Last updated on: 3/3/2009 10:30:00 AM PST
From a Legal Perspective, Do the Words "under God" in the Pledge of Allegiance Improperly Endorse Religion?
In the 9th Circuit Court of Appeals case Newdow v. U.S. (2002), in a 2-1 decision written by Judge Goodwin, the court held:
"The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community'...
Although the defendants argue that the religious content of 'one nation under God' is minimal, to an atheist or a believer in certain non-Judeo-Christian religions or philosophies, it may reasonably appear to be an attempt to enforce a 'religious orthodoxy' of monotheism, and is therefore impermissible. The coercive effect of this policy 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."
June 26, 2002 - Newdow v. US (65 KB)
Americans United for Separation of Church and State wrote in their Feb. 13, 2004 amicus brief in the US Supreme Court case Elk Grove Unified School District v. Newdow:
"Schoolchildren would reasonably perceive the Pledge as expressing religious belief and affirming a religious ideal. They are unlikely to perceive 'under God' as merely descriptive of historical or cultural fact...
Moreover, it would take a very subtle six-year-old to view the averment that ours is 'one Nation under God' - when proclaimed as part of a daily classroom ritual, and beginning with the words 'I pledge' - as simply an 'acknowledgment' of beliefs that other people hold or once held and that might or might not be true...
Social science research has indeed found that, insofar as young schoolchildren asribe any meaning to the Pledge, they perceive 'under God' as expressing religious belief...
The fact that 'under God' is included in a patriotic text does not diminish but compounds the constitutional violation. Far from imbuing the phrase with redeeming 'secular purposes'... the phrase impermissibly conditions an expression of patriotism on affirmation of religion and religious belief... As the Court has emphasized, the Establishment Clause prohibits government from 'making adherence to a religion relevant in any way to a person's standing in the political community'... The pressure on a child to affirm religion and religious belief by reciting the Pledge is only magnified by the fact that refraining from reciting it can be construed by teacher and classmates as lack of patriotism."
Feb. 13, 2004 - AU Pledge Brief (1,502 KB)
Erwin Chemerinsky, JD, Professor at New York University School of Law, in his Oct. 15, 2003 commentary, "Court Must Buck Political Pressure in Pledge Case," published in the Los Angeles Times, wrote:
"Some contend that omitting the words 'under God' from the Pledge of Allegiance constitutes hostility toward religion. Quite the contrary, the goal is to be neutral toward religion. The law is clear: It is impermissible to hold religious ceremonies in public schools. There's nothing hostile in pointing out that asking students to affirm a belief in God is an inherently religious act. The place for religious declarations, including a belief in God, is in our hearts, our homes and our places of worship - but not in official public school activities."
Oct. 15, 2003 - Erwin Chemerinsky, JD
William Rehnquist, JD, Chief Justice of the U.S. Supreme Court, in his 2004 concurrence in Elk Grove Unified School District v. Newdow, stated:
"The phrase 'under God' in the Pledge seems, as a historical matter, to sum up the attitude of the Nation's leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound...
The motto 'In God We Trust' first appeared on the country's coins during the Civil War...
Our Court Marshal's opening proclamation concludes with the words 'God save the United States and this honorable Court'...
All of these events strongly suggest that our national culture allows public recognition of our Nation's religious history and character...
The phrase 'under God' is in no sense a prayer, nor an endorsement of any religion."
June 14, 2004 - William Rehnquist, JD
Elk Grove v. Newdow (415 KB)
The U.S. Department of Justice, in its 2004 brief for the US Supreme Court case Elk Grove Unified School District v. Newdow, argued:
"For four decades, opinions of this Court and of individual Justices have spoken with unparalleled unanimity in affirming the constitutionality of the Pledge of Allegiance, characterizing its reference to God as a permissible acknowledgment of the Nation's religious heritage and character. That settled understanding has informed the Court's Establishment Clause jurisprudence and is entitled to respect...
[T]he reference to God in the Pledge is not reasonably and objectively understood as endorsing or coercing individuals into silent assent to any particular religious doctrine. Rather, the Pledge is 'consistent with the proposition that government may not communicate an endorsement of religious belief,' because the reference to God acknowledges the undeniable historical facts that the Nation was founded by individuals who believed in God, that the Constitution's protection of individual rights and autonomy reflects those religious convictions, and that the Nation continues as a matter of demographic and cultural fact to be 'a religious people whose institutions presuppose a Supreme Being.'"
2004 - US Department of Justice (DOJ)
USDOJ Elk Grove brief (352 KB)
Lisa Shaw Roy, JD, Assistant Professor of Law at University of Mississippi School of Law, wrote in her Spring 2004 article entitled "The Establishment Clause and the Concept of Inclusion" published in the Oregon Law Review:
"While the principle that public schools cannot organize and facilitate religious practices such as prayer has long been recognized, the Ninth Circuit decision was controversial because it strikes two words from the Pledge based on the subjective experience of listeners. 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."
Spring 2004 - Lisa Shaw Roy, JD