The U.S. Pledge of Allegiance
Circuit court decision, reactions, etc.
Appeal to a panel of the 9th U.S. Circuit Court of Appeals:
Michael A. Newdow, an Atheist
from Sacramento, CA, was distressed because his daughter in second grade
was required to recite the Pledge of Allegiance. She was thus
forced to acknowledge
the existence of God. He said: "I'm an American citizen. I don't like
my rights infringed upon by my government." He wants to raise his
daughter as an Atheist and feels that the government is interfering with his
wishes. He called the Pledge
a "religious idea that certain people don't agree with."
Being both a lawyer and a physician, he
initiated a lawsuit and argued this own case. It was dismissed by a federal judge
in California. In 2002-JUN, a
three-judge panel of the 9th U.S. Circuit Court of Appeals voted 2
to 1 in his favor. They declared the Pledge to be unconstitutional
because it includes the words "under God." They ruled that the phrase implies a government endorsement of
religion, in violation of the Establishment Clause of the
to the U.S. Constitution: "Congress shall make no law respecting
an establishment of religion..."
Judge Alfred T. Goodwin wrote for the majority: "A profession that we are a nation 'under
God' is identical, for Establishment Clause purposes, to a profession that
we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under
Zeus,' or a nation 'under no god,' because none of these professions can
be neutral with respect to religion." He also wrote that an
Atheist or a believer of certain non-Judeo-Christian beliefs could view the
Pledge as an attempt to "enforce a 'religious orthodoxy' of
monotheism." Judge Goodwin wrote
that any student who objects is confronted with an "unacceptable choice
between participating and protesting...Although students cannot be forced
to participate in recitation of the pledge, the school district is
nonetheless conveying a message of state endorsement of a religious belief
when it requires public school teachers to recite, and lead the recitation
of, the current form of the pledge."
Reactions to the decision:
Reaction from Fundamentalist Christian groups was swift. They interpreted
the decision as an attack on religion, and did not acknowledge that the
ruling was based on the principle of separation of church and state. Within hours of
the court ruling:
- Jay Sekulow, of the American Center for Law and Justice said: "This is one of the most absurd legal rulings of our time. To
suggest that school children who want to recite the Pledge of Allegiance
can no longer do so because it violates the Constitution represents faulty
and flawed legal reasoning on the part of the appeals court...This is
just another attempt to remove any mention of God from the public arena."
- Jan LaRue, of Concerned Women for America said:
"This is the same court that held that virtual child pornography © which
is indistinguishable from real child pornography © is protected by the
First Amendment; and now it strikes down the [current wording of the] Pledge of Allegiance and
calls it unconstitutional. This is a joke!" 1
Also, within hours of the release of the ruling, there was considerable
reaction from politicians:
- The Senate
unanimously (99 to 0) passed a resolution in support for the phrase "under
God." They asked the appeals court panel to reverse its ruling.
- White House spokesperson, Ari Fleisher, speaking for President Bush said "The
president's reaction was that this ruling is ridiculous."
- Senate Majority Leader Thomas Daschle (D) called it "just nuts."
During the days following the ruling, other individuals and groups
expressed their opinion:
- Ron Barrier, of American Atheists called the decision "a victory." He
said: "I think for the first time the courts of the United States are
starting or beginning to recognize the rights of nonbelievers as well as
- The House of Representatives passed a resolution on JUN-27 opposing
the ruling. The vote was 416 to 3.
