"Under God" After All:
The Pledge of Allegiance Is Constitutional As Is

By JARED N. LELAND

Tuesday, Jun. 29, 2004

Just as ball games featuring the most ardent opponents are susceptible to rain delays, this game was postponed for another evening in light of the projected forecast: political uproar.

Elk Grove Unified School District v. Newdow -- the Pledge of Allegiance case involving an atheist, Michael Newdow, who challenged the Pledge's constitutionality on his daughter's behalf for containing the phrase "under God" -- was recently decided by the U.S. Supreme Court. Well, on second thought, not really.

Apparent from the outset of oral argument was the prevailing "standing" concern -- whether a noncustodial parent is entitled to file a federal constitutional claim on the child's behalf -- that dominated Justice Stevens' 15-page opinion. In fact, amidst the in-depth analysis of custody concerns and jurisdictional jargon one can find only four references to the Establishment Clause and the real question before the Court: Does "under God" offend the U.S. Constitution?

The answer quite simply is no, as the phrase reflects the very premise upon which our constitutional system was created.

Like the Declaration of Independence, the Pledge Assumes a Greater Authority

At least since the drafting of the Declaration of Independence in the mid-1700s, our national ethos has held that the fundamental, inalienable rights shared by all in America are not endowed by the State and thus cannot be withheld by the State. The Pledge, like the Declaration, is a statement of political philosophy that derives its force from the premise that these rights, protected and preserved by a constitution that limits the scope and power of the government, come from an authority greater than the State.

James Madison identified this authority as the "Almighty" while Thomas Jefferson referenced a "Creator" in the Declaration.

The phrase "under God" was added at the height of the Cold War to highlight this generally-recognized conviction and to distinguish the nature of rights in America from that in Communist Russia. In 1954, Congress explicitly sought to draw a distinction between the "natural rights" philosophy shared by our Founding Fathers -- on which the Constitution is based -- and the Soviet contention that rights are endowed or withheld at the pleasure of the State.

Thus, "under God" does nothing more than affirm the foundation of the very individual liberties we enjoy today.

Indeed, if reciting the Pledge is unconstitutional simply for making reference to a nation "under God," then reciting the Declaration of Independence -- which refers to the Creator as the source of basic rights -- is surely cast in doubt. It logically follows, then, that publicly acknowledging the groundwork of our rights would somehow violate those very same rights. This conclusion would represent an earthquake in our national ethos and is one that must not be imposed by the Judicial Branch.

Mere Acknowledgement of God Does Not Offend Establishment Clause

Additionally, to suggest that the mere acknowledgement of a "Supreme Being" -- as referenced by Justice Douglas in the 1952 Zorach v. Clauson decision (Our "institutions" do indeed "presuppose a Supreme Being") -- amounts to an "establishment of religion" within the meaning of the First Amendment would be to disregard the continuous and consistent interpretation of that constitutional language by the Executive Branch since virtually the Founding.

All but one presidential inaugural address includes a reference to God - whether as the source of rights, of blessing to the country, or of wisdom and guidance.

And the Supreme Court itself has recounted in detail how the Framers did not view references to or invocations of God as an "establishment" of religion. Consider, for example, the 1989 case of County of Allegheny v. ACLU Greater Pittsburgh Chapter, holding that a particular crèche display, unlike reference to God in the Pledge, was unconstitutional; the 1984 case of Lynch v. Donnelly, holding that a particular display of a nativity scene did not violate the Establishment Clause; and the 1983 case of Marsh v. Chambers (1983), holding that the practice of opening legislative sessions with prayer did not violate the Constitution.

Those Justices Willing to Actually Address the Core Issue Recognized the Religious Nature of Our Fundamental Rights

"The phrase 'under God' in the Pledge seems, as a historical matter, to sum up the attitude of the Nation's leaders, and to manifest itself in many of our public observances," Chief Justice Rehnquist noted in his concurring opinion. "All of these events strongly suggest that our national culture allows public recognition of our Nation's religious history and character."

He continued, "The phrase 'under God' is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact [that] . . . From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God."

Justice O'Connor similarly stated in her concurring opinion that "Certain ceremonial references to God and religion in our Nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty. It would be ironic indeed if this Court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it."

And so the Pledge of Allegiance - with reference to our country's historical religious tradition - is preserved for now by the Court's decision and reinforced by concurring statements. Sooner or later, however, a plaintiff with unmistakable standing will challenge the Pledge's constitutionality and end up before the High Court. Hopefully the nine Justices will opt to "play ball" by confronting the genuine issue when that time comes.

Until then, carry on as you were, children.

Note: See the Court's opinion for links to the West Legal Directory entries for the attorneys involved in the Supreme Court's recent Pledge decision. - Ed.

For the other side of this issue, see a prior column for this site by Marci Hamilton. -- Ed.


Jared N. Leland is an attorney at The Becket Fund for Religious Liberty. The Becket Fund is an international, interfaith, public interest law firm dedicated to protecting the free expression of all religious traditions.

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