Is the Pledge of Allegiance Religious?

June 27, 2002 -- When schoolchildren swear allegiance to "one nation, under God," is it purely a patriotic ritual, or also an endorsement of religious belief?

By a two-to-one majority, the 9th Circuit Court of Appeals in San Francisco decided Wednesday that those words in the Pledge of Allegiance constitute an official endorsement of Deism — the belief in a single God.

The judge who wrote the opinion, Alfred T. Goodwin, today stayed the ruling, preventing it from being enforced until the 9th U.S. Circuit Court decides whether it wants to alter course.

"In the context of the Pledge, the statement that the United States is a nation "under God" is an endorsement of religion," the court wrote in Wednesday's decision. "It is a profession of a religious belief, namely, a belief in monotheism."

That violates the Constitutional separation between church and state, the court ruled, meaning the Pledge in its current form cannot be recited officially in public schools or government offices.

Reaction among legal experts was mixed, but many predicted the matter would ultimately be decided by the U.S. Supreme Court. Several scholars, such as UCLA law professor Eugene Volokh, said the ruling was surprising, but appeared to be a reasonable interpretation of case law.

"I think the decision is a plausible application of the court's case law," Volokh said. "It says: Look, this seems to endorse religious belief. After all the pledge is supposed to endorse patriotism. If the pledge of allegiance is to be taken seriously then so is the 'under God.'"

Jamin Raskin, a law professor at American University, said "the case is going to have an explosive effect on public opinion but from the legal perspective, I think it's firmly rooted in the logic of prior cases."

Is the Pledge ‘Ceremonial Deism?’

The courts have long recognized that some phrases that refer to God are not actually endorsements of religious belief. Many scholars cite the example of 'In God We Trust' on U.S. currency, or references to God in many state constitutions.

"The effect is not at all religious," says Sheldon H. Nahmod, a professor at Chicago-Kent College of Law, referring to the phrases known as "ceremonial deism."

"They are basically shorn of all religious context," Nahmod said.

The 9th Circuit Court concluded that the Pledge of Allegiance does not fall in that category. "The text of the official pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God," the court wrote.

It also held that the Pledge was coercive, because it forced schoolchildren into an "unacceptable choice between participating and protesting."

Volokh and several other legal scholars agreed that the case would be appealed and that the Supreme Court would decide to review the case. "It is pretty likely the Supreme Court will hear this; which way the court will jump on this is unclear," Volokh said. "I think there are good arguments on both sides here."

Another legal expert, Georgetown University Law School professor David Cole, predicted the High Court would ultimately not let the ruling stand.

"It's been with us for so long. It's so much a part of our culture that it's very unlikely that the Supreme Court is going to declare it unconstitutional," he said.

Even before Wednesday's ruling, students had the right not to participate in the Pledge. In 1943, in a decision involving Jehovah's Witness schoolchildren, the Supreme Court ruled students could not be compelled to salute the flag if doing so conflicted with their religious beliefs. Congress did not add the phrase "under God" to the Pledge until 1954.

If the appellate court decision is not reversed, schools would still have the option to use the Pledge without the religious reference.

What About ‘In God We Trust?’

In part because the decision involves children, it is unlikely to affect other cases of religious references in governmental speech, said M. David Gelfand, a law professor at Tulane Law School.

"It's kids in schools being required to do something — the court has always been very protective [in such cases]," he said.

American money features the phrase, "In God We Trust," and the final verse of the Star Spangled Banner contains the couplet, "Then conquer we must, for our cause it is just, And this be our motto: 'In God is our trust.'"

Gelfand believes the high court will continue to recognize both cases as "ceremonial deism," not religious speech.

"I think after the initial furor about this and the talk on the talk shows … I think it'll fade away," he said. "I don't see this having any long-term effects."

Nevertheless, experts said there was possibility that the Pledge decision could open the door to future reconsiderations of government use of religious language.

"There is this very sensible concern about a slippery slope," Volokh said. "If this decision is upheld there could be other things that were jeopardized."

Anger and Outrage Over Decision

A wide range of public figures and leaders of both political parties decried the decision.

President Bush said the ruling was "out of step with the traditions and history of America" and vowed to appoint judges who would overturn such rulings.

"This is obviously an unbelievable decision as far as I'm concerned, and an incorrect ruling and a stupid ruling," Senate Minority Leader Trent Lott (R-Miss.) said.

The American Center for Law and Justice, which has lobbied the courts to allow prayer in schools, also condemned the decision.

"This is one of the most absurd legal rulings of our time," said spokesman Jay Sekulow.

Michael Newdow, the California father who brought the suit over the Pledge, defended the court's decision.

"I don't have anything against the Pledge of Allegiance," he said this morning on ABC's Good Morning America. "I am against the pledge that has the religious dogma that I disagree with. I have nothing against patriotism."

Few prominent figures have come out in support of his position, however.

A Familiar Issue for the High Court

The Supreme Court has upheld prayer by chaplains in state legislatures because of historic roots, and has ruled that certain religious symbols, such as Christmas trees and menorahs, are not inherently religious.

In 1983, the court upheld the right of Congress to begin sessions with a chaplain giving a prayer, and it has allowed public schools to institute moments of silence. In May 2001, a divided court declined to hear an appeal by city officials arguing for a public display of the Ten Commandments.

The justices also ruled last year that a New York public school district must let the Good News Club hold after-school meetings for grade-school children to pray and study the Bible.

A year before, the justices ruled that student-led, student-initiated public prayer before football games violates the separation of church and state, and is not private speech protected by the First Amendment of the Constitution.

In 1992, the court ruled 5-4 that clerics cannot deliver invocations at public school graduation.

An ABCNEWS.com poll last year showed two-thirds of Americans think students should be permitted to lead such prayers

Appellate Court Has Drawn Controversy Before

Donald Downs, a political science and law professor at the University of Wisconsin in Madison, noted that the 9th Circuit Court has a history of controversy.

"The U.S. Supreme Court in recent years has allowed for a fair amount of reference to religion in public rituals and exercises so long as there's an underlying secular purpose or meaning to the exercise," Downs said.

"My guess is that this is going to get reversed. But then again, law is always a bit of a crapshoot."