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Supreme Court Statements About the Pledge of Allegiance

Controversy surrounds the Ninth Circuit Court of Appeals' decision holding that the phrase in the Pledge of Allegiance, "one Nation under God" violates the Establishment Clause. It is most instructive to read, however, what various Supreme Court Justices have said regarding the constitutionality of the Pledge of Allegiance. Although the Court has not directly ruled on the issue presented to the Ninth Circuit, many Members of the Court have indicated in past decisions that the Pledge of Allegiance poses no Establishment Clause problem. Following is a compilation of statements made by various Supreme Court Justices since the phrase "under God" was added to the Pledge of Allegiance.

A. Engel v. Vitale, 370 U.S. 421 (1962)

In Engel, the Court struck down New York State's law requiring school officials to open the school day with prayer. Significantly, the Court distinguished New York's policy from a requirement that school children participate in patriotic expressions of religious faith. Although the Court ruled that "government . . . should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves," the Court explained,

There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

Id. at 435 n.21.

In a dissenting opinion, Justice Potter Stewart cited the many examples of how the government has consistently recognized the "deeply entrenched and highly cherished spiritual traditions of our nation." Id. at 450 (Stewart, dissenting). Specifically, he referred to the following: 1) The Supreme Court's practice of opening its sessions with the phrase, "God save the United States and this Honorable Court;" 2) the legislative branches' practice of opening their sessions with prayer; and 3) Presidential appeals (from George Washington to Dwight Eisenhower) to God for protection and help. Id. at 446-49 n.3. Justice Stewart also referred to the National Motto and the Pledge of Allegiance as examples of governmental recognition that "[w]e are a religious people whose institutions presuppose a Supreme Being." Id. (quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952)).

Although he concurred with the result in Engel, Justice Douglas nevertheless agreed with Justice Stewart that the New York prayer practices were akin to other governmental actions that recognized of our nation's religious heritage, including the Pledge of Allegiance.

What New York does on the opening of its public schools is what we do when we open court. Our Crier has from the beginning announced the convening of the Court and then added "God save the United States and this Honorable Court." That utterance is a supplication, a prayer in which we, the judges, are free to join, but which we need not recite any more than the students need recite the New York prayer. What New York does on the opening of its public schools is what each House of Congress does at the opening of each day's business.

Id. at 439-40 & n.5 (pointing out that the addition of the phrase "under God" to the Pledge was another example of this nation's recognition of a Supreme Being).

B. Abington v. Schempp, 374 U.S. 203 (1963)

Just one year later, in Abington, in which the Court held unconstitutional government mandated Bible reading in public schools, Justice Goldberg again distinguished the challenged practice from patriotic expressions of faith. Citing Engel, Justice Goldberg stated that its decision in Abington did not mean that "all incidents of government which import of the religious" would be "banned by the strictures of the Establishment Clause." Id. at 307.

The First Amendment does not prohibit practices, which by any realistic measure, create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.

Id. at 308 (Goldberg J., concurring).

Justice Brennan also distinguished between religious practices, such as prayer and Bible reading, and patriotic exercises with religious references. He thought that such exercises, including the Pledge of Allegiance, did not violate the Establishment Clause because they had lost any religious significance through repetitive usage. Id. at 303 (Brennan, J., concurring).

This general principle might also serve to insulate the various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been their origins, no longer have a religious purpose or meaning. The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded "under God." Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact.

Id. at 303-04.

C. Lynch v. Donnelly, 465 U.S. 668 (1984)

In Lynch, the Court again recognized "there is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life." Id. at 674. "Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders." Id. at 675. The Court listed many examples of our "Government's acknowledgment of our religious heritage," and included amongst these examples Congress' addition of the words "under God" in the Pledge of Allegiance in 1954. Id. at 676-77. The Court noted approvingly that "many thousands of public school children" recite the Pledge on a daily basis. Id.

D. Marsh v. Chambers, 463 U.S. 783 (1983)

In Marsh, Justice Brennan repeated his conviction that the phrase "under God" in the Pledge of Allegiance did not violate the Establishment Clause because those words "have lost any true religious significance." Id. at 818 (Brennan, J., dissenting). Calling the Pledge a "formulaic recitation," he distinguished it from legislative prayer, which he considered a violation of the "principles of neutrality and separation that are embedded within the Establishment Clause." Id. at 808.

E. Wallace v. Jaffree, 472 U.S. 38 (1985)

In Wallace, Chief Justice Rehnquist foreshadowed the Ninth Circuit's recent decision when he expressed concern that the Court's decision invalidating Alabama's moment of silence statute in that case would eventually be used to strike down the Pledge of Allegiance" Id. at 88 (Rehnquist, J. dissenting). In a concurring opinion, Justice O'Connor responded to Justice Rehnquist's concern, arguing that the inclusion of the words "under God" in the Pledge is not unconstitutional because they "serve as an acknowledgment of religion with 'the legitimate secular purpose of solemnizing public occasions, and expressing confidence in the future." Id. at 78 n.5 (O'Connor, J., concurring).

F. Lee v. Weisman, 505 U.S. 577 (1991)

Also foreshadowing the Ninth Circuit's recent decision, Justice Scalia in Lee, criticized the grotesque inconsistency in the Court's Establishment Clause jurisprudence. Specifically, Justice Scalia faulted the majority in Lee for striking down the graduation prayer yet implicitly approving the students' recitation of the Pledge of Allegiance before the prayer. Id. at 638 (Scalia, J., dissenting). He argued that the same degree of coercion was involved in both practices. Justice Scalia would uphold both the prayer and the pledge, but he criticized the majority for drawing illogical distinctions. Id. at 639. With great sarcasm, Scalia concluded that the Pledge of Allegiance "ought to be the next project for the Court's [Establishment Clause] bulldozer." Id.

G. Allegheny County v. American Civil Liberties Union, 492 U.S. 573 (1989)

In Allegheny County, Justice Kennedy also foreshadowed the Ninth Circuit's recent decision in his critique of Justice O'Connor's "endorsement test." The endorsement test defines an Establishment Clause violation in terms of whether the challenged policy or practice makes nonadherents "feel like 'outsiders' by government recognition or accommodation of religion." Id. at 670 (Kennedy, J., dissenting). In his critique of this approach, Justice Kennedy argued that most "of our traditional practices recognizing the part religion plays in our society" would likely fail the endorsement test, surely a result never intended by the founding fathers. Id. Kennedy provided many examples of official acknowledgements of religion that would be unconstitutional under the endorsement test, including Congress' decision to add "under God" to the Pledge of Allegiance. Id. at 672. "It would border on sophistry to suggest that the 'reasonable' atheist would not feel less than a 'full member of the political community' every time his fellow Americans" recited the Pledge." Id. at 673. The Ninth Circuit quoted Justice Kennedy, even though Justice Kennedy stated emphatically his conviction that the endorsement test was a flawed approach to Establishment Clause analysis.