In the 
United States Court of Appeals 
For the Seventh Circuit 
 
No. 91-1684 

ROBERT IAN SHERMAN, for himself and as natural guardian 
for RICHARD HARRY SHERMAN, a minor son, 

Plaintiffs-Appellants, 

v. 

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21 
OF WHEELING TOWNSHIP, et al., 

Defendants-Appellees. 

 
Appeal from the United States District Court 
for the Northern District of Illinois, Eastern Division. 
No. 88 C 9205--Ann Claire Williams, Judge. 

 
ARGUED JANUARY 24, 1992--DECIDED NOVEMBER 20, 1992 
 
 
   Before CUMMINGS, EASTERBROOK, and MANION, Circuit 
Judges. 
 
   EASTERBROOK, Circuit Judge.    "[N]o 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." 
West Virginia State Board of Education v. Barnette, 319 
U.S. 624, 642 (1943). A state therefore may not compel 
any person to recite the Pledge of Allegiance to the flag. 
On similar grounds, Wooley v. Maynard, 430 U.S. 705 
(1977), adds that a state may not compel any person to 
display its slogan. Does it follow that a pupil who objects 
to the content of the Pledge may prevent teachers and 
other pupils from reciting it in his presence? We conclude 
that schools may lead the Pledge of Allegiance daily, so 
long as pupils are free not to participate. 
 
I 
 
   In 1979 Illinois enacted this statute: "The Pledge of Al- 
legiance shall be recited each school day by pupils in ele- 
mentary educational institutions supported or maintained 
in whole or in part by public funds." Ill. Rev. Stat. ch. 
122 para. 27-3. We held in Palmer v. Board of Education, 603 
F.2d 1271 (7th Cir. 1979), that states may require teachers 
to lead the Pledge and otherwise communicate patriotic 
values to their students. The right of the school board 
to decide what the pupils are taught implies a correspond- 
ing right to require teachers to act accordingly. See also 
Webster v. New Lenox School District, 917 F.2d 1004 (7th 
Cir. 1990). Richard Sherman, who attends elementary school 
in Wheeling Township, Illinois, and his father Robert chal- 
lenge the premise of Palmer that schools may employ a 
curriculum including the Pledge of Allegiance among its 
exercises. Since 1954 the Pledge has included the words 
"under God," 68 Stat. 249, which the Shermans contend 
violates the establishment and free exercise clauses of the 
first amendment. The full Pledge is: "I pledge allegiance 
to the Flag of the United States of America, and to the 
Republic for which it stands, one Nation under God, in- 
divisible, with liberty and justice for all." 36 U.S.C. sec. 172.

 
   The district court's first opinion, 714 F. Supp. 932 (N.D. 
Ill. 1989), concluded that the Shermans have standing to 
challenge the recitation of the Pledge but expressed doubt 
that a third plaintiff--the Society of Separationists, Inc., 
a group of atheists of which Sherman pere is president--is 
entitled to litigate. The court denied defendants' motion 
to dismiss but invited plaintiffs to amend their complaint. 
 
   Following the amendment, the court dismissed the So- 
ciety as a party. 745 F. Supp. 1371 (1990). The Society 
has not appealed, so we do not mention it again. The new 
complaint added the Attorney General of Illinois as a de- 
fendant. The Attorney General reiterated the contention 
that the Shermans lack standing; the court disagreed. The 
Attorney General also contended that the district court 
should abstain and that the challenge is unripe because 
Richard has not been penalized for his refusal to recite 
the Pledge. The court rejected both arguments. It did not 
address the Attorney General's submission that the elev- 
enth amendment bars a suit against that office (the Sher- 
mans did not name the incumbent as a party in his per- 
sonal capacity). 
 
