"If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force citizens
to confess by word or act their faith therein."
— Justice Robert Jackson in West
Virginia Board of Education v. Barnette (1943)
The recitation of the Pledge of Allegiance has caused controversy that has
reached the hallowed halls of the U.S. Supreme Court on several occasions,
including the latest case that was dispatched by the justices in June 2004. Two
major issues have arisen with respect to the recitation of the pledge in public
schools: 1) whether students can be compelled to recite the pledge without
infringing on their First Amendment rights and 2) whether the inclusion of the
phrase “under God” — added in 1954 — violates the establishment clause.
Compelled-speech issue
The compelled-speech issue seemed to have
been resolved by the U.S. Supreme Court more than 60 years ago with its landmark
1943 decision West
Virginia Board of Education v. Barnette. Despite the decision allowing
to students to opt out of saying the pledge, children have been punished for
refusing to stand during or to recite the Pledge of Allegiance. In March 1998, a
13-year-old Jehovah’s Witness in a Seattle middle school was forced to stand
outside in the rain for 15 minutes for refusing to say the pledge. In April
1998, a 16-year-old student in San Diego was forced to serve detention for her
failure to recite the pledge.
In the aftermath of the Sept. 11, 2001, terrorist attacks, a resurgence of
patriotism has swept the nation. Public schools have helped fuel this patriotic
zeal by placing an increased emphasis on the pledge. Several state legislatures
have either considered or passed laws requiring the recitation of the Pledge of
Allegiance. For example, Colorado passed a law in 2002 that required all public
school students to recite the pledge unless they had a religious objection or
had obtained parental permission to abstain from the oath. After Colorado’s
American Civil Liberties Union chapter challenged the law in federal court, the
Legislature in March 2004 enacted a revised statute to allow students to opt out
of the pledge.
These examples are somewhat surprising given the decision in Barnette.
In that case, the high court struck down a West Virginia law that penalized
students and their parents if the children failed to salute the U.S. flag or
recite the pledge. The students could be expelled for insubordination, while
their parents could face a $50 fine and a 30-day jail term. A group of Jehovah’s
Witnesses, who refused to comply with the law for religious reasons, challenged
the statute.
Whether the Jehovah’s Witnesses would prevail was an open question. Looking
at Supreme Court precedent, their position appeared bleak. That’s because in its
1940 decision Minersville
School District v. Gobitis, the Court upheld a similar Pennsylvania
flag-salute law. “The ultimate foundation of a free society is the binding tie
of cohesive sentiment,” Justice Felix Frankfurter wrote for the majority.
Intolerance ran rampant against Jehovah’s Witnesses in various parts of the
country after the Gobitis decision. Author Shawn Francis Peters, in his
book Judging Jehovah’s Witnesses: Religious Persecution And the Dawn of the
Rights Revolution, writes: “Targeted largely because they refused to salute
the American flag, Witnesses throughout the United States were pummeled in
situations ranging from riots involving hundreds of people to scuffles among a
handful of men.” He adds that the Court’s “notorious ruling in the Gobitis
flag-salute case, handed down in June 1940, helped to ignite some of the worst
anti-Witness violence of the period.”
In a remarkable turnaround only three years after its ruling in
Gobitis, the high court overruled itself in Barnette. Writing at
the jingoistic time of World War II, the Court nonetheless issued an opinion
remarkably protective of student First Amendment rights. The Court wrote that
school boards must engage in “scrupulous protection of Constitutional freedoms
of the individual … [so as] not to strangle the free mind at its source and
teach youth to discount important principles of our government as mere
platitudes.” The Court reasoned that the First Amendment free-speech clause
included the right not to speak.
Barnette established a baseline of protection for student rights and
clearly held that students could not be forced to recite the Pledge of
Allegiance.
Alabama example
Even though Barnette established that
students have the right to opt out of reciting the pledge, students today are
still punished for refusing to participate.
Consider the case of Michael Holloman, a high school student in Alabama. In
May 2000, Holloman was castigated by teacher Fawn Allred and then paddled by a
school administrator for raising his fist during the recitation of the Pledge of
Allegiance. Holloman remained silent and raised his fist to express support for
fellow student John Michael Hutto, who had been forced to apologize to Allred’s
class for refusing to recite the pledge one day earlier. Holloman said he
believed the treatment of Hutto was unfair and unconstitutional.
