By David L. Hudson Jr., First Amendment Scholar
September 16, 2002
“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.”— Justice Robert Jackson in West Virginia Board of Education v. Barnette (1943)
The recitation of the Pledge of Allegiance has caused controversy that has reached the hallowed halls of the U.S. Supreme Court on several occasions, including the latest case that was dispatched by the justices in June 2004. Two major issues have arisen with respect to the recitation of the pledge in public schools: 1) whether students can be compelled to recite the pledge without infringing on their First Amendment rights and 2) whether the inclusion of the phrase “under God” — added in 1954 — violates the establishment clause.
The compelled-speech issue seemed to have been resolved by the U.S. Supreme Court more than 60 years ago with its landmark 1943 decision West Virginia Board of Education v. Barnette. Despite the decision allowing to students to opt out of saying the pledge, children have been punished for refusing to stand during or to recite the Pledge of Allegiance. In March 1998, a 13-year-old Jehovah’s Witness in a Seattle middle school was forced to stand outside in the rain for 15 minutes for refusing to say the pledge. In April 1998, a 16-year-old student in San Diego was forced to serve detention for her failure to recite the pledge.
In the aftermath of the Sept. 11, 2001, terrorist attacks, a resurgence of patriotism has swept the nation. Public schools have helped fuel this patriotic zeal by placing an increased emphasis on the pledge. Several state legislatures have either considered or passed laws requiring the recitation of the Pledge of Allegiance. For example, Colorado passed a law in 2002 that required all public school students to recite the pledge unless they had a religious objection or had obtained parental permission to abstain from the oath. After Colorado’s American Civil Liberties Union chapter challenged the law in federal court, the Legislature in March 2004 enacted a revised statute to allow students to opt out of the pledge.
These examples are somewhat surprising given the decision in Barnette. In that case, the high court struck down a West Virginia law that penalized students and their parents if the children failed to salute the U.S. flag or recite the pledge. The students could be expelled for insubordination, while their parents could face a $50 fine and a 30-day jail term. A group of Jehovah’s Witnesses, who refused to comply with the law for religious reasons, challenged the statute.
Whether the Jehovah’s Witnesses would prevail was an open question. Looking at Supreme Court precedent, their position appeared bleak. That’s because in its 1940 decision Minersville School District v. Gobitis, the Court upheld a similar Pennsylvania flag-salute law. “The ultimate foundation of a free society is the binding tie of cohesive sentiment,” Justice Felix Frankfurter wrote for the majority.
Intolerance ran rampant against Jehovah’s Witnesses in various parts of the country after the Gobitis decision. Author Shawn Francis Peters, in his book Judging Jehovah’s Witnesses: Religious Persecution And the Dawn of the Rights Revolution, writes: “Targeted largely because they refused to salute the American flag, Witnesses throughout the United States were pummeled in situations ranging from riots involving hundreds of people to scuffles among a handful of men.” He adds that the Court’s “notorious ruling in the Gobitis flag-salute case, handed down in June 1940, helped to ignite some of the worst anti-Witness violence of the period.”
In a remarkable turnaround only three years after its ruling in Gobitis, the high court overruled itself in Barnette. Writing at the jingoistic time of World War II, the Court nonetheless issued an opinion remarkably protective of student First Amendment rights. The Court wrote that school boards must engage in “scrupulous protection of Constitutional freedoms of the individual … [so as] not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” The Court reasoned that the First Amendment free-speech clause included the right not to speak.
Barnette established a baseline of protection for student rights and clearly held that students could not be forced to recite the Pledge of Allegiance.
One federal appeals court (in Lipp v. Morris) even ruled in 1978 that school officials in New Jersey violated the First Amendment when they punished a student for refusing to stand during the Pledge of Allegiance.
Even though Barnette established that students have the right to opt out of reciting the pledge, students today are still punished for refusing to participate.
Consider the case of Michael Holloman, a high school student in Alabama. In May 2000, Holloman was castigated by teacher Fawn Allred and then paddled by a school administrator for raising his fist during the recitation of the Pledge of Allegiance. Holloman remained silent and raised his fist to express support for fellow student John Michael Hutto, who had been forced to apologize to Allred’s class for refusing to recite the pledge one day earlier. Holloman said he believed the treatment of Hutto was unfair and unconstitutional.