   A third opinion, 758 F. Supp. 1244 (1991), granted the 
defendants' motions for summary judgment. The court 
held that the state's pledge law satisfies all three elements 
of the approach to the establishment clause in Lemon v. 
Kurtzman, 403 U.S. 602 (1971): it has a secular purpose, 
does not advance religion, and does not entangle the gov- 
ernment in religion. Coerced readings of the Pledge would 
pose difficulties under the free speech and free exercise 
clauses, but the court concluded that the statute is not 
coercive as written or in application. Although para. 27-3 says 
that the Pledge "shall be recited each school day by pupils", 
it does not say by all pupils, and the absence of any pen- 
alty implies that the pupils are entitled to keep silent. 
Affidavits from the superintendent of schools, the princi- 
pal of Richard's school, and Richard's first grade teacher 
all stated that no pupil was compelled to recite the Pledge, 
to stand during the Pledge or place his hand over his 
heart, or to leave if he would not join in, and that no 
one was penalized in any way for remaining silent and 
seated. Contrast Lipp v. Morris, 579 F.2d 834 (3d Cir. 
1978) (an obligation to stand at attention while other stu- 
dents recite the Pledge is forbidden compulsion); Goetz 
v. Ansell, 477 F.2d 636 (2d Cir. 1973) (same). Any peer 
pressure to conform that Richard may have experienced, 
the court believed, does not justify silencing pupils who 
are willing to recite the Pledge. 
 
II 
 
   Defendants renew their jurisdictional arguments. The 
Shermans disdained to address them, asserting that only 
defendants who file cross-appeals may contest the jurisdic- 
tion of the district court. The Shermans overlook the en- 
during principle that judges must consider jurisdiction as 
the first order of business, and that parties must help the 
courts do so. Philbrook v. Glodgett, 421 U.S. 707, 720-22 
(1975); Fusari v. Steinberg, 419 U.S. 379, 387 n.12 (1975); 
id. at 390-91 (Burger, C.J., concurring). Nothing can justify 
adjudication of a suit in which the plaintiff lacks standing 
or there is some other obstacle to justiciability. Defen- 
dants fulfilled their duties to the court, while the lawyer 
representing the plaintiffs slighted his. 
 
   The eleventh amendment deprives federal courts of ju- 
risdiction to consider most suits against states. State agen- 
cies or officials sued in their official capacity are "the 
state" for this purpose, Will v. Michigan Department of 
State Police, 491 U.S. 58 (1989); Kentucky v. Graham, 473 
U.S. 159 (1985), unless the plaintiff satisfies the require- 
ments of Ex parte Young, 209 U.S. 123 (1908). See also 
Hafer v. Melo, 112 S. Ct. 358 (1991). Plaintiffs sued the 
Attorney General of Illinois in his official capacity only, 
seeking both damages and a declaratory judgment that 
para. 27-3 violates the Constitution. The eleventh amendment 
cleanly bars the award of damages in an official-capacity 
suit. Whether it also bars declaratory relief depends on 
the theory of liability. Plaintiffs have not articulated any 
theory under which Ex parte Young supports a suit against 
the Attorney General, who has never threatened the Sher- 
mans with prosecution and as far as we can tell has no 
authority to do so. (States' Attorneys, elected in each 
county, are the public prosecutors in Illinois. Paragraph 
27-3 does not prescribe a penalty, so these officials also 
have nothing to do with the subject.) Plaintiffs apparent- 
ly named the office of the Attorney General in an effort 
to obtain a judgment binding the State of Illinois as an 
entity, a step that Congress did not authorize when enact- 
ing 42 U.S.C. sec. 1983 and that the eleventh amendment 
does not permit in the absence of such authorization. See 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The Attorney 
General must be dismissed as a party. 
 
   Defendants' other jurisdictional objections have less punch. 
Richard Sherman, obliged by the school-attendance laws 
to be present during the Pledge and the potential object 
of coercion to participate, has standing to challenge the 
statute. Abington School District v. Schempp, 374 U.S. 
203, 224 n.9 (1963). His father has derivative standing as 
his guardian. The subject is ripe for adjudication. The 
Pledge law is on the books, being enforced at Richard's 
school by daily recitation. That school officials do not com- 
pel Richard to participate may bear on the merits but 
does not make the subject less appropriate for decision. 
Cf. Lee v. Weisman, 112 S. Ct. 2649 (1992) (adjudicating 
a challenge to a prayer at a high school graduation, with 
no Justice doubting justiciability). 
 
