The U.S. Pledge of Allegiance

Conflicts between two court rulings
in Virginia and California

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2005-AUG & SEP: California and Virginia cases:

According to the Family Research Council, the 4th U.S. Circuit Court of Appeals upheld a state law in Virginia during 2005-AUG. The law requires public schools to lead their students each school day in the recitation of the Pledge of Allegiance, including the "under God" phrase. ₁ They suggested that the Pledge was a "patriotic exercise" and not a religious affirmation like public prayer.

Individual students are guaranteed by an earlier decision of the U.S. Supreme Court to have the right to opt out of reciting the Pledge. So if they don't mind risking the potential of verbal and/or physical abuse from their fellow students, they can refuse to take part.

Michael Newdow failed in his original attempt to have the "under God" phrase declared unconstitutional. He re-introduced his case before a federal court on behalf of an unidentified group of California parents and their children, who presumably have proper standing. According to the Family Research Council, on 2005-SEP-15, "...District Judge Lawrence Karlton...said he is bound by precedent set by the 9th Circuit Court of Appeals, which ruled in 2001 that it was unconstitutional for the [current wording of the] Pledge to be recited in public schools." ₁ He declared that reciting the current version of the Pledge is unconstitutional in California. The judge ruled that students had a right to be "free from a coercive requirement to affirm God." He also ruled that Newdow did not have the right to initiate the lawsuit. However, the other parents did.

The Knights of Columbus and the Becket Fund for Religious Liberty appealed the decision to the 9th Circuit Court of Appeals

American Atheists commented:

• The District Court and the Ninth Circuit used the "coercion test" from the historic LEE v.  WISMAN case, "and concluded that the district's pledge policy 'impermissibly coerces a religious act.' The court determined that the school district's policy, like the school action in LEE of including prayer at graduation ceremonies, 'places students in the untenable position of choosing between participating in an exercise with religious content or protesting'."
• "The court observed that the 'coercive effect the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren...' "
• "Finally, the court noted that non-compulsory participation is no basis for distinguishing it from WEST VIRGINIA STATE BOARD OF EDUCATION v.  BARNETTE (1943), where the Court held unconstitutional a school district's wartime policy of punishing students who refused to recite the Pledge of Allegiance and/or salute the flag." ₂
• Jay Sekulow of the American Center for Law and Justice, a religious legal advocacy group founded by televangelist Pat Robertson, described the NEWDOW case ruling as a "flawed decision" that would be overturned. Sekulow said: "This is another example of a federal district court exhibiting hostility toward a time-honored tradition that has been defended by numerous Justices including Justice O'Connor who said eliminating such references (to God) 'would sever ties to a history that sustains this nation even today' ...  The Pledge clearly acknowledges the fact that our freedoms in this country come from God, not government."
• Attorney Eddie Tabash...predicted that the NEWDOW case will...impact future hearings on Supreme Court nominees, including the choice to replace Justice Sandra Day O'Connor. "The proper way to view the Pledge case is that it is a vindication of the viewpoints of everyone on matters of religion," said Tabash. "By removing 'under god' from the Pledge, it would be extended toward a universal coverage of all Americans, believers and nonbelievers because it will now be fully neutral." ₂
• Gregory Stanford, editorial writer for the Milwaukee Journal Sentinel wrote:

  "The ruling is not wise public policy, in our opinion. The phrase 'under God' in the pledge is not a big enough transgression against the church-state wall to warrant outlawing. It belongs in the same category as the oaths that public officials sometimes take on Bibles, the prayer that opens deliberations in the Senate, the motto 'In God We Trust' that has graced coins since 1864 mild, tolerable exceptions to the rule of separation between government and religion."
  
  "At the same time, some criticism of the ruling is way overblown. For instance, Randy Thomasson, president of the California-based Campaign for Children and Families, was quoted by the San Francisco Chronicle as saying: 'This is another bad ruling that warps the U.S. Constitution and dashes parents' hopes of patriotism in the next generation.' This nation depends on the inclusion of 'under God' in the pledge to keep patriotism alive in the next generation? That's ridiculous. He sells parents, the nation and kids short."
  
  "The histrionics among foes of the ruling risks undermining our own rationale for opposing it. Our argument is that the phrase is no big thing. The apocalyptic language of some criticism suggests the phrase is a huge thing, however. The alarmists should take a deep breath and note that the country did well before 1954, when the phrase was added." ₃

There was an obvious conflict. A Court of Appeals in one area of the U.S. has declared the Pledge unconstitutional. Another Court of Appeals has ruled that reciting the Pledge is not only unconstitutional but compulsory. This conflict normally could only have been settled by an appeal to the U.S. Supreme Court. However, the Congress intervened.

According to Wikipedia:

"After the 9th circuit decision, Newdow received numerous death threats and other abusive messages on his phone answering machine. His daughter, then eight years old, was living elsewhere for her own safety."

"In a 2006 interview on the day that the United States House of Representatives passed the Pledge Protection Act, Newdow told WERS-FM's David Goodman, 'A few hours ago, the House of Representatives of the Congress of the United States of America voted 260 to 167 to completely gut the Constitution of its separation of powers and violate numerous other clauses because they thought it was important enough to keep 'under God' in the Pledge of Allegiance. I don't think people would've done that for our political heritage or anything else. They did it because they want God in their government because it stands for a religious view that they adhere to, and they want to see that religious view espoused by government, which is exactly what the Establishment Clause forbids'." ₄

References:

1. "Pledge Decision Highlights Importance of Roberts Nomination," Family Research Council special Email edition, 2005-SEP-14.
2. "A Newdow victory for a secular pledge...," AANews, 2005-SEP-18.
3. Gregory Stanford, "Editorial: 'Under God' does not breach church/state wall," Journal Sentinel, 2005-SEP-17, at: http://www.jsonline.com/
4. "Michael Newdow," Wikipedia, at: http://en.wikipedia.org/wiki/Michael_Newdow

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Copyright © 2005 to 2008 by Ontario Consultants on Religious Tolerance
Originally posted: 2004-AUG
Latest update and review: 2008-NOV-30
Author: B.A. Robinson

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