Pledge of Allegiance Ruling

Claim:   An appeals court ruled that teacher-led recitation of the Pledge of Allegiance in public schools is unconstitutional.

Status:   True.

Example:   [Collected on the Internet, 2002]

Origins:   On 26 June 2002, a three-member panel of the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that recitation of the current version of the Pledge of Allegiance (which has since 1954 included the words "under God") in public

schools is unconstitutional because it "violates the religion clauses of the Constitution" (i.e., the First Amendment protection that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof").

The ruling was issued in response to a lawsuit filed in Federal District Court in Sacramento by Dr. Michael A. Newdow, a parent whose daughter attends elementary school in the nearby Elk Grove Unified School District. Dr. Newdow had argued that his daughter's First Amendment rights were infringed because she has been forced to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is 'one nation under God.'"

The appeals court, by a 2-1 margin, held that "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; and that the government must pursue a course of complete neutrality toward religion which it violates with "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." Although students cannot be required to recite the pledge, the appeals court said a student who objects is confronted with an "unacceptable choice between participating and protesting."

The decision was put on hold pending a review by the full court, and the general expectation was that the ruling would be reconsidered at that time. However, on 28 February 2003 the Ninth Circuit court declined to reconsider, and the decision was again temporarily stayed to give the school district 90 days to ask the Supreme Court to review the ruling.

A few points of clarification about this issue:

• The decision applies only to the nine Western states under the Ninth Circuit court's jurisdiction: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
• The ruling does not make the Pledge of Allegiance "unconstitutional" or "illegal" per se; it holds that the current version of the Pledge of Allegiance (which includes the words "under God") may not be recited in public schools as part of a teacher-led or school-sanctioned activity. Technically, schools could still lead recitations of the original version of the pledge (before the 1954 insertion of the words "under God"), and students could still choose to recite either version on their own.

The decision could conceivably be overturned through any one of several procedures:

• The defendants could appeal to have the Supreme Court hear their case.
• Congress could propose, and state legislatures could ratify, a constitutional amendment explicitly establishing the constitutionality of the Pledge of Allegiance.

Update:   In June 2004 the Supreme Court reversed the lower-court decision, ruling that Newdow did not have the legal standing to bring the case.

Last updated:   5 January 2008

  Sources:

    Pierson, David and Henry Weinstein.   "'Under God' Retained As Stay Is Sought."

    Los Angeles Times.   4 March 2003   (p. B5).

    Pritchard, Justin.   "Appeals Court Won't Reconsider Its Pledge Ruling."

    Associated Press.   28 February 2003.

    CNN.com.   "Appeals Court Stays Enforcement of Its Pledge Ruling."