The Constitutionality of Including the Phrase "Under God" in the Pledge of Allegiance

The Constitutionality of Including the Phrase
“Under God” in the Pledge of Allegiance
Henry Cohen
Legislative Attorney
American Law Division
On June 26, 2002, a three-judge panel of the Ninth Circuit had held that the 1954
federal statute that added the words “under God” to the Pledge of Allegiance violates
the Establishment Clause of the First Amendment. The panel also held that a California
school district policy requiring teachers to lead willing school children in reciting the
Pledge each school day violates the Establishment Clause. A modification issued on
February 28, 2003, eliminated the holding regarding the federal statute but retained the
ruling holding that the California statute coerces children into participating in a religious
exercise. On June 14, 2004, the Supreme Court reversed the Ninth Circuit’s decision,
finding that Newdow lacked standing to challenge the school district’s policy in federal
court. This report summarizes the case and congressional action in response to it (H.R.

2389, which passed the House on July 19, 2006, and S. 1046).

Background. On June 22, 1942, Congress codified the Pledge of Allegiance with1
no reference to “God.” On June 14, 1954, Congress amended the Pledge by adding the
words “under God.”2 Subsequently, California enacted a statute requiring “appropriate
patriotic exercises” to be conducted in every public elementary school each day and
providing that recitation of the Pledge would satisfy this requirement.3 After the Elk
Grove Unified School District implemented a policy requiring its elementary school
classes to recite the Pledge every morning, an atheist father of a second-grade student
objected. Although his daughter was not required to participate, he contended that she
was compelled to listen to her teacher and classmates recite the “under God” phrase each

1 See P.L. 623, Ch. 435, § 7, 56 Stat. 380 (1942).
2 See P.L. 396, Ch. 297, 68 Stat. 249 (1954). The Pledge is currently codified as “I pledge
allegiance to the Flag of the United States of America, and to the Republic for which it stands,
one Nation under God, indivisible, with liberty and justice for all.” 4 U.S.C. § 4.
3 See Cal. Educ. Code § 52720 (1989).

morning and that the federal and state statutes violated the Establishment Clause of the
First Amendment.4
The Trial Court Decision. On July 21, 2000, the federal district court for the
eastern district of California held the inclusion of the phrase “under God” in the Pledge
not to violate the Establishment Clause on the grounds the phrase “does not convey5
endorsement of particular religious beliefs.” The court noted that the Supreme Court has
not ruled on the issue, but it found “persuasive” a decision by the U.S. Court of Appeals6
for the Seventh Circuit in Sherman v. Community Consolidated School District 21
upholding a state statute mandating the daily recitation of the Pledge in the public schools.7
The court stated that under both the tripartite test set forth in Lemon v. Kurtzman and the
“endorsement” test,8 “the Pledge does not violate the Establishment Clause of the First
The Ninth Circuit’s Initial Decision (Newdow I). On June 26, 2002, a panel
of the U.S. Court of Appeals for the Ninth Circuit reversed, 2-1.9 The majority (Judges
Goodwin and Reinhardt) held both the 1954 federal statute and the school district policy
to violate not only the Lemon and endorsement tests but also a third criterion sometimes
used in Establishment Clause cases — coercion.10 “[T]he statement that the United States
is a nation ‘under God,’” the appellate court ruled, “is an endorsement of religion.” “The
text of the official Pledge,” it stated,
impermissibly takes a position with respect to the purely religious question of the
existence and identity of God. A profession that we are a nation “under God” is

4 The Establishment Clause provides that “Congress shall make no law respecting an
establishment of religion.” The Supreme Court has held it to apply to the states as well, as part
of the liberty protected from undue state interference by the Due Process Clause of the Fourteenth
Amendment. Everson v. Board of Education, 330 U.S. 1 (1947).
5 Newdow v. Congress of the United States, 2000 U.S. Dist. LEXIS 22366 (E.D. Cal. 2000).
6 980 F.2d 437 (7th Cir. 1992), cert. denied, 508 U.S. 950 (1993). The Seventh Circuit noted that
under the Supreme Court’s decision in West Virginia Board of Education v. Barnette, 319 U.S.

642 (1943), student participation in recitation of the Pledge must be voluntary.

