one Nation under God’ does not turn this patriotic exercise into a religious activity… 

We hold that California Education Code § 52720 and the School District’s Policy of having teachers lead students in the daily recitation of the Pledge, and allowing those who do not wish to participate to refuse to do so with impunity, do not violate the Establishment Clause. Therefore, we reverse the decision of the district court holding the School District’s Policy unconstitutional and vacate the permanent injunction prohibiting the recitation of the Pledge by willing students.”


Federal Judge Stephen Reinhardt, who joined in the court’s 2002 (2-1) ruling in favor of Newdow, was the sole judge in dissent of the 9th Circuit Court of Appeals’ reversal. He wrote the following in his dissenting opinion:
“Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the ‘under God’ version of the Pledge of Allegiance by children in public schools… Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do. 

To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words ‘under God’ were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one… Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule…

The undeniably religious purpose of the ‘under God’ amendment to the Pledge and the inherently coercive nature of its teacher-led daily recitation in public schools ought to be sufficient under any Establishment Clause analysis… to require that the Pledge of Allegiance, when recited as part of a daily state-directed, teacher-led program, be performed in its original, pre-amendment secular incarnation that served us so well for generations.”


1. Read the full text of the 9th Circuit Court’s ruling (in PDF format)
2. Judge Lawrence Karlton’s 2005 decision in favor of Newdow
3. See our case summaries for Newdow v. US Congress and Newdow v. Carey
4. View Michael Newdow’s biography
5. History of the US Pledge of Allegiance and the Phrase “under God”