The Lawletter Vol 35 No 1, January 3, 2010
Steve Friedman—Senior Attorney, Constitutional Law
The U.S. Supreme Court has never directly addressed the constitutionality of the Pledge of Allegiance, but it has repeatedly suggested, albeit in dicta, that the Pledge is constitutional. See Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (although the issue was resolved on standing grounds, three Justices opined that they would have upheld the Pledge either as a recognition of the importance of religious beliefs to our founding, see id. at 32 (Rehnquist, C.J., concurring), or as a form of ceremonial deism, id. at 36 (O'Connor, J., concurring). On the other hand, several circuit courts of appeal have directly addressed the issue.
As seen in the above-cited cases, the Pledge statutes have been attacked on a variety of constitutional theories. The most common means of challenging the statutes is the Establishment Clause, which prohibits the government from establishing a state religion or otherwise favoring or disfavoring any particular religion. See U.S. Const. amend I. A closely related challenge is based on the Free Exercise Clause, which prohibits the government from compelling the affirmation of religious beliefs or punishing the expression of religious beliefs. See id. Although only addressed in the most recent First Circuit decision, two other possible bases upon which to challenge the Pledge statutes are the Equal Protection and Due Process Clauses. See id. amend XIV. Whereas equal protection guarantees that those who are similarly situated will be treated alike, see id., due process prohibits the government from interfering with certain fundamental rights and liberty interests, see id., including "the fundamental right of parents to make decisions concerning the care, custody, and control of their children," Troxel v. Granville, 530 U.S. 57, 66 (2000).
In short, however, all five circuits to have addressed the issue have held that public school teachers may lead the recitation of the Pledge in class, provided that the students' participation therein is truly voluntary and not coerced. See Freedom From Religion Found. (addressing all four constitutional theories); Croft (addressing just the Establishment Clause theory); Newdow (addressing just the Establishment Clause theory); Myers (addressing just the Establishment Clause theory); Sherman (addressing the Establishment Clause and Free Exercise Clause theories).