7 403 U.S. 672 (1971). Lemon set forth a tripartite test for evaluating the constitutionality of
government action under the establishment clause, requiring that government action serve a
secular purpose, not have a primary effect of advancing religion, and not precipitate excessive
government entanglement with religion.
8 The endorsement test, first articulated by Justice O’Connor, reformulates the first two prongs
of the Lemon test and asks whether “government’s actual purpose is to endorse or disapprove of
religion” and whether “irrespective of purpose, the practice under review in fact conveys a
message of endorsement or disapproval.” See Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984)
(O’Connor, J., concurring).
9 Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).
10 In Lee v. Weisman, 505 U.S. 577, 587 (1992), the Court stated that “at a minimum, the
Constitution guarantees that government may not coerce anyone to support or participate in
religion or its exercise, or otherwise to act in a way which establishes a state religion or religious
faith, or tends to do so.” The Court decided Weisman on the basis of that test and subsequently
used it in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

identical, for Establishment Clause purposes,” to a profession that we are a nation
“under Jesus,” a nation “under Vishnu,” a nation “under Zeus,” or a nation “under no11
god,” because none of these professions can be neutral with respect to religion.
Similarly, it held, the school district’s practice of teacher-led recitation “convey[s] a
message of state endorsement of a religious belief” because it “aims to inculcate in
students a respect for the ideals set forth in the Pledge.”12 The act and the policy also
violate the coercion test, the majority stated. Both, it stated, “place students in the
untenable position of choosing between participating in an exercise with religious content
or protesting”; and that, it held, is constitutionally impermissible. The coercive effect was
exacerbated, it said, “given the age and impressionability of [elementary] schoolchildren
and their understanding that they are required to adhere to the norms set by their school,
their teacher, and their fellow students.”13
Finally, the court found the federal statute to violate the secular purpose criterion and
the school policy to violate the primary effect criterion of the Lemon test. The legislative
history of the federal statute, the majority asserted, “reveals that the Act’s sole purpose
was to advance religion, in order to differentiate the United States from nations under
communist rule.” The act was intended, the court stated, “to take a position on the
question of theism, namely, to support the existence and moral authority of God, while
‘denying ... atheistic and materialistic concepts.’” Such a religious purpose, the court
concluded, runs counter to the Establishment Clause.14 The school policy regarding
recitation of the Pledge, in contrast, the court found to have been adopted “for the secular
purpose of fostering patriotism.” But it failed the Lemon test’s prohibition on
governmental advancement of religion, the court stated, because it was “highly likely to
convey an impermissible message of endorsement to some and disapproval to others of
their beliefs regarding the existence of a monotheistic God.”15
Reaction in the 107th Congress. The Ninth Circuit’s decision precipitated a
political firestorm and led to several legislative actions by Congress. First, on June 26,

2002 — the same day that the decision came down — the Senate, by a vote of 99-0,

adopted a resolution “strongly disapprov[ing]” of the Ninth Circuit’s decision and
authorizing the Senate Legal Counsel to intervene and defend the constitutionality of the16
1954 Act. On June 27, 2002, the House, by a vote of 416-3, adopted a resolution
affirming that “the Pledge of Allegiance and similar expressions are not unconstitutional
expressions of religious belief” and calling on the Ninth Circuit “to rehear this ruling en
banc in order to reverse this constitutionally infirm and historically incorrect ruling.”17
Also on June 27, the Senate adopted a bill (S. 2690) by a margin of 99-0 that elaborated
its critique of the Ninth Circuit’s ruling and also reenacted into law both the Pledge of

11 Newdow v. U.S. Congress, supra n. 9, at 607.
12 Id.
13 Id. at 608.
14 Id. at 609-610.
15 Id. at 610.
16 148 CONG. REC. S6105 (daily ed. June 26, 2002) (adopting S.Res. 292).
17 Id. at H4135 (daily ed. June 27, 2002) (adopting H.Res. 459).

