Patriotism and the Pledge of Allegiance in School - 2004 Informational Letter
This informational letter has been sent to all U.S. State School Superintendents and to the District of Columbia urging them to allow displays like "God Bless America," and urging them to permit students to say the Pledge of Allegiance in all public schools and provides a legal foundation for these requests.
Dear School Superintendent:
In response to the September 11 terrorist attacks on our country, a number of public school districts have instituted a campaign to strengthen and encourage patriotism among our citizens, especially our youth. Various public schools have put up "God Bless America" or "In God We Trust" signs and have encouraged patriotic exercises such as reciting the "Pledge of Allegiance." However, the ACLU and other similar groups have threatened to challenge those practices. In light of those misguided threats, the American Center for Law and Justice (ACLJ) would like to affirm by this letter the permissibility of displaying a "God Bless America" or "In God We Trust" sign and reciting the "Pledge of Allegiance."
The principal areas of practice of the ACLJ are federal constitutional law, including the First Amendment Religion and Free Speech Clauses, and federal civil rights law.(1) Moreover, ACLJ attorneys have directly represented school districts in defense of accommodating practices that harmonize the religious liberties of students with constitutional constraints relevant to government bodies. Consequently, the ACLJ's legal staff is fully familiar with the governing principles and precedents that related to asserted violations of the Establishment Clause in the public school context.
STATEMENT OF RELEVANT FACTS
The recent savage attacks by terrorists acting within the United States -- hijacking airliners and killing thousands of innocent, unarmed, noncombatants -- have shocked and upset every person sensible of those acts. Not only New Yorkers, Pennsylvanians and Virginians, not only Americans, but Britons, Francs, Indians, Pakistanis, Japanese, and other nationalities were suddenly struck dead. And not only on these shores, but also around the globe, the outpouring of sympathy, compassion, and solidarity, has been the sole good to appear, phoenix-like, from the ashes of the World Trade Center and the Pentagon.
Among the most familiar signs of our renewed national solidarity, now ubiquitous, are displays of the United States flag. And few who saw them doing so could have failed to have been moved when the previously bitterly divided members of the House and Senate stood, hand in hand and arm in arm on the steps of the United States Capitol and sang "God Bless America." No mere episode of maudlin sentiment, at a time when the risk of danger was real and substantial, Congress demonstrated a true brotherhood.
Other evidences of that unity of purpose are to be found everywhere around the Nation. In fact, on Tuesday, October 9, Education Secretary Rod Paige urged all 107,000 public and private elementary and secondary schools to join in "showing our patriotism by reciting the Pledge of Allegiance at a single time and with a unified voice." Paige wrote: "We can send a loud and powerful message that will be heard around the world: America is one nation, under God, indivisible, with liberty and justice for all.'" Such would be the voluntary recitation of the "Pledge of Allegiance" by students at public schools, and the displaying of "God Bless America" or "In God We Trust" signs on school marquees. These practices are currently ongoing in various public schools and are entirely constitutional.
STATEMENT OF RELEVANT LAW
1. Presidential/Congressional expressions of patriotism
Amidst that solemn and tumbling cascade of emotions, of understandings, and of new or renewed commitments to family, faith, and Nation, public persons and governments commended to the people of the United States the wise course of seeking comfort and solace within the religious faiths to which Americans, individually, adhere. Most notably, the President of the United States declared Friday, September 14, 2001, a National Day of Prayer and Remembrance. (2) And, in addition to their spontaneous singing of "God Bless America," Congress took the further and significant step of directing and authorizing the use of the Rotunda of the United States Capitol building for a prayer vigil held throughout the day on September 12, 2001.(3) These somber and solemn expressions for the American people served important purposes of providing comfort and solace in tragedy. In like manner, the message "God Bless America" or similar such exclamatory phrases serve to provide comfort and solace to students and their families around the country.
2. Public schools' expression of patriotism
As a first principle, of course, there simply is no such thing in the Constitution as "separation of church and state." Instead, the First Amendment to the Constitution prohibits the establishment of a church for the country by Congress. The concept of "separation of church and state" is a poorly crafted metaphor intended to illuminate Thomas Jefferson's approach to the relationship between religious entities and government. That metaphor never was enacted into law by the States as an amendment to the Constitution, and whatever its worth is, it cannot overmatch the actual meaning of the Establishment Clause.
Under current law, it is entirely permissible for a public school or other government body to display a "God Bless America" or "In God We Trust" sign or to institute voluntary recital of the "Pledge of Allegiance" by its students.
The words "God Bless America" are the title of a well-known patriotic song, which has been commonly performed at various events throughout our country for a long time, including its regular singing by children in public schools. These words are also part of the customary Presidential benediction spoken at the conclusion of most Presidential speeches. Although there may be some limits to such displays of "ceremonial deism," (4) the display of a sign containing the phrase, "God Bless America" is well-within the bounds of accepted and acceptable practices. It is thus a species of "ceremonial deism" such as our national motto, "One Nation Under God," and "In God We Trust," on our currency, as well as proclamation of "God save the United States and this honorable Court" by the Supreme Court bailiff in the beginning of oral arguments.