Holloman sued Principal George Harland, Allred and the Walker County Board of
Education, alleging a violation of his First Amendment rights. In August 2000, a
federal judge granted summary judgment to the defendants, reasoning that they
had qualified immunity because there was no clearly established right to
silently raise one’s fist during the pledge.
On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals
reversed in Holloman v.
Walker County Board of Education. In the May 2004 ruling, the panel
voted 2-1 to reinstate Holloman’s lawsuit, saying that the lower court erred in
dismissing it. The majority also reasoned that it was improper for the federal
judge to grant the teacher and principal qualified immunity because it was
clearly established that students cannot be forced to recite the Pledge of
Allegiance.
“Barnette clearly and specifically established that schoolchildren have the
right to refuse to say the Pledge of Allegiance,” the majority wrote. “Under
Barnette, any ‘reasonable person would have known’ that disciplining Holloman
for refusing to recite the pledge impermissibly chills his First Amendment
rights.”
The school officials’ attorneys argued that the teacher and principal were
justified because Holloman’s act in raising his fist was disruptive and upset
other students. The majority disagreed, writing, “Where students’ expressive
activity does not materially interfere with a school’s vital educational
mission, and does not raise a realistic chance of doing so, it may not be
prohibited simply because it conceivably might have such an effect.”
The majority concluded, “Holloman had the constitutional right to raise his
fist during the Pledge of Allegiance so long as he did not disrupt the
educational process or the class in any real way.”
The school defendants contended that Holloman’s right to raise his fist
during the pledge was not clearly established because Barnette applied to
students with hands by their sides or in their pockets, rather than with
clenched fists.
“This is a hair we will not split,” the panel responded. “First Amendment
protections are not lost that easily.”
Colorado’s statute
In 2003, Colorado passed a law requiring daily
recitation of the Pledge of Allegiance by students and teachers. The only
exceptions were for religious reasons or “if a parent or guardian of the student
objects in writing to the recitation of the pledge on any grounds and files the
objection with the principal of the school.”
Three students and six teachers, along with the ACLU, challenged the new law
in federal court. The plaintiffs alleged in their complaint, Lane
v. Owens, that the statute violated their “rights to be free from
state-compelled expression.” In an oral
ruling from the bench in August 2003, U.S. District Judge Lewis Babcock
granted the plaintiffs a temporary restraining order. “It doesn’t matter whether
you’re a teacher, a student, a citizen, an administrator, or anyone else, it is
beyond the power of the authority of government to compel the recitation of the
Pledge of Allegiance,” he wrote.
Babcock stayed the case until the end of the legislative session in 2004 to
allow Colorado to amend the statute. The governor signed the revised law in
March 2004. The law provides: “Any person not wishing to participate in the
recitation of the Pledge of Allegiance shall be exempt from reciting the Pledge
of Allegiance and need not participate.”
Mark Silverstein, legal director of the Colorado ACLU, told the First
Amendment Center Online that the revised statute solved the law’s constitutional
problems under Barnette.
“Colorado legislators said their aim was to instill respect for the ideals
represented by the First Amendment,” he said. “We thought the law undermined
those very goals because public expression of beliefs and ideals of liberty and
justice should be voluntary, not coerced by forcing students to recite the
Pledge of Allegiance.”
Establishment-clause issues
Another First Amendment challenge to
the Pledge of Allegiance concerns the phrase “under God,” which was added by
Congress in 1954. The pledge was proposed in 1892 by the children’s magazine
The Youth’s Companion, as part of the celebration of the 400th
anniversary of Christopher Columbus’ discovery of America. Attributed to
clergyman Francis Bellamy, the original version read: “I pledge allegiance to my
Flag and the Republic for which it stands: one Nation indivisible, with Liberty
and Justice for all.”
In June 1954, President Eisenhower signed into law a measure adding “under
God” to the pledge. A congressional report accompanying the measure read: “from
the time of our earliest history our people and our institutions have reflected
the traditional concept that our Nation was founded on a fundamental belief in
God.”
