Phyllis Errico, Editor

The Pledge of Allegiance, Religious Exercise or Patriotic Recitation

On Flag Day, June 14, 2004 the United States Supreme Court issued an opinion in a case involving a challenge to the recitation of the Pledge of Allegiance in public school. Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301 (2004) was an appeal of a Ninth Circuit Court ruling enjoining a California School District’s practice of a daily teacher led Pledge of Allegiance in each public school classroom. This case captured the attention of many in this country including parents, educators, students, citizens, the United States Congress and the President of the United States.

Patriotism, democracy and citizenship are subjects that have been a part of the public school curriculum for countless years. In fact, many states including Virginia require character education programs whose purpose is to instill civic virtues and to help develop patriotic-minded students of high character. Components of these programs often include citizenship and instruction in the history and principals of the Flag including the appropriate etiquette and convention for respecting the Flag. A crucial element of this type of curriculum is reciting the Pledge of Allegiance every day in class. In order to appreciate the analysis of the issue and the latest challenge to the Pledge of Allegiance in the public school context, it is important to review the history and evolution of the Pledge of Allegiance in this Country.
History of The Pledge

The Pledge of Allegiance is a statement that embodies the history of patriotism and citizenship in the United States of America. Authored by Francis Bellamy a Baptist Minister it was first published in the September 1892 issue of The Youth’s Companion which was a popular family magazine published in Boston. In addition, as Chairman of the National Education Association, Bellamy created a public school program celebrating the four hundred year anniversary of Columbus’s discovery of America using a flag ceremony and salute he called “Pledge of Allegiance”. Bellamy’s original pledge read, “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all”. After its publication in 1892 more than 12 million children across this nation began reciting the pledge in the public schools. The Pledge was made a requirement in public education as early as 1898 in New York coinciding with the Spanish- American War and later in Maryland around the time of World War I.

In 1923 the first National Flag Day Conference was held and the first line of the pledge was changed to “I pledge allegiance to the Flag of the United States” and the following year “of America” was added. The pledge gained popularity among both school children and adults during the patriotism spurred by World War II and in 1942 it became the official Pledge of this Country when the U.S. Congress included the Pledge of Allegiance in the United States Code. On Flag Day, June 14, 1954 the words “under God” were approved by President Dwight D. Eisenhower who noted that, “ In this way we are reaffirming the transcendence of religious faith in America’s heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource in peace and war.”

As with the Spanish - American War and World Wars I and II this country is in a period of renewed patriotism as a result of the September 11, 2001 attacks, the war in Iraq and further acts of aggression against the Untied States. Thus the Pledge of Allegiance is the focus of great national pride, patriotism and unity in this Country today. However, the reference to God in this Nation’s Pledge of Allegiance has raised some challenges involving complex issues concerning the analysis and interpretation of the First Amendment to the United States Constitution.

The First Amendment has two relevant provisions regarding religion, the Establishment Clause and the Free Exercise Clause, the first of which prohibits the establishment of religion by the government and the second which guarantees its free exercise. The concept of separation between church and state is one which has arisen out of the Supreme Court’s interpretation of the Free Exercise and the Establishment Clauses. The purpose behind these protections which extends to the states through the Fourteenth Amendment was to secure religious liberty in this country and to avoid the European model of favoritism of particular religions.

The topic of a religious reference in the Pledge of Allegiance, the National Motto “In God We Trust” and the posting of the Ten Commandments in the public school or government context are all issues that capture people’s attention and prompt a variety of reactions. At one end of the spectrum you will find advocates who believe that religion has no place in public education or other governmental contexts and should therefore not be mentioned either directly or indirectly in any public school or governmental setting because to do so would clearly violate the establishment clause and would favor religion over non-religion. A subset of this group are advocates who though often extremely religious themselves feel strongly that religion and its values fall squarely within the purview of parental control and therefore that the school has no role in this aspect of a student’s life. These opponents point out the very essence of religious freedom will be threatened if religion is present in public education because this arena cannot possibly represent the religious diversity of the citizens of this country.

