Is the Pledge of Allegiance in Jeopardy?

By Sean Foley

On Saturday, April 19, the American Humanist Association (AHA), an organization committed to secular government,[1] filed suit in New Jersey against the Matawan-Aberdeen Regional School District on behalf of an atheist family who seeks to have the phrase “under God” removed from the Pledge of Allegiance [2]. (Ironically, this challenge to the reference to the Judeo-Christian God came in the midst of the Jewish celebration of Passover and the Christian celebration of Easter.) Congress first added the phrase to the Pledge in 1954 amidst the Cold War with the supposedly “godless” Soviet Union [3]. 

The AHA suit alleges that the phrase alienates and isolates atheist students, violating New Jersey’s rights and privileges clause, which forbids discrimination on the basis of religion [4]. AHA attorney David Niose argues that the inclusion of the phrase in the Pledge indicates to children that “patriotism is tied to a belief in God” [5]. He further contends that the recitation of the Pledge contributes to discrimination against atheists and marks them as “second-class citizens” [6]. The AHA has already filed a similar suit in Massachusetts, which the Massachusetts Supreme Court is in the process of deciding [7]. 

Although the AHA is currently pursuing these lawsuits, the inclusion of the phase “under God” has been litigated in the past. In fact, in 2002, the Unites States Ninth Circuit Court, which is based in San Francisco, considered a case brought by Michael Newdow, an atheist father who contended that his daughter’s school district violated the First Amendment by subjecting her to religious indoctrination [8].

The court ruled that the phrase transformed the Pledge into a de facto endorsement of religion, in violation of the First Amendment’s Establishment Clause. Due to sharp political backlash, however, the judge who wrote the opinion stayed the ruling from taking effect. When the Ninth Circuit declined to review its previous decision in 2003, the school district appealed to the United States Supreme Court, arguing that the Court should overturn the lower court’s decision. In June of 2004, the Supreme Court in Elk Grove Independent School District v. Newdow granted the school district’s wish for review [9].

After granting a writ of certiorari to review the case on appeal, the Court sought to answer whether Newdow, a divorcee, had standing as a non-custodial parent, and, if so, whether the school district’s policy violated the First Amendment [10]. Upon consideration of the facts, the Court determined that Newdow lacked standing; therefore, the Court overturned the Ninth Circuit’s decision, upholding the inclusion of “under God” in the Pledge.

The Court based its decision to deny Newdow standing on the fact that he and his wife were divorced, and he was the non-custodial parent who had been deprived of the right to sue on his daughter’s behalf based on California law [11]. Therefore, because the Court denied Newdow standing, it did not proceed to answer the substantive question in the case—whether the policy of reciting the Pledge of Allegiance, which includes the phrase “under God,” was repugnant to the First Amendment.

Thus, since the Court made no determination on the constitutionality of the recitation of the Pledge of Allegiance in public schools, the question remains unanswered and open to debate. The Court’s dismissal of Newdow’s case on a technicality leaves an opportunity for the litigants in New Jersey and Massachusetts, whose circumstances are very different from those of Newdow. If the plaintiffs can overcome the hurdle of establishing standing, which, as Newdow learned, is no insignificant step, they can make their case on the merits.

Given the salience of and debate over religious issues, such as the contraception mandate in the Affordable Care Act, the AHA suit against the Matawan-Aberdeen Regional School District is likely to draw a significant amount of national attention. “Under God” was not always part of the Pledge of Allegiance, and, perhaps, it will cease to be included in the future.

As Chief Justice William Rehnquist noted in the his concurring opinion in Newdow, the United States has a long history of invoking God in public and government-sanctioned discourse and on government documents, buildings, and money [12]. Consequently, if the words “under God” in the Pledge of Allegiance are deemed unconstitutional, such a ruling would likely have a sweeping effect on the institutions of the United States government. Stay tuned as this case makes its way through the legal system.


[1] American Humanist Association, http://americanhumanist.org/AHA/Issues
[2] Shadee Ashtari, “New Jersey Atheists Sue School District Over 'Under God' In Pledge Of Allegiance” http://www.huffingtonpost.com/2014/04/21/atheists-pledge-of-allegiance-lawsuit_n_5186066.html?utm_hp_ref=politics
[3] Jeffery Owen Jones, “The Man Who Wrote the Pledge of Allegiance” http://www.smithsonianmag.com/history/the-man-who-wrote-the-pledge-of-allegiance-93907224/?no-ist
[4] New Jersey State Constitution http://www.njleg.state.nj.us/lawsconstitution/constitution.asp
[5] Shadee Ashtari, “New Jersey Atheists Sue School District Over 'Under God' In Pledge Of Allegiance” http://www.huffingtonpost.com/2014/04/21/atheists-pledge-of-allegiance-lawsuit_n_5186066.html?utm_hp_ref=politics
[6] Ibid
[7] Ashtari, “New Jersey Atheists Sue School District” http://www.huffingtonpost.com/2014/04/21/atheists-pledge-of-allegiance-lawsuit_n_5186066.html?utm_hp_ref=politics
[8] United States Supreme Court, Elk Grove School District v. Newdow http://www.supremecourt.gov/opinions/03pdf/02-1624.pdf
[9] Jeffery Owen Jones, “The Man Who Wrote the Pledge of Allegiance” http://www.smithsonianmag.com/history/the-man-who-wrote-the-pledge-of-allegiance-93907224/?page=1
[10]United States Supreme Court, Elk Grove School District v. Newdow http://www.supremecourt.gov/opinions/03pdf/02-1624.pdf
[11] Ibid
[12]United States Supreme Court, Elk Grove School District v. Newdow http://www.supremecourt.gov/opinions/03pdf/02-1624.pdf

Photo Credit: Flickr User Sarah Browning