In West Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled that requiring the Pledge of Allegiance in public schools violated the First and Fourteenth Amendments. The case grew out of West Virginia’s passage of legislation requiring the pledge and flag-saluting. Lawmakers had intended them to be part of instruction on civics, history, and the Constitution, and they defined noncompliance as insubordination that was punishable by expulsion from school. Parents of expelled students were also subject to fines. After Jehovah’s Witnesses students were expelled, their parents brought suit contending that the law infringed upon their religious beliefs, which they said required them not to engage in these secular practices.
The Supreme Court found two constitutional violations. The state law violated the Fourteenth Amendment’s requirement of due process and the First Amendment’s requirements of religious freedom and free speech upon the state. At heart, said the Court, were the principles of freedom of thought and government by consent. Critically, the majority observed a right of individuals to be free from official pressure to state a particular opinion, including that they honor their government. The opinion declared 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.”
In the 1990s, the American Civil Liberties Union (ACLU) repeatedly defended students in school districts who suffered reprisals for failing to participate in the Pledge of Allegiance. In 1998, for instance, the ACLU filed a federal lawsuit against the Fallbrook Union High School District of San Diego, California, after school officials required a dissenting student to stand silently during the pledge, leave the classroom, or face detention; settling the case out of court, the school district agreed to change its policy.
A decision by a three-judge panel of the Ninth Circuit Court of Appeals in 2002 stirred the debate over whether the Pledge violates the Constitution. Michael A. Newdow, an avowed atheist, challenged a policy of the Elk Grove (California) Unified School District that required students to recite the Pledge. According to Newdow, because the Pledge includes the phrase “under God,” the school’s required recitation amounted to an unconstitutional endorsement of religion. The panel of the Ninth Circuit agreed with Newdow and held that the school district had violated the Constitution. The full panel of the Ninth Circuit allowed the decision to stand, but the school district appealed to the U.S. Supreme Court. In Elk Grove Unified School District v. Newdow (2004), the Court reversed the Ninth Circuit, but only because the Court determined that Newdow did not have standing to bring the case. Accordingly, the Court did not rule on the question of whether the Pledge violates the Establishment Clause.
In 2005, Newdow again challenged the constitutionality of the Pledge by bringing suit in a federal district court in California. The court followed the previous decision of the Ninth Circuit and determined that the Pledge indeed violated the Constitution. Commentators have continued to debate how the Supreme Court will likely rule should the Court agree to hear another appeal.