MONTY –
Other folks, believing in God type folks, do not agree, and the Pledge (without the “under God”) has never been held to be unconstitutional on the basis of religion. So when you say “the pledge itself is unconstitutional even without those words,” you would be, in a word, wrong.
If anyone is interested in reading the actual opinion, the text of it is here, Newdow v. U.S. Congress. You have to have Adobe Acrobat to read it.
The opinion specifically states that it is considering the constitutionality of the phrase “under God.” It does not address the constitutionality of the pledge without that phrase. A little history:
The Pledge of Allegiance was instituted by Act of Congress in 1942, but this initial version did not include the phrase “under God.” As early as 1943 (and even with the nation at war), the U.S. Supreme Court held that the government could not force students to recite it.
“Under God” was added to the pledge in 1954 during the Red Scare, when there was widespread (if largely baseless, in retrospect) concern about the country being taken over by godless communists and atheists. In Newdow the Ninth Circuit looked at the legislative history of that addition and concluded that, despite legislative avowals to the contrary, “under God” was added as a statement of religious belief. In making this decision, the Court looked at the language, context, and history of the enactment that added “under God” to the pledge.
I think they made the correct decision. Most legal decisions allowing the mention of God by government enactment or in the context of government action (such as “In God We Trust” on money, or opening Congress with a prayer) are defended on the basis of ceremonialism or historical practice. It’s hard to make that argument for a phrase that’s only been included for less than 50 years and that was clearly added only to provide the imprimatur of god and/or godliness to a recitation mostly practiced by children.
Without the phrase, is the pledge on its face unconstitutional on religious grounds? IMO, no. Certainly it has never been held to be by the courts. But I don’t see a strong argument that it is not unconstitutional as long as “under God” is added.