- Dr. James Dobson, founder of the influential Fundamentalist Christian
Group Focus on the Family. On his radio program on JUN-27, he said
said that the decision "a shameless insult against America and all of
her citizens...This abominable ruling by an imperious court is a slap in
the face to all Americans and people of faith. How easily we forget that
on the (evening) of September 11, a bipartisan group of 150 members of the
House and Senate, led by Republican House Speaker Dennis Hastert and
Democrat Senate Majority Leader Tom Daschle, gathered together on the
Capitol steps and sang 'God Bless America.' While we stood frightened,
grieved and resolute to fight the evil that struck our nation, we clung to
our country's foundational principles and banded together for better or
for worse. That this activist court saw fit to deny millions of school
children the right to acknowledge God is unconscionable. It's time for
citizens throughout the country to condemn the increasing tendency of the
courts, legislatures and the media to secularize and demean our deeply
held values. In one fell swoop, the 9th Circuit Court of Appeals has
managed to make a mockery out of the judicial branch of government. And as
an American, I am ashamed today." 3
- Columnist Tony Norman wrote a column on JUN-28 for the Pittsburgh PA
Post-Gazette. It was titled: "Is God so small he needs a Pledge for
validation?" He commented on the members of Congress who gathered on
the steps of the Capitol on JUN-27 and called "down the equivalent of
fire from heaven on the jurists. Norman commented: "Determined to
keep the puny god of American civil religion alive and kicking, regardless
of the cost to constitutional integrity, the politicians weighed in with
tough talk about every American child's right to spout the 'godly' party
line by rote...What kind of vapid, nondenominational god are politicians
so hell-bent on restoring to the Pledge of Allegiance? Would any
self-respecting deity allow itself to be patronized by such opportunistic
poseurs? What kind of god do these politicians imagine the American people
want to pledge their allegiance to, anyway?" Norman saw an analogy in the Bible, in 1
Kings, Chapter 18. That passage described was a confrontation between 450 priests of Baal
and prophet Elijah. When Baal did not respond to his priests' appeal,
Elijah called down the power of Jehovah. The priests were later murdered
in cold blood. Norman wrote: "I'm not suggesting that there should be
any contemporary parallels, but it wouldn't hurt for our more shameless
leaders to remember the former price of idolatry while rushing to restore
"under God" to a pledge most of them don't take seriously anyway."
- According to the Family Research Council, the National
Education Association, and the National Association of Secondary School
Principals have not made statements -- pro or con -- on the court's
decision. The national PTA has released a statement stating that their
group has "no position on the 'under God' language." 8
Dissents by judges:
Circuit Judge Ferdinand Fernandez was the lone dissenter among the
three-judge panel of the Circuit Court of Appeals. He said that if his fellow
judges' theory of the Constitution is accepted, "we will soon find ourselves prohibited
from using our album of patriotic songs in many public settings."
The dissenting voice of Mr. Justice Stewart of the U.S. Supreme Court might
be applicable here. He was the lone negative against the Engel v. Vitale
decision of the U.S. Supreme Court in 1962 which
banned state-sponsored school prayer as a part of instruction in public
schools. Since the phrase "under God" converts the Pledge of Allegiance into a
religious prayer, his comments seem equally applicable here. He wrote:
- "I cannot see how an 'official religion' is established by letting
those who want to say a prayer say it. On the contrary, I think that to
deny the wish of these school children to join in reciting this prayer is
to deny them the opportunity of sharing in the spiritual heritage of our
- "...we deal here not with the establishment of a state church,
which would, of course, be constitutionally impermissible, but with
whether school children who want to begin their day by joining in prayer
must be prohibited from doing so."
- He described a number of instances where religion and the existence of
God have been recognized by the government:
- Each day's session of the Supreme Court starts with the invocation:
"God save the United States and this Honorable Court."
- The National Anthem, "The Star Spangled Banner" contains the
words "Praise the Pow'r that hath made and preserved us a nation."
- The National Motto is "In God we Trust."
- The Pledge of Allegiance to the Flag contains the words "one
Nation under God, indivisible, with liberty and justice for all."
- The Declaration of Independence includes the phrase: "with a
firm reliance on the protection of divine Providence."
Appeal to the full 9th U.S. Circuit Court of Appeals:
On 2002-JUN-27, Bush administration
announced that they would request a hearing before all of the justices of the
9th U.S. Circuit Court of Appeals. Attorney General John Ashcroft said: "The Justice
Department will defend the ability of our nation's children to pledge
allegiance to the American flag, by requesting a hearing en banc by the
full 9th Circuit." Ashcroft appears to have misunderstood the
nature of the panel's decision. The ability of children to recite the
Pledge was not prohibited:
- The court ruling does not take effect until after the appealed is
- Even then, children would still be allowed to recite the pre-1954
version of the Pledge.
