Any activity required by public schools will face controversy if it presents a religious connotation. Since 1954, the Pledge of Allegiance has incorporated the words, "under God," introducing a religious aspect into its patriotic rhetoric. To many Americans, that public school students are required to recite it is unconstitutional and unnecessary. This article will present a brief history of the Pledge of Allegiance and the Moment of Silence, as well as a description of the First Amendment and a case study of Russell Tremain, a nine-year old student caught in the middle of a First Amendment case between the ACLU and the state of Washington in 1925.
Keywords: American Civil Liberties Union (ACLU); Allegiance; Church and State; Citizenship; Civil Liberties; First Amendment; Liberty; Moment of Silence; Pledge; Recitation
All over the United States, public school students rush to their classrooms in the morning and are called to attention when announcements begin sounding over a loudspeaker. Part of the morning ritual is to stand, place their right hands over their hearts, and recite the Pledge of Allegiance in unison with the voice overheard throughout the school. While students are now not required to follow in recitation, they usually do because everyone else does.
Conformity may be the reason most students recite the Pledge, especially young students who cannot fully understand the meaning of the words they are saying. The fact that they are expected to recite them at all is controversial. Many opponents of its recitation argue that the Pledge does not belong in school because it serves no educational purpose for students to memorize and simply recite words. Another controversy involves whether or not students feel pressured to recite the Pledge — which references God — because the Establishment Clause of the First Amendment states that they don't have to.
The Pledge of Allegiance
Frances Bellamy wrote the Pledge of Allegiance in 1892. The United States had recently experienced its Civil War, and patriotism was pushed as a means to rebuild the country. Since it was first written, the Pledge has been revised only twice:
Bellamy wrote his pledge in 1892: "I pledge allegiance to my flag and to the Republic for which it stands-one Nation indivisible-with Liberty and Justice for all" (Ellis 2005, 19) … To show that individuals were pledging allegiance specifically to the U.S. flag, the words "my flag" were changed to "the Flag of the United States of America" in 1924 (Cayton et al. 2005; Miller 1976). Fears about communism, an increased commitment to religion, and a belief in the Christian foundations of our nation led to the phrase "under God" being added to the Pledge of Allegiance in 1954 (Cayton et al.; Ellis 2005, as cited in Martin, 2008, p. 128).
In 2002, almost a year after the September 11 attacks on New York's twin towers, three judges on the Ninth Circuit Court of Appeals ruled that to require students to say "under God" was unconstitutional and that public schools could no longer mandate the Pledge's recitation. Reaction to the decision was overwhelming: "Starting with the president and leaders of both parties in Congress, elected officials poured more uninhibited scorn on the decision than on any other action of a court in living memory" (Clausen, 2002, p. 35). The decision was over-turned and currently, thirty-five states in America require recitation of the Pledge every day in school (Piscatelli, as cited in Martin, 2008, p. 127). In addition, the Pledge of Allegiance is used to welcome new citizens into the country as it is recited at the conclusion of naturalization ceremonies (Parker, 2006).
Moment of Silence
Required moments of silence are not so well-received. In 1985, the state of Alabama not only required a moment of silence for its public school students, the state actually created a prayer for the students to silently recite. The case was brought to the U.S. Supreme Court and the mandate was deemed unconstitutional. However, it was only considered a violation of students' First Amendment rights because it clearly pointed toward a religious affiliation. The Court devised an alternative for Alabama, which the state quickly embraced. Supreme Court Justice Sandra Day O'Connor identified the alternative based on the First Amendment itself:
… the relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it [a required moment of silence] as a state endorsement of prayer in public schools. A moment of silence law that is clearly drafted and implemented so as to permit prayer, meditation, and reflection within the prescribed period, without endorsing one alternative over the others, should pass this test (O'Connor as cited in Davis, 2003, p. 432)
In other words, if a moment of silence does not specifically endorse the concept of praying, it can be used as time spent on just about anything that is quiet. Furthermore, whoever is requiring it cannot be seen as forcing a religion because religious affiliation is not required for students to participate. Derek Davis, Editor of Journal of Church & State, identified five ethical arguments against O'Connor's play on words and, more specifically, a required moment of silence in public schools.
