Does God belong in the Pledge? Fifty years ago, Congress added 'under God' to the Pledge of Allegiance. A California atheist claims that recitation of the phrase in public schools violates the Constitution.
With passion and precision, he argued his own case for why the daily recitation of the Pledge of Allegiance in his daughter's public-school classroom violates the Constitution as long as the pledge contains the words "under God."
Last year, the Ninth Circuit Court of Appeals--one of 13 appeals courts, which are the last stop before the Supreme Court for cases coming through the federal court system--ruled in Newdow's favor that the addition of "under God" turned the pledge into a "profession of religious belief" and made it constitutionally unsuitable for daily recitation in the public schools. Newdow's challenge is part of the ongoing debate on the separation of church and state in America.
A COMPLEX HISTORY
When the pledge was written in 1892 by Francis Bellamy, a Boston minister, educator, and Socialist, it did not include the phrase "under God." During the 1920s, '30s, and '40s, the pledge became more popular, and many states passed laws requiring its recitation in public schools. In 1943, in response to a challenge by Jehovah's Witnesses (whose religion forbids saluting flags), the Supreme Court ruled that students cannot be forced to recite the pledge if it contradicts their personal beliefs.
Congress added "under God" in 1954, during the Cold War, in an effort to distinguish the American system from "Godless Communism." (The following year, Congress mandated that the phrase "In God We Trust" appear on all U.S. money, not just on coins, as it had until then.)
Newdow, a nonpracticing lawyer who works as an emergency-room doctor in Los Angeles, engaged the Justices in repartee more like dinner-table discussion than formal courtroom discourse. For example, when Newdow described "under God" as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Newdow said. "Well, that doesn't sound divisive," Rehnquist observed.
Newdow shot back, "That's only because no atheist can get elected to public office." The audience broke into applause, a rare event at the Supreme Court.
Earlier, Justice Stephen G. Breyer suggested that "under God" had acquired such a broad meaning and "civic context" that "it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge."
"I don't think that I can include 'under God' to mean 'no God,'" Newdow replied. "I deny the existence of God.... Government needs to stay out of this business altogether."
Solicitor General Theodore B. Olson, who defended the current pledge on behalf of the government, said the appeals court misunderstood the pledge. He said the phrase "under God" did not place the pledge in the category of religious expressions that the Supreme Court has found unconstitutional. Rather, Olson argued, the "under God" reference is a reflection of the nation's history and values--"an acknowledgment of the religious basis of the framers of the Constitution." (See William Safire's commentary, p. 25.)
A TIE VOTE?
Newdow never appeared to lose his footing. "There's a principle here," he said in closing, "and I'm hoping the Court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart, and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all."
Justice Antonin Scalia has recused himself from the case, because he publicly criticized the appeals court's ruling before the case reached the Supreme Court. His absence raises the possibility of a 4-to-4 tie, which would automatically affirm the Ninth Circuit's ruling for the states in its jurisdiction (Oregon, California, Washington, Arizona, Idaho, Montana, Nevada, Alaska, and Hawaii), without setting a binding precedent elsewhere. (In the states of the Ninth Circuit, schools are now forbidden to have students recite the pledge.)
Before the Justices can decide the case, however, they must resolve whether Newdow had the legal right, or standing, to bring his lawsuit. Newdow was never married to his 9-year old daughter's mother, who has custody of the girl and has told the Court she wants her to say the pledge with "under God." If the Court decides Newdow doesn't have standing, it would be unable to rule on the constitutional issues. That would effectively wipe the case off the books, annulling the Ninth Circuit ruling for Newdow.
Newdow told the Justices, "I am saying I, as her father, have a right to know that when she goes into the public schools she's not going to be told every morning to stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning."
The Court is expected to rule in this case by June.
* How would you respond to someone who said the phrase "In God We Trust" on U.S. currency violates the First Amendment's separation of church and state?
* Do religious minorities have the same rights as the religious majority?
To help students understand the controversy over the term "under God" in the Pledge of Allegiance; specifically, whether the term promotes a state religion.
BEFORE READING: Have a student read the First Amendment aloud. Ask whether there is a contradiction between the prohibition against the "establishment of religion" and allowing the "free exercise thereof."
CRITICAL THINKING: Note Michael Newdow's contention that no atheist can get elected to public office. Discuss Newdow's contention. Do students agree that voters won't elect atheists to public office? If they agree, what does this reveal about the free exchange of ideas in the U.S.?
SURVEY: Have students survey friends, parents, other relatives, or neighbors. Students should explain that their class is doing a survey based on a case currently before the Supreme Court. The issue: Some say "under God" in the Pledge of Allegiance makes the pledge a "profession of religious belief," thus violating the First Amendment's separation of church and state. They should ask: (1) Do you think the Supreme Court should cut "under God" from the pledge? (2) How might such a ruling help or hurt the country?
CAPTIVE AUDIENCE?: Tell students the California court said "under God" is an especially stringent endorsement of religion because students are "captive." Is pressure to join the majority especially difficult for students in class? Does the majority--in this case, the religious majority--have an obligation not to put pressure on those who have different religious beliefs?
FAST FACTS: Francis Bellamy, author of the Pledge of Allegiance, wrote it in 1892 as part of Columbus Day celebrations to mark the 400th anniversary of America's discovery. Historians believe the later addition of "under God" comes from Lincoln's Gettysburg Address: "This nation, under God, shall have a new birth of freedom." Some historians believe Lincoln borrowed the term from George Washington.
Linda Greenhouse covers the Supreme Court for The New York Times.
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|Publication:||New York Times Upfront|
|Date:||May 10, 2004|
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