Preventing Divisiveness: The Ninth Circuit Upholds the 1954 Pledge Amendment in Newdow V. Rio Linda Union School District

I. INTRODUCTION In October of 2010, a Mississippi state court judge requested that all in his courtroom recite the Pledge of Allegiance. Each person did so - except an attorney who stood but refused to recite it.1 In response, the judge held die attorney in contempt of the court and jailed him for five hours.2 The judge's order was uncompromising: "[the attorney] shall purge himself of said criminal contempt by complying with the order of this Court by standing and reciting the Pledge of Allegiance in open court."3 Though this is clearly a case of judicial misconduct, this story also demonstrates, more importandy, the magnitude of disagreement that arises from the recitation of the Pledge. The patriotic, religious, and political dimensions heighten its controversy, especially when government actors lead its recitation - whether they be judges, public school employees, or other officials. Such was the case in Newdow v. Rio Linda Union School District.4 The plaintiff, Michael Newdow, challenged the recitation of the Pledge in his daughter's public school classroom because of the words "under God."5 Newdow's Pledge challenge was just one of his several constitutional challenges to the government's use of the word "God" in the public sphere.6 These challenges have included requests for injunctive relief enjoining Chief Justice John Roberts's use of the words "So help me God" after administering the presidential oath during inaugurations,7 the use of opening prayers in legislative sessions,8 the use of the phrase "In God We Trust" on currency,9 and President Bush's invitation to a clergyman to give a prayer at his presidential inauguration.10 Though the subject matter of these challenges has been varied, Newdow's claim was the same in each case: the challenged government action violates the Establishment Clause of the First Amendment. In Rio Linda, the Ninth Circuit ruled against Newdow, upholding the constitutionality of the "under God" language in the Pledge.11 It also upheld the constitutionality of a California statute that requires school teachers to lead students in a daily patriotic exercise - a requirement that the statute suggests is fulfilled by the recitation of the Pledge of Allegiance.12 Although the Ninth Circuit correctly upheld the constitutionality of the state Pledge statute, it overreached by ruling on the constitutionality of the 1954 Pledge amendment, which added the words "under God." To justify its holding under the Supreme Court's current tests, the Ninth Circuit improperly relied upon the doctrine of ceremonial deism, which is an unsuitable rationale for arguing the constitutionality of governmental references to deity. As an alternative to the Supreme Court's current tests in this area, this Note will argue that judicial review of longstanding government references to deity should be analyzed with a legal standard advocated by Justice Breyer, which takes into account the divisiveness along religious lines caused by the government's "purgfing] from the public sphere all that in any way partakes of the religious."13 Although Justice Breyer advanced this rationale in the context of government monuments that contain references to deity, this Note will argue for its application to all longstanding government references to deity. This standard would help avoid "creating] the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."14 This divisiveness rationale provides a pragmatic compromise to a difficult issue: a monument on government property that includes a reference to deity, if it has survived unchallenged for at least forty years, is constitutional if tearing it down would create the divisiveness diat die Establishment Clause seeks to prevent. The same would be true for the Pledge and other governmental references to deity: if die tradition has survived Establishment Clause review for forty years, it is constitutional if its compelled discontinuance would create the divisiveness that the Establishment Clause seeks to prevent. …