In ENGLISH LAW, the duty of loyalty and obedience owed by all persons born within the king's realm that attaches immediately upon their birth and that they cannot be relieved of by their own actions.
In U.S. law, the obligation of fidelity and obedience that is owed by native born and naturalized American citizens to the United States that cannot be relinquished without the consent of the government expressed by a statutory enactment.
The act of swearing allegiance to the country, its laws, and its government is a bedrock requirement of U.S. citizenship reflected in both state and federal law. Before foreign citizens may lawfully immigrate to the United States, they must take an oath renouncing their allegiance to all foreign sovereigns and swearing their allegiance to the laws and constitution of the U.S. government. 8 USCA § 1448. The U.S. Constitution itself requires state and federal legislators, judicial officers, and EXECUTIVE BRANCH officials to take an oath or affirmation to support its provisions. USCA CONST Art. VI cl. 3.
Public school children in many states learn to recite the Pledge of Allegiance from a young age. Twenty-five states plus the territory of Guam require public school teachers to recite the Pledge of Allegiance in class. Seven states leave it up to the individual school districts within their jurisdiction, while three states give individual teachers or administrators the discretion to post or read the pledge.
But swearing allegiance to the government is not always the most important value recognized by U.S. law. Having won its independence and liberty from England through a bloody revolution, the United States has a long and proud history of respecting FREEDOM OF SPEECH, freedom of religion, and the right to dissent in its participatory democracy. In fact, one reason many Americans have remained steadfastly loyal to their country is that U.S. laws protect their right to dissent, protest, demonstrate, and criticize the government.
The U.S. Supreme Court, in striking down a state law that compelled public school students to recite the Pledge of Allegiance, drew upon this history when it wrote that if "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." West Virginia State Board of Educationv. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (See FLAG SALUTE CASES).
After the Supreme Court announced its decision in Barnette, neither the state nor federal governments could lawfully compel public school children to recite the pledge, though they could require school teachers and administrators to lead the pledge, so long as they allowed students the right to abstain from reciting it themselves. But the Barnette decision did not end the controversy over the Pledge of Allegiance. In 1954 Congress changed the official version of the pledge to include a statement that the United States is "one nation under God." 4 USCA § 4.
The reference to a deity in the pledge has prompted several constitutional challenges since Congress amended the official version. Most often these challenges are raised under the Establishment Clause of the FIRST AMENDMENT, which generally forbids the state and federal governments from "establishing" an official religion within their jurisdiction. But like U.S. currency that carries the motto "In God we Trust," Congressional sessions that open with prayers led by paid chaplains, and court sessions that begin by asking that "God save this honorable court," nearly every court reviewing the "under God" reference in the Pledge of Allegiance has found the reference to raise only trifling or de minimus Establishment Clause concerns. e.g., Sherman v. Community Consol. School District, 980 F.2d 437 (7th Cir. 1992).
The one exception to the de minimus holdings came when the U.S. Court of Appeals for the Ninth Circuit addressed the issue. In holding that the "under God" language violated Establishment Clause principles, the Ninth Circuit relied heavily on two U.S. Supreme court cases, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) and LEE V. WEISMAN, 505U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).
In Lynch the Supreme Court applied what it called the endorsement test, under which alleged Establishment Clause violations are evaluated to determine whether the government has endorsed religion by sending a message to nonbelievers that they are outsiders and not full members of the political community and an accompanying message to believers that they are insiders and favored members of the political community. In Lee the Supreme Court applied what it called the coercion test to strike down invocations of non-sectarian prayers at public
school graduation ceremonies, finding that the school district's supervision and control of the graduation ceremony put impermissible pressure on students to participate in or at least show respect during the prayer.
The Ninth Circuit concluded that the "under God" reference in the Pledge of Allegiance similarly had a coercive effect on young and impressionable school children who are forced to watch their peers stand and recite the pledge. It placed the school children in an "untenable position of choosing between participating in an exercise with religious content or protesting," the court wrote.
To recite the pledge "is not to describe the United States," the Ninth Circuit continued. Instead,"it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and—since 1954—monotheism." According to the Ninth Circuit, "a profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus' … a nation 'under Zeus' or a nation 'under no god.'" None of these statements, the court argued, is neutral with respect to religion. "The school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates." Thus, the Ninth Circuit declared that the "under God" reference in the Pledge of Allegiance violated the Establishment Clause.
Coming less than a year after the SEPTEMBER 11, 2001, TERRORIST ATTACKS in New York City and Washington, D.C., the Ninth Circuit's decision generated a maelstrom of disapproval across the country. The U.S. Senate condemned the decision 99-0 on the day the court released its opinion. The U.S. House of Representatives passed a similar resolution by a 416-3 vote. President GEORGE W. BUSH declared that the Ninth Circuit was "out of step" with the rest of the country.
On June 27, 2002, one day after a three-judge panel released the decision for the Ninth Circuit Court of Appeals, the full court voted to stay the decision pending further consideration. The stay led many observers to speculate that the Ninth Circuit might reverse itself. However, on February 28, 2003, the full court reinstated its holding that the school district's policy of requiring teacher-led recitations of the Pledge of Allegiance violated the Establishment Clause of the First Amendment by impermissibly coercing a religious act, Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003). However, in its new amended opinion, the Ninth Circuit declined to rule on the constitutionality of the "under God" language in the federal statute. U.S. SOLICITOR GENERAL Theodore Olson filed a petition for writ of certiorari on April 30, 2003, asking the U.S. Supreme Court to overturn the Ninth Circuit's decision.