UPDATED SEPT. 17, 2005
UPDATED JUNE 1, 2004
UPDATED MARCH 9, 2004
OCTOBER 3, 2003

U.S. SUPREME COURT
Guide to covering 'Under God' pledge decision

On Sept. 14, 2005, a U.S. District Judge ruled that the phrase "Under God" is unconstitutional in the Pledge of Allegiance, again setting the stage for the U.S. Supreme Court to take up the issue. On June 14, the Supreme Court left the phrase intact when it ruled that atheist Michael Newdow lacked legal standing to pursue the case.

The Supreme Court's June ruling did not directly address the issue of referencing God in the pledge. If the new ruling, by the U.S. District Court in California, is appealed to the Supreme Court, the court may be forced to rule on the constitutionality of the phrase. Newdow filed the case on behalf of three unnamed parents and their children. The new ruling applies only to three school districts in California.

In June, three justices issued concurring opinions strongly stating that the pledge does not violate the Establishment Clause, leading scholars and court watchers to conclude that those who wanted "Under God" removed probably would have lost had the court decided on the phrase’s constitutionality.

The case is rich in symbolism and emotion, and many experts discount its legal importance. Yet it raises a core question that is at the heart of many political and social debates in this country: What place does God have in the government of a predominantly Christian nation that includes people of many faiths and of no faith at all?

Read a Sept. 14, 2005, Associated Press story about a California District Judge ruling that the Pledge of Allegiance’s phrase "under God" violates the rights of school children in three school districts. It's posted by NewsChannel 5.

Click the map for interview sources in your state and region

Jump to:
• Possible outcomes
• National sources
• History of the Newdow pledge case
• U.S. government involvement in the case
• The Supreme Court and the pledge
• History of the Pledge of Allegiance
• Polls
• Other background

Possible outcomes

If this case moves to the Supreme Court, several outcomes are possible:
• The court could agree with the lower court’s decision, thereby declaring the words "Under God" unconstitutional.
• The court could overturn the lower court’s ruling and uphold the current form of the pledge.
• Depending on the status of court appointments, the court could split its vote 4-4, because Justice Antonin Scalia recused himself from the case, and the 9th Circuit ruling could be upheld.

Most court watchers, First Amendment specialists and scholars have predicted that the court would preserve the pledge on the grounds cited by Justice David Souter during oral arguments in Newdow’s first case in March – that the usage of "Under God" in the pledge is a kind of "civic exercise," something that is "is so tepid, so diluted, so far from a compulsory prayer, that it should, in effect, be beneath the constitutional radar."

Court watchers also pointed out an irony inherent in any decision. If "Under God" is upheld, as most of the nation hopes, it likely would be because the justices would say that reciting it is a rote civic exercise with little or no religious meaning. That idea offends many of the religious people who support keeping the phrase. Yet if "Under God" is removed, as many atheists and church-state separationists have hoped, it would be because the phrase carries religious meaning. The backlash could lead to a broad, unified push for a constitutional amendment that would ultimately make the boundaries between church and state more permeable, especially in the nation’s schools.

National sources

SUPPORT 'UNDER GOD' IN PLEDGE
• Jay Sekulow is chief counsel for the American Center for Law and Justice, a public interest law firm based in Washington, D.C., that specializes in constitutional law. It filed an amicus brief in May with the U.S. Supreme Court, asking it to take the Pledge of Allegiance case from California in which a federal appeals court has declared the phrase "one nation, under God" to be unconstitutional. The ACLJ, which supports the position of the U.S. Department of Justice, represents more than 30 members of Congress, who are listed in a news release. See the ACLJ's Pledge of Allegiance resource page. Contact Gene Kapp, 757-575-9520.
• The Anti-Defamation League, which fights anti-Semitism and bigotry, disagrees with the federal appeals court ruling that the phrase "one nation, under God" in the Pledge of Allegiance is unconstitutional. Read a June 2002 news release. Regional office contacts are posted here.
• Charles Haynes is a senior scholar and director of education programs at the Freedom Forum First Amendment Center in Arlington, Va. He had expected the court to uphold the pledge on the grounds laid down by Justice Souter in oral arguments – that “Under God” is a patriotic statement, not a religious one. But that, he had said, would be contrary to what religious supporters of the pledge actually want. In the case of a ruling for Newdow, he had warned, backlash could include enormous momentum for a constitutional amendment that would permit more government display of religion. Contact 703-284-2859, chaynes@freedomforum.org.
• Robert A. Destro is professor of law at the Catholic University of America in Washington, D.C., and co-director and founder of the Interdisciplinary Program in Law & Religion. He is helping represent the Knights of Columbus, the source of the "under God" wording in the pledge. He helped file an amicus brief with the Supreme Court, contending that the Pledge of Allegiance is constitutional. Contact 202-319-5202, destro@law.cua.edu.
• Stephen Aden is a lawyer with the Christian Legal Society, which filed an amicus brief in support of the pledge. The brief rationalizes keeping "Under God" along the lines of the Declaration of Independence's assertion that all individuals are "endowed by their Creator with certain inalienable rights." Contact 703-642-1070.