Allegiance (including the phrase “under God”) and the provision designating “In God We
Trust” as the national motto.18 The measure was subsequently reported favorably by the
House Judiciary Committee,19 adopted by the House on a vote of 401-5,20 and signed into
law by President Bush.21
Rejection of Petitions for Rehearing. On February 28, 2003, the Ninth Circuit22
rejected the school district’s petitions for rehearing and rehearing en banc. On the latter
petition, 10 of the court’s 24 judges voted to rehear the decision, but that fell three short
of the necessary majority. However, these 10 joined in two separate dissents setting forth
their arguments in support of rehearing. Judge O’Scannlain, joined by five other judges,
termed the panel’s decision in Newdow I “an exercise in judicial legerdemain” and said
it was “wrong, very wrong — wrong because reciting the Pledge of Allegiance is simply
not ‘a religious act’ as the two-judge majority asserts, wrong as a matter of Supreme
Court precedent properly understood, wrong because it set up a direct conflict with the
law of another circuit, and wrong as a matter of common sense.” “Public and political
reaction ... have made clear,” he asserted, that recitation of the Pledge is not a religious
act. It is essentially a patriotic act, he stated; and inclusion of a religious reference “does
not change the nature of the act itself.” For that reason, he said, it is different from the
formal religious exercises that the Supreme Court has struck down as unconstitutional.
In addition, he claimed, the panel’s decision “contradicts our 200-year history and
tradition of patriotic references to God” and belies as well numerous statements by
Supreme Court Justices that the Pledge is constitutional. Moreover, he stated, the panel’s
“expansive application of the coercion test is ill-suited to a society as diverse as ours,
since almost every cultural practice is bound to offend someone’s sensibilities.” Although
admitting that the panel’s reasoning “does have some plausible basis in the case law of
the Supreme Court,” he charged that its decision “adopts a stilted indifference to our past
and present realities as a predominantly religious people.” Indeed, he asserted, it “confers
a favored status on atheism in our public life.”
Revision of the Original Decision (Newdow II). On February 28, 2003,
notwithstanding the rejection of the petitions for rehearing, the three-judge panel revised

18 Id. at S6226.
19 See H.Rept. 107-659, 107th Cong., 2d Sess. (Sept. 17, 2002).
20 148 CONG. REC. H7186 (daily ed. Oct. 8, 2002).
21 P.L. 107-293 (Nov. 13, 2002).
22 Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003). On December 4, 2002, the three-judge
panel issued two rulings on procedural issues. First, it unanimously rejected a request that the
Senate be allowed to intervene as a party to defend the constitutionality of the 1954 statute,
stating that the Senate lacked constitutional standing to do so because it had not suffered a
“concrete and particularized harm ... beyond frustration of a general desire to see the lawth
enforced as written.” Newdow v. U.S. Congress, 313 F.3d 495, 498 (9 Cir. 2002). Second, the
panel unanimously rejected the mother’s petition for leave to intervene in order to challenge the
father’s standing to bring the suit on his daughter’s behalf. The petition alleged that the mother
had sole legal custody of the daughter and that the father, therefore, had no basis to file suit on
her behalf with respect to the Pledge. But the court found that the father retained rights regarding
the education and general welfare of his daughter under the custody order which were sufficient
to allow him to file suit on her behalf, notwithstanding the mother’s objections. Newdow v.
Congress, 313 F.3d 500 (9 Cir. 2002).

its original decision.23 The revision deleted the part that had held that the 1954 statute that
added “under God” to the Pledge was unconstitutional. It retained only the part that held
that the school district policy that mandated daily teacher-led recitation of the Pledge
violates the Establishment Clause. The revision based the latter holding exclusively on
the coercion test and eliminated the earlier decision’s reliance on the Lemon and
endorsement tests. The revision also asserted that the ruling “is not inconsistent” with
Supreme Court dicta on the matter and that recitation of the Pledge is different from
reciting the Declaration of Independence or singing the National Anthem, both of which
contain religious references. The Pledge, the revision contended, “is not merely a
reflection of the author’s profession of faith [but] by design, an affirmation of the person
reciting it.” The revision also argued that the contrary ruling by the Seventh Circuit in
Sherman v. Community Consolidated School District 2124 was flawed because it applied
neither the Lemon test nor the coercion test. The revision concluded that “the school
district’s policy and practice of teacher-led recitation of the Pledge, with the inclusion of
the added words ‘under God,’ violates the Establishment Clause.” Judge Fernandez
refiled his original dissent. On March 4, 2003, the Ninth Circuit stayed the effect of its
revised decision pending appeal of the case to the U.S. Supreme Court.
Reaction in the 108th Congress. On March 4, 2003, the Senate, by a vote of
94-6, adopted S.Res. 71 “strongly disapprov[ing]” the revised decision and authorizing
the Senate Legal Counsel to seek to intervene in the case or, if rebuffed, to file an amicus
curiae brief defending the constitutionality of the Pledge.25 The House, in turn, on March
20, 2003, adopted H.Res. 132, 400-7, which critiqued the revised decision, stated that the
recitation of the Pledge is a “patriotic” act rather than a religious one, and urged the
Supreme Court “to correct this constitutionally infirm and historically incorrect
holding.”26 In addition, on July 22, 2003, the House adopted an amendment by
Representative Hostettler to the fiscal 2004 appropriations bill for the Departments of
Justice, Commerce, and State (H.R. 2799) that bars use of any of the funds appropriated
by the bill to “enforce the judgment” in Newdow.
Reaction in the 109th Congress. On June 7 and June 21, 2006, the House
Committee on the Judiciary held markup sessions on H.R. 2389, 109th Congress, the
Pledge Protection Act of 2005, but took no action on the bill. On July 19, 2006, however,
the House passed H.R. 2389 without amendment, except to make the bill effective on the
date of enactment and applicable to cases pending on such date. H.R. 2389 and the
identical S. 1046 would remove the power of the federal courts, including the Supreme
Court, to decide “any question pertaining to the interpretation of, or the validity under the
Constitution of, the Pledge of Allegiance.” This limitation, however, would not apply to
courts of the territories of the United States or the District of Columbia.27

