'Under God' Under Attack

Will the Pledge of Allegiance be expelled from schools? As the Supreme Court decides, NEA reiterates its position.

Photo by Creatas

Michael Newdow is a doctor, a lawyer, and a self-described Reverend of the First Amendmist Church of True Science. In March, he stepped up to the podium before eight justices of the U.S. Supreme Court and argued, on behalf of his 9-year-old daughter, that the Pledge of Allegiance should be banned from public schools.

Will he win? It's highly unlikely, but he has so far. In a controversial decision handed down in June 2002, the Ninth Circuit Court of Appeals ruled that school sponsorship of the pledge violates the Establishment Clause of the First Amendment.

The court reasoned that the phrase "under God" conveys an improper government endorsement of religion.

"A profession that we are a nation 'under God,'" the court ruled, "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.'"

The phrase "under God" did not appear in the original version of the pledge adopted by Congress in 1942. It was added by an act of Congress in 1954 to distinguish the United States from the "godless" Communist countries.

Newdow does not claim that the Elk Grove Unified School District in California, where his daughter attends school, requires students or teachers to recite the Pledge; the challenged practice is voluntary. In fact, the Supreme Court ruled in 1943 that compulsory recitation of the pledge in school is unconstitutional.

Rather, Newdow argues that even though his daughter was not required to recite the pledge, she was harmed by being forced to "watch and listen" as her teacher led her classmates "in a ritual proclaiming that there is a God, and that ours is 'one nation under God.'"

Less than a week after the Ninth Circuit's decision, the NEA Board of Directors voted to "support the Pledge of Allegiance as it is now written." The policy also states that "NEA does not believe that the inclusion of the words 'under God' in the Pledge of Allegiance poses a threat to the principle of separation of church and state."

In line with the Board's policy, NEA filed an amicus brief last December urging the Supreme Court to uphold the pledge in its current form.

The brief argues that pledging allegiance to the flag is a "patriotic observance, not a religious exercise," and that the phrase "under God" is a "ceremonial reference to our nation's religious heritage" akin to the references to God in the national anthem, the Declaration of Independence, Lincoln's Gettysburg Address, and our national motto, "In God We Trust."

If the Court agrees with Newdow, then even the voluntary recitation of the pledge in public schools would be prohibited.

Newdow is predicting victory. "This is the easiest case they've ever had," he told PBS. "If you look at all the case law, if you look at the principles they've enunciated in the past, there's no doubt the Ninth Circuit made the right decision."

But most court watchers agree there is little doubt that the Supreme Court will uphold the pledge.

The current justices have proven sensitive to public opinion, and the lower court decision declaring the pledge unconstitutional was strikingly unpopular. A Newsweek poll found that 87 percent of Americans support inclusion of the phrase "under God" in the pledge, and the House of Representatives voted 400-7 to condemn the court's ruling.

Even more telling, however, is the decision by Justice Antonin Scalia to recuse himself from hearing the case after publicly criticizing the Ninth Circuit's decision at a Virginia rally for "religious freedom." Few experts believe that Scalia would have agreed to sit this one out if he thought there was the slightest chance that the High Court would side with Newdow.

A decision by the Court is expected the last week in June.

—Michael D. Simpson
NEA Office of General Counsel