- Even then, the court ruling would only apply in Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.
It would not affect the students of other states.
panel rejected the request by a vote of 15 to 9. 10,11,15 The government's only
option at this time appears to be either:
- To accept the ruling, or
- Appeal the decision to the U.S. Supreme Court. 6,7
In response to the court's decision, Attorney General Ashcroft said: "The
Justice Department will spare no effort to preserve the rights of all our
citizens to pledge allegiance to the American flag. We will defend the
ability of Americans to declare their patriotism through the time-honored
tradition of voluntarily reciting the Pledge....For centuries, our nation
has referenced God as we have expressed out patriotism and national identity
in our Declaration of Independence, Constitution, national anthem, on our
coins, and in the Gettysburg Address. The Supreme Court of the United States
opens each session by saying, 'God save this honorable Court'."
Ellen Johnson, President of American Atheists, said that Ashcroft was
distorting the issues and misleading the public. She said: "This case
has nothing to do with the right of people to recite the Pledge of
Allegiance...The decision by the Ninth Circuit panel focused on the
inclusion of two words, 'under God,' that were not part of the original
pledge. This is about government promoting religion, and demanding religious
fealty as a litmus test for patriotism and loyalty. That's wrong, and it
should be declared unconstitutional." 12
Many patriotic and conservative Christian news sources have implied that
the court has instituted a ban against students reciting the Pledge of
Allegiance in public schools on and after 2003-MAR-10. For example, the
American Family Association's WePledge.com web site talks about "protecting
the Pledge of Allegiance" and "prohibit judges from declaring them
[The Pledge and the National Motto] illegal." 13 Also,
the AgapePress.org wrote: "Unless Friday's ruling is stayed or postponed,
millions of school students in the nine western states covered by that court
will be forced to stop reciting the Pledge..." 14
These predictions are not true. School teachers in the nine states under the
jurisdiction of the court are quite free to ask their students to recite the
original, pre-1955 version, of the Pledge. This is identical to the version
that has been in use until now, with the deletion of the words "under God."
Also, students might consider including the "under God" phrase if
they wish. If they do it in a non-disruptive way, some might argue that
their decision would be a protected form of personal speech under the First
AgapePress reported on 2003-MAR-3 that: "The American Family
Association (AFA), sponsor of WePledge.com, reports more than 75,000 people
signed the petition in the 72-hour period following Friday's announcement.
According to a press release from Don Wildmon, AFA founder and chairman,
more than one million individuals have now signed. He says the overall goal
is ten million." 13,14
Federal bill signed into law:
A bill to reaffirm "In God We Trust" as the national motto, and the
phrase "Under God" in the Pledge of Allegiance was passed with a 99% vote
in the House, and unanimously in the Senate. Rep. Todd Akin, (R-MO) voted for
the measure. Apparently he is unaware that the "Under God" phrase is a
relatively recent addition to the Pledge. He said: "I think the Congress was
expressing the fact that they support the recitation of the pledge as it has
always been supported. I think they're further saying that there isn't any
problem with the First Amendment." Historian David Barton, president of
WallBuilders, said: "This bill has no effect on the 'Under God'
controversies, because we have seen in a number of cases that when Congress does
something, the Supreme Court almost feels compelled to tell them to back off and
leave them alone." 9
- 2003-MAR-2: Cancel court jurisdiction: House Majority Leader Tom DeLay (R-TX)
announced plans to remove the federal courts' jurisdiction to rule on the
constitutionality of the words "under God" in the Pledge of Allegiance.
