The Pledge of Allegiance of the United States has been criticized on several grounds. Its use in government funded schools has been the most controversial, as critics contend that a government-sanctioned endorsement of religion violates the Establishment Clause of the First Amendment to the U.S. Constitution. Arguments against the pledge include that the pledge itself is incompatible with democracy and freedom, that it is a form of nationalistic indoctrination, that pledges of allegiance are features of current and former totalitarian states such as Nazi Germany, and that the pledge was written to sell flags.
Religious issues
Even before the addition of the phrase "under God" in 1954, legal challenges were frequently founded on the basis of freedom of religion. Central to early challenges were Jehovah's Witnesses, a group whose beliefs preclude swearing loyalty to any power lesser than God. In the 1940 Supreme Court case Minersville School District vs. Gobitis, an 8–1 majority in the Court held that a school district's interest in promoting national unity permitted it to require Witness students to recite the Pledge along with their classmates. Gobitis was an unpopular decision in the press, and it led to a rash of mob violence and intimidation against Jehovah's Witnesses.
Three years later in West Virginia State Board of Education vs. Barnette, the Court reversed itself, voting 6–3 to forbid a school from requiring the Pledge. As a result, since 1943 public schools have been disallowed from punishing students for not reciting the Pledge. Nonetheless, it remains taught to and expected of school children in many schools, as the Court leaves many details in such matters up to respective state governments. More specific objections have been raised since the addition of the phrase "under God" to the Pledge. The year of its addition, 1954, was also near the beginning of the Cold War anti-communist movement in the United States.
Matter of Lewis v. Allen In response to the June 14, 1954 Congressional change of the wording of the Pledge (found in U.S. Code, tit. 36 § 172) to include "under God", a series of lawsuits were filed in the New York State courts by Joseph L. Lewis challenging the constitutionality of the addition of the new phrase. Lewis was a publisher, writer, and co-founder of Freethinkers of America. As the cases involved Joseph Lewis desiring the Court to order the Commissioner of Education of The State of New York, James E. Allen Jr. to remove the new words from the Pledge, these cases are referred to as the Matter of Lewis v. Allen.
1957 case The first case brought by Lewis found its way to the New York State Supreme Court in 1957. Joseph Lewis maintained that the Commissioner of Education of the State of New York had a duty, which he had failed to perform, to revoke the regulation requiring the recitation of the Pledge with the new phrase, and reinstate the old wording. Lewis did not cite any state regulations concerning the Commissioner, but held the Commissioner was bound to act by the U.S. First Amendment (which was applied to the State governments through the Fourteenth Amendment) and by article I and XI of the New York State Constitution.
The court held that it was not within the Commissioner's domain to determine the constitutionality of acts performed by the State or Federal Legislatures. The Court then turned to Lewis' contention that the New York law that ordered the recitation of the Pledge had been rendered unconstitutional by the new wording, "Petitioners claim that freethinkers, nonbelievers, atheists and agnostics cannot be compelled to recite the present pledge of allegiance because it includes the words 'under God', and such compulsion violates the aforesaid constitutional provisions." Referencing the 1943 case West Virginia State Board of Education v. Barnette, which resulted in fines and threats of imprisonment against those refusing to say the pledge being ruled unconstitutional, the Court held that "The regulation under attack here has no compulsory aspect. No penalties attach to a failure or refusal to recite the pledge.The pledge is made voluntarily and no penalties are imposed for noncompliance."
Having pointed out that neither threats nor actual imprisonment or deprivation of property had made for noncompliance, the Court moved onto the other half of the definition of "establishment" set out in Supreme Court Justice Robert H. Jackson's concurring opinion in McCollum v. Board of Education. New York State Justice Isadore Bookstein wrote "If I properly apprehend the intent, design and purposes of the First Amendment, it was conceived to prevent and prohibit the establishment of a State Religion; it was not intended to prevent or prohibit the growth and development of a Religious State."
