Pledge of Allegiance and the First Amendment

Second Quarter 2004

Does the recitation of the Pledge of Allegiance by willing students in government-run schools constitute a violation of the Establishment Clause of the First Amendment to the US Constitution, for the reason that the words "under God" are included in the Pledge? This question is now before the US Supreme Court in the Michael A. Newdow case. The charge that brought this case to the court is that the words "under God" represent a government establishment of religion and should be removed from the Pledge. The Center for Public justice has joined the Christian Legal Society and other organizations in filing a brief in this case, arguing that the words of the Pledge do not represent an establishment of religion. Here are some edited excerpts from the brief. —Ed.

The phrase "under God" in the Pledge of Allegiance represents not an endorsement of monotheism, but rather a proposition from the Declaration of Independence that is both theological and political. The Declaration says that individuals are "endowed by their Creator with certain inalienable rights" and it was adopted to affirm the basis for this country's concept of limited government. The focus and concern of the First Amendment's Establishment Clause is on government's actions, not on the underlying principles that constitute and qualify government's responsibility to act.

Therefore, the requirement that government be "neutral" with regard to religion by not establishing any religion cannot be turned around to undermine the very basis on which that neutrality principle rests. For the neutrality principle depends, in this case, on the Declaration's religious doctrine that genuine religious faith cannot be coerced. To hold that government cannot stand on and affirm such principles would ultimately weaken the constitutional protection of religious liberty and other inalienable rights by undermining the basis for such rights.

There can be little doubt that the Founders believed that the authority of government must be limited with respect to certain inalienable rights given directly by God to individuals. The right to religious liberty, sometimes referred to as our "First Freedom," provides the paradigmatic example of limited government with respect to an inalienable right. The Founders argued that because individuals possess an inalienable right and duty to worship God as they deem best, government can have no authority over religious exercise as such.

When Congress added the words "under God" to the Pledge of Allegiance in 1954, affirming that this would "further acknowledge the dependence of our people and our Government upon the moral directions of the Creator," it was saying that our political system relies upon the moral norms of inalienable rights that come from God. By affirming a source of authority above government, such moral norms limit the power and scope of government and offer a principled basis for the protection of individuals against the power of government.

There is also no doubt that the Establishment Clause requires the government to maintain a position of neutrality with respect to religion. However, when choosing among foundational principles, the government cannot be neutral. The Establishment Clause neutrality requirement itself is based on a particular religious proposition that emphasizes religious liberty. This proposition in turn is based upon the proposition that inalienable rights, including the right to religious exercise, come from God. Although this choice of foundational propositions is not neutral with respect to religion, it does lead to neutral treatment of religion (and non-religion) at the operational level.

Further, the Establishment Clause should not be read to prohibit the government from expressly affirming the underlying principles upon which it relies merely because such principles may have religious substance. A statement of political theory with religious content must be distinguished from prayers and other religious exercises in which the government may not engage. Put differently, there is a fundamental difference between a statement that "there is one and only one God" and a statement that "inalienable rights come from God."

If the court were to prohibit government from affirming underlying principles with religious content, it would render unconstitutional the Declaration of Independence and the Virginia Act for Religious Freedom, both of which expressly rely upon particular religious propositions. Ironically, such a reading would strike down Jefferson's groundbreaking law establishing religious liberty on the basis that it violates the very principles of religious liberty it established. As one commentator has suggested: "Without a plausible rationale for the commitment to religious liberty we cannot understand what that commitment entails. It is commonplace that legal enactments should be interpreted to effectuate their purposes. But a law's 'purpose' arises out of, and is a projection of, its justification. Therefore, if we cannot articulate a convincing justification for the commitment to religious freedom, then we cannot know its purpose, and we are accordingly paralyzed in our efforts to interpret the commitment."

Whether through reliance by the courts on religious propositions or through the phrase "under God" in the Pledge of Allegiance, governmental affirmation of the fundamental principles underlying religious liberty and other inalienable rights serves to strengthen the protection of such rights.