The Establishment Clause

Introduction

This was a case that was concerned with whether the words 'under God' as included in the pledge of allegiance served as a backing of religion hence becoming a basis of violation of the Establishment Clause as contained in the First Amendment. This case was filed in 2000 by the plaintiff alleging that the defendants had led to the violation of the Establishment Clause. The court held a hearing on the charge against the issue of constitutionality deferring other issues. The defendants were enjoined with the president of the united states George W. Bush together with the United States congress. The court dismissed the plaintiff's claims stating that the school's policy was not a violation of the First Amendment.

This was followed by an appeal in 2002 where the court found the plaintiff as having a standing to challenge a practice that he deemed to be interfering with his own right of religious education towards his daughter as a parent. As such, this court reversed the earlier ruling concluding that the reciting the pledge containing the phrase under question was indeed a violation of the Establishment Clause (Russo and Mawdsley 264). The Supreme Court decided to listen to the case so as ascertain whether the school's policy violated the first amendment and whether the plaintiff had standing given he was a non-custodial parent to the girl. It ruled that the plaintiff had standing but the inclusion of the words did not result in any violation of the Establishment Clause and the First Amendment. An important question that this cases raises is whether the inclusion of the phrase, "under God" in the pledge violates the separation of church and state. 

The plaintiff

The plaintiff, Michael Newdow, challenged a policy that had been passed by the school pursuant to California state law requiring teachers at the school to commence each day of school by leading the children in reciting the pledge. An amendment that was enacted June 14, 1954 added the two words in question to the pledge following which the state of California saw it a suitable patriotic exercise for school going elementary children to recite the pledge as stated in the California education code. The plaintiff was an atheist and the father of a minor girl attending the school and was opposed to the girl reciting, observing, and hearing other willing students recite the pledge (Clapp 32).

The plaintiff, was a non-custodial parent, claimed that it was wrong for his daughter to be compelled to listen and watch her fellow classmates be led in reciting the pledge in a public school and by a teacher employed by the state. Conversely, the child's mother, the custodial parent, had no problem with the pledge. The plaintiff filed a case alleging that the defendants had led to the violation of the Establishment Clause as contained in the First Amendment as well as stating that the inclusion of the expression 'under God' was unconstitutional. The plaintiff sought injunctive and declaratory relief without damages.

The defendants

The defendants in this case were Elk Grove Unified School District, the state of California, and the Sacramento City Unified School District. They were enjoined with the United States president George W. Bush together with the United States Congress. They filed a motion aimed at dismissing the complaints raised by the plaintiff for failing to state a claim as necessitated under the Federal Rules of Civil Procedure. The defendants claimed that the phrase in question did not make any reference to any particular religion hence the pledge had very little religious context in it. As such, the government did not in any way endorse any religion over the other.

They also argued that the pledge was viewed as a form of patriotism and the phrase in question did not amount to either prayer or worship of any kind. The mother's daughter also filed a motion to dismiss the father's complaints stating that she was the custodial parent and therefore had the exclusive right to represent her daughter's interests as well as make decisions concerning her life and education (Beth 143). She also claimed that her daughter was really a Christian and therefore the words in question did not in any way interfere with her religion. In addition, she claimed it was not in the child's best interests to be included as a party enjoined to her father's lawsuit.

One of the judges in favor of the defendants further states that the inclusion of the words only acknowledged the religious heritage of the country especially the role that religion had in the lives of the nation's founding fathers. As such, the pledge was a secular act but not an expression of religious commitment. Another judge in favor of the defendants claimed that the establishment clause is not a right that is attached to individuals as underlined in the Incorporation Doctrine since it only disallows the federal government's intrusion in the individual state's rights of instituting official state religions. The constitutionality of the words and the school's policy were ascertained since the reference to good as contained in the pledge served as a type of ceremonial deism and there was no wrong in schools encouraging children to recite the pledge which was a historic document that contained a deity.

My opinion

The phrase does not violate the separation between the state and the church. This is because the phrase was included into the pledge on a backdrop of the historic significance that religion has played in this country. The phrase indicates the great journey that the country has gone through to reach this far since the first settlers arrived on the American soil. One of the reasons that the first European settlers to land in America left their home countries was to order to flee from religious persecution. The mayflower compact was an agreement signed by these pilgrims announcing that their voyage was being embarked on in order to flourish their own faiths. These settlers then created the colonies which had declarations of rights expressly guaranteeing the open exercise of religion.

These declarations served as the basis if the first Bill of Rights to be written resulting in the inclusion of the free and open exercise of religion as well as the protection against any federal regulations that would lead to the institution of an official religion for the nation. The founding fathers of this nation treasured religion and therefore saw the need of separating the state and religion (Sifton 15). The first president of the nation after the end of the revolutionary war proclaimed that no other people than the Americans could more than acknowledge the invisible hand that accomplishes the desires as well as affairs of men. As such, the role of religion in the country was recognized from early on which resulted in making religion autonomous as recognized within the First Amendment.  

The phrase does not violate the Establishment Clause which is not a right that is attached to individuals as underlined in the Incorporation Doctrine since it only disallows the federal government's intrusion in the individual state's rights of instituting official state religions. As such, it was intended to avoid any form of governmental support or support of religion. In addition, as ruled above by one of the appellate judges, the federal government has no power over the church as state governments are allowed to establish an official religion based on the majority of people within that state. This is important as it allows the people to associate themselves with their preferred form of religion and ways of worship as opposed to being dictated upon which religion to follow (Hendrie 3). Several rulings that have been held in past concerning the establishment clause have argued that the religious history of the nation pass constitutional muster.

Of importance are the restrictions that the establishment clause has placed such as forbidding and forms of financial support, active involvement, or sponsorship by sovereign towards religious activities. The clause was created as a means of stating an objective rather than writing a statute and therefore it does not compel or allow any type of official disregard of religion and the church or the great role that religion has played in the creation of this country. The clause does not proscribe any of the numerous public references that are made to God as contained in the numerous historical and government documents such as oaths. In addition, the legislative and executive branches of the federal government acknowledge the importance of religion through the practice of prayer before the opening of crucial meetings carried out by paid chaplains.