We first consider whether the 1954 Act and the EGUSDs policy of teacher-led Pledge recitation survive the endorsement test. The magistrate judge found that the ceremonial reference to God in the pledge does not convey endorsement of particular religious beliefs. Supreme Court precedent does not support that conclusion.
[4] In the context of the Pledge, the statement that the United States is a nation under God is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation under God is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase one nation under God in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and since 1954 monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation under God is identical, for Establishment Clause purposes, to a profession that we are a nation under Jesus, a nation under Vishnu, a nation under Zeus, or a nation under no god, because none of these professions can be neutral with respect to religion. [T]he government must pursue a course of complete neutrality toward religion. Wallace, 472 U.S. at 60. Furthermore, the school districts practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, and thus amounts to state endorsement of these ideals. Although students cannot be forced to participate in recitation of the Pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge.
. . . [5] The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Lynch, 465 U.S. at 688 (OConnor, J., con-curring).
Justice Kennedy, in his dissent in Allegheny, agreed: <I>y statute, the Pledge of Allegiance to the Flag describes the United States as one nation under God. To be sure, no one is obligated to recite this phrase, . . . but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.</I> Allegheny, 492 U.S. at 672 (Kennedy, J., dissenting) (citations and internal quotation marks omitted).
Consequently, the policy and the Act fail the endorsement test.
