Last updated on: 10/24/2008 | Author:

Supreme Court Decisions

Decisions Involving the Pledge of Allegiance

Below are seven cases adjudicated by the U.S. Supreme Court since the words “under God” were added to the Pledge of Allegiance in 1954, in which similar arguments were examined.


(date order)


1. Engel v. Vitale
370 U.S. 421
June 25, 1962
The court, by a 5-2 ruling, struck down New York State’s law requiring school officials to open the school day with prayer. This case was one of the first in a series of cases in which a variety of religious activities were found to violate the Establishment Clause.   


“There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems…or with the fact that there are many manifestations in our public life of belief in God.” (Id. at 435 n.21.)   

Justice Potter Stewart, in his dissenting opinion, referred to the National Motto and the Pledge of Allegiance as examples of governmental recognition that “[w]e are a religious people whose institutions presuppose a Supreme Being.”

This case was one of the first in a series of cases in which a variety of religious activities were found to violate the Establishment Clause. Neither the voluntary nature of school prayers nor their nondenominational character protected them from violating the Establishment Clause.

2. Abington v. Schempp
374 U.S. 203
June 17, 1963
The Court ruled 8-1 that government mandated Bible reading in public schools was unconstitutional Justice Goldberg stated that the Court’s decision in this case did not mean that “all incidents of government which import of the religious” would be “banned by the strictures of the Establishment Clause.” (Id. at 307.)   

“The First Amendment does not prohibit practices, which by any realistic measure, create none of the dangers which it is designed to prevent and which do not directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” (Id. at 308 — Goldberg, J., concurring)

“The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded ‘under God.’ Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.” (Id. at 303-04 — Brennan, J., concurring)

3. Marsh v. Chambers
463 U.S. 783
July 5, 1983
By a 6-3 vote the Supreme Court permitted the practice of beginning the legislative session (Nebraska state legislature) with a prayer given by a publicly funded chaplain. Because the practice had been done for many years, it had become a communication of shared values rather than a decidedly religious practice. Justice Brennan repeated his conviction that the phrase “under God” in the Pledge of Allegiance did not violate the Establishment Clause because those words “have lost any true religious significance.” (ID. at 818 — Brennan, J., dissenting)   


4. Lynch v. Donnelly
465 U.S. 668
Mar. 5, 1984
The Court ruled 5-4 that the city of Pawtucket in Rhode Island could continue to display a nativity scene as part of its Christmas display. “Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders.” (Id. at 675)   

In this decision, the Court refused to take an absolutist stance regarding the Establishment Clause. Each case is to be independently checked to determine whether the intent is secular or religious. Religion in general may be advanced by the government in some cases so long as there is no administrative entanglement with religion. The Court listed many examples of our “Government’s acknowledgment of our religious heritage,” and included Congress’ addition of the words “under God” in the Pledge of Allegiance. (Id. at 676-77)

5. Wallace v. Jaffree
472 U.S. 38
June 4, 1985
This case invalidated Alabama’s moment of silence statute. The Court decided 6-3 that the Alabama law was unconstitutional. Justice O’Connor responded that the inclusion of the words “under God” in the Pledge is not unconstitutional because they “serve as an acknowledgment of religion with the legitimate secular purpose of solemnizing public occasions, and expressing confidence in the future.” (Id. at 78 n.5 — O’Connor, J., concurring)   

Rather than accept the argument that the inclusion of ‘or voluntary prayer’ was a minor addition with little practical significance, the intentions of the legislature that passed it was enough to demonstrate its unconstitutionality.

6. Allegheny County v. ACLU
492 U.S. 573
July 3, 1989
This case defined the “endorsement test,” which defines an Establishment Clause violation in terms of whether the challenged policy or practice makes nonadherents “feel like ‘outsiders’ by government recognition or accomodation of religion.”   

The court ruled 5 to 4 (to strike) and 6 to 3 (to uphold). This was a deeply and unusually fragmented Court Decision, but in the final analysis the Court ruled that while the creche [Nativity scene] was unconstitutional, the menorah display was not.

The display was determined by Justice Blackmun in his plurality opinion to have a specific religious purpose. The fact that the creche was created by a private organization did not eliminate the apparent endorsement by the government of the display. Moreover, the placement of the display in such a prominent position emphasized the message of supporting religion.The creche scene stood on the grand staircase of a courthouse alone.

This was a curious conclusion because the Chabad, the Hasidic sect which owned the menorah, celebrated Chanukah as a religious holiday and advocated the display of their menorah as part of their mission of proselytizing. Also, there was a clear record of lighting the menorah in religious ceremonies – but this was ignored by the Court because the ACLU failed to bring it up.


Justice Kennedy, in his dissent, said “It would border on sophistry to suggest that the ‘reasonable’ atheist would not feel less than a ‘full member of the political community’ every time his fellow Americans recited the Pledge.” (Id. at 673)   

Justice Kennedy denounced the Lemon test used to evaluate the religious displays and argued that “…any test which might invalidate longstanding traditions cannot be a proper reading of the [Establishment] Clause.” In other words, tradition – even if it includes government endorsement and support of sectarian religious messages – must trump evolving understandings of religious freedom.

This decision basically permitted the existence of competing religious symbols, conveying a message of accommodation of religious plurality. While a single symbol standing alone might be unconstitutional, its inclusion with other secular/seasonal decorations may offset an apparent endorsement of a religious message.

The four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard. This position has gained a great deal of ground over the past decade.

7. Lee v. Weisman
505 U.S. 577
June 24, 1992
This case struck down a graduation prayer while implicitly approving the student’s recitation of the Pledge of Allegiance prior to the prayer. The Supreme Court ruled in a 5-4 decision that prayers during school graduation violated the Establishment Clause. In the majority opinion, Justice Kennedy found that officially sanctioned prayers in public schools was so clearly a violation of the Establishment Clause that the case could be decided without relying upon the Court’s earlier church/separation precedents.   

The Court viewed this state participation as coercive in the elementary and secondary school setting. The state “in effect required participation in a religious exercise,” since the option of not attending “one of life’s most significant occasions” was no real choice. “At a minimum,” the Court concluded, the Establishment Clause “guarantees that government may not coerce anyone to support or participate in religion or its exercise.”

Justice Scalia, stating he would uphold both the prayer and the pledge, criticized the majority for drawing illogical conclusions.” (Id. at 639)