Is the Pledge of Allegiance Unconstitutional?

A federal judge in Sacramento ruled Wednesday that it is unconstitutional to recite the Pledge of Allegiance in public schools. U.S. District Judge Lawrence Karlton ruled that the pledge’s reference to one nation “under God” violates the right of children in the public schools to be “free from a coercive requirement to affirm God.”

Once again, the driving force behind this case is Michael Newdow, an attorney and medical doctor who won a similar decision at the 9th U.S. Circuit Court of Appeals in 2002. That court ruled that Newdow, an atheist, had successfully made his case that requiring his daughter to recite the pledge of allegiance with the words “under God” violated his own first amendment freedoms. In essence, the California-based appeals court ruled that the mere presence of the words “under God” in the Pledge of Allegiance constituted an establishment of religion by the government.

The 2002 decision sent shockwaves across the country, but that decision was set aside last year by the U.S. Supreme Court. Nevertheless, the nation’s High Court dismissed the case after ruling that Newdow lacked standing because he did not have custody of his daughter at the time the suit was filed. Given the Supreme Court’s decision not to rule on the actual merits of Newdow’s argument, the stage was set for a second round of litigation.

Newdow, the Energizer bunny of secular litigation, filed the current case on behalf of three unnamed parents who have children in the California public schools. Judge Karlton ruled that the unnamed families do have standing and are thus entitled to sue.

In the judge’s thirty-page opinion, he identifies the first two parents as “Jan and Pat Doe,” who are described as residents of Sacramento County who have a seventh grader in the Elk Grove United School District. The third plaintiff, identified as “Jan Roe,” is the father of a third grade student enrolled in the Sacramento area public schools.

The judge’s decision also includes a fascinating description of the plaintiffs and their children. The seventh grade son of Jan and Pat Doe is described as “an atheist who denies the existence of God.” The parents are described in identical terms. According to the judge’s findings, “They contend that Doe child has been forced to experience the recitation of the Pledge that has been led by public school teachers in class and at public assemblies. Plaintiff Doe child has suffered harassment by other students due to Doe child’s refusal to participate in the Pledge.”

The Roe child is identified as a third grade student who is “a pantheist, who denies the existence of a personal God.” The judge’s decision states: “She has been forced to experience the recitation of the Pledge of Allegiance in her classes and has been led by her teachers in her class and at assemblies in reciting the Pledge.” A pantheist in the third grade?

The parents also allege that they individually have been “made to feel like a ‘political outsider’ due to the ‘government’s embrace of (Christian) monotheism in the Pledge of Allegiance.'” Further, “The parents contend that they are deeply involved in the education of their children, and that they have attempted to participate in school matters, but once their atheism becomes known, it interferes with their ability to ‘fit in’ and ‘affect changes within the political climate of parent-teacher associations [and] school board meetings.'”

Newdow also “alleges that he is an atheist who denies the existence of any god.” Furthermore, “Newdow avers that his child is forced to experience teacher-led recitation of the Pledge of Allegiance every morning, even though he has requested the principal of his child’s school and the [school district] that the practice be discontinued.”

Judge Karlton cited the 2002 decision by the Ninth Circuit and reiterated its ruling that the schools’ pledge policy “impermissibly coerces a religious act.” Accordingly, he ruled that the schools’ policy must be changed and announced that he would soon issue a stay ordering that the practice of reciting the pledge be halted in affected schools.

Clearly, this case will soon make its way back to the Supreme Court. Given the circumstances, it is unlikely that the High Court will be able to dismiss the case on the technicality of standing. In all likelihood, the Court will decide finally to rule on the constitutionality of the Pledge with the words “under God” as inserted by Congress in 1954.

How will the Supreme Court rule? That answer is anything but certain. Given the High Court’s recent pattern of rulings in church-state cases, observers are left with no definitive guide that would predict how it might rule in this case. If anything, the Court’s rulings on the public display of the Ten Commandments in its last term did nothing but add to the confusion.

Interestingly, Judge Karlton expressed relief that, given his deference to the Ninth Circuit’s previous ruling, he did not have to consider the Supreme Court’s most recent decisions. He expressed his thinking in a footnote: “This court will be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Court’s recently articulated distinction between those governmental activities which endorse religion and are thus prohibited, and those which acknowledge the Nation’s asserted religious heritage, and thus are permitted.” In other words, the judge confessed that he really did not know what the Supreme Court meant to say. He’s in good company.

Without doubt, the Court has demonstrated an increasing hostility toward the public display of any theistic belief. In the Ten Commandments decisions–with a collection of opinions amounting to a mass of confusion–the justices indicated an inclination towards an increasingly subjective test. In essence, the outcome of any future case concerning the Pledge will have everything to do with the composition of the Court and the proclivities of the individual justices.

What does all this mean? Christians should be careful to think clearly about the Pledge of Allegiance and the current controversy. Secularists like Michael Newdow represent the hard edge of ideological attacks upon all expressions of theistic belief in the public arena. The truth is that the courts have allowed and driven a constriction of religious liberty such that any public reference or acknowledgment of the beliefs common to vast millions of Americans is now considered to represent an unconstitutional establishment of religion by the government.

In recent years this has meant the eradication of prayers at public events such as graduation ceremonies and football games, and the removal of monuments and emblems from government property and vehicles.

All this puts believing Christians in a difficult position. After all, the Court has ruled that symbols and references to a divine being are allowable only insofar as those references point to no specific deity. Beyond this, the courts have ruled that the only permissible reference to deity is a reference that so reduces the definition of deity that it appears difficult for all but the most ardent atheist to object.

Because of this, Christians must not defend the presence of the word “under God” in the Pledge as a direct reference to the God of Abraham, Isaac, and Jacob–the Triune God whom Christians worship as Father, Son, and Holy Spirit. At best, the presence of this language in the Pledge and similar expressions on the nation’s currency represent an acknowledgement of a power higher than the State itself and the nation’s dependency upon that power for its safety and well being. Nevertheless, a decision from the Supreme Court that would require the removal of “under God” in the Pledge of Allegiance would represent a disastrous imposition of official secularism as the nation’s public commitment.

Michael Newdow and company will not be satisfied until the United States government is not only secular, but secularist. That’s the real agenda behind his lawsuits and what is really at stake in any future rulings. To accept his argument at face value, one would have to believe that the United States of America has functioned as a theocracy of sorts for the last half century. A little sanity would go a long way in this case.