What’s the Big Deal? The Unconstitutionality of God in the
Pledge of Allegiance
John E. Thompson?
http://www.law.harvard.edu/students/orgs/crcl/v.38_2/thompson.pdf
[Excerpt]
Many Americans can recall reciting the Pledge of Allegiance as
schoolchildren. This patriotic ritual is part of the common experience of
those raised in the United States—perhaps not a signiªcant personal
experience for most people, but nonetheless one that is shared and
remembered by all those who participated. Until last year, most Americans
had probably never considered that the routine recitation of the Pledge in
the public schools might violate the Constitution’s prohibition on
government establishments of religion, or, to use the common phrase, might
breach the “separation of church and state.”
Much of the country was shocked when a federal appeals court ruled
in June 2002 that the inclusion of the words “under God” in the Pledge of
Allegiance was unconstitutional. The U.S. Court of Appeals for the Ninth
Circuit held that the federal statute codifying the Pledge, as well as a
California school district’s policy providing for recitation of the Pledge,
violated the Establishment Clause of the First Amendment.1 In February
2003, the Ninth Circuit amended its decision, ªnding the school district
policy unconstitutional on narrower grounds, while declining to address the
validity of the federal statute.2 At the same time, the full Ninth Circuit
denied a motion to rehear the case en banc.3
This Article suggests that the Ninth Circuit’s decision reºects a valid
interpretation of both the Constitution’s meaning and of the Supreme
Court’s Establishment Clause doctrine. It also argues that the theory most
likely to be invoked to overrule the decision—a theory that can be
described as “historical acknowledgement”—should be rejected.
Part I will describe the Ninth Circuit panel’s rationale, in both its
June 2002 opinion and its February 2003 amended opinion, for declaring
------------------------------------
? B.A., Columbia University, 1992; M.I.A., Columbia University, 1993; J.D.,
Harvard Law School, 2003. I would like to thank Professor Richard Fallon
for his invaluable guidance, and the editors of the Harvard Civil
Rights-Civil Liberties Law Review for their patience and support.
1 Newdow v. U.S. Cong. (Newdow I), 292 F.3d 597 (9th Cir. 2002), amended by
Newdow v. U.S. Cong. (Newdow II), No. 00-16423, 2003 WL 554742 (9th Cir.
Feb. 28, 2003) (order stayed).
2 Newdow v. U.S. Cong. (Newdow II), No. 00-16423, 2003 WL 554742 (9th Cir.
Feb. 28, 2003).
3 Id.
[end excerpt]
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