Asks Supreme Court to Hear Pledge Case (August 2003)

Statement of the Case

The Pledge of Allegiance to the Flag was first created in 1892, in celebration of the 400th anniversary of Columbus’s “discovery” of America. After a subsequent half century of widespread unofficial adoption, Public Law No. 622, 56 Stat. 380 (June 22, 1942) took effect, codifying the Pledge of Allegiance to the Flag of the United States of America (hereinafter “the Pledge”), which read:

I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all.

Of note is the fact that there is and was nothing religious in that 1942 version of the Pledge. Twelve years later, however–claiming that, “Our American Government is founded on . . . the belief that the human person is important because he was created by God,” H.R. 1693, 83rd Cong., 2nd Sess. (1954), and that “The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator,” Ibid.–Congress amended the Pledge. Thus, in an act that did nothing but add the two purely religious words, “under God,” to the preceding prose, Congress altered the Nation’s sole Pledge so that it now reads:

I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. Pub. L. No. 396, 68 Stat. 249 (hereinafter “Act of 1954”).

That version of the Pledge is currently codified at 4 U.S.C. ¤ 4.

Petitioner Newdow is a citizen of the United States, entitled to all the protections of the Constitution. He is also an atheist, who adamantly denies the existence of any supreme being, and who finds the notion that his government espouses the contrary religious view at all–much less as part of its only Pledge of Allegiance–to be deeply offensive and injurious. Accordingly, citing the First Amendment, he filed suit in the United States District Court for the Eastern District of California on March 8, 2000, challenging the current version of the Pledge. Seeking only declaratory and injunctive relief, he asked the district court, among other things, “[t]o declare that Congress, in passing the Act of 1954, violated the Establishment and Free Exercise Clauses of the United States Constitution,” and “[t]o demand that Defendant, the Congress of the United States of America, immediately act to remove the words ‘under God’ from the Pledge of Allegiance to the Flag as now written.”

Original Complaint

Newdow set out numerous grounds for standing. Chief among these was his personal right to join his fellow citizens in pledging allegiance to his country’s flag –and all it stands for–without having to confront offensive religious dogma. With a (simply wonderful) daughter in elementary school, Newdow attends meetings of the local school board. Because those meetings invariably begin with a recitation of the now-religious Pledge, Newdow named the school board and its superintendent as defendants, contending that their use of the Pledge constituted a governmental endorsement of a specific religious belief–i.e., the belief that there exists a god–and thus turned him into a “political outsider.”

Struck by the fact that his tax dollars are employed to further the religious message of the current Pledge, Newdow also claimed that he had taxpayer standing, detailing how both (California) state and (Article I, section 8) federal tax monies are used. Additionally, because the State of California specifically declares that the daily recitation of the now-religious Pledge of Allegiance is a proper patriotic exercise in which public school teachers may lead their students (California Education Code ¤ 52720)–and because the Elk Grove Unified School District (“EGUSD”) has promulgated a rule requiring recitation of the Pledge in elementary schools (AR 6115)–Newdow claimed standing on the basis of his right as a parent to have the public schools refrain from inculcating his child with any religious ideology. . . .

Reasons for Granting the Petition

. . . Perhaps nowhere can the creative genius of the framers be as readily appreciated as in the Establishment Clause. Realizing that religion is unique in its ability to cause divisiveness and persecution, those who drafted the body of the Constitution and the Bill of Rights–and the citizens who ratified both of these magnificent documents–broke from a long tradition of associating religious belief with civil authority. That the framers intended to completely disassociate these two arenas can be seen by the fact that–after considering numerous iterations–the final wording of the clause is as broad as can be imagined: “no law respecting an establishment of religion.”

That this dissociation would also include the disassociation of God and government also seems manifest. To begin with, as was noted early on in our history:

We formed our Constitution without any acknowledgment of GOD; without any recognition of his mercies to us, as a people, of his government, or even of his existence. The Convention, by which it was formed, never asked, even once, his direction, or his blessing upon their labours. Thus we commenced our national existence under the present system, without GOD. [Address by Yale Seminary President Timonthy Dwight, July 23, 1812]

Thus, for instance, the Preamble to the Constitution of the United States is devoid of any reference to the Almighty. Despite the fact that “so help me, God” commonly concluded the oaths of the era, the only oath specified in the Constitution omits those words. Similarly, of the eleven colonies with religious test oaths of some variety, five had proscriptions aimed in some way at atheists. Yet in Article VI, clause 3, the framers employed language as totally prohibitory as that in the Establishment Clause: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

. . . Under Supreme Court Rule 10(c), it is appropriate for the Court to grant certiorari when “a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.” The meaning and extent of the Establishment Clause’s protections is certainly an “important question of federal law.” This is especially so when the issue under consideration has caused as much divisiveness and rancor as has occurred in the case at bar.

Both the United States and the Elk Grove Unified School District have argued that it is untenable for the Nation to have an official Pledge that bears conflicting messages dependent upon venue. With this Newdow agrees. Of interest is that even in presenting their arguments, the correctness of the Ninth Circuit’s ruling–and the pervasiveness of the myopia that exists when religious matters are at hand–is demonstrated. The Elk Grove defendants wrote:

Significantly, this decision will result in substantial disruption of the daily lives of the school children in the EGUSD, as well as those attending public schools within the jurisdiction of the Ninth Circuit. These school children will find it necessary to reconcile why they are prohibited from willingly reciting the Pledge as a daily patriotic exercise when the public school children in the rest of the country are permitted to say the Pledge.

