Center for Education in Law and Democracy Teacher s Directions Does the Establishment Clause Permit Under God in the Pledge? Rationale and Overview of Lesson: On March 24, 2004, the Supreme Court heard arguments from a school district in California and an atheist father regarding the constitutionality of the words under God in the Pledge of Allegiance. The Supreme Court eventually ruled that the father who brought the case did not have standing, but the constitutional issue raised in the case is still germane. This lesson engages students in thinking about this emotional and controversial issue from the perspective of a Supreme Court Justice. Outcomes: As a result of this lesson, students will Procedure: Analyze a controversial issue to determine facts and issues under dispute. Represent opposing ideas fairly and accurately. State an opinion and support it with facts, arguments, and evidence. 1. Write the words of the Pledge of Allegiance on the board and ask students if they know when the Pledge was first written/recited (1892). Have there been any changes to the Pledge? (The words under God were added by Congress in 1954 to emphasize the difference between the United States and godless Communist countries.) Point out that those words are controversial today, having been the subject of a Supreme Court case in 2004. (For more background on the Pledge, see http://www.crfusa.org/foundation_docs/foundation_lesson_pledge). 2. Assign students to read the overview of the pledge case (Handout 1) and prepare to discuss their answers to the following questions (more background on the case is available at (http://pewforum.org/religion-schools/pledge/): What are the relevant facts? What are the legal and/or constitutional issues in this case? Why do you think this case is important enough for the Court to grant review?
3. When students have finished their preparation, have them work in pairs to share their answers to the questions. Allow time for several pairs to report to the class; allow pairs with different perspectives or ideas to add to the reports. 4. Tell students that they will be conducting a moot court on this case. They will work in one of three groups: attorneys for the petitioner (Elk Grove Unified School District), attorneys for the respondent (Newdow), and the Supreme Court. Organize the class into the three groups. 5. All three groups will need to be familiar with cases that serve as a precedent for this issue (Handout 2). You may want to go over the cases as a group or have students read the handout and discuss the cases in their groups. 6. Distribute Handout 3 and go over the procedure (for a more detailed description of moot court procedure, see http://wwww.landmarkcases.org/mootcourt.html). Tell the attorney groups to prepare for the moot court by analyzing the arguments for the petitioner and respondent (Handout 4) and identifying the three most important arguments for each side. How will they present their arguments? How will they counter the arguments of the other side. The justices should review the materials and identify questions to ask the petitioner and respondent in oral arguments. 7. When students have finished their preparation, conduct the moot court. 8. Following the moot court, conduct a debriefing discussion, using the following questions: Do you agree with the decision made by our court? Why or why not? Which arguments seemed to be most compelling to the justices? Why do you think that was the case? The U.S. Supreme Court, which heard this case in 2004, ruled that Newdow did not have standing to bring the lawsuit because he does not have legal standing in the case. Their ruling thus voided the decision of the Ninth Circuit Court of Appeals. Three justices concurred with the decision but argued that the Pledge does not violate the Establishment clause; however, their opinions are not binding. How is this decision similar to and different from our class decision? Do you think the Court made a good decision? Why or why not? 9. Ask students: If you were a Supreme Court Justice, how would you have ruled on this case? Outline a position on the question before the court: Does a public school district that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words under God, violate the Establishment Clause of the First Amendment?