Operating on the interpretation of the First Amendment that holds that the state is prohibited from establishing a single religion or denomination as the official religion, but is free to support all religions in general (as long as it shows none of them preference above the others), Justice Bookstein listed several examples felt to support that interpretation. These included Supreme Court rulings such as the 1892 Church of the Holy Trinity v. United States which stated "this is a religious nation", and the 1952 ruling Zorach v. Clauson which stated "We are a religious people whose institutions presuppose a Supreme Being." Bookstein also cited wording in the Declaration of Independence, the Gettysburg Address, and the preamble of the New York Constitution which expressed gratitude "to Almighty God for our Freedom". In addition the Justice pointed out that American coins had "In God we trust" inscribed on them (a practice that had been implemented sporadically since 1864), and pointed to the Presidential oath of "So help me, God" (he made no mention that the Constitution gives the president-elect the option to affirm without invoking a deity).
Bookstein wrote "If petitioners' contention be sound, it may be wondered whether the public school curriculum might properly include the Declaration of Independence and the Gettysburg Address. Could "America" ("Protect us by thy might, Great God, our King!") be sung in a public school without offending the First Amendment? And might not the presidential oath of office have questionable constitutional status?" The Justice held with House Report No. 1693 that the Zorach v. Clauson case "clearly indicated that the references to the Almighty which run through our laws, our public rituals, and our ceremonies in no way flout the provisions of the First Amendment. ... [for] if this recognition of the Almighty was not so, then even a fastidious atheist or agnostic could object to the way in which the Court itself opens each of its sessions, namely, 'God save the United States and the Honorable Court'."
Bookstein held that "the child of a nonbeliever may simply omit the words, 'under God', in reciting the pledge. His 'non-conformity', if such it be, will not, in the circumstances of this case, set him apart from his fellow students or bring 'pressure' to bear in any real sense." Bookstein again cited Zorach v. Clauson holding that to side with Lewis' claims against the government would be preferring those who believe in no religion over those who do not'. The First Amendment does not require this." Justice Bookstein's words in this ruling were later quoted by the state of New York in one of its briefs, when defending its position in the Engel v. Vitale case before the United States Supreme Court.
1960 case Lewis brought a similar argument in 1960 holding that the Pledge with the new words was unconstitutional "as it involves 'the use of the public schools—both physically and pedagogically—for the dissemination of purely religious dogma' and, second, as it imposes 'an intolerable degree of compulsion upon the young children of non-believers ... to listen to, learn and repeat thousands of time a religious concept which they repudiate and abhor.
The Court cited New York's recent decision in the case Engles v. Vitale where the state had allowed officials of a school district to order its teachers to teach and lead students in a nondenominational prayer crafted by the government to remain in place as long as more safeguards were put into place to insure that students and parents were informed that children could remove themselves from the classroom if they did not wish to participate or be exposed to the prayer crafted by the New York board of Regents (this decision was later reversed by the United States Supreme court in 1963). The New York Court held that due to the 1943 case West Virginia State Board of Education v. Barnette there was general knowledge that there could be no compulsion on students to participate or expose themselves to the Pledge.
The Court dismissed Lewis' claims that the pledge was an establishment of religion citing Zorach v. Clauson, "There cannot be the slightest doubt that the First Amendment reflect the philosophy that Church and State should be separated. ... The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly. ... Prayers in our legislative halls; the appeals to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment."
The court also dismissed Lewis' argument that the Pledge violated New York's Constitution that forbids the use of public money or other property in aid of any denominational school or any school' in which any denominational tenet or doctrine is taught". Stating simply, "From our determination that the claim of unconstitutionality under the First Amendment cannot be sustained, it follows that the regulation does not contravene the like provisions of the State Constitution."
When Lewis appealed this decision to the New York Court of Appeals in 1964, that court affirmed the previous decision which ruled against his position.
Links to the school prayer controversy The use of the Pledge of Allegiance has been cited in landmark cases concerning government-led prayer within public schools. These decisions, made in the 1960s, were often seen suspiciously as they occurred during the Cold War against the USSR which was officially atheistic. In addition, many Southern politicians saw these rulings, along with the concurrent decisions advancing racial civil rights, as an assault on states' rights.
Engel v. Vitale In 1962 the United States Supreme Court addressed the question of whether a government-led school prayer "to be said in conjunction with the Pledge of Allegiance and 'as an incident to the Pledge of Allegiance ceremony was constitutional in the case Engel v. Vitale.
In the state's briefs, "the insertion of the words 'under God' in the Pledge of Allegiance" was cited as one of the "literally countless illustrations ... [to] the fact that belief and trust in a Supreme Being was from the beginning and has been continuously part of the very essence of the American plan of government."