Pledge Allegiance to the Flag

Introduction
In the case of Elk Grove Unified School District v. Newdow, Michael Newdow filed a suit on behalf of his daughter who was a student at the Elk Grove Unified School District in the state of California. Newdow objected to the requirement that his daughter be obliged to stand for the “Pledge of Allegiance” because it contained the words “under God,” which he believed was a violation of his daughter’s first amendment rights. While the case was adjourned by the Supreme Court without the actual substance of the case being addressed (Newdow was found to be a non-custodial parent and therefore legally unable to file a suit on behalf of his daughter), the case did set a precedent for others who would go on to successfully sue the school district (Kravetz, 2005). This paper will summarize the salient points of the Supreme Court case Elk Grove Unified School Distrct v. Newdow, discuss the levels of the court through which the case evolved before it reached the Supreme Court, explain the decision of the Supreme Court in this case, examine the fundamental impact that the court decision in question has had on American society in general and on ethics in American society in particular, discuss why I believe that the recitation of the Pledge of Allegiance is neither a religious issue nor a sign of respect for the United States but rather a politically-motivated activity that has its roots both in the doctrine of Manifest Destiny (unfettered expansionism) and the Cold War mentality of the 1950s, and explain why I think public schools should be allowed to recite or not recite the pledge as their administrators see fit.
Salient Points
The two main questions that arose in the Supreme Court case of Elk Grove Unified School District v. Newdow were: 1) Did Newdow have the legal “standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance?” and 2) Could a policy of a public school district “that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violate the Establishment Clause of the First Amendment?” (Elk Grove United School District v. Newdow, 2018). While the latter question served as the most important and most substantial issue socially speaking, the Court was content to address only the first question, which by answering in the negative allowed it to avoid address the second question. In other words, by dismissing the case on a technicality, the Supreme Court avoided having to taken a position on the question of whether or not the words of the Pledge were a violation of the First Amendment. As Justice Stevens (2004) wrote in the Court’s decision, “When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.” By finding that Newdow did not have legal standing to act as his daughter’s guardian and sue on her behalf, the Court ducked the issue at the heart of the matter. As Branigin and Lane (2004) reported that Newdow nonetheless “rejected the ruling that he lacked legal standing to speak for his daughter” vowing to continue his fight against the Pledge. This fight would indeed be continued in a later case by unnamed parents (Kravetz, 2005).
Levels of the Court
Newdow first filed suit at the U.S. District Court level and after losing the case, appealed to the U.S Court of Appeals, Ninth Circuit. The court found that Newdow had a right to challenge the state based on infringement of the First Amendment right since the Pledge did make express and explicit mention of God and thus was a religious view that could potentially another person’s free speech if forced upon one. As the court pointed out, the issue violated the Establishment Clause of which Congress in the First Amendment stated that Congress shall make no law respecting an establishment of religion—and clearly the Pledge of Allegiance obligation in the public school went against that clause in so far as the letter of the law is concerned.
At this point, it was revealed by Sandra Banning the mother of the daughter in question that the daughter was actually a Christian, that the mother had legal custody of the child and that the suit should be dismissed as Newdow did not represent the child. While the court acknowledged Banning having legal custody it did not rescind its view that Newdow had a right to sue. As the case flipped with Banning now pressing to have Newdow’s suit dismissed, the title of the case went from Newdow v. Elk Grove to Elk Grove v. Newdow and was picked up by the Supreme Court. Thus, this case went through three levels of the court system.
The Supreme Court’s Decision
The Supreme Court’s decision was based entirely on the need to assess whether Newdow was a legal custodian of his daughter at the time the suit was filed. As Newdow was not, the Court decided that the original suit itself was without merit. Thus, the Court avoided having to rule on the issue of whether the Pledge actually violated anyone’s First Amendment rights.
Because the case was a potential powder-keg that could be politically explosive with conservatives on one side and liberals on the other, the Supreme Court was eager to not light the fuse by settling the matter of whether the Pledge was a violation of the First Amendment. Yet even though the Court ruled that Newdow had no standing to file suit as the “next friend” of his daughter rather than as custodian, Justices Rehnquist, Day O’Connor and Thomas dissented with this opinion and therefore went on to examine the issue of whether the Pledge violated the First Amendment.
Rehnquist held the opinion that the “under God” clause did not explicitly affirm any one religion but rather simply highlighted the religious heritage of the nation and therefore was not compulsory affirmation of religious identity that students were expected to uphold.
Regardless of the dissenting opinion, the Supreme Court effectively took itself off the hook of having to settle the matter as the majority opinion was that Newdow lacked standing to file suit on behalf of his daughter and thus the case was dismissed. It was not, however, the end of the matter as the issue was resurrected at the lower level courts in the following years in a new suit filed by parents who did not lack standing. In short, having come up and caught the public’s attention, the idea that the Pledge endorsed a religious view was not going to go away.
