Keep the Pledge of Allegiance Intact

June 15, 2011

5 min read

American Heritage

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A Message from Jay Sekulow

As our nation continues to battle terrorismat home and abroadthere is a very real threat that millions of students in the United States will no longer have an opportunity to express their patriotism by voluntarily reciting the Pledge of Allegiance with the phrase one nation, under God.

That phrase has been challenged in a case recently filed in a federal court in New Hampshire.  The Plaintiffs have asked the court to invalidate the federal statute recognizing the Pledge of Allegiance (4 U.S.C. 4)including the phrase, one nation, under Godas well as the practice of leading public school students in the voluntary recitation of the Pledge.

This challenge to the Pledge must be taken seriously.  The attorney for the Plaintiffs in the New Hampshire case brought a similar challenge in California within the past several years.  In that case, the United States Court of Appeals for the Ninth Circuit declared the practice of reciting the Pledge in public school classrooms unconstitutional.  The Supreme Court of the United States ultimately dismissed the case on standing grounds.

The phrase one nation, under God has become a time-honored traditionan integral part of the Pledge for over 50 years.  The Pledge first appeared in print in 1892 as a patriotic exercise expressing loyalty to our nation. Congress added the phrase under God in 1954.  That phrase first appeared in President Lincolns Gettysburg Address, which concluded that this nation, under God, shall have a new birth of freedomand that the government of the people, by the people, shall not perish from the earth.

While the Supreme Court has never ruled directly on the constitutionality of the Pledge, there are numerous cases over the years where Justices concluded that the phrase one nation, under God is not an establishment of religion, but merely a way for the government to acknowledge our religious heritage.

In 1962 in Engel v. Vitale, Justice Potter Stewart referred to the Pledge of Allegiance as an example of permissible governmental recognition when he quoted a 1952 finding by the court (in Zorach v. Clauson) that [w]e are a religious people whose institutions presuppose a Supreme Being.

In Abington v. Schempp, Justice William Brennan wrote in 1963 that patriotic exercises like the Pledge do not violate the Establishment Clause of the First Amendment because such a reference, as he put it, may merely recognize the historical fact that our nation was believed to have been founded under God.  Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincolns Gettysburg Address . . . .

In 1984, the Court in Lynch v. Donnelly recognized there is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.  Among the many examples of our governments acknowledgment of our religious heritage, according to the Court, is the phrase one nation, under God.

In 1985, Justice Sandra Day OConnor argued in Wallace v. Jaffree that the inclusion of the words under God in the Pledge is not unconstitutional because it serve[s] as an acknowledgment of religion with the legitimate secular purpose of solemnizing public occasions, and expressing confidence in the future.

In 2002, the United States Congress enacted legislation explaining that the Pledge is consistent with other examples of the historic role that religion has played in American life. Pub. L. 107-293, 116 Stat. 2057 (Nov. 13, 2002).

In 2004, several Supreme Court Justices wrote concurring opinions in Elk Grove Unified School District v. Newdow to express their view that the Pledge is constitutionally sound.  For example, Chief Justice William Rehnquist explained that, [t]he phrase under God in the Pledge seems, as a historical matter, to sum up the attitude of the Nations leaders, and to manifest itself in many of our public observances.  He noted that [r]eciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one . . . . Chief Justice Rehnquist also explained, [t]he recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase under God cannot possibly lead to the establishment of a religion, or anything like it.

Justice OConnor also wrote a concurring opinion in which she explained, [i]t is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths.  Eradicating such references would sever ties to a history that sustains this Nation even today.  She noted that the Pledge is similar to other permissible statements like the national motto (In God We Trust) and the Supreme Court Marshals call, God save the United States and this honorable Court.  Justice OConnor also stated, [t]he phrase under God . . . represents a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system.

The New Hampshire lawsuit relies on faulty legal reasoning.  The Pledge is a patriotic expression, not an affirmation of a particular faith.  The New Hampshire court should uphold the Pledge and acknowledge that it is an appropriate way for millions of Americans to express their patriotism and love for their country.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice, a public interest law firm specializing in constitutional law.  The ACLJ will ask the New Hampshire court to uphold the constitutionality of the Pledge, including the phrase, one Nation, under God, by filing a friend-of-the-court brief on behalf of members of Congress and concerned citizens from the across the nation.