Why the Supreme Court should protect the Pledge of Allegiance - 2004
The American Center for Law and Justice, which focuses on constitutional law, filed an amicus brief with the U.S. Supreme Court on behalf of nearly 70 members of Congress and more than 260,000 Americans asking the high court to uphold the constitutionality of the Pledge of Allegiance and the phrase "One nation under God." The ACLJ brief urged the court to reject the lawsuit challenging the Pledge arguing that Michael Newdow, the California athiest who initially brought the suit, did not have legal standing to make the challenge. In a decision issued by the Supreme Court on June 14th, the high court did just that - dismissed the case saying Newdow did not have legal standing to file the suit and removed the decision of the federal appeals court which ruled the Pledge was unconstitutional.
ACLJ Chief Counsel Jay Sekulow has spoken out repeatedly in support of the Pledge and the constitutional issues involved. Here now is a commentary that Sekulow wrote before the Supreme Court issued this important decision.
Why the Supreme Court should protect the Pledge of Allegiance
When the U.S. Supreme Court hears argument in the case concerning the constitutionality of the Pledge of Allegiance, the Justices will also hear the words that have been used to open each session of the high court for hundreds of years - "God save the United States and this Honorable Court." In fact, scholars believe the first Supreme Court crier - Richard Wenman - used those words to open the court's inaugural session in 1790.
That opening declaration is part of the 213-year history and tradition of the court. It is not an affirmation of any particular religious faith. It is not an establishment of religion.
The same holds true for the words - "under God" - contained in the Pledge of Allegiance, which have been declared unconstitutional by the U.S. Court of Appeals for the Ninth Circuit.
The Supreme Court has carved out two specific questions it will consider in the Pledge case. It can reverse the appeals court decision by determining that Michael Newdow, the California atheist who filed suit in the case, had no legal standing to bring the case. There are questions as to whether Newdow had custody of his daughter who he claims was offended by the voluntary recitation of the Pledge in school. So, the court could decide this case without even getting to the merits of the constitutionality of the Pledge.
The second issue before court involves the voluntary recitation of the Pledge by students in one California school district. The ramifications, of course, will echo through the corridors of every school in America. If the Justices reach this issue, there is ample reason for the court to reverse the appeals court and preserve the constitutionality of the Pledge and the phrase "under God."
The Pledge began as a patriotic exercise expressing loyalty to our nation. It first appeared in print in 1892. Congress added the phrase "under God" in 1954. President Lincoln used the phrase "under God" in the Gettysburg Address, which concludes with "this nation, under God, shall have a new birth of freedom - and the government of the people, by the people, shall not perish from the earth."
The Pledge is part of an American tapestry of time-honored and historically significant traditions that have come under attack in this country. "One nation, under God" is no more the establishment or endorsement of religion than our national motto, "In God, we Trust" or the phrase "God Bless America" - the closing words used by the President when making public comments or speeches. All of these are ways that the government properly and constitutionally acknowledges our religious heritage.
While the Supreme Court has never ruled directly on the Pledge itself, the record is replete with examples of Justices who understood the difference between acknowledging our religious heritage, which the constitution permits, and the government establishing or endorsing a religion, which, of course, the constitution prohibits.
In 1962, Justice Potter Stewart quoted a finding by the court from ten years earlier when he wrote "[w]e are a religious people whose institutions presuppose a Supreme Being."
And, in 1985, Justice Sandra Day O'Connor, who will cast a vote in the Pledge case, said that the inclusion of the words "under God" is not unconstitutional. She cited her own words written one year earlier in a separate decision. The words "under God," as she put it, "serve as an acknowledgment of religion with 'the legitimate secular purpose of solemnizing public occasions, and expressing confidence in the future.'"
The Supreme Court ruled in the 1940's that school students can opt out of reciting the Pledge if they object. That safety valve is already in place. There's no reason - legal or otherwise - to strike the phrase "under God" from the Pledge.
The First Amendment is the cornerstone of our constitution. And, the price of freedom means that sometimes you hear or see things you don't agree with. That doesn't mean the Supreme Court should censor the Pledge and remove the words "under God."
Jay Sekulow is chief counsel of the American Center for Law and Justice, a public interest law firm specializing in constitutional law. The ACLJ, based in Washington, D.C., is filing an amicus brief with the Supreme Court in support of the Pledge on behalf of members of Congress and thousands of concerned citizens from across the nation.