I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . . . . 3

III. The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . 10

IV. Criticism and Analysis. . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . .18

V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . 24

 

I. Overview

            Michael Newdow, the atheist father of a public elementary school student, brought an action challenging the constitutionality of the Pledge of Allegiance to the Flag with the words “under God” included and its use in public schools.[1] Newdow’s pro se complaint challenged the 1954 Act of Congress which added this phrase to the Pledge, the California statute suggesting daily invocation of the Pledge, and his daughter’s school district, who required teachers to lead willing students in recitation of the Pledge.[2] Newdow alleged that his daughter was injured when forced to listen to the daily recitation of the phrase “one nation under God,” in contravention of the Establishment Clause of the First Amendment.[3]

            The school districts and their superintendents filed a motion to dismiss for failure to state a claim, and were joined by the United States Congress, The United States, and the President of the United States.[4] A federal magistrate judge approved this dismissal, and subsequently, a federal district judge approved this recommendation and dismissed the case.[5] Newdow appealed to the United States Ninth Circuit Court of Appeals, which vacated the lower decision and remanded the case.[6] The Ninth Circuit held that the 1954 Act adding the words “under God” to the Pledge, and the practice of public school teachers leading a recitation of the Pledge with those words included, violated the Establishment Clause.[7] Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).

 

II. Background

            As part of the First Amendment, the Establishment Clause is deeply rooted in the foundations of American politics.[8] Indeed, many of the Supreme Court’s Establishment Clause cases include quotes from the Founding Fathers.[9] But despite the shared Christian heritage of the Founders, modern courts have rejected a bias both against and toward religion, ruling that “the First Amendment embodies the right to select any religious faith or none at all.”[10] Thus, the Court has been forced to carefully balance a sense of neutrality by allowing all religious groups the rights and benefits of the social welfare state, while still maintaining the “wall” which separates Church and State.[11] Unfortunately, in the effort to maintain this balance, the Supreme Court has not been able to settle on any one test or set of rules by which to establish a consistent or predictable result.[12]

            The first case to put together an analytical framework to measure this balance was Lemon v. Kurtzman.[13] In this case, which invalidated the diversion of state funds to church-related educational institutions, the Court used a three-prong test to analyze the challenged laws: “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.”[14] The Lemon Court also explained that the purpose of the Establishment Clause was “to prevent, as far as possible, the intrusion of either [the state or the church] into the precincts of the other.”[15] For the next thirteen years, these concepts would guide the Court’s Establishment Clause jurisprudence.[16]

            However, this stability was disrupted by Lynch v. Donnelly, where in applying the Lemon test the Court juxtaposed the traditional role of religion in American society with religion’s simultaneously secular purpose—which, according to the majority, was distinct from religion’s other sectarian goals—to justify the state’s display of a Christmas nativity scene.[17] The Lynch court relied largely upon the presence of other representations of religious heritage, which it argued created a pluralistic, rather than a purely sectarian vision.[18] The majority, therefore, ruled that any religious benefit was de minimis.[19] The Lynch dissent, however, decried the “less-than-vigorous application of the Lemon test,” and what they saw as a “superficial” commitment to that test.[20] These fears were likely grounded in the majority’s insistence that, “no fixed, per se rule can be framed,”[21] adding that “”we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.”[22]

            This lack of commitment to the Lemon test permitted Justice O’Connor to put forth the endorsement test in her concurring opinion.[23] This test, which purported to distill Establishment Clause jurisprudence, asserted that the government could violate the Establishment Clause in one of two ways: “[o]ne is excessive entanglement with religious institutions…[the] second and more direct infringement is government endorsement or disapproval of religion.”[24] This concurrence also observed that: “[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”[25] Although using a slightly different analysis from the majority, Justice O’Connor also found that the government was permitted to acknowledge religion as a secular solemnization of public occasions and as a depiction of historical roots, and thus cast the deciding vote in finding the nativity scene constitutional.[26]

