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Is "Under God" Going Under? The Fight Over the Pledge of Allegiance | Valerie Schmalz | September 19, 2005

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I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. - Pledge of Allegiance

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances. - First Amendment to the U.S. Constitution. Ratified Dec. 15, 1791.

If and when Judge John Roberts is confirmed as Chief Justice of the U.S. Supreme Court, one of the cases that he will likely face early on will be whether the phrase "under God" in the Pledge of Allegiance is constitutional.

A California federal judge ruled September 14th, that the "under God" in the Pledge of Allegiance was a violation of the First Amendment’s "Establishment Clause"–known more popularly as "separation of church and state," although those words are not in the U.S. Constitution.

Atheist Michael Newdow successfully argued in federal district court that the rights of children who are atheists are violated because their school districts have voluntary recitation of the Pledge of Allegiance, which includes the phrase "under God." Newdow is the attorney representing two different families with children in three school districts.

The case will undoubtedly be appealed, but a variety of procedural matters remain to be decided. Whether or not the school children in the three Sacramento area school districts will be required to stop saying the Pledge of Allegiance while the case is ongoing is also up in the air, and will depend on whether the federal courts suspend enforcement pending the appeal, said Terence Cassidy, lead counsel for the three school districts.

"These type of cases make Americans mad," said Lee Strang, assistant professor of law at Ave Maria Law School, Ann Arbor, Michigan. "This case comes at a time when we have the Judge Roberts’ nomination going on–it should wake Americans up to the fact that judicial appointments are important."

Strang believes the Sacramento judge’s ruling and the ongoing Newdow case will give President George W. Bush more support among Americans in appointing conservative appointees and will make the Democrats less likely to filibuster court appointees.

"This case or a case like it will wind up on the Supreme Court sooner or later," Strang said.

In the previous decision by the San Francisco-based Ninth Circuit Court of Appeals in 2003, the court ruled "that the Pledge of Allegiance was unconstitutional because it coerced public school students to affirm a belief in God," Strang said. The case, which was brought by Newdow, was eventually dismissed by the U.S. Supreme Court on procedural grounds in 2004 since Newdow did not have custody of his daughter and she was a believing Christian who did not have a problem with the Pledge.

In reaction to the latest ruling, the U.S. Senate passed a resolution by unanimous consent affirming the Pledge in its current wording. Newspaper editorial boards weighing in on the issue around the country mostly supported keeping the Pledge the way it is, including the San Francisco Chronicle, which in its Sunday editorial said: "The legal debate is as frivolous now as it was in 2004 and in earlier manifestations. The generic ‘under God,’ echoing the Gettysburg Address, is an almost automatic turn of speech, in a vein running deep through the nation's public rhetoric. Let it coexist with ‘In God we trust’ on our coinage."

The Boston Herald wrote: "Let's hope a new Roberts court will reject Newdow's self-indulgent quest to twist the Constitution in an effort to satisfy his personal goals." In the Wilmington, Delaware, News Journal, reader Minna Walley wrote in the Letters section, "No district judge or atheist has the right to speak for me. I am so tired of people misusing politics to shape the world as they want it."

U.S. Attorney General Alberto Gonzales said the Justice Department will defend the Pledge’s language.

"For more than two hundred years, many of our expressions of national identity and patriotism have referenced God. The Supreme Court, which opens each session by saying 'God save the United States and this honorable Court,' has affirmed time and again that such official acknowledgments of our Nation's religious heritage, foundation, and character are constitutional," Gonzales said in a statement. "The Department of Justice will continue vigorously to defend the ability of American schoolchildren to pledge allegiance to the flag."

"Is the government lending its power to one side here? Clearly the answer is yes," Newdow said. "We have American citizens who deny God exists."

"I have a problem because we violate our Constitution in our Pledge of Allegiance," Newdow told IgnatiusInsight.com. "I have no problem with pledging allegiance."

David Koepsell, executive director of the Council for Secular Humanism, shares Newdow’s atheistic philosophy and filed a friend of the court brief in his previous case but is not involved in this one.

"The Constitution nowhere references the Deity as the source of that law," Koepsell said. Supporters of the "under God" phrase point to contemporary documents and a climate of belief in God–as well as the fact the Founders’ aim was to avoid establishment of a national religion as many had suffered in Europe. But, Koepsell said, the Constitution itself is a secular document and its language does not support that point.

"The Declaration of Independence is not part of our organic law. The Constitution is. The people give the government its power–that’s why we have a Bill of Rights," Koepsell said.

"It is contrary to the Constitution for the government to establish religion over non-religion whether or not it offends anyone. The fact is there are minority religions in this country who do not ascribe to a monotheistic idea–there are Hindus, animists" as well as atheists, Koepsell said from his office in western New York.

Whether central California school children will stop saying the pledge depends on whether U.S. District Court Judge Lawrence Karlton and the U.S. Ninth Circuit Court of Appeals hold enforcement pending appeals.

In issuing his opinion denying the school districts’ request for dismissal of Newdow’s lawsuit, Karlton said he would sign a restraining order preventing recitation of the pledge in Elk Grove Unified, Rio Linda, and Elverta school districts. Newdow must now file for a restraining order and he was not clear about when he would file that request, but said he expected to take action within weeks. In the previous case brought by Newdow the courts held enforcement pending appeal, Cassidy said.

In addition to the Justice Department’s appeal, The Becket Fund for Religious Liberty said it will appeal. The district court granted the status of intervenors, or defendants, to the Fund’s clients. The Becket Fund represents ten California public school students and their parents, who want to protect their right to recite the full Pledge voluntarily, as well as the 1.7 million members of the Knights of Columbus.

The Knights were the prime mover in convincing Congress and President Eisenhower to add "under God" to the pledge in 1954 to affirm the United States’ differences with the Communist Soviet Union, said Patrick Korten, spokesman for the Knights of Columbus. The Pledge was first recited in 1892 and its language has been amended three times since then, most recently to add "under God."

"It is significant that the words ‘under God’ were added in 1954 at the height of the Cold War because it was a way of stating dramatically the difference between the United States of America and the Soviet Union. Because in the Soviet Union the notion was that people had no rights that the government did not give them," Korten said.

"Including the words ‘under God’ in the Pledge is simply another way of restating a foundational statement in the Declaration of Independence which is that ‘we are endowed by our Creator with certain unalienable rights’," Korten said. "What we are saying when we recite the Pledge with the words ‘under God’ in it is that in America we believe that our rights come from God–they are before the state. They exist prior to the state. The state does not hand out rights."

Attorney for the central California schools Cassidy noted that three Supreme Court justices, including Sandra Day O’Connor, issued opinions in the previous Newdow case upholding the pledge. In addition, other U.S. appeals courts–the Fourth and Seventh circuit courts–have upheld the language of the Pledge, said Jared Leland of the Becket Fund. The Fourth Circuit court found the Pledge was "a patriotic activity" rather than a religious one.

"I think on behalf the school districts and school children and administrators and teachers and principals, I think it is important that this issue be decided for once and for all," Cassidy told Insight. "I truly believe there ought to be one Pledge of Allegiance for all that can be recited by school children and adults equally. I think the addition of the words ‘under God’ is an accurate reflection of our religious heritage and tradition. And that it is not meant to, in any manner, establish a religion within the meaning of the Establishment Clause."

Valerie Schmalz is a writer for IgnatiusInsight. She worked as a reporter and editor for The Associated Press, and in print and broadcast media for ten years. She holds a BA in Government from University of San Francisco and a Master of Science from the School of Foreign Service at Georgetown University. She is the former director of Birthright of San Francisco. Valerie and her wonderful husband have four children.

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