On the other end of the spectrum are advocates who believe the lack of religion in our public schools is at the root of the disciplinary, moral and value crisis in our society. These individuals advocate not only the teaching about religion as part of the crucial history of this Nation but also believe that the Constitution allows and supports religious tolerance in the public schools. In addition, the advocates of religion in the public schools believe that religion will bring structure, discipline and a common value system and that religion will enhance the overall public school environment by providing a focus of faith and belief, thus creating a more peaceful and productive learning environment.

Specifically on the Pledge of Allegiance issue, there are those who feel that the reference to God in the Pledge of Allegiance is not an endorsement of religion of any type but rather recognition that this country was founded under a spirit of religious freedom. They argue that a reference to God does not convert a very secular exercise such as the Pledge into some type of religious exercise and that the history of this Country is replete with religious references. In fact, a number of Supreme Court cases have specifically commented on this issue in dicta. In Engle v. Vitale, 370 U.S. 421 (1962) the court discussed and distinguished the religious exercise of prayer from the patriotic invocation of God in the Pledge of Allegiance. In School District of Abington School District v. Schempp, 374 U.S. 203 (1963), the court struck down the practice of reading from the Bible and reciting the Lord’s Prayer in the public schools while leaving the recitation of the Pledge of Allegiance in tact. In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court struck down prayer at public school graduation invocation while leaving the Pledge of Allegiance undisturbed as part of the graduation ceremony. It is important to note that several of the most important documents and events of this Nation’s history contain references to God including the Constitution, the Declaration of Independence, the Gettysburg Address, the National Motto and the opening ceremony of court.

The Pledge of Allegiance in the public schools has been debated, studied and litigated often by commentators, scholars and attorneys. The Pledge of Allegiance in the public school context was first examined by the United States Supreme court in 1940 in the case of Minersville School District v. Gobitis , 310 U.S. 586 (1940). This case arose out of a challenge by the father of two Pennsylvania students to a policy requiring all teachers and pupils to salute the flag daily.  The Gobitis children who were members of the Jehovah Witness faith were expelled from school when they refused to stand and salute the Flag. Their father was also threatened with criminal prosecution. It is important to note that Jehovah Witnesses strongly believe that they owe allegiance only to Jehovah and they may therefore not pledge their allegiance to any flag, person or other entity or symbol. In upholding the mandatory pledge, the Court noted that the school board’s interest in promoting good citizenship through the patriotic salute outweighed the rights of the students whose refused to participate.

The issue came right back to the Supreme Court in 1943 in the case of West Virginia v. Barnette , 319 U.S. 624 (1943). In this case, like the Gobitis case, several children who were members of the Jehovah Witness faith objected to the daily flag salute on religious grounds. The Court in revisiting the same issue they examined in the Gobitis case reversed itself ruling that the mandatory nature of the Flag salute regulation violated the students’ Freedom of Religion and Freedom of Speech rights. The Court did not invalidate the practice of reciting the Pledge but did rule that children cannot be compelled to participate in the Pledge in public schools.

It is interesting to note that there was a change in the composition of the court leading to a different decision in a very similar case. The message was clear after Barnette that a state, locality or board may require that the Pledge be recited in the public school but may not punish those students who chose not to participate. There were a number of cases filed in state and federal courts after the Barnette decision primarily dealing with whether students must stand or even stay in the room during the pledge.  In Goetz v. Ansel 1477 F.2d 636 (2^nd Cir. 1973) and similarly in Lipp V. Morris, 579 F2d 834 (3rd Cir. 1978) the courts ruled that a student need not stand during the Pledge of Allegiance as long as they remain nondisruptive.  In the 1992 case of Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7^th Cir. 1992) the issue of the words “under God” in the Pledge was the subject of challenge and the court held that school officials could lead the pledge in the classroom as long as students were free not to participate.