            Nonetheless, in the ensuing term, the Court continued to employ the Lemon test; in Wallace v. Jaffree it used that test to invalidate a law allowing school prayer.[27] The law struck down had allowed meditation or prayer, but the legislative record made it clear that the law as amended “was an ‘effort to return voluntary prayer’ to the public schools.”[28] Although the form of this statue might have been permissive, the clear legislative intent to promote religious prayer invalidated the statute under the Lemon test.[29] In her concurring opinion, Justice O’Connor again insisted that her endorsement test was a more refined analysis, and argued that the Lemon test had proved problematic and should be re-examined.[30]

            After a change on the bench, Justice O’Connor’s analytical model finally swayed a divided majority in County of Allegheny v. ACLU.[31] The application of the endorsement test led to a split verdict, however, where, under the facts of the case, the city’s display of a nativity scene was found unconstitutional, yet a Christmas tree and over-sized Menorah were permissible.[32] Justice Kennedy’s dissent of the former part of the decision and concurrence with the latter part argued against what he viewed as “an unjustified hostility toward religion.”[33] Appealing to the historical import referenced in Lynch, Justice Kennedy argued that the Supreme Court Establishment Clause cases:

Disclose[d] two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’”[34]

In so writing, Justice Kennedy created a third Establishment Clause test, which later became known as the coercion test.

            The next major Establishment Clause decision, authored by Justice Kennedy, unsurprisingly, utilized the coercion test as its analytical model, though it was not applied as strictly as other justices would have preferred.[35] In Lee v. Weisman, the Court prohibited clergy from offering prayers as part of a public school graduation ceremony.[36] Even though both the district and appellate courts employed the Lemon test, the Lee court refused to either use the Lemon test or reconsider it, instead holding that “[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”[37] Yet, the coercion test as employed in Lee did so at the expense of the historical exposé so prominent in many of the Establishment Clause cases decided outside of Lemon. As a result, the three judges who joined Justice Kennedy’s opinion in Allegheny, dissented in Lee.[38] This decision and its use of the coercion test again muddied the waters of Establishment Clause jurisprudence.

            The problems that the Court’s indecisiveness created became clear in the United States Seventh Circuit court decision of Sherman v. Community Consolidated School District 21 of Wheeling Township.[39] Although the Supreme Court had already ruled that reciting the Pledge could not be made mandatory,[40] this was the first case to reach the circuit courts which disputed that the phrase “under God” in the Pledge of Allegiance violated the First Amendment. Thus, the Sherman court could only rely upon Supreme Court dicta and the precedents discussed above.[41] Inexplicably, the Sherman court analyzed the issue as if Lee had invalidated the Lemon test, and instead employed Lee’s coercion test.[42] The Seventh Circuit also cited Justice Kennedy’s opinion putting forth the coercion test in Allegheny, yet ignored the endorsement test cited by the Court’s opinion in that same case.[43]

            The Supreme Court, itself unable to agree upon which test to apply, nevertheless was not ready to abandon any of these diverse analytical methods. Thus, in Santa Fe Independent School District v. Doe, the Court employed the coercion test, the endorsement test, and the Lemon test to determine that prayers before public school football games were unconstitutional.[44] The outcome of the case under any of the tests was clear, but which rule lower courts should follow was not.

 

III. The Court’s Decision

            In the noted case, the Ninth Circuit followed the approach of the Santa Fe court and analyzed the constitutionality of the Pledge’s phrase, “under God,” and its recitation in public schools, under all three of the interrelated Establishment Clause tests put forth by the Court.[45] Under each of these tests, the majority found that adding the phrase “under God” to the Pledge and the public school district’s policy and practice of teacher-led recitation of that Pledge violated the Establishment Clause.[46]

            The Ninth Circuit first employed the endorsement test to analyze the 1954 Act and the school district’s policy of teacher-led recitation of the pledge.[47] The court found that the phrase “under God” was an endorsement of religion.[48] The majority ruled that this phrase was not merely descriptive of religion’s place in history, but rather a “normative” expression, which unconstitutionally raised monotheism to the level of other American values of unity, indivisibility, liberty, and justice.[49] Citing Wallace, the Newdow court noted that the government must not identify with or endorse any God, but rather was bound to “pursue a course of complete neutrality toward religion.[50] Consequently, the court found that the school district’s practice of reciting this religious phrase was an effort “to inculate in students a respect for the ideals set forth in the Pledge,” which therefore amounted to a state endorsement of the belief in God.[51]