AGAINST 'UNDER GOD' IN PLEDGE
• The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, supports the 9th Circuit's ruling. Read a February 13, 2004, press release and FAQ. Contact 202-466-3234.
• Stephen Wermiel, an associate professor of law at American University Washington College of Law, specializes in the Supreme Court and in constitutional law. He agrees with the 9th Circuit ruling that the Pledge of Allegiance is unconstitutional because of the "under God" wording. Contact 202-274-4263, swermiel@wcl.american.edu.
• Douglas Laycock is Alice McKean Young Regents Chair in Law and associate dean for research at the University of Texas School of Law in Austin. He supports removal of the words "under God" from the pledge. Read his article for the summer 2002 issue of Religion in the News, "Vouching Towards Bethlehem." Contact 512-232-1341, dlaycock@mail.law.utexas.edu.
• Susan Jacoby is author of Freethinkers: A History of American Secularism (Metropolitan Books, 2004) and director of the Center for Inquiry, a secular humanist organization in New York City. Contact 212-265-2877, sjacoby@cfimetrony.org.
• Marc Stern is co-director of the American Jewish Congress' Commission on Law and Social Action. He has said a decision to ban "Under God" could lead to a constitutional amendment enshrining the phrase, a troubling prospect to some church-state separationists who fear that it would chip away at the First Amendment" Contact 212-360-1545, mstern@ajcongress.org.

OTHER SOURCES
• K. Hollyn Hollman is general counsel of the Baptist Joint Committee on Public Affairs. She and Brent Walker, executive director of the BJC, have predicted that the 9th Circuit ruling will be overturned. Contact 202-544-4226, hhollman@bjcpa.org.
• Mark J. Pelavin is associate director of the Religious Action Center of Reform Judaism and an expert on church-state issues. Contact 202-387-2800, mpelavin@rac.org. Rabbi David Saperstein is director of the center. Contact 202-387-2800, Saperstein@rac.org.
• Derek Davis directs the J.M. Dawson Institute of Church-State Studies at Baylor University in Waco, Texas. He edits the Journal of Church and State. Contact 254-710-1510, Derek_davis@baylor.edu.
• Carolyn Marvin, a professor at the University of Pennsylvania's Annenberg School for Communication, is co-author of the book Blood Sacrifice and the Nation: Totem Rituals and the American Flag (Cambridge University Press, 1999). Contact 215-898-7374, cmarvin@asc.upenn.edu.
• Kenneth Starr is counsel for Sandra Banning, mother of Michael Newdow's daughter, and a Christian and supporter of the pledge. He is now dean at Pepperdine University in Malibu, Calif. Contact the school's office of public information, 310-506-4138.

HISTORY OF THE NEWDOW PLEDGE CASE
This case started in 2000 with Newdow v. United States Congress - a suit by Michael A. Newdow, who is an atheist, against the Sacramento-area Elk Grove Unified School District, where his daughter attends elementary school. He argued that her rights were violated by hearing the pledge, led by teachers, with the words "under God," recited in school. The case was later complicated when the child's mother, who had custody, said both she and her daughter are Christian.
• Restorethepledge.com offers a detailed timeline of the Newdow case along with links to associated court documents. (To find it, click on "The Litigation" on the left, and then click the first hot link, "click here for briefs, etc." in the first item, called "The Pledge of Allegiance Lawsuit.")
• June 26, 2002: A three-judge panel of the Ninth U.S. Circuit Court of Appeals rules 2-1 that the phrase "under God" constitutes government endorsement of religion and therefore violates the first amendment. Students have a right not only not to say the pledge but also not to hear the words "under God" in the pledge being said by other students, the court said. Read the ruling. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
• June 27, 2002: Judge Alfred Goodwin of the Ninth Circuit Court of Appeals stays the ruling.
• Dec. 4, 2002: The Ninth Circuit Court of Appeals panel rules that Michael Newdow has standing to pursue his claim in federal court, even though he is not the custodial parent. Read the ruling.
• Feb. 28, 2003: The Ninth U.S. Circuit Court of Appeals' full panel of 24 judges declines to review the three-judge panel's earlier ruling. The panel did amend the ruling so that it does not restrict the use of the pledge in all public settings, but applies only to public schools where children might feel coerced to recite the words "under God."
• March 4, 2003: The Ninth Circuit Court of Appeals stays enforcement of the ruling, pending an appeal to the U.S. Supreme Court.
• April 30, 2003: The Bush Administration asks the U.S. Supreme Court to preserve the words "under God" in the pledge. Read a May 1, 2003, Associated Press story posted by the First Amendment Center. Read the petition United States v. Newdow.
• June 10, 2003: A petition, filed by all 50 state attorneys general, urges the Supreme Court of the United States to consider reversal of the 9th Circuit's judgment. Read the June 10 announcement by the National Association of Attorneys General.
• June 27, 2003: Michael Newdow files a brief in opposition to the Bush Administration's request. Check on filings in the case by searching under "Supreme Court Docket Files" for keyword "Newdow." Documents list the names of petitioners, defendants, attorneys as well as those who filed amicus briefs, along with contact information for all.
• Oct. 14, 2003: The U.S. Supreme Court agrees to hear the pledge case. Read an Oct. 14, 2003, Associated Press story posted by the Freedom Forum.
• Oct. 14, 2003: Justice Antonin Scalia recused himself from the case at Newdow's urging after making public statements about the case.
• March 24, 2004: The Supreme Court hears oral arguments in the case. Read the transcript. Read a March 24, 2004, Washington Post story.