Handout 1 Case Overview Elk Grove Unified School District v. Newdow 02-1624 The fact is that the line which separates the secular from the sectarian in American life is elusive. The difficulty of defining the boundary with precision inheres in a paradox central to our scheme of liberty. Justice Brennan, 1963. Read the case overview below and prepare to discuss your answers to the following questions: What are the relevant facts? What are the legal and/or constitutional issues in this case? Why do you think this case is important enough for the Court to grant review? * * * * * Michael Newdow s daughter is an elementary school student in the Elk Grove Unified School District in California. Newdow is an atheist. According to state law and school rule, teachers begin each school day by leading the students in a recitation of the Pledge of Allegiance. Congress first codified the Pledge on June 22, 1942, later amending it on June 14, 1954, to add the words under God after one Nation. Newdow does not claim that the school district or teacher require his daughter to participate in reciting the Pledge. Such required participation was prohibited by the U.S. Supreme Court in West Virginia v. Barnette, 3139 U.S. 624, 1943, even before under God was added. Rather, he claims that his daughter is injured (in a legal sense) when she is compelled to watch and listen as her state-employed teacher in her state-run school leads her classmates in a recitation proclaiming that there is a God, and that ours is one nation, under God. Newdow claims that the 1954 modification of the Pledge by Congress as well as the state law and school rule requiring daily recitation violate the First Amendment s Establishment Clause. He seeks declaratory and injunctive relief (i.e., an order that the Pledge of Allegiance is unconstitutional with the addition of the words under God and a court order prohibiting the school from requiring the daily recitation). The U.S. District Court dismissed Newdow s case, and he appealed. The U.S. Court of Appeals for the Ninth Circuit reversed on February 28, 2003, finding that the Pledge of Allegiance violated all three of the tests used by the Court to determine Establishment Clause violations: The Lemon test -- because the 1954 amendment by Congress did not have a secular purpose and does advance religion, The coercion test -- because there are heightened judicial concerns about protecting freedom of conscience from subtle coercion in elementary and
secondary school children who should not face the dilemma of participating in the religious ceremony or protesting it, and The endorsement test -- because it sends a message to nonadherents here atheists that they are outsiders and not full members of the political community. On October 14, 2003, at the request of the Elk Grove Unified School District, the Supreme Court granted review of the case regarding a First Amendment question: Does a public school district that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words under God, violate the Establishment Clause of the First Amendment? Summary developed by Street Law, Inc. 2003
Handout 2 Precedents West Virginia State Board of Ed. v. Barnette 319 U.S. 624 (1943) The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as insubordination and was punishable by expulsion and charges of delinquency. In a 6-3 decision, the Supreme Court found that such a salute was a form of utterance and was a means of communicating ideas. Compulsory unification of opinion, the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that [i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. The Barnette case was decided before under God was added, and thus the Court's discussion was limited to the political ideals contained in the Pledge. Abington School District v. Schempp 374 U.S. 203 (1963) Public schools in Pennsylvania and Maryland held voluntary reading of Bible passages or the Lord s Prayer at the opening of each school day. Children were excused from Bible reading with a written request from a parent or guardian. Students recited the Pledge of Allegiance immediately after the prayer. The Court ruled 8-1 against voluntary reading of the Bible verses and the Lord s Prayer, stating that the government should not promote activities that advance nor inhibit religion. Justice Clark indicated that the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant and did not prevent the school's actions from violating the Establishment Clause. Lemon vs. Kurtzman 403 U.S. 602 (1971) Three cases from Pennsylvania and Rhode Island involved public assistance to private schools, some religious. Pennsylvania s law included paying the salaries of teachers in parochial schools and assisting in purchase of textbooks and other teaching supplies. In Rhode Island, the State paid 15% of the salaries of private school teachers. The court ruled that state aid to religious schools violated the Establishment Clause. In deciding the case, the Supreme Court created a three-pronged test for determining whether a particular government act or policy unconstitutionally promotes religion. The Lemon test says that in order to