Likewise, the "Pledge of Allegiance" is entirely a patriotic exercise expressing loyalty to our nation. As history shows, objections to the words "under God" in the pledge would be without merit. The words "under God" were added in 1954. The pledge was originally printed (1892) in the magazine Youth's Companion. Since 1939 its authorship has been officially attributed to Francis Bellamy, who had been on the staff of the magazine. The original text has been altered twice. In 1923, the words "the flag of the United States of America" were substituted for the words "my flag," and in 1954 an act of Congress added the words "under God." (5)
The phrase "under God" first appeared in President Lincoln's Gettysburg Address, which concluded that "this nation, under God, shall have a new birth of freedom - and that government of the people, by the people, for the people, shall not perish from the earth." (6)
The Supreme Court has considered the words "One Nation under God" in the pledge to be one of many "illustrations of the Government's acknowledgment of our religious heritage." And just recently, in ACLU v. Capitol Square Review and Advisory Bd., (7) the Sixth Circuit upheld Ohio's motto "With God All Things Are Possible" as a species of ceremonial deism immune to establishment clause challenges and noted the similarity of the Ohio motto to the national pledge. (8)
Similarly, the national motto "In God We Trust" falls into the same category of permissible ceremonial deism. The history of the national motto "In God We Trust" goes back to 1814. In September of that year, during the British bombardment of Fort McHenry in Baltimore, Francis Scott Key composed the poem the "Star Spangled Banner," of which one line in the final stanza is "And this be our motto In God is our trust.'" (10) In 1955 Congress mandated the inscription of "In God We Trust" on all coins and paper currency. (11) The following year, Congress codified "In God We Trust" as the national motto. (12) Congress's rationale for doing so can be found in the relevant House Report:
It will be of great spiritual and psychological value to our country to have a clearly designated national motto of inspirational quality in plain, popularly accepted English. The Judiciary Committee of the House of Representatives recognizes that the phrase "E pluribus unum" has also received wide usage in the United States. However, the committee considers "In God We Trust" a superior and more acceptable motto for the United States.
The Supreme Court and other courts have since noted a number of times the permissibility of the national motto as one of the numerous official references to our religious heritage. (14)
Additionally, to date the Supreme Court has never held that the expression of patriotic sentiments, such as "God Bless America" slogans or recitation of the pledge or the national motto, on public school grounds is subject to special restriction because those sentiments may be couched in common terms used by people of faith. And, in fact, one United States Court of Appeals, outside of the realm of expression of patriotic sentiment and inside the arena of religious observances and celebrations, has held that the Constitution is not violated by the performance of Christmas carols, even with religious content. In Florey v. Sioux Falls School Dist. 49-5, (15) a case touching on official public school observance of religious holidays, the Eighth Circuit concluded that religious songs and symbols can be used in the public schools if they are "presented in a prudent and objective manner and only as part of the cultural and religious heritage of the holiday . . . ." (16) The Eighth Circuit stated that the study and performance of religious songs is constitutional if the purpose is the "advancement of the students' knowledge of society's cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry and drama that is likely to be of interest to the students and their audience." (17)
Here, no such extensive study of materials and performance of songs is at issue. Consequently, the risks that attend such extensive study and the performance for public school students of such songs are not presented here. Instead, a statement "God Bless America" or "In God We Trust" appears on a school's marquee, or the recitation of the pledge is made by voluntary participants, during a time when the Nation is reeling from the shock and horror of an act of unspeakable horror and evil. It is hardly likely that such expressions present a threat of Establishment Clause violation greater than the study and performance of religious songs and hymns associated with Christmas (or other) observances.
Finally, even if the assertion seems doubtful to some, courts have touched on the particular phrase, "God Bless America," and have expressed doubts that the phrase violates the Establishment Clause. For instance, in Brown v. Woodland Joint Unified Sch. Dist., (18) reaching the conclusion that a children's textbook series that had been alleged to endorse the religions of Witchcraft and Neo-Paganism did not violate the Establishment Clause, a federal district court noted that the challenged series did not violate the Establishment Clause any more than did the singing of "God Bless America." (19) In like vein, as it considered a challenge to graduation prayer in public schools in Sands v. Morongo Unified Sch. Dist., (20) the California Supreme Court noted that the words "God Bless America" were constitutionally permissible and that such "commonly performed" and "traditional patriotic songs" did not run afoul of the Establishment Clause.(21)
The situation with the "Pledge of Allegiance" is similar. As long as student participation in the recitation of the pledge is not mandatory, the practice is entirely permissible. Any person having a religious or other objection to the recitation of the pledge need not participate. Therefore, if your school district displays a "God Bless America" or "In God We Trust" sign and/or merely allows the recitation of the pledge as one of the alternatives for engaging in patriotic exercises, there will be no constitutional violation.
CONCLUSION
The Establishment Clause of the First Amendment simply states, "Congress shall make no law respecting an Establishment of Religion . . . ." Nothing in the "God Bless America" or "In God We Trust" sign or the voluntary recitation of our nation's "Pledge of Allegiance" accomplishes such an Establishment of Religion. All are patriotic in essence.