23 Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003).
24 Note 6, supra.
25 149 CONG. REC. S3076 (daily ed. March 4, 2003).
26 Id. at H2137 (daily ed. March 20, 2003). The measure had previously been reported by the
House Judiciary Committee. See H.Rept. 108-41, 108th Cong., 1st Sess. (March 18, 2003).
27 See CRS Report RL32171, Limiting Court Jurisdiction Over Federal Constitutional
Issues:”Court Stripping,” by Kenneth R. Thomas.

Appeal to the Supreme Court. In 2003, both the school district and the United
States asked the Supreme Court to hear the case, and the Court granted certiorari in the
school district’s appeal. The questions presented in Elk Grove Unified School District v.
Newdow were (1) whether Newdow had standing to bring the constitutional challenge;
and (2) whether a public school policy that requires teachers to lead willing students in
reciting the Pledge of Allegiance, which includes the words “under God,” violates the
Establishment Clause of the First Amendment, as applicable through the Fourteenth
Supreme Court’s Decision. On June 14, 2004, the Supreme Court reversed the
Ninth Circuit’s revised decision.29 The Court did not reverse based on the merits of the
case, but held that Newdow lacked standing to challenge the school district’s policy in
federal court. The Court found that, because Newdow lacked the ability to sue as his
daughter’s next friend under state law, his ability to claim standing in this case based upon
his parental status was questionable. The Court determined that it was “improper for the
federal courts to entertain a claim by a plaintiff whose standing to sue is founded on
family law rights that are in dispute when prosecution of the lawsuit may have an adverse
effect on the person who is the source of the plaintiff’s claimed standing.”30 Three
justices concurred in the judgment reversing the Ninth Circuit’s decision, but did so
because they found that the phrase “under God” did not violate the Establishment Clause.
Subsequent Case. Following the Supreme Court’s decision, Newdow and two
other sets of parents filed a new challenge to the constitutionality of the federal statute’s
including the phrase “under God,” and to four California public school districts’ requiring
students to recite the Pledge. The United States District Court for the Eastern District of
California held that the Ninth Circuit’s prior decision, which had held that the recitation
of the Pledge in public school classrooms violates the Establishment Clause, was binding31
on the district court despite the Supreme Court’s later reversal of that decision. The
court found that the circuit court’s decision was binding because it had not been vacated
by the Supreme Court, but had been reversed on procedural rather than substantive
grounds. Although the district court denied standing to Newdow himself, it determined
that the other plaintiffs had standing on their children’s behalf and that the recitation of
the Pledge in the classroom amounted to “an unconstitutional violation of the children's
right to be free from a coercive requirement to affirm God” in violation of the
Establishment Clause.32 Because the court was willing to enter a restraining order against
the recitation of the Pledge, it found that the constitutionality of the federal statute was
a moot question. The district court’s decision is currently on appeal to the Ninth Circuit.

28 540 U.S. 945 (2003). The Court denied certiorari in the other two appeals by the United States
and Newdow. 540 U.S. 962 (2003).
29 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
30 Id at 26.
31 Newdow v. Congress of the United States, 383 F. Supp.2d 1229 (E.D. Cal. 2005).
32 Id. at 1240.