New lawsuits in New Jersey and Massachusetts are seeking to eliminate the words “under God” from being used by public school students taking the Pledge of Allegiance. But how did the words get added to the Pledge and what have the courts already said?
The pledge has existed in some form since September 1892 when it appeared in a magazine article that commemorated the 400th anniversary of Columbus’ arrival in the New World.
Francis Bellamy, an ordained minister, had taken the writing assignment to create a pledge that would be taken on Columbus Day by millions of school children. Under the pressure of a deadline, Bellamy created the following pledge, which didn’t mention the words “under God”:
“I pledge allegiance to my flag and the Republic for which it stands—one Nation indivisible—with liberty and justice for all.”
Bellamy added an extra word, “to,” before “the Republic,” but other school officials modified the pledge over the years. Two historical groups added “to the flag of the United States of America.”
In 1942, President Franklin D. Roosevelt signed a Flag Code law passed by Congress that included the Pledge.
The Supreme Court then took the unusual step of ruling against the Jehovah’s Witnesses in a legal fight against the Pledge and reversing its own ruling within two years.
In 1943, the Court said in West Virginia State Board of Education v. Barnette that “the Free Speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance.”
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us,” said Justice Robert Jackson in his opinion.
Justice Felix Frankfurter said in his dissent that, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”
Later in the decade, some local groups added the words “under God” to the Pledge and in 1954, President Dwight Eisenhower signed a bill passed by Congress that put the words “under God” within the phrase “one nation indivisible.”
Over the following decades, there have been legal challenges to the use of the two words in the Pledge.
Most notably, in 2004 the Supreme Court ruled in a case from an atheist who said a California school’s pledge requirement violated his daughter’s rights under the First Amendment’s Establishment and Free Exercise Clauses.
The Court decided in Elk Grove Unified School District v. Newdow the Justices didn’t rule on the legality of the words “under God” violating the First Amendment.
Instead, Justice John Paul Stevens said Newdow didn’t have standing to bring suit because he lacked sufficient custody over his daughter.
But Chief Justice William Renquist and Justices Sandra Day O’Connor and Clarence Thomas wrote separate concurrences, stating that requiring teachers to lead the Pledge was constitutional.
The latest two legal challenges target state constitutions, and not the U.S. Constitution, for guidance about using the words “under God.”
In Massachusetts, the case of Jane Doe Vs. Acton-Boxborough Regional School District involves a group of parents, teachers and the American Humanist Association in an action against a school district.
The group claims the Pledge requirement, including the use of the words “under God,” violates the equal protection clause of the state’s constitution.
“A ruling is being sought that declares unconstitutional the current daily classroom recitation of the Pledge because its ‘under God’ wording discriminates against atheists and humanists, associating true patriotism with God-belief while suggesting that nonbelievers are less patriotic or even unpatriotic,” the American Humanist Association said in a statement. “Any public school activity meant to install patriotism, as is the stated purpose of the current required daily exercise, must be nondiscriminatory.”
Earlier this week, a New Jersey family and the American Humanist Association filed a similar lawsuit against the Matawan-Aberdeen Regional School District, seeking to eliminate the use of the words “under God” from Pledges taken at public schools.
“The pledge’s ‘under God’ language sends a message to public school children, and indeed to the general public, that the government favors belief in God,” the lawsuit claims.
The school district said that it is just following a New Jersey state law that requires schools to have a daily recitation of the pledge, and that individual students aren’t forced to take part.
Scott Bomboy is the editor in chief of the National Constitution Center.
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