Legalese — The Pledge of Allegiance

The pledge of allegiance is something that most of us learned in school.  I remember it being a rote part of mornings, something we did with hand over heart, not really thinking about the words. 

The pledge itself has changed over time.  It was, originally, “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.”  It wasn’t until 1954 that President Eisenhower added the phrase “under God” to the pledge.[1]   Regardless of the words contained in the pledge, reciting it has been a part of public school mornings since the American public school has begun. 

But is it required?  Can a school child be punished for refusing to stand or refusing to recite the pledge? 

The answer is an unequivocal “No.”

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, way back in 1943, the United States Supreme Court took up that issue.  In that case, the West Virginia State Board of Education passed a regulation requiring children to salute the flag and recite the pledge each morning.  The purpose of this was to foster discipline and to “perpetuat[e] the ideals, principles and spirit of Americanism.”  Failure to do so would result in expulsion until the children were willing to comply.  Expelled children (and their parents) were regularly punished for truancy and occasionally even sent to reform schools. 

A group of Jehovah’s Witnesses filed suit, claiming that this requirement violated their religious principles.  Pledging allegiance to the flag violated their interpretation of Exodus 20:4-5 which forbade the service or bowing down to any graven image. 

The Supreme Court found that this was a First Amendment issue, both a freedom of speech issue, and a separation of church and state issue.  They said, “[T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind….[C]ensorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.  It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds the silence.  But here, the power of compulsion is involved without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.  To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.”  West Virginia v. Barnette, supra.  

Put in more plain language, the Supreme Court said that the First Amendment guarantees your freedom to speak your mind and say what you believe, no matter what you believe.  The opposite is also true: you cannot be forced to say what you don’t believe.  Remaining silent instead of saying something you don’t want to say cannot be punished according to law. 

Bear in mind that this is not a commentary on whether or not the pledge should or should not be a part of regular school curriculum.  It simply says that you can’t be punished for not saying it. 

Do you agree?  You can say something.  Or not.   

[1]  “In God We Trust” wasn’t the national motto until 1956, and wasn’t printed on money until 1957.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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