He said: "Congress for so long has been lax in standing up for the
Constitution. There are ways to express ourselves. For instance, we could limit
the jurisdiction of the judicial branch." He said that some experts
interpret Article III, Section 2 of the U.S. Constitution as giving Congress the
power to impeach judges that they disagree with. He said: "I think that would
be a very good idea to send a message to the judiciary they ought to keep their
hands off the Pledge of Allegiance." According to AANews, "Critics says
that DeLay's attempts to intimidate judges compromises the ability of courts to
make decisions free of outside influence. They also point out that the notion
of judicial independence is a key component in the American legal system, and
originated within English law during the Seventeenth Century as a way of
challenging undisputed Crown authority." 16
- 2003-MAR-20: House resolution: The House approved a non-binding resolution 400 to 7, with 15
members voting "present." All seven who opposed the resolution are
Democrats. It states that the phrase "one nation under God" in the pledge
reflects the religious faith central to the founding of the nation and that its
recitation is a patriotic act, not a statement of religious faith. This implies
that anyone who declines to recite the phrase, either because their religious
faith does not include worship of a God, or because their political beliefs
favor separation of church and state, cannot be a patriotic American. The
resolution urged the Attorney General to appeal the 9th U.S. Circuit Court of
Appeals to the Supreme Court. House Judiciary Committee Chairman James
Sensenbrenner, (R-WI) said: "The 9th Circuit continues to get it wrong."
He added that the court had refused to rehear the case at a time when the nation
is preparing for "an impending war to defend the values upon which our great
nation is founded." Other parts of the resolution stated that the president
should only nominate federal court judges who interpret the Constitution "correctly."
Rep. William Delahunt, (D-MA), who voted "present," said "It doesn't
stop at expressing disapproval. It goes further in a way that I believe would
set an unwise and dangerous precedent. [It sends a] "not-so-subtle message [to
judges that] they had better tailor their constitutional views to those of the
congressional majority if they wish to be confirmed." Rep. Jerrold Nadler,
(D-NY), said the 9th Circuit decision was "exactly consistent" with the
Supreme Court rulings over the last 40 years on school prayers. The court, he
said, "has said that we cannot ask schoolchildren to recite a prayer or a
belief in God in the classroom setting, even if we allow the dissenters to walk
out of the room." 17
- Pete Winn, "Court Declares Pledge Unconstitutional," Focus on the
Family, 2002-JUN-26, at:
- "Court rules Pledge of Allegiance unconstitutional," Associated
- Bob Kellogg, "Response swift to pledge ruling," Focus on the
Family, 2002-JUN-27, at:
- Tony Norman, "Is God so small he needs a Pledge for validation,"
2002-JUN-28, Post-Gazette.com, Pittsburgh, PA.
- U.S. Supreme Court, "Engel et al. v. Vitale et al.," 1962-JUN-25,
- Fred Jackson and Jody Brown, "In Remembrance of School Prayer: ACLU
Attributes Notion of Effective Prayer to 'Radical Religious Right',"
ChristianWebSite.com, 2002-JUN-25, at:
http://headlines.agapepress.org/users/botcw/botcw1.asp (This is only a
- The Texas Justice Foundation is a conservative group which "provides
free legal representation in landmark cases in protect individual rights,
limit government to its appropriate role, and promote a better business
climate for job growth in Texas." Their web site is at:
- Ken Connor, "NEA, PTA 'Flagged Down' for Pledge Response,"
Washington Update, Family Research Council, 2002-JUL-1.
- Steve Jordahl, "President Signs Law Affirming God in the Pledge,"
Focus on the Family, CitizenLink, 2002-NOV-15.
- "Federal Appeals Court declines to reconsider 'God Pledge' decision," AANews, 2003-FEB-28, news release.
- "Court Refuses to Reconsider Pledge of Allegiance Decision," The
Associated Press, 2003-FEB-28, at:
"Ashcroft vows Pledge appeal -- 'ceremonial deism' v.
separation," AANews, 2003-MAR-1.
"Save the Pledge of Allegiance and our National Motto,"
American Family Association, at:
Fred Jackson and Jody Brown, "Pledge' Supporters Active
Following Friday's Court Decision," 2003-MAR-3, at:
Houdinis," Concerned Women for America, 2003-MAR-4, at:
"DeLay seeking constitutional amendment, curbs on
judicial authority in effort to void Pledge of Allegiance ruling,"
Jim Abrams, "Pledge of Allegiance Ruling Condemned,"
2003-MAR-20, Associated Press, at:
How you got here:
Copyright © 2002 & 2003 by Ontario Consultants on Religious
Originally written: 2002-JUN-26
Latest update: 2003-SEP-29
Author: B.A. Robinson