The Pledge of Allegiance
Origins and History
A Little History
That which we just recited was written in 1892 by Francis Bellamy.

Bellamy wrote the Pledge to celebrate the quattracentenial of Columbus' voyage.  
Let's say it , just to get warmed up:

"I Pledge Allegiance to my Flag and the Republic for which it stands, one nation indivisible with liberty and justice for all."

Wait a minute...
Who was Bellamy?

He was a Christian Socialist and cousin of the famous Edward Bellamy, who published the popular socialist/ utopian novel "Looking Backward" in 1888.

That's right.  The Pledge was written by a socialist.

He was a Baptist Minister who wrote for the "Youth's Companion," the most popular youth publication in the nation at the time.  The magazine had begun a campaign to put an American flag in every classroom in the country.  
Why then and there?  

While Bellamy was working on the flag promotion, another worker at the magazine began to think about a pledge.  Eventually they developed a plan that would create a Columbian Public School Celebration to coincide with the World's Columbian Exposition- kind of a big deal.


Aside from writing the text of the Pledge, Bellamy began another tradition associated with the Pledge- what was called the Bellamy Salute.
This might look familiar- in the 40's we decided it looked a little too similar to the Nazi's salute and changed it to the current hand over heart salute.
Of course, other big changes would come to the Pledge.  In 1923 "my Flag" was changed to "the Flag of the United States," and in 1924 "of America" was added.

But the biggest substantive change would come in 1954, with the addition of the words, "under God."
The addition of "under God" had been the subject of public discussion, especially by groups such as as the Catholic fraternity, the Knights of Columbus, for some time- but where did "under God" come from?  Why those words?
Lincoln ended the Gettysburg address with these words:

"It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."
But, still, why move to add these words at this moment in our history?

Groups that wanted the addition of "under God" finally found a friendly ear with those that were concerned with differentiating our country from the "godless communism" of our Cold War competitor.  In particular, Eisenhower listened.
It had become a tradition for presidents to go to New York Avenue Presbyterian Church and to sit in the pew that Lincoln had rented on Lincoln Sunday- the Sunday closest to Lincoln's birthday.  Eisenhower was born into a family of Jehova's Witnesses, but had converted to Presbyterianism and planned to continue the Lincoln Sunday ritual.


The minister at New York Avenue, Scottsman Rev. Docherty, was alerted that Eisenhower would be attending and, as someone who wanted "under God" in the Pledge, made this the topic of his sermon.
The Rev. Docherty compared the United States to Sparta.
... arguing that Sparta, though revered for its military might, really stood apart on account of its spirit.  Docherty told his flock that the United States was nuclear, but this great military power was not what separated the us from the world- like Sparta, it was our spirit that separated us.
As an acknowledgement of this difference, this spirit, America needed some commemoration to set us apart from those that would challenge our superiority- and "under God" would accomplish these goals, Rev. Docherty argued.
Eisenhower l'ike'd it.  Four days later a bill came through the House.  Eisenhower waited until Flag Day to sign it into law, saying:

"These words will remind Americans that despite our great physical strength we must remain humble. They will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded. "
Then came the Troubles
but more to the point, there came some constitutional problems with the Pledge.
Constitutional Issues
Before 1954: Free Exercise and the Pledge
Even before the addition of the words "under God" the Pledge had been the subject of litigation, usually challenging the requirement of forced recitation under the Free Exercise Clause of the 1st Amendment.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  U.S. Const. Amend. I.
So what's the issue?  Why would saying the Pledge interfere with a person's right to the free exercise of religion?

Some early cases established that no one could be forced to recite the Pledge.
In Nicholls v. Mayor of Lynn, a student was expelled for not participating in the Pledge.   The student refused to say the Pledge on religious grounds; the child and his father believed that saluting the flag was contrary to their beliefs as Jehovah’s Witnesses.   

The Massachusetts Supreme Court held that the Pledge did not relate in any way to religion, and did not concern the views of anyone as to any god.   Another important factor to the Nicholls court was that the Pledge ceremony was clearly designed to inculcate patriotism and to instill recognition of the blessings conferred by orderly government.
Other courts in the nation followed the Nicholls' approach until the Supreme Court took the issue in Minnersville School District v. Gobitis, another case involving the children of Jehova's Witnesses.  The Court recognized the difficulty of the question:

“Situations like the present are phases of the profoundest problem confronting a democracy- the problem which Lincoln cast in memorable dilemma: ‘Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’”


However, in the end the court decided that the state's interest in safeguarding the nation's fellowship was stronger than the liberty interest- forced recitation was constitutional.
Justice Stone dissented in the opinion:

“[Forced recitation] does more to suppress the freedom of speech and more than prohibit the free exercise of religion.” 

His view would prevail just three years later.
The court would hear another pledge case in West Virginia State Board of Education v. Barnette.   

A West Virginia statute mandated recitation of the Pledge, and failure to conform was insubordination, punished by expulsion and potential criminal charges for the parents of any insubordinate student.
In the opinion Justice Jackson hit the seminal note of First Amendment jurisprudence:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
In other words, the government cannot compel someone to say they believe something- regardless of their religion.  Forced recitation was unconstitutional.  The next challenges to the Pledge would come from people concerned with the establishment of religion by the government, after the addition of the words "under God."
          Post 1954: The Pledge and the Establishment Clause
The Free Exercise Clause:
Congress shall make no law... prohibiting the free exercise [of religion].

