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On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s proscription that, “Congress shall make not law respecting an establishment of religion.” Because the First Amendment’s Establishment Clause applies to the States via the due process clause of the Fourteenth Amendment, the Ninth Circuit likewise found unlawful a California school district’s policy encouraging public school students to utter the words “under God” as part of teacher-led daily recitals of the Pledge. Eight months later, the still divided Ninth Circuit panel issued an amended opinion reaffirming its ruling that the school district’s policy coerces students to perform a “religious act” in contravention of the Establishment Clause. However, holding that it had exceeded the legal analysis necessary to review the lawfulness of the policy, the Newdow Court vacated its determination that the words “under God” in the Pledge are per se unconstitutional.

This article urges that the original Newdow decision rightly understood that adding the words “under God” to the Pledge violates the Constitution’s anti-establishment principles. Accordingly, government policy encouraging public school students to avow via the Pledge that ours is a nation dependent on or ruled by God, likewise contravenes the First Amendment.

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Nev. Law., May 2003, at 8.