            The Newdow court also cited the Supreme Court’s recognition of the “normative and ideological nature of the Pledge in Barnette . . . [that] the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.”[52] Citing Barnette again, the court noted how important it was to American Democracy that no politics, religion, or any other matter of opinion was forced upon its citizens.[53] Yet, because no children were forced to recite the pledge in the noted case, the Ninth Circuit bulwarked its argument by citing Justice Kennedy’s comments about the Pledge from Allegheny:

“To be sure, no one is obligated to recite this phrase [the Pledge]…but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.”[54]

The Newdow court built upon this statement by noting Justice O’Connor’s remonstrance from Lynch that government endorsement of religion sent unbelievers the impermissible message that they were outsiders, while those that believed were insiders.[55] Thus, the court ruled that the Pledge violated the endorsement test.[56]

            The Ninth Circuit next looked to the coercion test put forth in Lee, and again found the Pledge and its recitation in public schools was a violation of the Establishment Clause.[57] The court found this effect even more profound because the children in the class at issue were particularly young and impressionable.[58] The Newdow court reiterated that Barnette was not distinguished simply because the children were not forced to recite the Pledge, because they were still forced to listen to it every day.[59] The Newdow court also noted that President Eisenhower, upon signing the 1954 Act, had announced from that day on, children would proclaim “the dedication of our Nation and our People to the Almighty.”[60] Thus, the Newdow court found that the 1954 Act, and the recitation of the Pledge in public schools, both failed the coercion test.[61]

            Lastly, the Ninth Circuit turned to the Lemon test, the first prong of which asks if the challenged policy has a secular purpose.[62] Although historically, the primary purpose of the phrase “under God” inserted by the 1954 Act was to advance religion, the defendants in the noted case argued that the Pledge had to be viewed in its totality, the rest of which they alleged, served a secular purpose.[63] The court found this reasoning flawed in light of the Supreme Court’s analysis in Wallace, and found the purpose behind the 1954 Act dispositive.[64] In Wallace, the Court struck down a law that might otherwise have been permissible in its disputed form “because the state legislature had amended the statute specifically and solely to add the words ‘or voluntary prayer.’”[65] A pari, the Ninth Circuit reasoned that the isolated inclusion of the words “under God” added by the 1954 Act separated this phrase from any other secular purpose of the Pledge.[66] In support of this conclusion, the court noted that the legislative history behind the 1954 Act provided that “American government [wa]s founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp.”[67] Contrasting these facts with the Wallace court’s remonstrances, the Ninth Circuit was forced to recognize that the Establishment Clause not only “prohibits the government’s endorsement or advancement of one particular religion at the expense of other religions, but also at the expense of atheism.”[68] Therefore, the court ruled that the 1954 Act failed the purpose prong of the Lemon test.[69] As a failure of any one of the prongs of the Lemon test invalidates a law, the court did not address the other two prongs in regards to the 1954 Act.[70]

            Nonetheless, the court found that the school district had the secular purpose of fostering patriotism by requiring the pledge to be recited daily.[71] To address Newdow’s claim against this defendant, the court looked to the second prong of the Lemon test: whether the state’s action had the principal effect of advancing or inhibiting religion.[72] Again citing the youth, impressionability, and the confined environment of the classroom, the court found it highly likely that this policy would convey a message of advancing religion to some and inhibiting the beliefs of others, and thus found that the school district’s actions failed the second prong of the Lemon test.[73] Thus, the court found that both the 1954 Act and the school district’s policy violated the Establishment clause under Lemon.[74]

            The Ninth Circuit also addressed previous Supreme Court dicta about the Pledge’s constitutionality.[75] It noted that the Supreme Court had clearly refrained from ever ruling on the Pledge directly, and had never applied any of its three tests to the Pledge, and thus felt justified in so doing itself. [76] The Newdow court also addressed Sherman, the only other circuit court case to deal with the constitutionality of the pledge.[77] First, the Ninth Circuit criticized the Sherman court’s argument that Barnette did not establish general rules about speech or school, but called for religion to be treated differently.[78] The Newdow court found that if government-endorsed religion was to be treated differently from government-endorsed patriotism, the treatment should have been less favorable, not more favorable.[79] The Newdow court also found an even more grievous error in the Sherman court’s willingness to ignore the Lemon test because of Lee’s criticism of that test, but then failing to employ the coercion test used in Lee or the endorsement test from Lynch, and instead relying solely upon Supreme Court dicta.[80] The Newdow therefore strengthened its own holding by criticizing the analysis of the only other co-equal court to decide these issues.