   Doctrines that counsel abstention do not imply that the 
court lacks subject-matter jurisdiction. The defendants' 
contention that the district court should have abstained 
while awaiting clarification of the meaning of the state's 
law, if accepted, would require us to alter its judgment. 
To obtain such an alteration, the defendants needed to file 
appeals of their own. Federal Energy Administration v. 
Algonquin SNG, Inc., 426 U.S. 548, 560 n.11 (1976). See 
Robert L. Stern, When to Cross-Appeal or Cross-Petition-- 
Certainty or Confusion?, 87 Harv. L. Rev. 763 (1974). 
 
   Now that the case has reached our court, certification 
to the Supreme Court of Illinois would be the best way 
to find out whether the state's law requires each pupil 
to recite the Pledge of Allegiance. Houston v. Hill, 482 
U.S. 451, 470-71 (1987). None of the parties has asked us 
to seek the views of the Supreme Court of Illinois. We 
could do so on our own, but the reason the district judge 
gave for not abstaining is an equally cogent reason for 
our not certifying: "[P]laintiffs maintain that having the 
Pledge led by the principal daily is inherently coercive 
and therefore violative of plaintiffs' rights. Thus, even if 
an Illinois court interprets the statute to exempt children 
who cannot say the Pledge for religious or political rea- 
sons, the court would still have to resolve the question 
of whether school officials' leading of the Pledge, pursuant 
to the statute, results in unconstitutional coercion." 745 
F. Supp. at 1374. Circuit Rule 52 permits us to certify 
a question of state law only when the answer "will con- 
trol the outcome" of the case. See also Rule 20 of the 
Rules of the Supreme Court of Illinois (certification autho- 
rized when the answer "may be determinative of the said 
cause"). 
 
   Although we could make the state court's answer con- 
trolling by first deciding all of the Shermans' constitution- 
al arguments, leaving only the meaning of state law un- 
resolved, such a course invites advisory adjudication. Thus 
the best course is to interpret the state law for ourselves. 
We cannot rewrite a law in order to "save" it, Houston, 
482 U.S. at 468-69; K-S Pharmacies, Inc. v. American 
Home Products Corp., 962 F.2d 728, 730 (7th Cir. 1992); 
American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 332- 
34 (7th Cir. 1985), affirmed without opinion, 475 U.S. 1001 
(1986), but federal courts interpret state statutes in con- 
stitutional cases no less than in cases under the diversity 
jurisdiction. Planned Parenthood v. Casey, 112 S. Ct. 
2791, 2822 (1992); Frisby v. Schultz, 487 U.S. 474, 483 
(1988). No interpretation we announce will bind Illinois or 
other school districts, see Kucharek v. Hanaway, 902 F.2d 
513, 517 (7th Cir. 1990), but it will control how Wheeling 
Township must treat Richard, which is all the Shermans 
are entitled to. 
 
III 
 
   If Illinois requires every pupil to recite the Pledge, then 
Barnette scuttles the statute, and we need not consider 
whether "under God" distinguishes the Pledge from other 
patriotic exercises. Plaintiffs contend that the language 
of para. 27-3--"The Pledge of Allegiance shall be recited each 
school day by pupils in elementary educational institutions 
supported or maintained in whole or in part by public 
funds."--is unambiguous and compulsory. 
 
