Pledge of Allegiance Cases

The Becket Fund represents parents and students standing against atheist activist Dr. Michael Newdow’s campaign to strike the words “under God” from the Pledge of Allegiance.  The Becket Fund holds that, far from unconstitutionally advancing religion, the words “under God” affirm a foundational premise in the American tradition of law and rights—namely, that human rights are not bestowed by the State but are rather derived from a source beyond the State’s discretion. 

Dr. Newdow has initiated three major lawsuits challenging the Pledge.  In various capacities, the Becket Fund has been involved in opposing each. 

Round One: Supreme Court Dismisses Newdow on a Technicality

In March 2000 Sacramento doctor Michael Newdow sued to challenge the constitutionality of the wording of the Pledge on behalf of his daughter, who was a student in California public schools.  The Ninth Circuit Court of Appeals later agreed that public schools violate the First Amendment by leading their students in a voluntary recitation of the Pledge that includes the words "under God."  While the Supreme Court initially agreed to give full review of the case, in June, 2004, the Court reversed the Ninth Circuit's ruling on a technicality: Newdow lacked standing to bring the suit in federal court on behalf of his daughter because he did not have custody of her. 

The Becket Fund filed an amicus curiae (“friend-of-the-court”) brief with the Supreme Court on behalf of the Knights of Columbus, explaining why the phrase "under God" was added to the Pledge of Allegiance and how that addition is constitutional.  The brief argued that the phrase "under God" is a statement of political philosophy reflecting a premise of the nation’s founding and was added at the height of the Cold War to distinguish the conception of rights in the United States from that in the U.S.S.R. 

Still, it was disappointing that the case was decided on the issue of Dr. Newdow’s standing to bring the suit rather than its merits.  "You win some, you lose some, and some get rained out,” said Kevin J. "Seamus" Hasson, president of the Becket Fund at the time. "It's a shame the Court couldn't unify around the same principle that has been unifying the rest of us since the Declaration of Independence: our rights are secure because they come from a higher authority than the state. Sooner or later, the Court will have to face up to that."

Round Two: Becket Fund Argues for “under God” at the Ninth Circuit

Just a year after his procedural defeat at the Supreme Court, Newdow again filed suit in California challenging the Pledge’s use of the words “under God.”  The Becket Fund intervened on behalf of parents of California public school students who sought to continue voluntarily reciting the Pledge in school.  As Seamus Hasson explained, “This is about a lot more than just how school kids start their day. It’s about where the next generation thinks its rights come from--the creator or the state.”

After Newdow’s victory in federal district court, the Becket Fund appealed the case to the Ninth Circuit.  In December 2007, in a lively argument before a packed courtroom that included several of Dr. Newdow’s boisterous supporters, Mr. Hasson argued the case on behalf of schoolchildren and their parents, showing that the phrase “under God” has always been used in American history as a way of protecting rights, not violating them. (Click here for the audio recording.)

After over a year and half, the decision in this appeal is still pending.

Round Three: Becket Fund Intervenes against Newdow in New Hampshire

The latest round in the fight over the Pledge has come in New England, where Dr. Newdow, along with the Wisconsin-based Freedom From Religion Foundation, filed suit on Halloween 2007 to stop optional recitation of the Pledge in Hanover, New Hampshire public schools.  Representing three New Hampshire families and the Knights of Columbus, the Becket Fund intervened and asked the federal district court to dismiss Newdow’s challenge to the Pledge in New Hampshire.

The case is currently ongoing, but the Becket Fund is confident that the reasoning of the Constitution will prevail: “The Constitution doesn’t ban the word God from public discourse, in California or New Hampshire, in the Pledge or anywhere else,” said Hasson. “Every time we pledge allegiance to one nation under God, we are reminding the government that it must respect everyone’s rights – even Michael Newdow’s – because those rights are not given to us by the government, but by a source higher than the government.”

 

Resources & Documents

• Knights of Columbus Amicus Brief- U.S. Supreme Court (PDF, 55.52KB)
• Becket Fund Opening Brief- Ninth Circuit (PDF, 277.45KB)
• Becket Fund Reply Brief- Ninth Circuit (PDF, 94.53KB)
• Becket Fund Motion to Dismiss- District of New Hampshire (PDF, 95.23KB)

Articles & News Items

• ""Under God" Under Attack Again," May 9, 2005
• "Becket Fund Enters Ring in Round 2 of Pledge Fight," July 19, 2005
• "Becket Fund Files Immediate Appeal to Preserve the Pledge," September 19, 2005
• "Becket Fund to Defend "Under God" Before Ninth Circuit," November 21, 2005
• ""Under God" on Appeal Before the Ninth Circuit," June 2, 2006
• " National Post - U.S. courts weigh challenges to wording of pledge of allegiance," November 2, 2009