Holloman sued Principal George Harland, Allred and the Walker County Board of Education, alleging a violation of his First Amendment rights. In August 2000, a federal judge granted summary judgment to the defendants, reasoning that they had qualified immunity because there was no clearly established right to silently raise one’s fist during the pledge.
On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals reversed in Holloman v. Walker County Board of Education. In the May 2004 ruling, the panel voted 2-1 to reinstate Holloman’s lawsuit, saying that the lower court erred in dismissing it. The majority also reasoned that it was improper for the federal judge to grant the teacher and principal qualified immunity because it was clearly established that students cannot be forced to recite the Pledge of Allegiance.
“Barnette clearly and specifically established that schoolchildren have the right to refuse to say the Pledge of Allegiance,” the majority wrote. “Under Barnette, any ‘reasonable person would have known’ that disciplining Holloman for refusing to recite the pledge impermissibly chills his First Amendment rights.”
The school officials’ attorneys argued that the teacher and principal were justified because Holloman’s act in raising his fist was disruptive and upset other students. The majority disagreed, writing, “Where students’ expressive activity does not materially interfere with a school’s vital educational mission, and does not raise a realistic chance of doing so, it may not be prohibited simply because it conceivably might have such an effect.”
The majority concluded, “Holloman had the constitutional right to raise his fist during the Pledge of Allegiance so long as he did not disrupt the educational process or the class in any real way.”
The school defendants contended that Holloman’s right to raise his fist during the pledge was not clearly established because Barnette applied to students with hands by their sides or in their pockets, rather than with clenched fists.
“This is a hair we will not split,” the panel responded. “First Amendment protections are not lost that easily.”
In 2003, Colorado passed a law requiring daily recitation of the Pledge of Allegiance by students and teachers. The only exceptions were for religious reasons or “if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school.”
Three students and six teachers, along with the ACLU, challenged the new law in federal court. The plaintiffs alleged in their complaint, Lane v. Owens, that the statute violated their “rights to be free from state-compelled expression.” In an oral ruling from the bench in August 2003, U.S. District Judge Lewis Babcock granted the plaintiffs a temporary restraining order. “It doesn’t matter whether you’re a teacher, a student, a citizen, an administrator, or anyone else, it is beyond the power of the authority of government to compel the recitation of the Pledge of Allegiance,” he wrote.
Babcock stayed the case until the end of the legislative session in 2004 to allow Colorado to amend the statute. The governor signed the revised law in March 2004. The law provides: “Any person not wishing to participate in the recitation of the Pledge of Allegiance shall be exempt from reciting the Pledge of Allegiance and need not participate.”
Mark Silverstein, legal director of the Colorado ACLU, told the First Amendment Center Online that the revised statute solved the law’s constitutional problems under Barnette.
“Colorado legislators said their aim was to instill respect for the ideals represented by the First Amendment,” he said. “We thought the law undermined those very goals because public expression of beliefs and ideals of liberty and justice should be voluntary, not coerced by forcing students to recite the Pledge of Allegiance.”
Another First Amendment challenge to the Pledge of Allegiance concerns the phrase “under God,” which was added by Congress in 1954. The pledge was proposed in 1892 by the children’s magazine The Youth’s Companion, as part of the celebration of the 400th anniversary of Christopher Columbus’ discovery of America. Attributed to clergyman Francis Bellamy, the original version read: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.”
In June 1954, President Eisenhower signed into law a measure adding “under God” to the pledge. A congressional report accompanying the measure read: “from the time of our earliest history our people and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.”
Michael Newdow, an atheist in California, challenged the constitutionality of the Pledge of the Allegiance and its recitation in public schools. Newdow sued because he did not want his elementary school-age daughter to be forced to hear the words “under God” in the pledge. After a federal judge dismissed the suit, Newdow appealed to the 9th Circuit.
In June 2002, a three-judge panel of the 9th Circuit ruled 2-1 in Newdow v. U.S. Congress that the 1954 law adding the words “under God” to the Pledge of Allegiance was unconstitutional. Judge Alfred T. Goodwin reasoned that the pledge violated the three most common tests used to analyze establishment-clause cases — Justice Sandra Day O’Connor’s endorsement test, Justice Anthony Kennedy’s coercion test, and the Supreme Court’s oft-criticized Lemon test from its 1971 decision Lemon v. Kurtzman.
Goodwin first applied O’Connor’s endorsement test (from her dissent in Lynch v. Donnelly) and wrote that “in the context of the Pledge, the statement that the United States is a nation ‘under God’ is an endorsement of religion.”
