In the past, most challenges to the “under God” clause in the Pledge have been unsuccessful. The notable exception was in 2002, when the US Ninth Circuit Court of Appeals ruled that, in fact, the words are an endorsement of religion and violate the Establishment Clause of the First Amendment – a ruling that created a small political storm at the time. That ruling was reversed, however, when the US Supreme Court held that the plaintiff (a noncustodial parent) didn’t have standing to bring the suit. When a new suit was filed and reached that same Ninth Circuit eight years later, the court ruled that, in fact, the phrase is a historical reflection of beliefs that doesn’t constitute an endorsement of religion.
Atheists unhappy with the phrase in the Pledge have long pointed out that, in fact, that phrase doesn’t have many historical roots: The original Pledge – written in 1892 and adopted by Congress as a national pledge in 1942 – didn’t contain the words “under God.” The phrase was added in 1954 during the McCarthy Era.
The language may well be controversial, but that doesn’t make it discriminatory – something that should have to pass a much higher bar, says Eric Rassbach of the Becket Fund for Religious Liberty, one of two defense attorneys in the case.
“At some point, the government has to be able to speak,” Mr. Rassbach says. “Someone is always going to object to something the government is saying.” The answer to that in a case like this, he says, is to allow people to opt out – no one has to say the Pledge – but not to get rid of the Pledge entirely. “It doesn’t mean they get to decide what the rule is for everybody else. Then it turns into minority rule, instead of majority rule.”
Jehovah’s Witnesses, who believe the Pledge constitutes idolatry, have been sitting out the Pledge for a very long time, notes Rassbach. They won the right from the Supreme Court in 1943, when the court ruled that “compulsory unification of opinion” is unconstitutional.