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Illinois School Board Journal
September/October 2002

Pledging allegiance may be in jeopardy

by Michael G. Cortina

Michael G. Cortina is an attorney with Zukowski, Rogers, Flood & McArdle, a general practice firm with offices in Crystal Lake and Chicago that represents several units of local government.

On June 26, 2002, the United States Court of Appeals for the Ninth Circuit held that the addition of the phrase "under God" to the Pledge of Allegiance was unconstitutional in the case of Newdow v. U.S. Congress. It further held that a California school district's policy of requiring teacher-led recitation of the Pledge was a violation of the Establishment Clause of the First Amendment because of the inclusion of the phrase "under God" in the Pledge.

However, unless the U.S. Supreme Court decides to hear the imminent appeal of the Newdow decision, it will have no impact on Illinois schools because the U.S. Court of Appeals for the Seventh Circuit, in which Illinois sits, has ruled that the phrase "under God" in the Pledge of Allegiance is not unconstitutional. Also, Newdow will not affect the recent change to the Illinois School Code requiring that secondary students be led in the Pledge of Allegiance, unless there is an appeal and a subsequent decision by the U.S. Supreme Court.

The Newdow case made headlines across the country when the Ninth Circuit held the Pledge of Allegiance unconstitutional. The ruling stemmed from the fact that a 1954 federal statute amending the Pledge to include the phrase "under God" after the word "Nation" created, according to the Ninth Circuit, a violation of the Establishment Clause of the First Amendment. The Ninth Circuit applied all three of the existing judicial "tests" to determine if the Pledge of Allegiance violates the Establishment Clause. After finding that the phrase violated all three tests, the three-judge panel of the Ninth Circuit, with one dissent, found the Pledge to be unconstitutional.

The Establishment Clause states: "Congress shall make no law respecting an establishment of religion." The Ninth Circuit made quick work of the Pledge under the first of the three tests, the Lemon test, by determining that the addition of "under God" did not have a secular purpose. The court then moved to the "endorsement test" and found a violation because the phrase "under God" sent a message to citizens who did not recite the Pledge that they were outsiders, not full members of the political community, and an accompanying message to adherents that they were insiders, favored members of the political community. Finally, using the "coercion test," the court ruled that "under God" coerced students to either participate in the affirmation of a monotheistic deity or forced them to protest such participation.

The Ninth Circuit noted that a violation of any one of the tests would be sufficient to hold the Pledge unconstitutional, but it employed all three tests for purposes of completeness.

It is almost certain that the U.S. Supreme Court will eventually be asked to review the Newdow decision. Before getting to that point, however, the Ninth Circuit probably will be asked to re-hear the decision in what is known as an en banc hearing where all of the justices from the Ninth Circuit, not just the three who decided Newdow, will render a decision. After the en banc decision is made, the next, and last, step would be a petition to the U.S. Supreme Court to hear the case, called request for certiorari.

Unlike the lower courts, the Supreme Court has the option of refusing to hear the case. If the Supreme Court accepts the case, then its decision will dictate whether schools in Illinois may participate in the Pledge. However, if the high court declines to hear the case, schools in Illinois will be free to lead students in the Pledge as long as they do not require students to participate. Illinois is currently exempt from the reach of the Newdow decision because it falls within the jurisdiction of the U.S. Court of Appeals for the Seventh Circuit, not the Ninth Circuit.

The Seventh Circuit ruled 10 years ago that the Pledge does not violate the Establishment Clause of the First Amendment. In Sherman v. Community Consolidated School District 21 of Wheeling Township, the Seventh Circuit ruled that the Pledge of Allegiance did not violate the Establishment Clause with the phrase "under God," because the Pledge is a patriotic and ceremonial expression that bears no resemblance to religious exercise. The Seventh Cir

cuit further noted that the Supreme Court has implied that the Pledge, along with phrases like "In God We Trust," is a civic exercise that may have religious connotations, but serves the legitimate secular purpose of solemnizing public occasions.

In an interesting twist to this constitutional issue, on July 4, 2002, Governor George Ryan signed into law an amendment to the Illinois School Code requiring that the Pledge of Allegiance be recited in secondary schools. Prior to its amendment, the Sc

hool Code required that the Pledge be recited in elementary schools maintained in whole or part by public funds. The recent amendment expands the requirement to include secondary schools. This amendment, however, has no penalty for students who fail to participate in the Pledge because no pupil can be forced to recite it.

With the recent amendment, Section 27-3 of the School Code (105 ILCS 5/27-3) states in part: "The Pledge of Allegiance shall be recited each school day by pupils in elementary and secondary educational institutions supported or maintained in whole or in part by public funds." This statute was also at issue in the Sherman case because the plaintiff claimed that the statute was unconstitutional, as it supposedly required all students to recite the Pledge. The Seventh Circuit, however, disagreed with the plaintiff.

In the ruling, the court noted that if the statute actually required all students to recite the Pledge it would be blatantly unconstitutional. However, the court determined that the statute was ambiguous because it did not state which students had to recite the Pledge.

In resolving the ambiguity, the court reasoned that it had to attempt to interpret the statute so as to allow it to be valid, rather than unconstitutional. The court therefore determined that the statute merely required that students be led in the Pledge, but that they could not be forced to actually recite it.

The recent amendment to the School Code now requires that public secondary -- as well as elementary -- schools lead students in the Pledge of Allegiance. The amendment requires that secondary students be led in the Pledge, not that they recite it. As long as the legislature stays clear of requiring students to engage in the recitation, their actions will remain valid under the Sherman decision.

If the Supreme Court decides to hear the Newdow case, the portion of the Illinois School Code requiring that students be led in the Pledge will indirectly be subject to the high court's scrutiny. If Newdow is upheld, then Sherman will be overruled and Illinois' School Code will, in part, be unconstitutional. If Newdow is overruled, then Sherman remains good law and the School Code is safe.

The ramifications of a decision by the Supreme Court will probably be felt far beyond the Illinois School Code, as the collateral effect of a decision on Newdow could be great.

Would all currency have to be re-minted to remove the words "In God We Trust," or do those words have a secular purpose that would pass the Lemon test?

Would the U.S. Supreme Court have to cease its tradition of opening every session with the phrase "God save the United States and this Honorable Court," or does the phrase somehow not violate the endorsement or coercion tests?

Accepting the Newdow case for review will signal acceptance of a landmark case. With the obvious split between the circuits and the importance of the ruling, the U.S. Supreme Court may very well decide to hear the Newdow appeal. If the Supreme Court grants certiorari, it will eventually make a ruling that will tell us once and for all whether the Pledge passes constitutional muster.

If, however, the Supreme Court declines the case, then the Pledge will be considered constitutional in Illinois due to the Seventh Circuit's decision in Sherman, but not in California under the Ninth Circuit's Newdow decision. We can only wait and see what the Supreme Court decides to do.