Establishment Clause, Elk Grove Unified School District v. Newdow

[Emsworth]

The pledge itself is unconstitutional, because it constitutes a federal affirmation of the existence of God. The very purpose of the establishment clause was to keep religion completely separate from the federal government, and entirely in the hands of the states. A federal affirmation of the existence of God would violate this requirement.

[Emsworth]

First of all, schools are state entities, not federal. What federal action is involved here?

That is why I noted that the pledge itself is unconstitutional. Recital of the pledge in schools seems to be perfectly permissible.

[Emsworth]

By the pledge itself, do you mean the 'under God' portion?

Yes.

As far as the establishment clause is concerned, there is no difference between declaring that God exists, and declaring that Jesus Christ is the Son of God. Both are religious affirmations, which Congress is forbidden from making.

I can't support a conclusion that it's OK for the States and not for the Federal government to have a brief "under God" in the pledge...

Why not? The establishment clause, like the Tenth Amendment, is a federalism provision, and is therefore incapable of being incorporated.