Texas Review of Law and Politics, Vol. 8, Fall 2003
41 Pages Posted: 10 Mar 2004
This Article discusses the Establishment Clause issue before the Supreme Court in Elk Grove School District v. Newdow, which challenges the inclusion of the phrase "[one nation] under God" in the Pledge of Allegiance. After reviewing the court of appeals opinions - both approving and disapproving of "under God" - I find problems with each of them, especially with the potential rationales that uphold the phrase by stripping it of any real religious content. I then offer a different, more positive rationale for upholding the inclusion of "under God" in the Pledge. The phrase can be said to express the idea that our Nation's government is limited in status and must recognize inalienable rights that have a transcendent status beyond any human authority. The Establishment Clause permits the state to rely on a religious rationale for a political assertion, and the phrase in the Pledge may be such a permissible statement of a rationale for human rights and limited government.
While this is the most powerful defense of the "under God" phrase, I also note two difficulties with it. First, the Pledge does not merely state a religious rationale but calls on students and other citizens to affirm that rationale, and that further step may well be an impermissible state imposition on religious freedom. Second, elements in our constitutional tradition suggest that the state should acknowledge its limits by means other than explicit acknowledgments of the divine.
In the end, I consider some steps to address the problem of religion in the Pledge even after the constitutional issue is decided one way or the other. Whether or not the Pledge includes "under God" in it, there will be students and parents with conscientious objections to its content. I consider three methods by which schools might seek to respect the conscience of "various" objectors - those who cannot affirm the Pledge with an affirmation of God included, and also those who cannot affirm loyalty to the nation unless the nation recognizes explicitly its status as lower than (under) God. First, however the Court rules in Newdow, schools might allow students to opt out of saying the Pledge, under the principles of Board of Education v. Barnette (the flag salute case). Second, schools might explicitly restructure the Pledge exercise so that individual students and families can choose whether to say "under God", some other phrase, or nothing at that juncture. Third, states can seize the opportunity provided by the Supreme Court in Zelman v. Simmons-Harris (2002) and encourage school choice so that families of varying beliefs can have their children educated in the ideological atmosphere that they choose - including ideological positions about the relation between the divine (if any) and the nation.
Keywords: Religious freedom, First Amendment, Religion Clauses, Establishment Clause, Pledge of Allegiance, human rights
JEL Classification: I20
Suggested Citation: Suggested Citation
Berg, Thomas C., The Pledge of Allegiance and the Limited State. Texas Review of Law and Politics, Vol. 8, Fall 2003. Available at SSRN: https://ssrn.com/abstract=503622