The First Amendment of the Constitution states, " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". But what about individual states? Is there anything in the Constitution that prohibits states from doing so?
Also, was the argument a couple of years back about “under God” being in the Pledge based only on the First Amendment? Since putting “under God” in the Pledge was done without making a law, what does anyone think is Unconstitutional about it? BTW, I’m not for God being in the Pledge or being on money, but if the First Amendment is all there is, it sounds like I have a pretty weak argument about these things being Unconstitutional. Please tell me there’s something else!
Yes, there is – the Fourteenth Amendment. The U.S. Supreme Court has ruled in a series of decisions that certain rights found in the Bill of Rights that are “fundamental to ordered liberty and deeply rooted in our traditions and conscience” are by implication incorporated into the Due Process Clause of the Fourteenth Amendment. The Establishment Clause was ruled applicable to the states in Everson v. Board of Education, 330 U.S. 1, 8 (1947) (“The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state ‘shall make no law respecting an establishment of religion, or prohibiting the free exercisethereof . . . .’ ").
But “under God” was added to the Pledge of Allegience by the passage of a law; the Knight of Columbus petitioned Congress to add it, and Congress passed a law to do so in 1954. However, for purposes of constitutional analysis, it didn’t matter whether Congress or a elementary school principal added it. What is needed to find a constitutional violation is not strictly the passing of a law in Congress. Since all action taken by the executive or the state is taken under the rubric of implicit federal or state congressional authority, any governmental action that violates the Establishment Clause will be ruled unconstitutional. What exactly constitutes a “state action” is a somewhat complex question, but that’s the general gist of it.
The relevant portion of the 14th Amendment is Section 1, 2nd sentence:
It’s not too difficult to see this as saying that if the Constitution guarantees certain rights and liberty, which may not be abridged by Congress or the Federal government, a state is not privileged to abridge them either.
The question about “passing a law,” though moot, probably needs to be dealt with also: The conception of “law” which the courts and lawyers entertain is not “discrete rules passed by a legislature which one may not break” but rather “that monolithic structure of constitution, statute, regulation, precept, and precedent-making decision which controls how we interact with one another.” It would not matter whether the Pledge of Allegiance was mandated by Act of Congress, act of state legislature, city council ordinance, regulation of school district, or ukase of a single schoolteacher – whoever is doing it is a government official, paid by the people, who is requiring something that the courts have decided is a privilege governed by freedom of speech.
However, as matters stand, the Pledge of Allegiance itself is not and cannot be found unconstitutional, as the Acts of Congress establishing and amending the wording of it simply set forth a standard text that is considered official. It does not mandate the use of that text by anyone, but merely creates a single unified reading of the variant texts (e.g., what Bellamy originally wrote began “I pledge allegiance to my flag…”).
Since legally state governments are, second to “we the people,” the repository of all power, much of which has been delegated to the Federal government in the Constitution, and local governments, including public school districts, are created by and responsible to the state governments, any governmental official whatsoever, no matter what his role or who he works for or is in authority over, is governed either by the First or Fourteenth Amendment in this regard.
The court decisions governing the pledge simply ruled on the West Virginia State School Board’s and subsequent other school governing bodies’ rules that students are obliged to recite it. This is, said the courts, a violation of their First Amendment rights to determine what they will and will not say. (Recent decisions suggest it is also a violation of Establishment Clause rights to mandate it, thanks to the “under God” phrase, which has not been determined at SCOTUS level yet. But nonetheless it’s a violation of freedom-of-speech standards for a government body to mandate its recital, and has been for 63 years now.)
Note, however, that this does not apply to private schools, Boy Scouts, Camp Fire Girls, Amalgamated Order of Water Buffalo youth auxiliaries, or any other voluntary, non-governmental group. The established rule of law is that one may not use the force of government to require children to recite a statement of patriotic belief.
I have told the anecdote before, and feel it appropriate to repeat it, of taking my three “grandchildren” to the state science museum, which stands next door to the legislative building in downtown Raleigh. We parked a block away and walked past the legislative building, which had the national and state flags flying in front. All three kids had been taught the pledge by their father, and Amanda had also had it reinforced in Girl Scouts. I’m not sure which of them decided to start it, but all three turned, practically as one, clapped hand to heart, and recited the pledge, purely voluntarily, from the heart. That I can be very proud of them and at the same time defend their right not to be compelled to recite it by some government official should say something about what I feel it means to be an American.