Michael Newdow, an atheist in California, challenged the constitutionality of
the Pledge of the Allegiance and its recitation in public schools. Newdow sued
because he did not want his elementary school-age daughter to be forced to hear
the words “under God” in the pledge. After a federal judge dismissed the suit,
Newdow appealed to the 9th Circuit.
In June 2002, a three-judge panel of the 9th Circuit ruled 2-1 in Newdow
v. U.S. Congress that the 1954 law adding the words “under God” to the
Pledge of Allegiance was unconstitutional. Judge Alfred T. Goodwin reasoned that
the pledge violated the three most common tests used to analyze
establishment-clause cases — Justice Sandra Day O’Connor’s endorsement test,
Justice Anthony Kennedy’s coercion test, and the Supreme Court’s oft-criticized
Lemon test from its 1971 decision Lemon
v. Kurtzman.
Goodwin first applied O’Connor’s endorsement test (from her dissent in Lynch v.
Donnelly) and wrote that “in the context of the Pledge, the statement
that the United States is a nation ‘under God’ is an endorsement of
religion.”
“Although students cannot be forced to participate in recitation of the
Pledge, the school district is nonetheless conveying 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,” Goodwin
wrote.
Next, Goodwin examined the coercion test, which takes its roots from
Kennedy’s 1992 opinion in a middle school prayer case, Lee
v. Weisman. Goodwin wrote: “The coercive effect of this policy is
particularly pronounced in the school setting given the age and
impressionability of schoolchildren, and their understanding that they are
required to adhere to the norms set by their school, their teacher and their
fellow students.”
Finally, Goodwin applied the Lemon test. He examined the legislative
history of the 1954 law amending the pledge to determine that the primary effect
of the pledge was religious. He quoted from the legislative history, which
stated: “The inclusion of God in our pledge therefore would acknowledge the
dependence of our people and our Government upon the moral directions of the
Creator.”
The ruling in Newdow I unleashed a torrent of criticism from President
Bush, Congress and many members of the public.
The 9th Circuit narrowly denied
en banc, or full panel, review in February 2003. Goodwin, the judge who wrote
the original panel decision, amended the earlier opinion to focus only on the
issue of whether the recitation of the pledge with the words “under God” was
constitutional in the public school setting. The amended opinion did not discuss
whether the 1954 federal law was constitutional. Goodwin concluded that the
“school district policy impermissibly coerces a religious act.”
The 9th Circuit decision conflicted with an earlier opinion from the 7th
Circuit. In 1992, a three-judge panel of the 7th Circuit ruled in Sherman
v. Community Consolidated School District 21 that the recitation of the
pledge in Illinois elementary schools did not violate the establishment
clause.
Judge Frank Easterbrook, who wrote the 7th Circuit opinion, reasoned that
“the Pledge is a secular rather than sectarian vow.” Easterbrook devoted much of
his opinion to historical examples of U.S. leaders making religious
references:
"James Madison, the author of the first amendment, issued
presidential proclamations of religious fasting and thanksgiving. Thomas
Jefferson, who refused on separationist grounds to issue thanksgiving
proclamations, nonetheless signed treaties sending ministers to the Indians. The
tradition of thanksgiving proclamations began with President Washington, who
presided over the constitutional convention. From the outset, witnesses in our
courts have taken oaths on the Bible, and sessions of court have opened with the
cry 'God save the United States and this honorable court.' Jefferson’s
Declaration of Independence contains multiple references to God (for example:
'We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among
those are Life, Liberty, and the pursuit of Happiness.'). When Madison and
Jefferson wrote their famous declarations supporting separation of church and
state, they invoked the name of the Almighty in support."
Easterbrook noted that President Lincoln’s Gettysburg Address contained no
less than 14 references to God in its 699 words. To Easterbrook, references to
“under God” in the pledge and “In God We Trust” on U.S. currency, represented a
form of “ceremonial deism” that does not impermissibly endorse or coerce
religious belief.
Newdow goes to the Supreme Court
Presumably, because of the split
between the 7th and the 9th Circuits, the Supreme Court agreed to review the 9th
Circuit’s controversial Newdow decision. Newdow, who is both an emergency
room physician and a lawyer, argued the case himself before the high court.