The Establishment Clause:
Congress shall make no law respecting the establishment of religion.
The primary question here has been whether or not the words "under God" constitute the establishment of religion by the government, or in which cases it might be and in which cases it it isn't an establishment of religion.
The Supreme Court has never directly ruled on the constitutionality of the Pledge.  It had the opportunity to in the Newdow case, a 2003 case where an atheist father challenged the recitation of the Pledge daily in a public school.  The Court punted on the question, saying that the man had no standing to bring the claim for his daughter, as he was not the managing conservator of the child.
But, even if they had got to the question, nobody was forcing the girl the say the Pledge- we already found out the state can't force people to do that under the Free Exercise Clause- so, what is the big deal if she just doesn't say it?  Why would her rights under the Establishment Clause be affected?

To understand what might be the answer to this as of yet unanswered question, you have to look at how the Supreme Court has decided what actions do and what actions do not establish religion.
The Court has developed different tests to determine what qualifies as an establishment of religion by the state. 
The first test is the Lemon Test, from Lemon v. Kurtzman.  In that case the Court found that reimbursements to nonpublic schools for teachers’ salaries were unconstitutional because they impermissibly benefited religious schools.

The Lemon Test:

For a statute to pass constitutional muster, it must 

(1) have a secular purpose, 
(2) not have the primary effect of advancing or inhibiting religion, and 
(3) not foster an excessive entanglement of the government and religion.
The next test that came around was the Endorsement Test, from County of Allegheny v. American Civil Liberties Union.  This case was regarding the display of a creche.
... at the local courthouse.  The creche was set apart from a Christmas tree, a menorah, and other seasonal decor- it was closer to the courthouse and more prominent, which the challengers said was impermissible.  The Court sided with them, using the Endorsement Test:

Government action fails the endorsement test by having either the purpose or the effect of favoring a particular religious belief or established religion. 
Finally, a third test, the Coercion Test was developed in the case of Lee v. Weismann.

In Lee, a student had sought to prevent a rabbi from delivering a blessing at a high school graduation ceremony, and when the student failed to obtain an order preventing the prayer, the student and parent brought an action for a permanent injunction against the school to stop future prayers.   The Court held that clergy offering prayers as part of a public school graduation ceremony is barred by the Establishment Clause.

The Coercion Test can be formulated as:

Government action violates the Establishment Clause if: 

(1) the action is directed by the government; 
(2) the act is a formal religious exercise; and 
(3) the direction by the government compels participation in the exercise from those present in attendance.
Alright... so, which one of these tests applies to the Pledge?

Answer:  ???, and perhaps none so far developed.

As mentioned before, the Court had the opportunity in 2003 in Newdow to decide this- they did not reach the merits of the case, but that didn't prevent some of the justices from giving their 2 cents about what would have happened if they had.
Justice O'Connor even made up a new test in her concurrence, what she calls ceremonial deism, the test being:

(1) the reference is historical; 
(2) it is not overly prayerful; 
(3) it is not sectarian; and 
(4) it contains only minimal religious content.

In her analysis she conlcuded that the Pledge was clearly constitutional ceremonial deism.
Rehnquist was just pissed they didn't get to the merits.

After going through statements and proclamations by Presidents, the inclusion of “In God We Trust” on coinage, and statements by a military general, Rehnquist concluded, “All of these events strongly suggest that our national culture allows public recognition of our Nation’s religious history and character.” 

He had no problem at all with the Pledge, and probably wanted to smack any one who did.
So... what do you think?  Take the case of Newdow.  Using the tests already used, or a new one- why would it or why would it not be constitutional to have teachers lead students in the Pledge?
Be careful what you pledge to...

http://www.collegehumor.com/video:1820119
Justice Thomas focused his concurrence on his belief that the protections of the Establishment Clause were not incorporated under the 14th Amendment.  That is, he believes that the Establishment Clause does not apply to the states.

Kind of a nutty guy.
You have a teacher, a state employee, leading students in a statement that acknowledges a deity and also claims that this nation is "under" said deity.
For the Lemon Test, there must be a secular purpose for the statute.  For the statute that contains the Pledge, there is an obvious secular purpose- promoting national unity.  

However, the amendment to the statute, the addition of "under God" in 1954, clearly did not have any secular purpose- in fact, the reasons for the addition were explicitly religious, and would seem to be for the primary purpose of advancing religion, thus failing the Lemon Test.
Under the Endorsement Test, a statute would be unconstitutional if it had the primary purpose or effect of favoring a religious belief or established religion.

Here the addition of "under God" seems to favor Abrahamic religions that believe in one God.  As to favoring a religious belief, the belief that there is a God certainly is a religious belief.
The Coercion Test would require that the action be directed by the government, that the action be a formal religious practice, and that the direction of the government compels participation.

Looking at each individual student, it may not seem as though each student is being coerced- they can choose to remain seated for the Pledge or just not say "under God."  However, viewed cumulatively over the nation, when every classroom in public schools begin the day with recitation, the effect seems more coercive.
Finally, what do we make of O'Connor's Ceremonial Deism Test?  The reference must be historical, not overly prayerful, not sectarian, containing only minimal religious content.

In what sense "under God" historical?  It turned up in the Gettysburg address- a statement by the top executive at the time.  However, it was not used at any time by the Founders.  As previously discussed, the phrase is sectarian, favoring Abrahamic religions.  The requirement that it be minimal in content seems to be a subjective test- to an atheist, it's no minimal thing to acknowledge the existence of a god.
So, my opinion is that the Pledge in its current form is clearly unconstitutional under every precedent established.  Am I asking for a "heckler's veto" or a return to the plain meaning of the Establishment Clause?  What do you think?
Lemon Test
Endorsment Test
Coercion Test
What happens if you apply these tests to the Pledge?

It's worth arguing about- don't think these following applications are more than brief oppinions- they should be the start of conversation.