IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________________________________________
Wheaton School District, Petitioner
v.
Joseph and Mary Smith, Respondents
______________________________________________________________________
BRIEF IN SUPPORT OF PETITIONER
______________________________________________________________________
Heather Pentecost
December 5, 2012

I do not believe that the Pledge policy infringes any religious liberty right that would
arise from incorporation of the Clause.
(Thomas, Elk Grove v Newdow, 542 U.S. 1 (2004))
The Establishment Clause of the First Amendment to the Constitution designs a
framework for monitoring the federal government in its dealings with religion. At issue in
this case is whether or not the phrase under God as part of the Pledge of Allegiance
creates a violation of this clause when it is required, with exception, of elementary,
public school students. The Smiths believe that through the suggested recitation of the
Pledge containing these words, the state, and thereby the national government, is
establishing religion in a public place. The legal precedents, however, do not have
congruent facts with this case, and can help demonstrate that purely secular, patriotic
acts are justifiable in the public realm.
The phrase under God can be spoken and interpreted as in the eye of the
beholder; whether as acknowledgement to their own god or as homage to the nations
history as distinct from other atheist countries. There is no feasible way that this twoword phrase could enforce or establish any sort of religion, as there is no causal or
indicative language within it.
The Smiths daughter was far from coerced to say the Pledge, unlike the
Jehovahs Witnesses in the Barnette case of 1943, in which the children were expelled
from their schools and the parents were then held liable for their absence. The current
option to either stand[] silently or leav[e] the room during the recital shows no hostility
towards those who choose not to say the pledge, nor any potential for physical,
psychological, or social damage to them. The Barnette case does pre-date the inclusion
of the phrase under God, which leaves room for caution in comparing the two cases.
However, this distinction only validates further the folly of the argument that the Smith
child was being persecuted. She was not made to suffer like the Barnette children, since
they did not have the mitigating factor of the phrase under God to quell their antireligious impressions. Also, her presence or absence could be decided by her, or her
parents, alone, alleviating possible worries of the government forcibly enacting any
religion on her.
How is a religion believed to be established by the statement under God? There
are no instructions, doctrines, or details in this volatile 2-word phrase. It only concedes
that an omnipotent being, conceivable to most, could see all of the states as one, united
nation, and not as separate entities.
While the Supreme Court has, in the past, backed the individual citizens who
brought their issues with the Establishment Clause against the government, it should
not do so in this case. The facts of this case are different from those which could be
brought up as precedent. The Smith child was not forced into saying the Pledge, nor
punished for not saying it. The phrase under God is far from establishing any specific
religion; it is merely acknowledging an already prevalent one, both in modern times and
in history. As Justice Rehnquist puts it; The Pledge of Allegiance evolved as a common
public acknowledgement of the ideals that our flag symbolizes. Its recitation is a patriotic
exercise designed to foster national unity and pride in those principles. (Elk Grove v
Newdow 542 U.S. 1 (2004))

The remainder of the Pledge makes clear that it is a civic endeavor, meant to
unify an at-times broken nation and establish the ideals for an indivisible one. The
Lemon test is therefore not violated in this case, as it (1) has a secular purpose, (2) has
a primary effect that does not advance religion, and (3) does not foster an excessive
government entanglement with religion. Firstly, the Pledge of Allegiance is recited for
the sole purpose of instilling national pride into young students, as well as the ideals of
liberty and justice for all. The second prong is not violated because the conceivable
obscurity around God prevents any one religion, and therefore religion at all, from
being advanced. Also, its primary effect has no influence regarding religion. As for the
third prong, excessive is an easily malleable word, and must be considered carefully.
However, it is unlikely that any two words alone could cause entanglement to the
degree implied by the test. This phrase is not a prayer, not directional, and not specific
to one denomination, or even to one religion. Even if it was one of these, though, the
phrase by itself does not imply excess in any way.
In Wallace v. Jaffree, a state-sanctioned moment of silence was overruled
because of the clear progression of state statutes towards establishing this time as one
exclusively for prayer. In regards to the current case, though, there has not been any
movement towards the inclusion of any more religion-related words into the Pledge of
Allegiance in the past 60 years. There is no intent by legislators to transform the recital
of the Pledge into a purely religious act.
The coercion test here is passed. The Smith daughter was not in anyway
coerced into saying the Pledge of Allegiance, and had the socially acceptable option of
standing quietly or exiting the room during the recital. As a young child, she may not be
able to recognize forms of social coercion, like peer pressure in a classroom, but can be
expected to be instructed by her parents on the proper course of action for her religious
needs. In any manner, this test checks for coercion into religion or its exercise, not for
coercion into secular classroom procedures.
The endorsement test is also passed here, although more debatably. It is true
that the word God, capitalized, can invoke ideas of the Christian or Jewish religion,
although no specific denomination. The lack of descriptors though, keeps this word from
instigating any clear picture of this God. The phrase is not under the Almighty God,
which would imply a respect for this god above any others. Nor is it under the deceiving
God, to gather from Descartes, which would imply a negative fear of this God. There
are no means by which to endorse one religion over another, or the practice of religion
in general over no religion.
The continuation of this Indiana statute, i.e. the recital of the Pledge of Allegiance
in public school classrooms, if applied evenly to Christians, atheists, Jews, and Hindus
alike, all as Americans, is well within the framework of the Establishment Clause of the
First Amendment. All students must be given an option to abstain. Complaints about still
being surrounded by the recital will have no standing though, as its across-the-board
application subjects all students to its intended purpose; national unity, and therefore
does not alienate any one student of group of students. The Smiths would, in most
instances, be seen as the benefactors of any religion being established, but since they
are themselves the alleged victim, it becomes clear that the allegations of an
established religion have no teeth. No other forms of religion are being established,
because by their arguments, their own religion could be established. There is no