What they fail to appreciate is that the argument, of course, works both ways, and one could at least as reasonably write:

Significantly, this decision will result in substantial disruption of the daily lives of the school children outside the jurisdiction of the Ninth Circuit. These school children will find it necessary to reconcile why they are forced to endure religious dogma espoused by their public school teachers during a daily patriotic exercise when the public school children in the Ninth Circuit are provided with the protections guaranteed by the First Amendment.

Unfortunately, this failure to see both sides of a religious issue is not limited to the parties. For instance, despite the enormous public outcry engendered by the ruling in this case, the chief argument of the panel dissent was that the effect of the intrusion of the religious words, “under God,” in the Pledge upon atheists is “de minimis.” Thus, we see again the foresight of the framers, who recognized that even federal judges could be oblivious to their religious biases. Removal of the two religious words from the Pledge certainly raises no constitutional issue; yet there was a virtually unprecedented response when the Ninth Circuit stated that needed to be done. That Judge Fernandez could observe that response and then persist in contending that the insertion of those words–which no one can deny at least raises a First Amendment concern–is de minimis seems extraordinary.

Moreover, although the defendants have based their arguments on the effects of the Pledge on school children, the importance of the matter to atheistic adults cannot be overemphasized. To be sure, “[t]his Court’s decisions have recognized a distinction when government-sponsored religious exercises are directed at impressionable children who are required to attend school, for then government endorsement is much more likely to result in coerced religious beliefs.” Wallace v. Jaffree, 472 U.S. 38, 81 (1985) (O’Connor, J., concurring). However, “impressionability” is not the only parameter of concern. The aggravation, disgust and outrage of being turned into “political outsiders” and second-class citizens–generally unrecognized by children–is extensive to the disenfranchised adult citizens who find themselves despised and ridiculed due solely to their religious beliefs. Government, of course, has no duty to overcome private biases. But it may no more strengthen, encourage or even condone antipathy based on matters of conscience than it may do these things based on matters of race. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

Only forty-nine percent of Americans would vote for an atheistic candidate. In the constitutions of at least eight states, there still exist provisions that deny atheists the right to hold public office and/or testify in a court of law. Although politicians are subject to ruin for even tangentially discriminatory references regarding gender, majority religion or race, blatant offenses against atheists are not even acknowledged.

The Pledge of Allegiance served its patriotic purposes perfectly well for sixty-two years prior to Congress’s passage of the Act of 1954. Accordingly, with strict scrutiny required for intrusions of religious dogma into government, a compelling interest was required before the words, “under God,” could have been permissibly interlarded. That interest has yet to be enunciated.

The majority of American citizens may take great pleasure in having their religious beliefs reflected in their government. That, however, is precisely what the Establishment Clause exists to prevent, and Newdow respectfully requests that this Court take this case to reinforce that fact.

. . .

(3) Article III Standing

Although standing in Establishment Clause challenges should be easily determinable according to the parameters previously set forth in Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982), difficulties still arise. The need for further clarification in this arena also supports granting this Petition. The Court of Appeals found that Newdow has standing as a parent, and therefore limited its standing analysis to that one realm. Newdow, however, has always believed that he primarily has standing in his own right. In fact–without minimizing the personal harm that occurs when one’s child is inculcated with religious dogma while attending the public schools–the harm to an adult who is turned into “second-class” status on the basis of his religious persuasion is at least as severe.

(a) Outsider status

The Court has repeatedly stated that no American citizen should be turned into a “political outsider” due to his or her religious beliefs. . . . Since the inception of this case, Newdow has argued that he, himself, has been turned into an “political outsider” by the intrusion of the religious words, “under God,” into the Pledge. Furthermore, like millions of his religious brethren, Newdow is forced to confront offensive religious dogma any time he wishes to join his fellow citizens in pledging his allegiance to the flag. This is an outlandish offense that needs to be examined under a strict scrutiny analysis. With both the District Court and the Defendants having accepted Plaintiff’s claim that he has been made to feel like an “outsider” due to the governmental acts challenged in this case, the burden of proof has shifted to the government. Unless it can be shown that there is a compelling interest in “giving sectarian religious speech preferential access to a forum close to the seat of government (or anywhere else for that matter),” [Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995] the Court should take this opportunity to announce once and for all that, in this country, every religious view will be protected by “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997).

(b) Equal Protection

This is an equal protection case where atheists such as Newdow–unlike those of the majority theistic religious persuasion–are unable to join their fellow citizens in pledging allegiance to the Nation’s flag without being confronted with offensive religious dogma. . . .


The petition for a writ of certiorari should be granted. Americans of every religious persuasion should be accorded equal respect, and the uniqueness of the Establishment Clause–and its relevance with respect to governmental immunity–should be addressed. Finally, the Court should detail the requirements for standing, which have caused tremendous confusion in the lower courts.

Respectfully submitted, 

Freedom From Religion Foundation