9/15/2005
Pledge of Allegiance Ruled Unconstitutional by a California Federal Court
By Dave Caddell
On Thursday, September 14, 2005, a federal judge in California ruled in Newdow v. Congress that the phrase “one nation under God” in the Pledge of Allegiance is unconstitutional.
This is not the first time that the issue has been brought before the courts by Michael Newdow. An atheist who objected to the recitation of the Pledge of Allegiance at his daughter’s school, Newdow filed suit against the Elk Grove Unified School District in 2000. In 2002, the Ninth Circuit Court of Appeals declared the phrase “one nation under God” to be unconstitutional in Elk Grove Unified School District v. Newdow. However that decision was later reversed by the U.S. Supreme Court on the grounds that Newdow, who did not have custody of his daughter, did not have standing to bring the suit.
Initially conceived to commemorate the 400th anniversary of Christopher Columbus’ arrival in America, the Pledge of Allegiance has been recited in schools across the country for years. Although the phrase “under God” was not included in the original Pledge, it was added by Congress in 1954. Like many states, California law requires that public schools begin each day by having the students “conduct patriotic exercises,” which includes standing and reciting the Pledge of Allegiance. However, like many states, California also has an opt-out provision that allows students who believe the Pledge of Allegiance is inconsistent with their religious beliefs to refrain from participating.
Joined by two families whose children attend California public schools, Newdow once again filed a lawsuit in federal district court alleging that the schools are violating the Establishment Clause of the First Amendment to the Constitution by requiring their students to participate in the Pledge. The Establishment Clause, which has been interpreted by the U.S. Supreme Court to prohibit school prayer and government displays of the Ten Commandments which contain a purely religious purpose, prohibits the government from establishing a religion and from favoring religion over non-religion.
Ruling in Newdow v. Congress, federal district court Judge Lawrence K. Karlton declared that the court was bound by the Ninth Circuit Court of Appeals’ ruling in Elk Grove Unified School District v. Newdow. Judge Karlton concluded that the Pledge’s religious reference to God violates schoolchildren’s right to be “free from a coercive requirement to affirm God” and offends the Establishment Clause of the First Amendment to the United States Constitution.
The district court applied the analysis articulated in Elk Grove to strike down the Pledge of Allegiance as unconstitutional. Using the “coercion test” formulated by the Supreme Court in Lee v. Weisman, which declared school prayer at graduation ceremonies unconstitutional, the district court determined that the school Pledge policy “impermissibly coerces a religious act.” Borrowing language from a prior appellate court opinion, the district court reasoned that the coercive effect of a teacher-led Pledge is evident in that the policy “places students in the untenable position of choosing between participating in an exercise with religious content or protesting.” Also, the court placed significant value on the fact that schoolchildren, given their age, are very impressionable and, as such, they may be more susceptible to the fear of being viewed as an outsider if they chose not to participate. Consequently, the court determined that although the Pledge policy is non-compulsory, children may be “coerced” into participating in the Pledge, thereby acknowledging God.
Another important aspect of Newdow v. Congress is that it is in conflict with a Fourth Circuit Court of Appeals ruling handed down on August 10, 2005, just two months prior to Judge Karlton’s ruling. The Fourth Circuit, addressing essentially the same issue, concluded that the Pledge, despite its reference to God, is a constitutional exercise not in conflict with the Establishment Clause. In addressing the “coercion test,” which was relied on by the Ninth Circuit in Elk Grove, the Fourth Circuit concluded that such a test is only applicable to cases involving religious activity. The Fourth Circuit, however, held that the Pledge of Allegiance, “as a statement of loyalty to the flag of the United States and the Republic for which it stands,” is a patriotic activity. Therefore, the court reasoned that the Pledge, which is “recited by many thousands of public school children—and adults—every year,” is a constitutional patriotic exercise, as opposed to an unconstitutional state coerced religious exercise.
Now, because of the split among the courts, the U.S. Supreme Court will likely be called upon once again to resolve this politically charged constitutional question. While the issue has not yet been squarely decided by the Supreme Court, and the make-up of the court is in flux due to the recent passing of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O’Connor, the high court has provided guidance into its likely conclusions. Throughout numerous opinions analyzing Establishment Clause claims, the Court has offered many statements regarding the constitutionality of the Pledge in classrooms. The Court and its individual justices have often observed that a teacher-led Pledge of Allegiance, regardless of the test used, does not seem to offend the Establishment Clause. In fact, despite the voluminous number of Establishment Clause cases the Court has ruled on, not one justice has ever suggested that the Pledge is unconstitutional. Although these statements are mere comments, and therefore do not bind the court, it does seem likely that the Court will weigh in favor of upholding the Pledge of Allegiance as constitutional.
Related links:
2004 Year-in-Review Case Report
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