The federal court in the Eastern District of California last week declared that the recitation of the pledge of allegiance in public schools is a violation of the First Amendment of the United States Constitution. This decision applies to a large portion of California, but is not applicable to New Jersey school districts. However, the ruling has set the stage for an appeal that could ultimately be decided by the United States Supreme Court.

In Newdow vs. The Congress of the United States of America, the Reverend Dr. Michael Newdow, an affirmed atheist, along with two other families, brought suit alleging that the Elk Grove Unified School District’s practice of reciting the pledge of allegiance at the beginning of each school day violated the Establishment clause of the First Amendment by subjecting their children to a state-sponsored religious exercise.

The Establishment clause provides that,  “Congress shall make no law respecting an establishment of religion….”  It should be noted that in 1942, Congress adopted a pledge of allegiance in order to codify and emphasize existing rules and customs pertaining to the display and use of the United States flag.

In 1954, Congress added the words “under God” after the word “Nation” to the pledge with the observation that, “…from the time of our earliest history our peoples and our institutions have reflected the traditional concept that our nation was founded on a fundamental belief in God.” It is the 1954 amendment that Newdow found objectionable.

Newdow previously filed a nearly identical suit in both state and federal courts in California. Upon appeal to the 9th Circuit Court of Appeals, that court held that a school district’s pledge policy “impermissibly coerced a religious act” and was therefore unconstitutional. The United States Supreme Court ultimately dismissed that suit because a California state court had previously determined that Newdow no longer had custody of his daughter and therefore lacked standing to file suit on her behalf. However, in his most recent filing, Newdow included two other atheist families who also alleged that their children were impermissibly coerced by the pledge’s recitation. At least one of these families had unquestionable standing to file suit.

After addressing the standing issue, the lower federal court determined that the Supreme Court’s prior dismissal for lack of standing did not invalidate the 9th Circuit Court decision declaring the pledge unconstitutional. Furthermore, the lower District Court determined that it was bound by the Circuit Court’s opinion because the Supreme Court simply dismissed the previous case for a lack of standing and did not address the merits of the 9th Circuit Court’s decision. That decision concluded that even when a child was not required to recite the pledge, “the [child’s] mere presence in the classroom everyday as peers recite the statement ‘one nation under God’ has a coercive effect…the ‘subtle and indirect’ social pressure which permeates the classroom also renders more acute the message to the nonbelieving school children that they are outsiders.”

It bears noting that neither California state law nor the school district’s pledge policy required students to recite the pledge; they were allowed to refrain from reciting the pledge based on religious grounds. Despite this fact, both the District and Circuit Courts held that the mere recitation of the pledge constituted impermissible coercion.

The school district is expected to appeal the District Court decision to the 9th Circuit Court of Appeals, where it is likely to be upheld. The case could then be appealed to the United States Supreme Court.

New Jersey school districts are not required to take action regarding pledge policies at this time. However, districts should monitor this case as it winds its way through the appeals process.