"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