Keep the Pledge of Allegiance Intact - 2004

A Message from Jay Sekulow

As our nation battles terrorism - at home and abroad - there is a very real threat that millions of students in the U.S. 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 declared unconstitutional by the U.S. Court of Appeals for the Ninth Circuit in California. The full appeals court refused to reconsider an earlier ruling by a three-judge panel of the appeals court that determined the phrase "one nation under God" violates the separation of church and state. Now, the only recourse rests with the U.S. Supreme Court.

The Supreme Court has agreed to hear the case and will decide on the constitutionality of a phrase that has become a time-honored tradition - an integral part of the pledge for nearly 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 Lincoln's Gettysburg Address, which concluded that "this nation, under God, shall have a new birth of freedom - and 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 governmental recognition when he quoted a 1952 finding by the court (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 such 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 Lincoln's 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 government's acknowledgment of our religious heritage, according to the court, is the phrase "one nation, under God."

And in 1985, Justice Sandra Day O'Connor argued in Wallace v. Jaffree that the inclusion of the words "under God" in the pledge is not unconstitutional because they "serve as an acknowledgment of religion with 'the legitimate secular purpose of solemnizing public occasions, and expressing confidence in the future.'" (O'Connor quotes herself from Lynch v. Donnelly).

The appeals court relied on faulty legal reasoning and reached a troubling conclusion that can now only be overturned by the Supreme Court. The pledge is a patriotic expression - not an affirmation of a particular faith.

Now that the Supreme Court has decided to take the case, it's important to note that the decision will not be made in a vacuum. After all, the Court has its own time-honored tradition at stake. Each session begins with the sound of a gavel - and a dramatic call to order that concludes with these words: "God save the United States and this honorable Court." The Supreme Court should keep the pledge intact.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice, a public interest law firm focusing on constitutional law. The ACLJ will ask the Supreme Court to uphold the constitutionality of the Pledge including the phrase, "under God," and will file a friend-of-the-court brief with the Supreme Court on behalf of members of Congress and concerned citizens from the across the nation.