be constitutional, a policy must 1) have a non-religious purpose, 2) not end up promoting or favoring any set of religious beliefs, and 3) not overly involve the government with religion. Marsh v. Chambers 463 US 783 (1983) Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's practice of offering a prayer at the beginning of each legislative session; the prayer was given by a chaplain chosen by the state and paid out of public funds. In a 6-3 decision, the Supreme Court upheld the Chaplaincy practice. The court did not use the three-part Lemon test. Chief Justice Burger based the opinion on historical custom. Prayers by chaplains can be traced to the First Continental Congress. The practice did not violate the Establishment Clause because the practice had become part of the fabric of society. In these circumstances, an invocation for Divine guidance is not an establishment of religion but simply a tolerable acknowledgment of beliefs widely held among the nation s people. Lynch v. Donnelly 465 U.S. 668 (1984) Daniel Donnelly objected to a Christmas display set up annually in the city of Pawtucket, Rhode Island. The display included such objects as a Santa Claus house, Christmas tree, and a nativity scene. In a 5-4 decision, the court held that the city had not violated the Establishment clause because the display should be viewed in the context of the holiday season and had a legitimate secular purpose. The Court said that examples of reference to our religious heritage are found in the language One nation under God, as part of the Pledge of Allegiance to the American flag, which is recited by many thousands of public school children and adults every year, and that such official acknowledgments of our Nation's religious heritage do not establish a religion or religious faith. Justice O Connor in this case proposed the endorsement test that is, examining whether a government action endorses religion, conveying conveys a message to non-adherents 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. Lee v. Weisman 505 U.S. 577 (1992) A Jewish parent in Providence, Rhode Island, challenged the local school district's policy of including a prayer in its graduation ceremonies. At the disputed graduation, a Rabbi thanked God for the legacy of America where diversity is celebrated...o God, we are grateful for the learning which we have celebrated on this joyous commencement. In a 5 to 4 decision, the Court held that government involvement in this case creates a state-sponsored and state-directed religious exercise in a public school. The school's rule creates subtle and indirect coercion (students
must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government. Lee v. Weisman is one of the cases in which justices applied the coercion test. Sherman v. Community Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992), cert. denied, 508 U.S. 950 (1993) The Seventh Circuit concluded that an Illinois statute requiring recitation of the Pledge at school by willing students does not violate the Establishment Clause. The Seventh Circuit relied on the founding fathers use of ceremonial references to God as well as pronouncements by the Supreme Court regarding the constitutionality of the Pledge in finding that ceremonial references to God do not result in the establishment of religion. The court reviewed references to God by Presidents George Washington and James Madison, the author of the First Amendment, references to the opening of Court sessions with the cry God save the United States and this honorable Court, and references to God contained in the Declaration of Independence.
Handout 3 Steps in a Moot Court Hearing 1. The petitioner s attorney states its case. The Court may ask questions during this time. 2. The respondent states its case. Again, the Court may ask questions. 3. If time was reserved, the petitioner s attorney can make a brief rebuttal. 4. If time was reserved, the respondent s attorney can make a brief rebuttal. 5. The Court deliberates and makes its decision. 6. The Court announces its decision and the reasons supporting it. 7. The class discusses the decision. Note: The Court allows a specific amount of time for oral arguments. While it may grant extra time, that rarely happens. Often, the members of the court interrupt the attorneys throughout their presentations to ask questions. The time spent on questions is charged against the attorneys allotted time. If desired, the attorneys can reserve part of their time for rebuttal. The rebuttal time should be used not to make new arguments but to counter the arguments made by the opposing side. Attorneys cannot argue that the facts presented in the trial court are inaccurate. Instead, they argue how the facts support their case and why legal precedents or theories support their position.
