“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 Supreme Court and the Pledge of Allegiance
The American flag is an important symbol of national unity. The Pledge of Allegiance, written after the Civil War, is supposed to be a verbal expression of that unity. However, there have been multiple challenges to the constitutionality of the Pledge. Opponents argue that being forced to say the Pledge violates the First Amendment freedoms of speech and religion.
While the Supreme Court’s early decisions were inconsistent, the modern Court has generally privileged First Amendment rights. However, there is one major issue the Court has demurred on: the constitutionality of the “one nation, under God” language added in 1954.
CASES INVOLVING THE PLEDGE OF ALLEGIANCE TO THE FLAG
Minersville v. Gobitis (1940)
Jehovah’s Witnesses objected to the Pledge because pledging to a symbol was contrary to their religion. The Court ruled against them, arguing that being compelled to say the Pledge was not a violation of the Free Exercise Clause. Since the Pledge did not specifically encourage or discourage religious belief, Justice Frankfurter argued that the Witnesses could not conscientiously object.
West Virginia SBOE v. Barnette (1943)
Only three years later, the Court reversed itself. This time, the Court sided with the Witnesses and concluded that forcing students to say the pledge was a violation of the First Amendment. Unlike the Minersville decision, which had focused on the Witnesses’ free exercise of religion, the decision in Barnette focused on free speech. Justice Jackson’s opinion was a strong defense of the guarantees of free speech. Since the Pledge was an act of speech, no person could be compelled to recite it.
Elk Grove USD v. Newdow (2004)
This case is significant because it reversed a controversial decision by the US Ninth Circuit Court of Appeals. Newdow had sued on behalf of his daughter. He claimed that the words “under God” in the Pledge violated the Establishment Clause of the First Amendment. In 2002, the Ninth Circuit ruled in his favor. In 2004, the Supreme Court concluded that Newdow did not have standing to sue on behalf of his daughter. This reversed the Ninth Circuit’s ruling and allowed the Court to refrain from an official ruling on the constitutionality of the “under God” language. However, Justices Rehnquist, O’Connor, and Thomas expressed their support for the language in individual opinions.
Jane Doe v. Acton-Boxborough RSD (2014)
While the Supreme Court has declined to take up the “under God” question since Newdow, the issue has come before state courts. The Massachusetts Supreme Court ruled that “the pledge is a fundamentally patriotic exercise, not a religious one.” Thus, the “under God” language was not a violation of the Establishment Clause. A New Jersey court ruled in the same way in a 2015 lawsuit brought against the Matawan-Aberdeen RSD.