Academic journal article Texas Review of Law & Politics

The Pledge of Allegiance and the Limited State

Academic journal article Texas Review of Law & Politics

The Pledge of Allegiance and the Limited State

Article excerpt

I. INTRODUCTION

For students and observers of American church-state relations, the last week of June 2002 was eventful. The Supreme Court issued a landmark ruling about government aid to religious education, holding in Zelman v. Simmons-Harris that the Establishment Clause permitted the inclusion of religious schools in programs of vouchers for private elementary and secondary schools.1 Zelman prompted a great deal of comment, but it was considerably overshadowed by the furor over the Ninth Circuit's decision the day before in Newdow v. Congress.2

In Newdow, a panel of the court held that the 1954 addition of the phrase "under God" to the Pledge of Allegiance to the U.S. flag1 violated the Establishment Clause.4 The panel struck down not only the teacher-led recitation of the Pledge with "under God" in public school classrooms, but also the 1954 statute that had added the phrase to the standard text of the Pledge in the U.S. Code.3 The effect was to require the removal of the phrase from the Pledge. The ruling provoked nationwide condemnation, and many observers predicted that it would be reversed by the en bane Ninth Circuit or by the Supreme Court." But the en bane petition was denied, and the panel's ruling stood, although in amended form. In Newdow II, the panel sidestepped the constitutionality of the 1954 Act, striking down only the teacher-led recitation of the Pledge in public schools on the ground that it "impermissibly coerces [students to engage in] a religious act."7

The Supreme Court has granted the school district's certiorari petition on two questions: whether the plaintiff challenging the Pledge, Michael Newdow, had standing to sue, and whether the school district's policy of teacher-led recitation of the Pledge with "under God" in it violates the Establishment Clause. By limiting the grant of certiorari to the in-class recitation, and by denying the other certiorari petitions in the case, the Court will avoid deciding directly the constitutionality of the 1954 statute." Although experts had been confident that the Court would uphold the inclusion of "under God," the matter is somewhat more in doubt because justice Scalia, an obvious vote to approve the phrase, has recused himself. "

The problems with Mr. Newdow's standing may keep the Court from reaching the merits." If that happens, the court of appeals' judgment will be vacated, and the Pledge with "under God" will again be valid in the Ninth Circuit, as it is by explicit ruling in the Seventh Circuit and by default elsewhere.12 The constitutionality of "under God" would, therefore, remain unresolved by the Supreme Court.

This Article discusses the constitutional issues concerning "under God" and the Pledge. Because I find none of the arguments in the Ninth Circuit opinions-majority or dissentvery convincing, I offer a different, more positive rationale for upholding the inclusion of "under God" in the Pledge. The phrase can be said to express the idea that our Nation's government is limited in status and must recognize inalienable rights that have a transcendent status because they come from God. The Establishment Clause may permit the state to recognize this religious rationale for a political assertion about rights and limited government. However, I also note some difficulties with this rationale; in particular, I note the counterargument that the state should acknowledge its limits by means other than explicit acknowledgments of the divine.

In the end, I consider some steps to address the problem of religion in the Pledge even after the constitutional issue is decided one way or the other. Whether or not the Pledge includes "under God" in it, there will be students and parents with conscientious objections to its content. I consider three methods for respecting the conscience of various objectors. First, schools might allow students to opt out of saying the Pledge, or, second, schools might restructure the Pledge so that individual students and families can decide whether to say "under God" or not. …

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