“Although students cannot be forced to participate in recitation of the Pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge,” Goodwin wrote.
Next, Goodwin examined the coercion test, which takes its roots from Kennedy’s 1992 opinion in a middle school prayer case, Lee v. Weisman. Goodwin wrote: “The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.”
Finally, Goodwin applied the Lemon test. He examined the legislative history of the 1954 law amending the pledge to determine that the primary effect of the pledge was religious. He quoted from the legislative history, which stated: “The inclusion of God in our pledge therefore would acknowledge the dependence of our people and our Government upon the moral directions of the Creator.”
The ruling in Newdow I unleashed a torrent of criticism from President Bush, Congress and many members of the public.
The 9th Circuit narrowly denied en banc, or full panel, review in February 2003. Goodwin, the judge who wrote the original panel decision, amended the earlier opinion to focus only on the issue of whether the recitation of the pledge with the words “under God” was constitutional in the public school setting. The amended opinion did not discuss whether the 1954 federal law was constitutional. Goodwin concluded that the “school district policy impermissibly coerces a religious act.”
The 9th Circuit decision conflicted with an earlier opinion from the 7th Circuit. In 1992, a three-judge panel of the 7th Circuit ruled in Sherman v. Community Consolidated School District 21 that the recitation of the pledge in Illinois elementary schools did not violate the establishment clause.
Judge Frank Easterbrook, who wrote the 7th Circuit opinion, reasoned that “the Pledge is a secular rather than sectarian vow.” Easterbrook devoted much of his opinion to historical examples of U.S. leaders making religious references:
“James Madison, the author of the first amendment, issued presidential proclamations of religious fasting and thanksgiving. Thomas Jefferson, who refused on separationist grounds to issue thanksgiving proclamations, nonetheless signed treaties sending ministers to the Indians. The tradition of thanksgiving proclamations began with President Washington, who presided over the constitutional convention. From the outset, witnesses in our courts have taken oaths on the Bible, and sessions of court have opened with the cry ‘God save the United States and this honorable court.’ Jefferson’s Declaration of Independence contains multiple references to God (for example: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty, and the pursuit of Happiness.’). When Madison and Jefferson wrote their famous declarations supporting separation of church and state, they invoked the name of the Almighty in support.”
Easterbrook noted that President Lincoln’s Gettysburg Address contained no less than 14 references to God in its 699 words. To Easterbrook, references to “under God” in the pledge and “In God We Trust” on U.S. currency, represented a form of “ceremonial deism” that does not impermissibly endorse or coerce religious belief.
Presumably, because of the split between the 7th and the 9th Circuits, the Supreme Court agreed to review the 9th Circuit’s controversial Newdow decision. Newdow, who is both an emergency room physician and a lawyer, argued the case himself before the high court.
On Flag Day, June 14, 2004, the Court issued its opinion in Elk Grove Unified School District v. Newdow. However, a majority of the Court refused to address the underlying establishment-clause issue. Instead, the five-member majority — led by Justice John Paul Stevens — decided the case on standing grounds. The majority determined that Newdow lacked standing because the child’s mother, Sandra Banning, had primary legal custody and could make final decisions involving the child.
“In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing,” Stevens wrote. “We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.”
Three justices dissented on the standing issue. Chief Justice William Rehnquist and Justices Clarence Thomas and O’Connor all wrote separate opinions addressing the merits, or lack thereof, of Newdow’s lawsuit. All three concluded that the recitation of the pledge in public schools with the words “under God” does not violate the establishment clause.
Only eight of the justices participated in the case because Justice Antonin Scalia had recused himself. Newdow had requested Scalia’s recusal because of the justice’s public comments that the 9th Circuit had ruled improperly.
For his part, Newdow vowed that he would continue the fight against the pledge.
“I could easily imagine the case coming back up before the Court in a case with parents both of whom oppose the pledge,” Fordham University School of Law professor Abner Greene told the First Amendment Center Online.
Newdow kept his word, filing another lawsuit on behalf of himself and three other parents known in court papers as Jan Doe, Pat Doe and Jan Roe. These parents also have children ranging from grades kindergarten to middle school in the Elk Grove Unified School District.
