A federal appeals court has ruled that classroom use of the phrase “under God” in the Pledge of Allegiance does not violate the separation of church and state.
The 2-1 ruling March 11 by the 9th U.S. Circuit Court of Appeals is the latest decision in a long-running legal campaign by Michael Newdow to have “under God” declared unconstitutional in the public school context.
Newdow, a California atheist activist, scored an initial victory in 2002 when a separate panel of 9th Circuit judges ruled in his favor. That decision was appealed to the Supreme Court, which vacated it, holding that Newdow lacked the right to sue (“standing”) on behalf of his daughter. (He does not have full custody of her.)
In the more recent decision, the 9th Circuit majority in Newdow v. Rio Linda School District declared that the Pledge is a patriotic exercise. The insertion of “under God” by Congress in 1954, the judges said, does not make the oath religious.
The court held that the Pledge does not violate church-state separation “because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge – its wording as a whole, the preamble to the statute, and this nation’s history – demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase ‘one Nation under God’ does not turn this patriotic exercise into a religious activity.”
As originally written in 1892 by Christian minister Francis Bellamy, the flag pledge had no religious content. Congress added the phrase “under God” 62 years later to make it clear that the United States is a religious country, unlike the officially atheistic Soviet Union, the country’s Cold War-era foe.
Dissenting Judge Stephen Reinhardt, tracing the history of how “under God” ended up in the Pledge, argued that the ritual does promote religion. The state, he said, may not indoctrinate children on matters of faith in public schools.
“As has long been agreed in this nation,” wrote Reinhardt, “the teaching of religious views is the function of the family and the Church, not the State and the public school system.”
Advocates of church-state separation were divided over Newdow’s legal strategy. Newdow seemed to think he could prevail before the Supreme Court, but many observers believed that prospect is unlikely, given the conservative leanings of most justices.
They also noted that a ruling striking down “under God” would likely spark a political firestorm and result in a constitutional amendment weakening church-state separation.
In a separate case also handed down the same day, the 9th Circuit upheld the use of the phrase “In God We Trust” on U.S. money. That challenge was also brought by Newdow, and the three-judge panel ruled unanimously that he lacks standing to bring the case.
The court also cited a previous decision on the matter that declared In God We Trust to be “patriotic or ceremonial,” saying it “bears no true resemblance to a governmental sponsorship of a religious exercise.” (Newdow v. Lefevre)