The first religious controversy surrounding the Pledge predated “under God,” however. Observant Jehovah’s Witnesses, whose beliefs prohibit them from taking oaths, went to court over the Pledge in 1940. After initially ruling against them, the Supreme Court decided in 1943 that the First Amendment prohibited compelling students to salute the flag or recite the Pledge.
Later, lawsuits in the middle of the 20th century challenged “under God,” on the grounds that compulsory Pledge recitation violated atheists’ and nonbelievers’ First Amendment rights. When high-profile atheist John L. Lewis charged that the Pledge was a violation of the Establishment and Free Exercise clauses, a New York district court decided that the Pledge was not a religious exercise. Lewis took his case to the Supreme Court. Thirty states joined to ask the court not to take the case, and in 1964 the justices refused to review the New York district court decision. This was just two years after the Cuban missile crisis, and Cold War fears of the atheistic Soviet horde remained powerful. God served as a convenient shorthand to distinguish Communist from patriot.
But if courts have upheld the Pledge, they have also upheld abstention from it. In 1977, a federal district court came down on the side of New Jersey teen Deborah Lipp, a junior who faced expulsion from her public high school for staying seated during the Pledge of Allegiance. Sure, she was upset about government corruption and systemic inequity, she told a New York Times reporter. But as befit someone coming of age in the “Me Decade,” Lipp explained, according to the Times, that sitting out the pledge “was not so much a protest against the country or the flag as it was an affirmation of her own right to choose to stand or sit during the pledge ceremony.”
The same year, 1977, first-term Massachusetts governor Michael Dukakis vetoed a bill that would fine public school teachers who declined to lead the Pledge of Allegiance (the state legislature overrode the veto). During the 1988 presidential contest, Republican rival George H.W. Bush would seize on Dukakis’s veto. “’What is it about the Pledge of Allegiance that upsets him so much?” Bush asked a friendly crowd at the time. Gallup polling showed that Bush’s opinion reflected contemporary public sentiment.
The wave of patriotism that swept America after September 11, 2001, engendered new controversies over the Pledge, as localities sought to boost participation with new Pledge mandates. In a series of cases throughout the aughts—the heyday of New Atheism—atheist groups came to the defense of students who challenged the “under God” language.