            In sum, having determined that the 1954 Act and the school district’s policy failed the endorsement test, the coercion test, and the Lemon Test—while criticizing the only other equivalent circuit court decision on this matter—the Ninth Circuit found that the district court had erred in dismissing Newdow’s suit and vacated that judgment, remanding the case for further proceedings consistent with its holding.[81]

 

IV. Criticism and Analysis

            By applying all three of the major tests put forth by the Supreme Court in deciding Establishment Clause cases, the Newdow court maintained a consistency with prior cases without usurping the jurisprudential prerogative of the Supreme Court. Nevertheless, this decision plays an important role in the body of First Amendment law for its advance of constitutional values over what was a contrary popular viewpoint. This result echoes Court’s holding in Santa Fe, that “fundamental rights may not be submitted to vote; they depend on the outcome of no election.”[82] It is also consistent with the Supreme Court’s rejection of the theory that a majority or persons approving the policy at question lessens the offense or isolation of the objectors.[83] The Newdow majority thus came to the logical conclusion by reasoning its facts under the jurisprudential precedents, rather than relying upon vague supplications to historical precedent. In contrast, the Newdow dissent—as the dissents in many of the cases referenced herein—relied upon the role of religion in American political history in support of condoning sectarian state practices, which at best glossed over constitutional guarantees, and at worst simply employed faulty reasoning.[84] However, as the Supreme Court has noted, “no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.”[85] Although some Supreme Court justices have argued that a long-standing history should be treated as if it was conclusive evidence,[86] Justice Souter has aptly pointed out that:

Ten Years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress’s political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.[87]

Not only do the actions of the Founders fail to be determinative of constitutionality, but even if they are considered to be persuasive, scholars have noted that a strict separation of Church and State was historically closest to the core of the Establishment Clause.[88] Indeed, the argument that the founders understood the Establishment Clause to stand for neutrality between religious denominations has been decisively refuted.[89] Therefore, in mandating separation, the Newdow court got it right.

            Another common juridical lament in Establishment Clause decisions, which the Newdow court avoided, was a fear that ruling in favor of separation will lead the nation on a path of antireligionism. The shortcoming of this argument lies in the broader structure of the First Amendment. The Founders created a legislative compromise whereby the Free Exercise clause was biased toward religion and the Establishment Clause was biased against religion, thereby creating an overall balance which was in whole neither pro- nor antireligion. Nonetheless, the majority opinion in Lynch, as well as the dissents in, Santa Fe, Lee, and Allegheny, all expressed concerns that if the challenged actions before the court were invalidated, things such as the prayer opening legislative sessions, the national motto of “In God We Trust” on American currency, “under God” in the Pledge, and the National Day of Prayer would be the next to go.[90] The dissent in Newdow, however, did pick up this thread, writing that, inter alia, patriotic songs, such as “God Bless America” and “America the Beautiful” would be next.[91] Justice Fernandez’s opinion seemed more persuaded by his Seventh Circuit colleagues’ analysis than the majority.[92] Although the majority in Newdow had the superior analysis, the confusion in Establishment Clause cases, of which Newdow landed directly in the middle of, is elucidated in the Sherman court’s conclusion:

The Pledge of Allegiance with all of its intended meaning does not effectuate an establishment of religion. If legislative prayer based upon the Judeo-Christian tradition is permissible under Marsh v. Chambers, and a Christmas nativity scene erected by a city government is permissible under Lynch v. Donnelly, then certainly the less specific reference to God in the Pledge of Allegiance cannot amount to an establishment of religion.[93]