First, Davis notes that changing the wording does not change the meaning:
Moments of silence … are constitutional because they are supposedly prayer neutral; that is, students may choose to pray during the prescribed time of meditation, or they can use the time in other ways, such as to prepare mentally for the day or just enjoy the solitude. Yet no one really disputes that moments of silence are primarily efforts to encourage prayer (2003, p. 435).
Second, Davis notes that many people want religion in public schools: "The absence of any form of prayer in the classroom, they argue, is … a sure sign that God has been removed from the schools" (p. 437). At the turn of the 20th Century, public schools were a way for America's poor and immigrant population to receive religious instruction of a Christian nature. In 2010, however, many people believe that 1) everyone has the right to choose his own faith, and 2) should he choose to believe in God, his observance should not be restricted to a public school building. Third, Davis points out that many of the people advocating for a moment of silence are doing so because the lack of moments of prayer have caused the country to become immoral (p. 438). Fourth, Davis point out that religion by any other name does not warrant a required time of observance: "It is rare to find Jews, Buddhists, Hindus, Muslims, and members of other minority communities of faith who favor moments of silence" (p. 439).
Finally, Davis notes that by virtue of the Equal Access Act of 1984, as long as it is not led by teachers or administrators, students can observe religion in public schools without a need for an established moment of silence.
The Act requires religious activity to be student-initiated and student-run, without school officials' oversight and direction, activities consistent with the requirements of the Act are protected by the Free Speech and Free Exercise Clauses and do not violate the Establishment Clause. Moreover, students are free to pray privately any time they choose: before, during, or after school. They are free to read their Bibles, share their faith, pray with other students, distribute religious tracts, or sing religious songs provided these activities do not disrupt other school activities. The Free Exercise Clause protects all of these activities (Davis, 2003, p. 441).
The First Amendment
The United States Constitution was signed in 1787. Price (2004) notes that in order to focus more on the people — rather than simply describing what the government could and could not do (as the original document does) — the Bill of Rights was added to the Constitution. The third Article is the First Amendment:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Thomas Jefferson helped create the Bill of Rights, and to clarify the meaning of the First Amendment, he wrote a famous letter to Danbury Baptists to explain the intention of the amendment:
Believing with you that religion is a matter which lies solely between Man & his God, that...
'Under God,' the Pledge of Allegiance, and Other Constitutional Trivia
62 PagesPosted: 31 Oct 2002
Date Written: 2003
A panel of the United States Court of Appeals for the Ninth Circuit created a furor recently when it ruled that the inclusion of the words "under God" in the official Pledge of Allegiance violates the Establishment Clause of the First Amendment. Responses to this ruling by politicians, the press, and legal academics were overwhelmingly critical. The unifying theme of many of these responses is that the claim against the "under God" language in the Pledge is trivial and therefore not the proper basis for an Establishment Clause ruling. This Article uses the Pledge controversy as a vehicle for investigating the concept of constitutional trivia in the Establishment Clause context. There are two variations on the argument that the "under God" controversy is trivial. The first variation asserts that the religious component of the Pledge has so little religious significance that it does not rise to the level of an Establishment Clause violation. The second variation acknowledges the religious significance of the "under God" language, but asserts that trivial religious exercises should be considered permissible exceptions. to the normal First Amendment rules. The problem is that neither variation on the triviality defense of the Pledge can be reconciled with a plausible reading of the factual background of the Pledge statute, or with the overwhelming thrust of the Supreme Court's Establishment Clause precedents. The triviality defense of the Pledge is therefore difficult to accept at face value. This defense should be viewed instead as a distorted reflection of the growing conflict over the most basic principle of Establishment Clause jurisprudence: Does the Constitution continue to mandate a secular government, or has the subtle sectarian dominance of government become an accepted constitutional fact?
Suggested Citation:Suggested Citation
Gey, Steven G., 'Under God,' the Pledge of Allegiance, and Other Constitutional Trivia (2003). North Carolina Law Review, Vol. 81, 2003; FSU College of Law, Public Law Research Paper No. 72. Available at SSRN: https://ssrn.com/abstract=337200 or http://dx.doi.org/10.2139/ssrn.337200
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