In September 2005, U.S. District Judge Lawrence Karlton ruled in Newdow v. Congress, (No. Civ. S-05-17)(E.D. Cal.)(9/14/05) that Newdow lacked standing on the basis of the U.S. Supreme Court’s ruling in Newdow’s previous lawsuit. However, the school officials conceded that Jan and Pat Doe had standing. Karlton also ruled that Jan Roe had standing.
Karlton then asserted that he was bound by the 9th Circuit’s ruling in 2002 that teacher-led recitation of the Pledge of Allegiance violates the establishment clause. That ruling, according to Karlton, established that “the school district’s policy with regard to the pledge is an unconstitutional violation of the children’s right to be free from a coercive requirement to affirm God.”
Karlton’s decision provoked a quick response from U.S. Attorney General Alberto Gonzalez, who said the Justice Department would fight the ruling.
In October 2005, Karlton stayed his ruling, setting up another appeal to the 9th Circuit. In December 2007, the 9th Circuit heard arguments in the case, which was consolidated with another lawsuit Newdow filed challenging the use of “In God We Trust” on currency, but no decision has emerged.
Although most of the recent attention about the pledge focuses on the Newdow litigation, other federal courts continue to address pledge controversies on establishment-clause grounds. In August 2005, a three-judge panel of the 4th Circuit ruled in Myers v. Loudoun County Public Schools that a Virginia statute providing for daily recitation of the Pledge of Allegiance does not violate the establishment clause. The statute also provided that “no student shall be compelled to recite the Pledge if he, his parent or legal guardian objects on religious, philosophical or other grounds to his participating in this exercise.”
The panel determined that the voluntary recitation of the pledge was a patriotic, not a religious, exercise and, thus, not a violation of the establishment clause.
“Undoubtedly, the pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words ‘under God’ contain no religious significance,” Judge Karen Williams wrote. “The inclusion of those two words, however, does not alter the nature of the pledge as a patriotic activity.”
In November 2010, the First Circuit also rejected an establishment-clause challenge to the Pledge in Freedom From Religion Foundation v. Hanover School District.
“The New Hampshire Pledge statute plainly has a secular legislative purpose,” the judge wrote. “The New Hampshire Pledge statute is titled ‘New Hampshire School Patriot Act.’ The statute’s own words describe its purpose as continuing ‘the policy of teaching our country’s history to the elementary and secondary pupils of this state.’ That is a secular purpose.”
Florida’s pledge statute came under scrutiny when, in December 2005, then-high school student Cameron Frazier challenged it on First Amendment grounds.
The 11th Circuit struck down a provision that required “civilians,” including students, to stand at attention during the required daily pledge recitation in the state’s public schools. The statute provided that the pledge “shall be rendered by students” and be “recited at the beginning of the day in each public elementary, middle and high school in the state.” Another provision stated that “when the pledge is given, civilians must show full respect to the flag by standing at attention.”
In its July 2008 opinion Frazier v. Winn, the appeals court found the “standing at attention” clause violated the First Amendment. “That students have a constitutional right to remain seated during the Pledge is well established,” wrote the three-judge panel in a per curiam opinion.
However, the panel left the rest of the statute intact, refusing to strike down part of the law that allows students to be excused from reciting the pledge only by written request of their parent.
In January 2009, the full 11th Circuit declined to review the case. Judge Rosemary Barkett dissented from the denial of review, contending that the panel’s decision “directly contravenes” the Barnette decision. She reasoned that “the right to exercise one’s conscience in not reciting the Pledge lies solely with the individual student, not with the parents of that student and certainly not with the State.”
The student, represented by the ACLU, filed a petition for writ of certiorari to the U.S. Supreme Court, asking it to review the 11th Circuit decision. The petition emphasized that that the 11th Circuit decision conflicted with the Supreme Court’s seminal ruling in Barnette. The petition said the Florida law “undermines the right of individual conscience that Barnette enshrined as a bedrock principle of First Amendment law.”
However, the U.S. Supreme Court denied review on October 5, 2009, in Frazier v. Smith (08-1351).
The fundamental First Amendment principle from Barnette is that public school students cannot be forced to recite the Pledge of Allegiance. Schools must allow students to opt out; the Court’s compelled-speech doctrine requires as much.
The questions that will likely resurface are whether the inclusion of the words “under God” violates the establishment clause and whether — in light of the 11th Circuit’s decision in the Cameron Frazier case — schools can require parental consent before allowing a student to opt-out of the pledge. Given the opinions of the justices in Newdow, an establishment-clause challenge to the pledge would face some high hurdles.