NCPA - National Center for Policy Analysis

Is The Pledge of Allegiance Constitutional?

July 3, 2002

Don't assume the recent ruling by three-judges of the Ninth Circuit Court of Appeals that the Pledge of Allegiance violates the First Amendment will be overturned. Former Justice Department official Terry Eastland warns the ruling is consistent with previous Supreme Court decisions in religious establishment cases -- particularly Lee vs. Weisman.

Newdow v. United States is the first time a federal appeals court has found that references to God are unconstitutional -- whereas the 7th Circuit court has said that "under God" is OK.

Ten years ago, in Lee, the Supreme Court decided a state may not sponsor customary prayers at public school graduation ceremonies; but right before the invocation at issue in that case, students recited the Pledge.

  • Under the First Amendment's establishment clause, wrote Justice Anthony Kennedy for the court, "government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so."
  • In dissent, Justice Antonin Scalia noted: "If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the court's view, take part in or appear to take part in) the pledge."
  • The 9th Circuit's decision found the pledge wanting under three establishment tests the Supreme Court has used in recent decades -- including the so-called endorsement test authored by Justices Kennedy and Sandra Day O'Connor.

A First Amendment doctrine is needed, says Eastland, "that distinguishes between real establishments of religion and phantom establishments, such as the inscription of "In God We Trust" on our coins or the inclusion of "under God" in the pledge...[and permits] the appropriate accommodation of religion in public life...."

Source: Terry Eastland (Weekly Standard), "Justices' words may come back to haunt them," Dallas Morning News, June 30, 2002.


Browse more articles on Government Issues