The Fundamental Impact
By skirting the main issue on the grounds of a technicality and dismissing the case, the Supreme Court’s decision had a divisive impact on American society. Instead of addressing the question outright, it essentially kicked the case out, allowing for lower courts to settle the matter in their own way should a similar instance arise again, which is indeed what happened. By that time Newdow had obtained partial custody of his daughter and filed suit against the Rio Linda Union School District in a case that became known as Newdow v. Carey. The initial court awarded Newdow finding that the Pledge violated the First Amendment (Kravetz, 2005), but the Ninth Circuit Appeals Court reversed the decision and held that a teacher-led Pledge was not a violation of the First Amendment and not an explicit endorsement of religion.
Because the Supreme Court never actually settled the underlying issue but instead dismissed the case on a technicality, the issue continued to be a contentious one and unresolved among lower courts, with the District Court ruling one way and the Appeals Court ruling the other way. This in turn has meant that society remains conflicted on the matter instead of having a decision from the highest court in the land that can define how it should be viewed one way or another. With so much uncertainty thus hanging over the issue and the Supreme Court hesitant to wade into the matter with any definitive judgment, society is likely to remain divided with one side viewing the Pledge as important or at least as not an infringement on First Amendment rights and the other side viewing it as an unconstitutional promotion of religion by the state.
A Religious Issue?
For me, I view the Pledge of Allegiance not as a religious issue or as a sign of respect for the United States but rather as a political issue. While the Pledge was originally written in the 19th century, it was not adopted by the state in its present form with “under God” as a clause until the 1950s—the reason being that the U.S. government wanted to differentiate itself from the atheistic communism that it was fighting during the Cold War era (Petrella, 2017). Thus, religion was used as a way of differentiating the politics of the U.S. from the politics of the Soviet Union following the break-up of the two countries’ alliance, which had held throughout WWII. Religion was not really the most important factor informing the Pledge. The importance of the Pledge was to teach children to have a patriotic feeling for their flag and to have a sense of the cultural ideas that made America unique in the world.
Religion has always been a part of America’s history—but in the past, the country’s culture has taken a secular turn with more and more people rejecting the religious roots of the nation and its history. A rejection of these roots does not necessarily mean that one is disrespecting America or the flag but rather that the religious beliefs that informed the country in its early days do not have much meaning for some people of today.
For that reason, the Pledge of Allegiance is not necessarily a sign of respect for the U.S. anymore than abstaining from saying it is a sign of disrespect. The Pledge represents 19th century principles and ideals updated with a Cold War socio-political worldview. In the 21st century, the worldview of people has changed, and the Newdow suit signifies as much. In my view, therefore, the Pledge is really a political activity meant to indoctrinate the young with a set of beliefs that no longer represent the present-day culture in its entirety as the politics have changed for a large segment of the nation and its voters.
Should Public Schools be Allowed to Recite the Pledge?
Public schools should be allowed to recite the Pledge of Allegiance as the Supreme Court has not decided in a definitive way whether the Pledge violates one’s First Amendment rights or not. The matter should be up to individual schools, however, as every region, district, school and community is unique, with a population that is likely to have its own views and feelings on the matter.
As every community should be involved at a local level on what its schools are doing, the schools should base their Pledge policy on what the community wants. If the community wants its children to learn the Pledge and to recite it, the school should respect these wishes. If the community does not want the Pledge to be recited, whether because the community feels it violates the First Amendment or because the community believes the ideals and principles expressed in the Pledge represent a bygone socio-political perspective that no longer applies in the globalized world of today, the school should respect this desire. As a democratic Republic, it is important that the voices of the community members be heard at the local level and that the children of the community be raised and taught in the public schools in a manner that aligns with the ideals and desires of the school’s stakeholders.
Conclusion
Elk Grove Unified School District v. Newdow set the stage for a landmark decision by the Supreme Court—but the Court backed down and rejected the case on a technicality. The dissenting opinions of three Justices showed that regardless of the dismissal, the Pledge should not be viewed as a violation of the First Amendment—yet the fact that the case was dismissed meant that no definitive answer would be forthcoming from the highest court in the nation. This opened the door for further suits, with Newdow leading the way. The U.S. District Court held that Newdow’s belief that the Pledge violated the First Amendment, but the Appeals Court differed. For now the matter appears both resolved and unresolved and the issue of prayer in school, the nation’s history, its politics and its identity are all intertwined in this one case. Should schools have the right to say the Pledge or should it be abolished? That question should really be up to the individual communities, as their children are the ones attending the schools.

References
Branigin, W. & Lane, C. (2004). Supreme Court dismisses pledge case on technicality.
Retrieved from http://www.washingtonpost.com/wp-dyn/articles/A40279-2004Jun14.html
Elk Grove United School District v. Newdow. (2018).  Oyez. Retrieved from
www.oyez.org/cases/2003/02-1624
Kravetz, D. (2005). Federal judge rules Pledge of Allegiance is unconstitutional.
Retrieved from https://web.archive.org/web/20060111132924/http://www.chicagodefender.com/page/religion.cfm?ArticleID=2273
Petrella, C. (2017). The ugly history of the Pledge of Allegiance—and why it matters.
Retrieved from https://www.washingtonpost.com/news/made-by-history/wp/2017/11/03/the-ugly-history-of-the-pledge-of-allegiance-and-why-it-matters/?utm_term=.dd59458a517c
Stevens, J. P. (2004). Court opinion. Retrieved from
https://www.law.cornell.edu/supct/html/02-1624.ZO.html