Establishing the Pledge: On Coercion, Endorsement and the Marsh Wild Card

Abstract:     
The constitutionality of Pledge of Allegiance recitation in school has received national attention, in part because of ongoing litigation in the Ninth Circuit. This article examines the Pledge case law, focusing on the various Establishment Clause tests articulated by the Court. Although Pledge recitation, even with an opt-out possibility for objecting students, seems to violate constitutional guarantees whether one considers the Lemon test, the endorsement test or the coercion test, it is argued here that one cannot confidently predict what the Court would say were it to consider a Pledge challenge on the merits. The only matters about which one could be confident would be that the Justices would be divided, the opinions would be rancorous, and the Establishment Clause jurisprudence would be in great need of further clarification.

Keywords: establishment clause, coercion , endorsement, lemon, marsh, pledge of alleigance

JEL Classifications: K10

Accepted Paper Series