Establishment Clause

The Establishment Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion". This prohibition was extended to the States and their school districts by the Fourteenth Amendment. While it originally meant that the federal government could not tax people to support a particular sect, it has developed into a rule that the government shall remain neutral toward religion.

The Pledge

The Pledge of Allegiance was created by Francis Bellamy in 1892. As originally recited, it was:

I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.

In 1942, after "my Flag" became "the Flag of the United States of America", it was adopted as a sort of national ritual by Congress. Shortly thereafter, children in public schools were punished for refusing to recite it, even if they had religious objections. The Supreme Court held that forcing children to recite the pledge violated the First Amendment. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943): "the action of local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

At the time Barnette was decided, the Pledge did not include the phrase "under God". It was a purely secular and patriotic ritual, challenged by members of a minority Christian sect (Jehovah's Witnesses) who objected to being forced to bow and swear to a national idol. It should not escape a historians notice that members of the same sect of Jehovah's Witnesses, who similarly refused to participate in F├╝hrer-worship, were being hauled off to death camps in Nazi Germany as Barnette was being argued and decided.

In 1954, Congress amended the federal statute to insert the phrase "under God" after "one Nation". As it currently appears in the United States Code, 4 U.S.C. § 4 (1998), it reads:

I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

The Newdow Case

Michael Newdow is an atheist whose daugher attends public elementary school in the Elk Grove Unified School District. California law requires public schools to begin each school day with ?appropriate patriotic exercises? which may include the Pledge. The Elk Grove district requires "Each elementary school class {shall} recite the pledge of allegiance to the flag each day." Newdow's daughter was not required to recite the pledge (which would clearly be illegal under Barnette).

Rather, he claims that his daughter is injured when she is compelled to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our's {sic} is 'one nation under God'." Newdow v. U.S. Congress Slip. Op. at 9111 (9th Cir. 2002).

Newdow, representing himself, initially sued the Congress, the President, the State of California, the school district where his daughter was in school, and the school district where he intended to move his daughter. The district court threw out the entire lawsuit on a motion to dismiss.

Newdow appealed to the United States Court of Appeals for the Ninth Circuit. (Appellate courts in the federal system are divided into regions known as "Circuits" from the days in which judges would actually ride around to the different courthouses and hear cases. The Ninth Circuit is the Court of Appeals for certain Western States, California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, and Hawaii, as well as the Pacific Territories).

On appeal, Newdow was denied relief against most of the defendants, except the Elk Grove School District. However, the 9th Circuit Court of Appeals reached the issue whether 4 U.S.C. § 4,the statute which codified the Pledge as amended in 1954, violated the U.S. Constitution.

The Holding

The 1954 Act adding the words "under God" and the school district's policy and practice of teacher-led recitation of the pledge, with the added words included, both violate the Establishment Clause.

The Reasoning

There are three (3) "tests" courts use to determine whether government conduct has run afoul of the Establishment Clause:

  • the "entanglement" test from Lemon v. Kurtzman, 403 U.S. 602 (1971)
  • the "endorsement" test from Lynch v. Donnelly, 465 U.S. 668 (1984)
  • the "coercion" test from Lee v. Weisman, 505 U.S. 577 (1992)

To survive the Lemon test, government conduct must:

  1. have a secular purpose
  2. must have a primary effect which neither advances nor inhibits religion
  3. must not foster excessive government "entanglement" with religion

The Lynch test in essence collapses the first two ?prongs? of the Lemon testing-fork into one: whether the government is directly endorsing or disapproving of religion.

These tests are best suited to determining whether the government has got involved where it should not, for example, giving tax money to religious schools, promoting relgious holidays, etc. The court first asks whether there is a non-religious basis for the involvement, for example, Christmas may be promoted because it's good for business. Then it looks to whether the Christmas display endorses or inhibits religion.