realistic way in which these two small words could convert, encourage, or in any other
way make theirs or another religion more favorable in the eyes of the state.
This case is unlike Engel v. Vitale, in which the justices found no doubt that [the]
state prayer program officially establishe[d] the religious beliefs embodied in the...
prayer. (Engel v. Vitale, 370 U.S. 421 (1962)) Note, prayer. Not patriotic act. Not civic
gesture. Prayer, which is undeniably religious. There is plenty of room for doubt here
about any such sort of establishing of a religion by the Pledge. Similarly, the states
ability to mandate, or make provisions for the likely opportunity of, prayer was denied,
even if they were nonsectarian, nonproselytizing invocations. (Santa Fe Independent
School District v. Doe. 530 U.S. 290 (2000)) Again, the phrase under God is not a
prayer and does not have the same intent as even the most amiable and nonspecific
prayer. It is a proclamation, encouraged by shaky war times, that this is a country that
stands together, and stands apart from countries hostile toward religion.
In Marsh v. Chambers (463 U.S. 783 (1983)), the Nebraska legislative is permitted
to continue the practice of hiring a chaplain to commence their sessions, because of the
innocuous nature of the prayer and the supporting history of the practice. Even here,
where the dispute is over prayer, an inherently religious act, the Supreme Court
determined that since the prayer was not done in a manner to convert or indoctrinate, it
was acceptable in a government-run institution. Even if the phrase under God did give
some preferential treatment towards those who have a religion, there is not enough
content in the phrase to even hope to convert or indoctrinate any of the children.
If the Smiths are so concerned with the governments entanglement with religion,
it is ironic that they involved the government, and especially the Supreme Court, at all.
The cry God save the United States and this honorable court heard at the beginning of
Supreme Court sessions is considerably more direct and influential than the phrase
under God. The Supreme Courts invocation gives a purpose for God, and a role in the
government, whereas the Pledges merely describes one of the many aspects of the
nation. There are too many civic practices which have one small facet relating to God to
render judgement against this, one of the least volatile. The Pledge has an entirely
secular purpose, unlike other government acts, and should not be considered
antagonistic in establishing its own religion.
Conclusion
The Supreme Court should support the petitioner, the Wheaton School District, in this
case. The Smiths case is distinct enough from previous cases involving the
Establishment Clause of the First Amendment that it can be looked at on its own merits,
namely the claim that the state of Indiana is establishing a religion through the recital of
the Pledge of Allegiance with the words under God in public schools. This argument
can not be proven, as there are no theological doctrines, specific or general, in the
phrase at question. Also, the student was not unreasonably pressured to say the
pledge, nor was she punished for a failure to comply. The Pledge of Allegiance is a
symbol of our national freedom and unity, and must be advocated as a civic duty.

Table of Authorities
U.S. Const. Amend. 1.
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
Wallace v. Jaffree, 472 U.S. 38 (1985).
Engel v. Vitale, 370 U.S. 421 (1962).
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
Marsh v. Chambers, 463 U.S. 783 (1983)