Interestingly, each of the opinions cited above that were worried about the slippery slope of Establishment Clause separation (the majority in Lynch and the dissents in Santa Fe, Lee, Allegheny, and Newdow) also cited Marsh in their opinions.[94] Unsurprisingly, Marsh was relegated to a minor footnote and a historical side note in the noted case’s majority decision.[95]

            The Marsh court was one of the first to wade into the quandaries of how to weigh tradition as a constitutional standard when it found the opening prayer before legislative sessions permissive.[96] Because Marsh is still valid law, many of the majorities in the cases discussed herein have also felt the need to cite Marsh, and have awkwardly attempted to align their well-reasoned separationist decisions with the precedent in Marsh; in so doing, these opinions often have cited the historical roots of legislative prayer in American politics.[97] These are a curious analyses, however, as the Allegheny court has made clear that this was not the determinative factor in this case, rather the chaplain removing overt references to Christ was what had made this form of prayer acceptable.[98] Yet, despite an opinion that is mostly of sound reasoning, the Newdow Court acceded to Justice Powell’s concurrence in Wallace, which somewhat dubiously claimed that the legislative prayer in Marsh was upheld because it had “become part of the fabric of our society.”[99] This response to Marsh was somewhat surprising. The next logical step (as it would have been for the Allegheny court) would have been to invoke the majority opinion in Wallace, where it was stated that: “when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”[100] Thus, between the Allegheny court’s observance that prayer excluding reference to Christ made a generalized prayer to a God permissible in Marsh, and the Wallace court’s ruling of non-preference of religion over non-religion, it should have been clear that Marsh was a dead letter and would be ruled differently if decided today.

            However, the Ninth Circuit may have been more clever for what they did not say, as opposed to what they did. The court was certainly aware of the Wallace opinion, and indeed quoted part of the above passage in its opinion, when the court noted that “’the First Amendment embraces the right to select any religious faith or none at all.’”[101] The Newdow court was also aware that Lee had held that “the school district’s supervision and control of the graduation ceremony put impermissible pressure on students to participate in, or at least show respect during, the prayer.”[102] Thus, the Ninth Circuit drew the analogy of coercion from listening to prayer in Lee, to listening to the phrase “one nation under God” in the Pledge, and combined with the Wallace court’s remonstrance against denying the right to embrace no faith at all, found the Pledge and its daily recitation in public schools unconstitutional.[103] Thus, if the court did not address Marsh, as other courts did, this is likely because it agreed with Justice Brennan, who wrote that Marsh was an “aberrant departure from our settled method of analyzing Establishment Clause cases,”[104] yet, as a circuit court, lacked the authority necessary to overrule it.

            Nonetheless, even if the Supreme Court was to ultimately agree with the Ninth Circuit’s Establishment Clause analysis, it would also likely ignore Marsh. As a practical matter, it is likely that Marsh will stand until legislative prayer is once again directly challenged. Yet, given the import of Marsh on past decisions, even the limiting or distinguishing of it, as the Lee court did,[105] advances constitutional values over the preferences of a sectarian majority.

 

V. Conclusion

            There is a general trend in Supreme Court Establishment Clause cases to end sectarian endorsements by the state, no matter how small.[106] Although the founders of the United States may have been primarily Christian, the Court has recognized that modern America is a growing plurality, many of which hold non-Christian beliefs, and many of whom hold no belief in any theology whatsoever.[107] Understandably, those of a certain faith want their religion associated with their government so that it in turn represents their personal values; however, the Court has wisely recognized that the United States is not a theocracy, and that it must respect the values of all its citizens. Hopefully, those justices who maintain that a minimal endorsement is no endorsement at all,[108] will ultimately see that the separation of church and state is not meant to be a “hostility toward religion,”[109] but will remember that one of the original intents of the First Amendment was to protect religions from governmental encroachment. Moreover, it is important that both justices and religious persons recognize that the effort to deign religion as having mere historical or secular purposes does not show respect, but rather denigrates that religion to something common, trite, and spiritually irrelevant, instead of what it should more appropriately be: a belief and faith of awesome reverence.[110]