On Flag Day, June 14, 2004, the Court issued its opinion in Elk
Grove Unified School District v. Newdow. However, a majority of the
Court refused to address the underlying establishment-clause issue. Instead, the
five-member majority — led by Justice John Paul Stevens — decided the case on
standing grounds. The majority determined that Newdow lacked standing because
the child’s mother, Sandra Banning, had primary legal custody and could make
final decisions involving the child.
“In our view, it is improper for the federal courts to entertain a claim by a
plaintiff whose standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an adverse effect on the person
who is the source of the plaintiff’s claimed standing,” Stevens wrote. “We
conclude that, having been deprived under California law of the right to sue as
next friend, Newdow lacks prudential standing to bring this suit in federal
court.”
Three justices dissented on the standing issue. Chief Justice William
Rehnquist and Justices Clarence Thomas and O’Connor all wrote separate opinions
addressing the merits, or lack thereof, of Newdow’s lawsuit. All three concluded
that the recitation of the pledge in public schools with the words “under God”
does not violate the establishment clause.
Only eight of the justices participated in the case because Justice Antonin
Scalia had recused himself. Newdow had requested Scalia’s recusal because of the
justice’s public comments that the 9th Circuit had ruled improperly.
For his part, Newdow vowed that he would continue the fight against the
pledge.
“I could easily imagine the case coming back up before the Court in a case
with parents both of whom oppose the pledge,” Fordham University School of Law
professor Abner Greene told the First Amendment Center Online.
Newdow files another challenge
Newdow kept his word, filing another
lawsuit on behalf of himself and three other parents known in court papers as
Jan Doe, Pat Doe and Jan Roe. These parents also have children ranging from
grades kindergarten to middle school in the Elk Grove Unified School
District.
In September 2005, U.S. District Judge Lawrence Karlton ruled in Newdow v.
Congress (No. Civ. S-05-17)(E.D. Cal.)(9/14/05) that Newdow lacked standing
based on the U.S. Supreme Court’s ruling in Newdow’s previous lawsuit. However,
the school officials conceded that Jan and Pat Doe had standing. Karlton also
ruled that Jan Roe had standing.
Karlton then asserted that he was bound by the 9th Circuit’s ruling in 2002
that teacher-led recitation of the Pledge of Allegiance violates the
establishment clause. That ruling, according to Karlton, established that “the
school district’s policy with regard to the pledge is an unconstitutional
violation of the children’s right to be free from a coercive requirement to
affirm God.”
Karlton’s decision provoked a quick response from U.S. Attorney General
Alberto Gonzalez, who said the Justice Department would fight the ruling.
In October, Karlton stayed his ruling, setting up another appeal to the 9th
Circuit.
While most of the attention about the pledge focuses on the Newdow
litigation, other federal courts continue to address pledge controversies on
establishment-clause grounds. In August 2005, a three-judge panel of the 4th
U.S. Circuit Court of Appeals ruled in Myers v. Loudon
County Public Schools that a Virginia statute providing for daily
recitation of the Pledge of Allegiance does not violate the establishment
clause. The statute also provided that “no student shall be compelled to recite
the Pledge if he, his parent or legal guardian objects on religious,
philosophical or other grounds to his participating in this exercise.”
The panel determined that the voluntary recitation of the Pledge was a
patriotic, not a religious, exercise and, thus, not a violation of the
establishment clause.
“Undoubtedly, the pledge contains a religious phrase, and it is demeaning to
persons of any faith to assert that the words ‘under God’ contain no religious
significance,” Judge Karen Williams wrote. “The inclusion of those two words,
however, does not alter the nature of the pledge as a patriotic activity.”
Conclusion
The fundamental First Amendment principle from
Barnette is that public school students cannot be forced to recite the
Pledge of Allegiance. Schools must allow students to opt out; the Court’s
compelled-speech doctrine requires as much. The question that will likely
resurface is whether the inclusion of the words “under God” violates the
establishment clause. However, given the opinions of the justices in
Newdow, an establishment-clause challenge to the pledge would face some
high hurdles.
(See also “Pledge of Allegiance
in public schools.”)
Updated November 2005
Related
Pledge of Allegiance history