Your public school district does not violate the Constitution by displaying patriotic slogans such as "God Bless America" or "In God We Trust" or allowing its student to recite the "Pledge of Allegiance" or engage in other expression of patriotic sentiments. On the contrary, during this terrible and distressing time, your District serves its students and families well when it expresses patriotic sentiments and allows organized patriotic exercises.
Very Truly Yours,
Jay Alan Sekulow
Chief Counsel
(1) Counsel for the ACLJ have argued numerous cases on issues of federal constitutional law and civil rights in the United States Supreme Court and in the federal appellate courts. Those cases include: Board of Education v. Mergens, 496 U.S. 226 (1990); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000), reh'g en banc denied, 2001 U.S. App. LEXIS 6606 (April 13, 2001);
In addition, ACLJ counsel have provided amicus briefs in a broad range of cases decided by the Supreme Court, including Good News Club v. Milford Central School Dist., 121 S.Ct. 2093 (2001).
(2) In pertinent part, the Presidential Proclamation reads:
National Day of Prayer and Remembrance for the Victims Of the Terrorist Attacks on September 11, 2001
By the President of the United States of America
A Proclamation
On Tuesday morning, September 11, 2001, terrorists attacked America in a series of despicable acts of war. They hijacked four passenger jets, crashed two of them into the World Trade Center's twin towers and a third into the Headquarters of the U.S. Department of Defense at the Pentagon, causing great loss of life and tremendous damage. The fourth plane crashed in the Pennsylvania countryside, killing all on board but falling well short of its intended target apparently because of the heroic efforts of passengers on board. This carnage, which caused the collapse of both Trade Center towers and the destruction of part of the Pentagon, killed more than 250 airplane passengers and thousands more on the ground.
* * * *
We mourn with those who have suffered great and disastrous loss. All our hearts have been seared by the sudden and sense-less taking of innocent lives. We pray for healing and for the strength to serve and encourage one another in hope and faith.
Scripture says: "Blessed are those who mourn for they shall be comforted." I call on every American family and the family of America to observe a National Day of Prayer and Remembrance, honoring the memory of the thousands of victims of these brutal attacks and comforting those who lost loved ones. We will persevere through this national tragedy and personal loss. In time, we will find healing and recovery; and, in the face of all this evil, we remain strong and united, "one Nation under God."
NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim Friday, September 14, 2001, as a National Day of Prayer and Remembrance for the Victims of the Terrorist Attacks on September 11, 2001. I ask that the people of the United States and places of worship mark this National Day of Prayer and Remembrance with noontime memorial services, the ringing of bells at that hour, and evening candlelight remembrance vigils. I encourage employers to permit their workers time off during the lunch hour to attend the noontime services to pray for our land. I invite the people of the world who share our grief to join us in these solemn observances.
* * * *
(Emphasis supplied.)
(3) In pertinent part, the resolution enacted by the Congress reads:
Resolved by the House of Representatives (the Senate concurring), That the Rotunda of the Capitol is authorized to be used at any time on September 12, 2001, for a prayer vigil in memory of those who lost their lives in the events of September 11, 2001. Physical preparations for the vigil shall be carried out in accordance with such conditions as the Architect of the Capitol may prescribe.
H. Con. Res. 223.
(4) Cf. Lee v. Weisman, 505 U.S. 577, 589 (1992).
(5) Garrett Epps, What We Talk About When We Talk About Free Exercise, 30 Ariz. St. L.J. 563, n.62 (1998) (citing Pledge of Allegiance, Grolier's Multimedia Encyclopedia (1997)).
(6) 2 William E. Barton, The Life of Abraham Lincoln 493 (1925) (emphasis added) (one of nine recorded versions of the 1863 Gettysburg Address, seven of which contain the phrase "under God").
(7) 243 F.3d 289 (6th Cir. 2001).
(8) Id. at 300, 310.
(9) Id.
(10) Steven B. Epstein, Rethinking The Constitutionality Of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2122 (1996)
(11) See 31 U.S.C. 5114 (2001).
(12) See 36 U.S.C. 302 (2001) (stating "In God we trust' is the national motto").
(13) H.R. Rep. No. 84-1959, at 1 (1956).
(14) See e.g., Lynch, 465 U.S. at 676 (1984); School Dist. v. Schempp, 374 U.S. 203, 303 (1963) (concurring opinion); Engel v. Vitale, 370 U.S. 421, 440 n.5 (1962) (concurring opinion); Opinion of Justices, 108 N.H. 97 (1967) (upholding placement of plaques with the motto "In God We Trust" in public schools).
(15) 619 F.2d 1311 (8th Cir. 1980).
(16) 619 F.2d at 1317.
(17) 619 F.2d at 1314.
(18) 1992 U.S. Dist. LEXIS 22119 (Civ. No. S-91-0032) (Cal. E.D. 1992).
(19) Id. at *38 (citation omitted).
(20) 809 P.2d 809 (Cal. 1991).
(21) See also Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 959 F.2d 381, 387 (2d Cir. 1992), rev'd on other grounds, 508 U.S. 384 (1993) (performance of "God Bless America" at an after-hours concert held at school as a "incidental" "reference to religion" "at best").