 The most recent Pledge case filed by Michael Newdow of California was based on his objection to a policy of teacher led recitation of the Pledge of Allegiance in the classrooms of public schools. The facts and circumstances surrounding the Newdow case are interesting and crucial to understanding the Supreme Court’s ruling. Mr. Newdow an atheist with both law and medical degrees is the noncustodial father of a public school student whose primary physical custody is with her mother Sandra Banning.  Mr. Newdow filed suit against the Elk Grove Unified School District claiming that the teacher led Pledge of Allegiance violated his daughters religious liberty arguing that it carries the stamp of government approval when led by the teacher and that it is unconstitutional because the students are forced to hear it even though they were not forced to participate. 

A Federal Magistrate reviewed the case and recommended to the District Court that the case be dismissed as the practice was constitutional. The District Court followed the Magistrate’s recommendation and Mr. Newdow appealed to the Ninth Circuit Court of Appeals which covers the juisrdictions of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The Ninth Circuit agreed with Mr. Newdow and held that the School Division’s policy of requiring teachers to lead the Pledge of Allegiance in the classroom is a violation of The Establishment Clause.

The child’s mother Ms. Sandra Banning intervened informing the court that she had physical custody of the child and that she did not object to her daughter reciting the Pledge in school. She also made clear to the court that she was opposed to her child being involved in this lawsuit filed by the child’s father. This raised a family law issue into the case at the Circuit Court level and the court ruled that as the child’s father, Mr. Newdow could proceed with the case. This piece of the case is of interest to public school officials who are often unwillingly put in the position of acting as referee in matters when parents are no longer together or cannot agree on issues of importance to their children in the school setting.

The school division appealed the Ninth Circuits ruling to the Supreme Court of the United States. The Supreme Court examined two issues on appeal from the Ninth Circuit Court of Appeals: first whether the school board’s policy of reciting the Pledge of Allegiance in the public school setting violates the Establishment Clause because it contains the language ‘Under God” and second whether the child’s father as a non-custodial parent has standing to make this challenge in federal court.

This case prompted over 50 amicus or “friend of the court” filings from groups such as the National School Boards Association, the National Education Association, the Knights of Columbus, the Rutherford Institute, the American Jewish Congress and the Christian Legal Society on behalf of the School District and organizations such as the American Atheists, Americans United for Separation of Church and State, Anti-Defamation League, Buddhist Temples , and Religious Scholars and Theologians in support of Mr. Newdow.

The Supreme Court’s 2004 Flag Day decision in Newdow was somewhat disappointing for advocates on both sides of the issue as the Court avoided deciding the issue of whether the words “Under God” in the Pledge of Allegiance constitute a violation of the Establishment Clause. The court instead ruled that because of family law principles Mr. Newdow lacked prudential standing to bring the case in federal court. Cases cited above as well as others which are important to the examination of the Pledge issue are summarized below:

• Minersville School District v. Gobitis, 310 U.S. 586 (1940). The Supreme Court upheld a school district policy requiring all public students to salute the flag or be subject to discipline.
• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). The Supreme Court held unconstitutional a Board of Education regulation requiring all public school students to salute and recite the Pledge of Allegiance or be subject to discipline.
• School District of Abington Township v. Schempp, 374 U.S. 203 (1963). The Court ruled that a policy requiring recitation of Bible verses and the Lord's Prayer in public school was unconstitutional.
• Lemon v. Kurtzman, Early v. Dicenso, 403 U.S. 602 (1971). The Supreme Court articulated a three prong test for determining constitutionality of a particular action; (1) It must have a secular purpose, and (2) It must neither advance nor inhibit religion, and (3) It must not excessively entangle church and state.
• Goetz v. Ansel  1477 F. 2d 636 (2nd Cir. 1973) , The Second  Circuit Court of Appeals held that a student who does not participate in the Pledge of Allegiance must be allowed non disruptive expression of belief by sitting down during the pledge.
• Wallace v. Jaffree,  472 U.S. 38 (1985),The Supreme Court held that an Alabama statute authorizing a daily period of silence in the public schools for meditation or voluntary prayer was an endorsement of religion lacking a secular purpose and thus a violation of the Establishment Clause.
• Meyers v. Loudoun County School Board, 251 F. Supp.2d 1262 (2003) The court ruled that a state statute requiring recitation of Pledge of Allegiance and the posting of the National Motto in public school did not violate the Establishment  Clause.
• Lee v. Weisman, 505 U.S. 577 (1992). The Court ruled unconstitutional the practice of inviting clergy to perform prayer at public school invocation and benediction. The Court used a coercion analysis which requires that a government may not coerce participation in a religious exercise.
• Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7^th Cir. 1992), the issue of the words “under God” in teacher led Pledge was the subject of challenge by a parent of students in the public school system. The court held that school officials could lead the pledge in the classroom as long as students were free not to participate.
• Circle School v. Pappert, 2004 WL 1852953 (3 rd Cir. August 19, 2004). The U.S. Court of Appeals ruled that a state statute requiring all public, private and religious school students to recite the Pledge of Allegiance or sing the National Anthem every day or have their parents notified violates students free speech rights.
• Elk Grove Village Unified School District v. Newdow 124 S.Ct. 2301 (June 14, 2004). The court held that the noncustodial father of an elementary school student lacked prudential standing to bring action in federal court challenging constitutionality of school district’s policy requiring teacher led recitation of the Pledge of Allegiance. 

The responsibility and the mandate to instruct public school students in the area of history, democracy, patriotism and civic responsibility is an important task for public educators. In many cases the public schools are the only place where civic values and patriotic concepts are learned. As mentioned earlier, historically the resurgence of patriotism and thus enhanced interest in recitation of the Pledge often follows serious events such as war. In the wake of the September 11, 2001 attacks on this country and the current war in Iraq, many states have enacted statutes mandating the Pledge of Allegiance in every public classroom.

According to research conducted by the Education Commission of the States, seventeen states enacted legislation in the post September 11, 2001 period adding to the twenty eight states that already required recitation of the Pledge in public school.  In addition, six other states encourage recitation of the Pledge, making a total of 51 states recognizing the importance of the Pledge of Allegiance in this country by requiring or encouraging the recitation of the Pledge of Allegiance in public school.

Although the Court did not decide the case on the First Amendment issue there is a strong message in the concurring opinions in the Newdow case as well as in the language found in past opinions of the Supreme Court where the Pledge was not the primary issue but the court commented on its constitutionality. As the fight against terrorism continues the feeling of patriotism will likely grow stronger as will support for the Pledge of Allegiance to the Flag and to this Country.

Another ongoing First Amendment debate is that involving the issue of invocation at public meetings. The authoritative case on this issue is Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, the Supreme Court held that the Nebraska legislature’s practice of opening each session with a nonsectarian prayer with no reference to Jesus or Christ, offered by a publicly paid chaplain did not violate the Establishment Clause. The court emphasized that these prayers are deeply embedded in the history and tradition of this country and do not serve to advance one religion over another.

This issue was revisited in a recent Fourth Circuit Court of Appeals case out of South Carolina styled Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004). Darla Kaye Wynne, a citizen of Great Falls, challenged the town council's practice of engaging in prayers invoking Jesus, Jesus Christ and Christ our Savior during monthly council meetings. On a number of occasions Ms. Wynne directly objected to the Town Council's reference to Christian deities suggesting to the Council that the prayer's references be limited to God or that members of different religions be invited to give prayers. Despite her suggestions, the Council continued its prayers with specific references to Jesus and Christ and also proceeded to treat her less favorably than other citizens at meetings.

Ms. Wynne filed for an injunction which was granted by the Federal District Court. On appeal the Fourth Circuit affirmed the District Court’s ruling explaining that Marsh upheld the practice of legislative prayer in a narrow context.  The Court further held that the prayers and invocations used to open the Great Falls Town Council meetings violated the Establishment Clause of the First Amendment to the United States Constitution because in referencing Jesus and Christ, they improperly advanced one religion over others. The Fourth Circuit noted that unlike the Town Council in this case, the prayers in the Marsh case were nonsectarian and civil.

