The First Amendment to the United States Constitution does not forbid voluntary recitation of the Pledge of Allegiance, regardless of whether it is by a student, government employee, or private citizen. While no person may be forced to recite the Pledge or other statements against his or her will, freely allowing such recitations to occur voluntarily does not raise any First Amendment concerns.
The Supreme Court has unequivocally recognized that “the Pledge of Allegiance evolved as a common public acknowledgement of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 (2004). Congress first approved the Pledge in 1942, and in 1954 it amended the Pledge to its current version by adding the words “under God.”
As the Ninth Circuit Court of Appeals recently noted, in upholding the constitutionality of the Pledge:
The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God--the Founding Fathers' belief that the people of this nation are endowed by their Creator with certain inalienable rights; indivisible--although we have individual states, they are united in one Republic; with liberty--the government cannot take away the people's inalienable rights; and justice for all--everyone in America is entitled to "equal justice under the law" (as is inscribed above the main entrance to our Supreme Court).
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1012 (9th Cir. 2010). As a first principle, the First Amendment does not impose an amorphous “separation of church and state” standard but rather prohibits the establishment of an official church and similar coercive action. The Supreme Court has repeatedly held that the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984); see also Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993); Widmar v. Vincent, 454 U.S. 263 (1981); Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). Moreover, the Court has cautioned against “preferring those who believe in no religion over those who do believe.” Zorach v. Clauson, 343 U.S. 306, 314 (1952).
While the Supreme Court has not directly ruled on the constitutionality of the Pledge of Allegiance, it has recognized that public expressions of patriotism, including the phrase “under God” in the Pledge of Allegiance, pose no Establishment Clause concerns. Allegheny County v. ACLU, 492 U.S. 573, 602-03 (1989) (“Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.”). In Lynch v. Donnelly, the Court recognized the “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” 465 U.S. at 674. The Court listed many examples of our “government’s acknowledgment of our religious heritage,” and included among those examples Congress’ addition of the words “under God” in the Pledge of Allegiance in 1954. Id. at 676-77
While the most recent Supreme Court case to address the Pledge, Elk Grove Unified School District v. Newdow, was decided on standing grounds (finding that the individual who challenged the Pledge did not have standing to sue), three Justices wrote at length to expressly acknowledge the constitutionality of public Pledge recitation. 542 U.S. 1 (2004).
Chief Justice Rehnquist wrote that “‘under God’ in the Pledge seems, as a historical matter, to sum up the attitude of the Nation’s leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion’s role in our Nation’s history abound.” Id. at 26 (Rehnquist, C.J., concurring). Justice O’Connor has repeatedly supported the constitutionality of the Pledge because it “commemorate[s] the role of religion in our history” and “some references to religion in public life and government are the inevitable consequence of our Nation’s origins.” Id. at 36 (O’Connor, J., concurring); see also Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (O’Connor, J., concurring).
In addition to the Supreme Court’s pronouncements, several federal appellate courts have held that teacher-led recitation of the Pledge of Allegiance in public school is constitutional. See Rio Linda, 597 F.3d 1007; Myers v. Loudoun County Pub. Schs., 418 F.3d 395 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437 (7th Cir. 1992), cert. denied, 508 U.S. 950 (1993). The Ninth Circuit Court of Appeals, in a case in which the ACLJ submitted a key amicus curia brief, recently ruled directly that “the Pledge is constitutional.” Rio Linda, 597 F.3d at 1012.
In sum, while no one may be required to recite the Pledge if he or she objects to doing so, students have a right to recite the Pledge in public settings, including teacher-led recitations in public schools. Such displays of patriotism do not raise First Amendment concerns. The Pledge is a constitutionally permissible reference to this nation’s rich religious heritage. The First Amendment affords atheists complete freedom to disbelieve; it does not compel the government to censor the phrase “under God” from the Pledge of Allegiance in order to suit atheistic tastes. The ACLJ will continue to vigorously defend challenges to the Pledge of Allegiance and our nation’s religious heritage.
The phrase "one nation under God" does not make the Pledge of Allegiance unconstitutional. The US Supreme Court has said that the Pledge is perfectly appropriate. Now, while you cannot compel participation, you can allow the recitation of the Pledge of Allegiance. No one is saying you have to recite the phrase "God Bless America" or you have to agree with the phrase in our national motto "In God We Trust" or with the phrase in the Pledge "one nation under God." A petition requesting the Pledge of Allegiance signed by students would help. State superintendents of schools are in an elected position, and they need to be reminded that thousands of people in their state who vote support the resolution unanimously passed by Congress just after the September 11 attacks in favor of the phrase "God Bless America." It is constitutionally appropriate to allow the Pledge of Allegiance, as the Supreme Court has said. Interestingly, the Supreme Court of the United States begins its sessions with the phrase "God save the United States and this honorable court." This is part of who we are as the American people, and it's unfortunate that state Civil Liberties Unions and some of the courts are making skewed legal analysis.
