February 2004 Church & State | People & Events

The Bush administration has urged the Supreme Court to uphold the use of the phrase "under God" in the Pledge of Allegiance, arguing that public schools have a right to teach students about God.

In a legal brief filed before the high court, Solicitor General Theodore B. Olson argues that the phrase has mainly patriotic meaning.

"The reference to a 'Nation under God' in the Pledge of Allegiance is an official and patriotic acknowledgement of what all students Jewish, Christian, Muslim or atheist may properly be taught in the public schools," Olson wrote.

Olson's brief insists that reciting the Pledge is not the same as school-sponsored prayer.

"[D]escribing the Republic as a Nation 'under God' is not the functional equivalent of prayer," the document asserts. "No communication with or call upon the Divine is attempted. The phrase is not addressed to God or a call for His presence, guidance, or intervention. Nor can it plausibly be argued that reciting the Pledge is comparable to reading sacred text, like the Bible, or engaging in an act of religious worship. The phrase 'Nation under God' has no such established religious usage as a matter of history, culture, or practice."

Elsewhere the brief insists that removing the words "under God" from the Pledge would amount to state-sponsored hostility toward religion.

"Public familiarity with the Pledge's use as a patriotic exercise and a solemnizing ceremony for public events ensures both that the reasonable observer, familiar with the context and historic use of the Pledge, will not perceive governmental endorsement of religion at the mere utterance of the phrase 'under God,' and that petitioners' Pledge policy has no more coercive effect than the use of currency that bears the National Motto 'In God we trust,'" argues the brief. "Moreover, the text of the Pledge has become so engrained in the national psyche that declaring it unconstitutional would have its own Establishment Clause costs, as a generation of school children would struggle to unlearn the Pledge they have recited for years and, under the direction of public school teachers, would labor to banish the reference to God from their memory. That would bespeak a level of hostility to religion that is antithetical to the very purpose of the Establishment Clause."

Aside from the Justice Department, several members of Congress have filed their own briefs on behalf of "under God." One was written on behalf of 70 House and Senate members by TV preacher Pat Robertson's American Center for Law and Justice. Several Religious Right organizations have also filed separately.

But the controversial nature of the case has also split the separationist camp. While Americans United is filing a friend-of-the-court brief urging the court to end recitation of the phrase "under God" in public schools due to its religious content, organizations that AU often works with have taken the opposite view.

The National School Boards Association and the National Education Association, for example, both told the high court that recitation of "under God" as part of the Pledge does not violate church-state separation.

The American Jewish Congress has also filed on the side of the federal government. The group argues that the phrase "under God" is not religious but is instead an example of "ceremonial deism."

The case, Elk Grove Unified School District v. Newdow, was brought by Michael Newdow, a California man whose 9-year-old daughter attends a public school where the Pledge of Allegiance is recited regularly. (See "One Nation Indivisible?," December 2003 Church & State.)

Oral arguments at the Supreme Court are scheduled for March 24, with a decision to follow by the end of June.