Q: When our club meeting starts, we recite the “Pledge of Allegiance.” Our son at school each day also recites the pledge. But there is separation of church and state. How is the pledge legal when we say, “One Nation under God”?
A.S., Torrance
A: There is history to the “Pledge of Allegiance.” The words that you reference, “under God,” were added in 1954. President Dwight D. Eisenhower signed a bill passed by Congress that placed the words “under God” within the phrase “one nation indivisible”.
The pledge has been challenged in court, and the question you raise has been asked by others. The pledge has been upheld because it is deemed to be a patriotic recital, which embraces allegiance to the flag of the United States, and to our republic. In this light, it is not considered of a religious nature.
Still, court decisions have emphasized the vital importance of First Amendment freedoms. The United States Supreme Court, for example, has found that “the free speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the ‘Pledge of Allegiance.’”
Q: At the park, we saw some holiday decorations, one showing Jesus Christ at birth in the manger. We do not object, but can that religious display legally be on a public property?
M.W., Long Beach
A: The Establishment Clause of the First Amendment provides “Congress shall make no law respecting an establishment of religion.”
For many years, there was a three-prong test that would be applied to your question, based on a Supreme Court case entitled Lemon v Kurtzman: Is there a secular purpose for the display? Is the primary effect to promote or advance religion? And is the governmental action overly entangled with religion? The factors to evaluate also can differ if a private party places the display on the public property, as opposed to the government. Bottom line, analysis of several issues come into play, with a focus on neutrality.
Last year, in the case of Kenedy v. Bremerton School District (which some refer to as “the praying coach case”), the United States Supreme Court pushed aside the Lemon test and ruled: “In place of Lemon and the endorsement test, this court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings. (T)he line that courts and governments must draw between the permissible and the impermissible has to accor(d) with history and faithfully reflect(t) the understanding of the founding fathers.”
In Kenedy, the First Amendment was found to protect the coach because his prayer was deemed to be a personal religious observance. The government is not to suppress such religious expression.
With the above in mind, an analysis would have to be made as to who placed the display on the public property, just what does it signify, and what are the historical practices and understandings? I want to say it may be a similar question with regard to the “Pledge of Allegiance.” Is the main purpose or focus of the display of a religious nature? Since the Kenedy case was just decided last year, the impact it will have remains to play out.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
Source: Orange County Register
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