It is important to point out that there are at least two Federal cases that have dealt with the issue of opening a school board meeting with prayer and although like most cases the rulings are somewhat fact specific, both ruled that the prayer in the School Board setting was unconstitutional. In Coles v. Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999), the court held that the legislative prayer exception of Marsh does not apply to a practice of opening school board meetings with a prayer. In its analysis the court distinguished school board meetings from those of other bodies, emphasizing that students regularly attend and participate in school board meetings and also noting that the Supreme Court has consistently struck down the endorsement of religion in the public school context. In Bacus v. Palo Verde Unified School District, 99-57020,2002 WL 31724273 (9th Cir. 2002), the Ninth Circuit held that even if the legislative prayer exception applied to school boards, the prayers at issue in the case before them were often given in the name of Jesus and therefore did not satisfy the criteria for the Marsh exemption .

The fact that the Supreme Court did not address the Establishment Clause issue in the Newdow case will likely lead to further litigation in this area. Compounding the confusion surrounding the issue is the fact that there is no one clear test or analysis used by the Supreme Court in dealing with these difficult and emotionally charged First Amendment issues. In the Newdow case the concurring opinions of Justices Rehnquist, O’Connor and Thomas each made clear that they felt the First Amendment issue should be resolved and that the Pledge should not be deemed a violation of the Establishment Clause, however they each analyzed the issue differently.

Justice Rehnquist opined that public recognition of the religious history and character of this nation was clear and that the phrase “under God” does not convert a patriotic exercise into a religious one. Justice O’Connor used the three prong Lemmon test to determine that the references to God that appear in the Pledge of Allegiance, the National Motto, the Star Spangled Banner and the opening of court are “ceremonial deism” in which the government refers to the divine without violating the Constitution. She also noted that the reference to God does not refer to a particular religion.  Justice Thomas explained that previous decisions of this court were decided incorrectly. In discussing Lee v. Wiesman, involving prayer at graduation, he said that there was no coercion and that where there is no coercion there is no violation of the Establishment Clause. He also went on to say that he believes that the Establishment Clause is not made applicable to the Sates through the Fourteenth Amendment.

This issue will likely be presented to the Supreme Court again in the near future and I believe they will either refuse to grant certiorari or will once and for all deal with the Establishment Clause question. Based on the language in the Supreme Court’s concurring opinions in Newdow and dicta involving the Pledge issue in previous Establishment Clause cases, it is likely that the Court would uphold the Constitutionality of the recitation of the Pledge of Allegiance in the public school setting. 

Click here for summary of recent Virginia Legislative history of “The Pledge of Allegiance, Religious Exercise or Patriotic Recitation”

Baer, Dr. John, W. , “The Pledge of Allegiance A Short History”, http://history.vineyard.net/pledge.htm (1992)

Burns, Thomas, W., “The Pledge of Allegiance: Teaching Tolerance for Political and Religious Dissent”, National School Boards Association (2002)

Harris, Kathleen, G., “Pledge of Allegiance: Recent Constitutional Controversy”,  Virginia Division of Legislative Services (2002)

Lacy, D. Patrick, Jr., and Mehfoud, Kathleen, S., University of Richmond Law Review “Annual Survey of Virginia Law”, 39 U. Rich. L. Rev. 183 (2004)

Piscatelli, Jennifer, “Pledge of Allegiance”, Education Commission of the States, (August 2003)

Tharrington Smith LLP, Opening School Board Meetings With a Prayer,( 2004)

United States. Department of Education. “Federal Guidelines on Religious Expression in Public Schools.” U.S. Dept. of Education.( 2000)

United States Department Of Education, “Guidance on Constitutionally protected prayer in Public Elementary and Secondary school”, (2003)

Virginia Board of Education , “Guidelines on Recitation of the Pledge of Allegiance” (2001)

Virginia Board of Education, “Guidelines concerning Religious Activity in Public Schools”, (1999)

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