"Under God" Is Unconstitutional
September 17, 2002
The Ninth Circuit Court of Appeals recently determined that
the words “under God” in the Pledge of Allegiance to the Flag violate the
Establishment Clause of the First Amendment prohibiting government endorsement
of religion. In Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002),
the Court held that a federal statute inserting the words “under God” into the
Pledge (1954 Act) and a school district’s policy of requiring teachers to lead
the recitation of the Pledge in the classroom are unconstitutional. In
reversing a lower court’s dismissal of the action, the Court ruled that the
father of a public elementary school student had standing to challenge the
constitutionality of both the statute and the school district’s policy on the
ground that such practices interfered with his right to direct his daughter’s
religious education.
The Appellant, Michael Newdow, is an atheist whose daughter
attends public elementary school in California. Like most elementary school
students, the classmates of Newdow’s daughter recited the Pledge of Allegiance
every morning. Newdow did not allege that his daughter’s teacher or the school
district compelled her to participate in reciting the Pledge. Rather, he argued
that his daughter was impermissibly forced to watch and listen as her teacher
led her classmates in reciting a religious ritual.
Endorsement Test
The Court employed three tests in determining that the 1954
Act and the school district’s policy of requiring teachers to lead students in
reciting the Pledge of Allegiance are unconstitutional. The Court first
considered whether such practices violated the endorsement test. The Court
concluded that although students cannot be forced to recite the Pledge, the
school district impermissibly conveyed a message of state endorsement of
religion by requiring public school teachers to lead the recitation of the
Pledge. In determining that such practices violate the endorsement test, the
Court emphasized 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.”
Coercion Test
The Court next considered whether the 1954 Act and the
school district policy survive the coercion test. The Court concluded that,
regardless of whether students are forced to actually participate in reciting
the Pledge, the mere fact that a student is required to listen to the Pledge on
a daily basis is coercive. The Court pointed out that such coercion is
particularly pronounced in an elementary school setting given the impressionable
nature of children.
Lemon Test
Finally, the Court applied the Lemon Test, the first
prong of which focuses on whether the challenged policies have a secular
purpose. In rejecting the defendants’ argument that the Pledge has the secular
purpose of “solemnizing public occasions, expressing confidence in the future,
and encouraging the recognition of what is worthy of appreciation in society,”
the Court noted that the sole purpose of the 1954 Act was to advance religion
and set the United States apart from communist nations. Moreover, although the
Court conceded that the school district had the secular purpose of fostering
patriotism in enacting the policy, it nevertheless concluded that such a policy
violated the second prong of the Lemon Test in that “[g]iven the age and
impressionability of school children . . . particularly within the confined
environment of the classroom, the policy is highly likely to convey an
impermissible message of endorsement to some and disapproval to others of their
beliefs regarding the existence of a monotheistic God.” Accordingly, the Newdow
Court ruled that the statute and school district policy violated the
Establishment Clause and reversed and remanded the lower court’s judgment of
dismissal.
Although the impact of the Newdow decision remains
to be seen, many Americans wonder whether singing patriotic songs in public
settings, such as “America the Beautiful” and “God Bless America,” will become a
thing of the past. Particularly in the wake of September 11, many Democrats and
Republicans have openly criticized the decision and have questioned whether the
Ninth Circuit has gone too far in analyzing government endorsement of religion.
The Eleventh Circuit dodged the issue claiming Newdow lacked standing in 1992,
and the Seventh Circuit upheld the recitation of the pledge with the “one nation
under God” language. As a result, all eyes will be focused on whether the
United States Supreme Court will overturn Newdow.
For more information, contact Cynthia Brennan Ryan, toll
free at 888-688-8500, or via e-mail at cynthia.ryan@hklaw.com
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