In school cases, there is an added element of compulsion. Kids have to go school: it's the law. This makes the school cases, especially school prayer cases, more suited to the "coercion" test from Lee v. Weisman. This test recognizes, as a Constitutional minimum, that no one should be forced or compelled to support or participate in a particular religious practice. (One is reminded here of the various practices of religious obeisance to the Emperor which were used to weed out early Christian troublemakers).

In Newdow the court first finds that the Pledge, as amended in 1954, clearly endorses a kind of religion --monotheism-- and does not appear to be impressed by any of the alleged secular purposes advanced by the defendants. Likewise, while the court acknowledges that the religious content of "one nation under God" is minimal, it underscores the age and impressionability of schoolchildren.

The dissent's best argument is that the Pledge is not a big deal, or in legal terms, its coercive or entangling effects are de minimis. Passing references to "God" are part of a "ceremonial deism" which has been encountered throughout American life, politics and political writing such as the Declaration of Independence, without undue harm to religious freedom. The dissent warns that little known verses of our national anthem will have to be avoided (like they aren't already?) and songs like "God Bless America" and "America the Beautiful" "will be gone for sure".

What's Next?

Prognosticators, including members of Congress, predict this case will be taken up by the Supreme Court and overruled. They may be disappointed. First, review by the 9th Circuit itself is likely. The decision reported is a 2-1 decision from a panel of three (3) judges. The decision conflicts with a decision on the same issue by another Court of Appeals. Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992). The issue is not a matter of life or death, but it has great symbolic and political ramifications. This makes the case a likely candidate for en banc review. Review en banc technically means all the judges of the Court of Appeals look at the case, but the 9th Circuit is too big for that, and en banc review means a super-panel of eleven (11) judges looks at the case. These eleven judges may reach a different conclusion than the two (2) who voted to find the Pledge unconstitutional.


Update: February 28, 2003

On February 28, 2003, the United States Court of Appeals for the Ninth Circuit announced that it would not grant a rehearing in the Newdow case. The opinion of the original 3-judge panel now stands as the decision of the Court and is subject to appeal to the United States Supreme Court by a petition for a writ of certiorari.

The circuit court's rules for en banc review require the votes of eleven (11) of the twenty-four (24) active judges in the Ninth Circuit to grant a rehearing: there were only six (6).

Vociferous public outcry, including the derision of President Bush and a Senate resolution against the original ruling, seems to persuaded some judges not to disturb the unpopular decision. "We may not -- we must not -- allow public sentiment or outcry to guide our decisions," Judge Stephen Reinhardt wrote in a concurring opinion. The constitutional protections against the "establishment" of religion are, of course, intended to protect minority religious views against the will of the majority.

The Supreme Court is not required to review the decision, and in the vast majority of cases, does not. Since there is no particular urgency in resolving the matter, and only two of the twelve federal appeals courts have considered, my guess is that the Supreme Court will deny the writ of certiorari and let the decision stand, and wait until the other circuit courts ruled on the issue, before taking it up.

Update: June 14, 2004

I was wrong. The Supreme Court did grant certiorari. I correctly surmised, however, that the Court would duck the issue: whether the Pledge is constitutional.

In an opinion filed today, June 14, 2004, the Court held that Newdow did not have standing to pursue the case. The standing ruling is based on a California state court ruling (following the original 9th Circuit opinion described above) which held that Newdow's estranged wife had sole custody of their child and the last word in all legal matters. The Court rejected the idea that, even though he could not bring a lawsuit on behalf of his daughter (as a "next friend", as lawyers describe parents acting as legal agents for a child) Newdow had standing on his own behalf based on his rights to raise his child. Such parental rights apparently do not extend to imposing his views on third parties.

Justice Scalia abstained from participating in this case. Three justices (Rehnquist, O'Connor and Thomas) dissented to the standing decision and would have reached the merits of the issue (and would have found the Pledge a constitutional exercise in ceremonial deism). Interestingly, Justice Thomas concedes in his dissent that the Pledge is unconstitutional under existing Supreme Court precedent, but argues for overruling that precedent.

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