Handout 4 Petitioner Arguments Here are some arguments found in briefs filed by Newdow and groups who believe that under God is a violation of the Establishment Clause 1. Congress added the phrase under God to the Pledge in 1954 to affirm the religious history and character of our country and make a statement against communism. References to God in the Pledge do not convey endorsement of particular religious beliefs. Religious beliefs inspired the settlement of the colonies and influenced the formation of the government. 2. Opinions of the Supreme Court and individual justices have spoken with unanimity in affirming the constitutionality of the Pledge of Allegiance. Ceremonial references to God, such as the statement under God in the Pledge, have repeatedly been recognized to be consistent with the Establishment Clause. There is an unbroken history of official acknowledgment by all three branches of government. President Abraham Lincoln referred to a Nation under God in the historic Gettysburg Address. In 1865, Congress authorized the inscription of In God we trust on U.S. coins. Every President who has delivered an inaugural address has referred to God or a Higher Power. 3. Reciting the Pledge is a patriotic exercise not a religious testimonial. The Pledge is a ritual that supports the ultimate mission of public schools: to create a patriotic, informed, and unified citizenry. The Pledge fills a pedagogical purpose. Reciting the Pledge as a young child is a building block for future study of historical documents. Thus, under the first prong of the Lemon test, the policy has a secular purpose. 4. The coercion test does not apply in this case because the Pledge is not a religious exercise. Students may be required to attend classes and assemblies and complete assignments that expose them to ideas they find distasteful. Student exposure to other students performing this patriotic act does not give rise to constitutional problems. Only when the pressure involves religious exercises is the Constitution violated. 5. The First Amendment does not require that in every respect there should be separation of church and state. The endorsement test does not preclude government from acknowledging religion or from taking religion into account in making law or policy. It does preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored and preferred.
6. The Pledge has become woven into the fabric of our society due to the history and unbroken practice of children and adults of this country reciting it, including the words under God for the past 50 years. The words under God must be viewed in the context of the Pledge and the school s purpose in providing students with opportunities to recite the Pledge. If we are to apply the school prayer cases to remove the words under God from the Pledge, it will invite further litigation regarding other texts. 7. The respondent is challenging the words under God only in school settings. If the Pledge does not violate the Establishment Clause, then the Elk Grove policy, by extension, cannot violate the Establishment Clause.
Respondent Arguments Here are some arguments found in briefs filed by Newdow and groups who believe that under God is a violation of the Establishment Clause. 1. Particularly in school settings, the government must be neutral toward religion. It is particularly offensive that the reference to the religious beliefs of the majority occurs as part of the Pledge of Allegiance a patriotic exercise primarily used to unify our people. 2. The student and government involvement in religion here is far greater than that in many practices already ruled unconstitutional. The government has struck down nine of nine cases where governmentsponsored religion occurs in the public education environment. Affixing under God to the nation s pledge is a far greater offense than merely letting a state s individuals know that they can silently pray if they so choose. 3. In 1892, the Pledge was created as a purely secular statement. It unified the country for 62 years. When Congress modified the Pledge in 1954, the only plausible explanation for the addition of the words under God was to establish a national endorsement of and preference for practicing faith in God. Many people supported this effort because they wanted to distinguish our government from the communist government in the Soviet Union. Congress did that in an unconstitutional manner. In passing the law, Congress stated, The inclusion of God in our Pledge would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator. 4. Young students are likely to perceive the Pledge as affirming monotheism. They will have a difficult time comprehending the meaning of many words in the Pledge and find meaning to the words they recognize. Students will recognize the word God and are likely to think that the Pledge is similar to a prayer. 5. The government argues that the phrase under God in the Pledge is no different than the words In God We Trust that appear on coins. Unlike the national motto, however, schoolchildren asked to recite the Pledge are being asked to express their personal belief in the values it embodies. There is a difference between acknowledgement of God as found in the Declaration of Independence, Gettysburg Address and Star Spangled Banner, and endorsement. 6. The purpose prong of the Lemon test is violated. The words under God have a religious rather than secular purpose.
7. Teachers are role models for students. When teachers lead students in the Pledge, they send a message to nonadherents that they are outsiders, not full members of the political community. If listening to a prayer at graduation is considered coercion, then certainly asking students to actively recite religious dogma is even greater. 8. The words under God are used by government leaders to reinforce religious views. In November 2002, President Bush wrote a letter stating [a]s citizens recite the Pledge of Allegiance,... we affirm... our reliance on God, and that [w]hen we pledge allegiance to One Nation under God, our citizens participate in an important American tradition of humbly seeking the wisdom and blessing of Divine Providence.