Of course, if there was a requirement that students recite the Pledge of Allegiance with the phrase "under God" intact, and they couldn't be opted out of that, that might well be a valid constitutional point. The Supreme Court, in its 1943 Barnette decision, certainly recognized that you can't compel someone to recite the Pledge of Allegiance. But having said that, the key is that no one is required to recite the Pledge of Allegiance. If you don't want to -- and there are people who object to reciting the Pledge of Allegiance on religious grounds - you have the right to opt out. No one is compelling anyone to recite the Pledge of Allegiance. If the question is: Does the recitation of the Pledge of Allegiance by school students at the beginning of the school day, with the phrase "under God" intact, constitute the establishment of religion? Our answer is no, it's an acknowledgement of the religious heritage of our country - just like the Gettysburg Address; just like the Declaration of Independence; just like the opening call to order at the Supreme Court, "God save the United States and this honorable court." No one is compelled to recite the Pledge.
We would see an increase in litigation on the National Motto, "In God We Trust." In the same language that the Supreme Court has utilized in affirming phrases like "under God" in the Pledge of Allegiance, they also talk about "In God We Trust." So, clearly, if the Supreme Court were to find "under God" unconstitutional, you will see an increase in litigation on other things like "In God We Trust."
The phrase "under God" is derived from the words of President Lincoln's Gettysburg Address: "This nation, under God, shall have a new birth of freedom." And Ben Franklin spoke of God during the Constitutional Convention in 1787 when the very birthing of the United States of America was at issue. Franklin implored those present to pray, as the Convention had not been going well. Franklin was referring to the words of Christ, who said: "Are not two sparrows sold for a penny? Yet not one of them will fall to the ground apart from the will of your Father" (Matthew 10:29, NIV). He was right in asking how a great nation could rise up without the Lord's blessings, protections and guidance. I think Franklin's statement speaks to the religious heritage of our country. The Pledge of Allegiance does as well, and I think in that context the Pledge is constitutionally appropriate. We, as a nation, do have a religious heritage; we are indeed a nation "under God." That doesn't mean everybody has to believe the same way; nor does it mean that everybody has to believe in God -- no one is penalized for unbelief. But the fact is, religious faith has played a role in the heritage of the United States. That's what the Pledge acknowledges.
In most charter school setups, the same constitutional rights that apply to public schools apply equally to charter schools. Concerning the issue of mentioning God in the Pledge of Allegiance or singing songs such as "God Bless America," "America the Beautiful," etc., the Supreme Court, lower courts, and the existing Department of Education guidelines all say that when you're having a musical or a choral presentation and you're including a patriotic song, you can sing the lyrics as they're written, without the fear of retribution. You don't have to censor out the phrase "God shed his grace on thee" from a song because it mentions God, and the entire lyrics of "God Bless America" can likewise be sung without a problem.
One of the amazing things about the Constitution is that our Founding Fathers had a foresight to imagine the kinds of issues we're facing today as the American people. They provided ways that we can rectify these situations, especially important now as we deal with homeland security and this war on terrorism. So the Constitution has served and continues to serve us well. However, there is some misunderstanding on church/state separation that I think is significant. The phrase "separation of church and state" is not even used in the Constitution. Nevertheless, there are two basic conflicting views. The accommodation view, which we hold and which we believe the Founding Fathers held, says that government cannot enforce a certain religion on people - the Constitution protects the free exercise of religion; this is why we have the Establishment Clause in the Constitution. Then there's the view of strict separation, which the ACLU holds, because they think that their view has the support of the Constitution. But church/state separation was never meant to exclude religious expression from public life. The Founding Fathers never intended to prevent anyone from saying the Pledge of Allegiance in a public school or other public arenas simply because it has the phrase "...one nation under God." Nor did they intend to ban the posting of the national motto, "In God We Trust." Many of these cases concern a general misunderstanding of the law. The founding fathers would never have imagined religious expression creating a constitutional crisis. Yet the ACLU thinks the constitution prevents religious expression, and some courts have agreed with them on some points.