U.S. GOVERNMENT INVOLVEMENT IN THE CASE
• The U.S. Senate passed a resolution 99-0 the day of the June 26, 2002 ruling, supporting the use of "under God" in the pledge and asking the appeals court to overturn the ruling.
• The U.S. House of Representatives passed a resolution 416-3 on June 27, 2002, opposing the ruling.
• On Nov. 13, 2002, President Bush signed into law a bill that reaffirmed keeping "under God" in the pledge and "In God We Trust" as the national motto. Read an Associated Press story posted on Beliefnet.com.
• U.S. Rep. Todd Akin, R-Mo., sponsored a bill in 2003 allowing only the Supreme Court to review a constitutional challenge of the pledge. Read a news release about the bill, "Pledge Protection Act" H.R. 2028. More than 220 members of the U.S. House support the bill. Read and check the status of the bill here by searching for "Pledge Protection Act." Contact Akin staffer Steve Taylor at 314-590-0029.
• On Dec. 19, 2003, the U.S. Justice Department filed a brief asking the U.S. Supreme Court to overturn the 9th Circuit ruling on the pledge by declaring that the pledge is a patriotic exercise, not a religious testimonial. Read a Dec. 20, 2003, Associated Press story in the Contra Costa Times.

THE SUPREME COURT AND THE PLEDGE
• In 1940, in Minersville School District v. Gobitis, the Supreme Court ruled that school districts could oblige students to recite the Pledge of Allegiance. But three years later, the court overturned that ruling with West Virginia State Board of Education v. Barnette, which said government schools cannot force students to recite the pledge. (Both cases are posted by FindLaw.)
• Read a June 29 Philadelphia Inquirer story about the Jehovah's Witness children behind Minersville School District v. Gobitis.
• In 1963, Justice William Brennan said that patriotic phrases - such as "under God" in the pledge - "no longer have a religious purpose or meaning."

HISTORY OF THE PLEDGE OF ALLEGIANCE
• Read a history of the origin and changes to the Pledge of Allegiance in a June 27, 2002, Associated Press story posted on CBSNews.com.
• Read a history of the Pledge in a June 27, 2002, story from FoxNews.com.
• Read the history of the Pledge of Allegiance from FlagDay.org.

POLLS
• A June 30, 2002, Newsweek poll found that 9 in 10 Americans think the phrase "Under God" belongs in the Pledge of Allegiance.
• Almost 7 in 10 respondents said that including "Under God" in the Pledge of Allegiance does not violate the separation of church and state, according to the 2003 State of the First Amendment Survey, conducted by the First Amendment Center and American Journalism Review.
• Ninety percent of Americans say they believe in God, according to a February 2003 Harris Interactive poll.
• An Associated Press poll found that 87 percent of Americans said the phrase "Under God" belongs in the Pledge of Allegiance, according to a March 24, 2004, AP article posted by the First Amendment Center.

OTHER BACKGROUND
• See a resource page on the case from the Pew Forum on Religion and Public Life, including court documents, news articles and background. The site includes the transcript of a March 19, 2004, Pew Forum discussion by Jay Sekulow and Doug Laycock, who filed briefs in the case.
• See the First Amendment Center's Pledge of Allegiance resource page and an overview of relevant court cases.
• The web site UnderGodprocon.org posts a variety of resources and historical documents about the debate. It does not take sides on the issue. It also lists other government references to God.