How have courts treated the phrase 'under God' in the Pledge of Allegiance in different legal challenges?
Executive summary
Courts have treated the phrase “under God” in the Pledge of Allegiance variably: lower courts and some federal appeals panels have found that teacher-led recitations including “under God” can raise Establishment Clause concerns, while higher courts and numerous state courts have ultimately allowed the phrase to remain, often avoiding a substantive First Amendment ruling by deciding cases on procedural grounds like standing or by framing the pledge as a patriotic, not a religious, exercise [1] [2] [3]. The Supreme Court’s 2004 decision in Elk Grove Unified School District v. Newdow is the pivotal moment—the Court preserved “under God” but on procedural standing grounds, leaving the constitutional question unresolved at the highest level [2] [4].
1. The Newdow saga: standing defeated a substantive ruling
Michael Newdow’s challenge, which culminated in the Supreme Court’s 2004 action, began with a Ninth Circuit panel finding that “under God” in teacher-led recitations violated the Establishment Clause—an opinion that described the phrase as a governmental endorsement of religion—only to be reversed at the Supreme Court because Newdow lacked parental custodial standing to sue on behalf of his daughter [1] [2]. The Court’s majority preserved the phrase by sidestepping the First Amendment merits, a resolution many observers and participants called pragmatic: it avoided what some called an impossible political and legal choice—striking down a widely used patriotic formula [2].
2. Appeals courts and split reasoning: endorsement, coercion, and voluntariness
Lower federal courts have not been uniform: the Ninth Circuit’s 2002 panel held the 1954 insertion of “under God” violated the Establishment Clause and that teacher-led recitations could coerce religious affirmation from impressionable students, language echoed by civil liberties advocates [1] [5]. Other federal appeals rulings, and subsequent panel rehearings and reversals, emphasized voluntariness—that students are not compelled to recite the pledge—and concluded the inclusion of “under God” serves patriotic rather than religious ends [6] [7].
3. State courts, advocacy groups, and the patriotic framing
Several state high courts and trial courts have rejected challenges to “under God” by characterizing the pledge as a civic or patriotic exercise rather than a religious endorsement, decisions often mobilized by veterans, religious groups, and organizations like the Becket Fund that argue “under God” expresses historical heritage and civic values [3] [8]. These rulings reveal an implicit agenda among defenders to protect institutionalized expressions of national identity and a countervailing agenda among challengers to enforce strict separation of church and state [3] [6].
4. The legal landscape after Newdow: unsettled doctrine and practical outcomes
Because the Supreme Court resolved Newdow on standing, it left unsettled the doctrinal question of whether “under God” is an impermissible governmental endorsement of religion; courts since have often decided cases on narrower grounds—statutory interpretation, voluntariness of recitation, or state constitutional claims—resulting in a patchwork of outcomes that generally permit the phrase to remain in practice [4] [6]. Advocacy groups on both sides continue to press new suits—some succeed at trial, others are dismissed—so the issue remains litigable but not definitively settled by the Supreme Court [8] [3].
5. Broader constitutional context and the stakes of judicial framing
The dispute over “under God” sits atop a deeper line of precedents about compelled speech and school prayer: the Court long ago held that students cannot be forced to salute the flag or recite pledges, yet the presence of “under God” raises a separate Establishment Clause tension that courts have resolved more by context and label than by a single doctrinal test [9] [4]. Because some courts view the phrase as ceremonial deism or patriotic history while others see it as preferential to religion, judicial treatment reflects differing philosophies about neutrality, coercion, and the government's role in shaping civic identity—debates that ensure more litigation and political contestation ahead [10] [11].