As public schools begin the 2004-05 academic year, teachers and principals are free to lead millions of children in recitation of the “one nation under God” version of the Pledge of Allegiance that the nation’s political leaders adopted in 1954.
In June, the U.S. Supreme Court reversed a ruling by the San Francisco-based Ninth U.S. Circuit Court of Appeals, which said teacher-led recitation of the Pledge containing the “under God” reference was an unconstitutional establishment of religion.
Those two words were added to the Pledge at the height of the Cold War in order to contrast U.S. devotion to religion with godless communism.
The High Court’s decision turned on a technicality: Michael Newdow, a California atheist, lacked standing to sue on behalf of his daughter because the child’s mother, as the custodial parent, could exercise what amounted to a “tie-breaking vote.”
Because the Justices decided Elk Grove v. Newdow on procedural rather than constitutional grounds, scholars like Charles C. Haynes of the First Amendment Center at the Freedom Forum in Arlington, Virginia believe it is virtually a sure thing the Pledge’s constitutionality will continue to be at issue in litigation and eventually return for Supreme Court review.
Nevertheless, Haynes echoed many educators in noting the decision brought a welcome respite from one of the most contentious issues facing public schools.
“This is so emotional for so many Americans,” Haynes, author of many works on religion and the schools, told Education Week. “It’s just another way in which schools have been turned into a battleground, and for teachers and administrators that’s just a nightmare that they don’t need. I think among school board members and other school folks, there’s a sigh of relief that they won’t have to juggle this hot potato anymore.”
The executive director of Americans United for Separation of Church and State expressed disappointment. “Students should not feel compelled by school officials to subscribe to a particular religious belief in order to show love of country,” said the Rev. Barry Lynn. “America is increasingly diverse in matters of religion, and our public schools should reflect that diversity.”
In 1943, the Supreme Court held in West Virginia State Board of Education v. Barnette that schools cannot compel their students to say the Pledge. Thus, a student is supposed to be free to choose whether to participate. However, Newdow and others contend there is a subtle coercion for students to recite the words, including “under God.”
Supporters of schoolhouse use of the Pledge contend it is an important symbolic acknowledgment of the nation’s religious origins and heritage. Stated Jay Sekulow, who filed an amicus curiae brief on behalf of Members of Congress and the Committee to Protect the Pledge,
“By dismissing this case and removing the appeals court decision, the Supreme Court has removed a dark cloud that has been hanging over one of the nation’s most important and cherished traditions–the ability of students across the nation to acknowledge the fact that our freedoms in this country come from God, not government.”
Other defenders of the Pledge’s constitutionality downplay the religious significance. U.S. Solicitor General Theodore Olsen, who joined in defending the Elk Grove, California school district, argued the phrase “under God” is “descriptive” and “ceremonial” as opposed to being a prayer or a “religious invocation.”
Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas concurred in the 8-0 reversal of the Ninth Circuit Court. However, they argued the Court should have flatly ruled the Pledge does not violate the First Amendment.
Justice Antonin Scalia withdrew from participation in the case in the wake of controversy stemming from his public criticism of the Ninth Circuit’s ruling during a January 2003 Religious Freedom Day event in Fredericksburg, Virginia.
Robert Holland ([email protected]) is a senior fellow at the Lexington Institute, a think tank in Arlington, Virginia.
For more information …
The text of the Supreme Court decision and concurring opinions in Elk Grove v. Newdow can be found on the Internet at http://supct.law.cornell.edu/supct/html/02-1624.ZS.html.
Background on the case is available online at http://pewforum.org/docs/print.php?DocID=36.