   Defendants persuaded the district court that the lack of 
a penalty for silence eliminates any compulsion, or at least 
shows that the state legislature did not mean to require 
children to recite the Pledge. True, there was a penalty 
(expulsion from school) in Barnette. Yet other cases deal- 
ing with readings, prayers, or periods of silence in the 
classroom thought the absence of a formal penalty irrele- 
vant. E.g., Engel v. Vitale, 370 U.S. 421 (1962); Abington 
School District v. Schempp, 374 U.S. 203 (1963); Wallace 
v. Jaffree, 472 U.S. 38 (1985); Lee v. Weisman, 112 S. Ct. 
2649 (1992). Oliver Wendell Holmes looked to penalties 
in order to see how the law affected those who regard 
their own welfare exclusively. The Path of the Law, 10 
Harv. L. Rev. 457, 460-61 (1897), reprinted in Collected 
Legal Papers 167, 173 (1920). Many people obey laws just 
because they represent the will of the majority expressed 
through democratic forms. See Kurowski v. Krajewski, 
848 F.2d 767, 774-75 (7th Cir. 1988). They revere law for 
the sake of civility, harmony, and consideration of others-- 
values that schools try to inculcate. More: penalties may 
be real (the displeasure of one's teacher can be formidable) 
even though not administered by judges. How ironic if 
Richard Sherman's first experience with law were to teach 
him that the legal sanction expresses the full meaning of 
a rule. Then the lesson of the Pledge of Allegiance would 
be cynicism rather than patriotism. Looking at the law 
through the lens of penalties is useful for many purposes, 
but not when the task is to teach civic virtue. 
 
   What the law requires of principals, teachers, and pupils 
depends on the language it contains rather than the penal- 
ty it omits. And what para. 27-3 says is that the Pledge "shall 
be recited each school day by pupils" in public schools. 
Some pupils? Willing pupils? All pupils? It does not spe- 
cify. If it means "all pupils" then it is blatantly unconstitu- 
tional; if it means "willing pupils" then the most severe 
constitutional problem dissolves. When resolving statutory 
ambiguities, the Supreme Court of Illinois adopts readings 
that save rather than destroy state laws. E.g., Country 
Mutual Insurance Co. v. Knight, 40 Ill. 2d 423, 240 N.E.2d 
612 (1968). Given Barnette, which long predated enactment 
of this statute, it makes far more sense to interpolate "by 
willing pupils" than "by all pupils." School administrators 
and teachers satisfy the "shall" requirement by leading the 
Pledge and ensuring that at least some pupils recite. Lead- 
ing the Pledge is not optional, see Palmer, but partici- 
pating is. This makes sense of the statute without imput- 
ing a flagrantly unconstitutional act to the State of Illinois. 
 
   This understanding is consistent with the practice in the 
Wheeling schools. The superintendent of schools, the prin- 
cipal of Riley School (which Richard attends), and his first 
grade teacher when this suit began, all filed affidavits 
stating that neither Richard nor any other pupil is com- 
pelled to recite the Pledge, to place his hand over his 
heart, to stand, or to leave the room while others recite. 
Marilyn Barden, Richard's teacher, averred that she brooks 
no hazing of those who decline to participate, and that 
she has never noticed any. The only contrary suggestion 
comes from Robert Sherman's affidavit, which states: "De- 
fendant Garrett, principal of the school attended by my 
son, asks my son to stand with one hand over his heart and 
participate with the other pupils in reciting the pledge." 
But as this affidavit does not reflect personal knowledge-- 
Robert Sherman does not say that he has ever been in 
Richard's class during the recitation or that he has heard 
principal Garrett make such a demand--the district court 
properly disregarded it. Robert does not even aver that 
his son told him this, and Richard did not file an affidavit 
of his own. Affidavits offered in opposition to motions for 
summary judgment "shall be made on personal knowledge 
[and] shall set forth such facts as would be admissible in 
evidence". Fed. R. Civ. P. 56(e). The same defect prevents 
giving force to Robert Sherman's assertion that Richard 
was hassled by other children on the playground because 
of his refusal to recite the Pledge. Children can be ex- 
ceedingly cruel to one another, but the rancor (not in any 
event attributable to the State of Illinois) must be estab- 
lished by admissible evidence. 
 
   We have not overlooked some juicy tidbits of legislative 
history that plaintiffs proffer. Senator Netsch spoke against 
the adoption of para. 27-3, expressing a belief that the bill
could not coexist with Barnette. Senator Knuppel replied: "it 
amazes me that these people get up and read that kind 
of garbage that Jackson [Justice Robert Jackson, author 
of the majority opinion in Barnette] had there, his advise 
[sic] from the Supreme Court, I rate just about as highly 
as I do the advise [sic] from Congress." Senate Debates, 
81st Illinois General Assembly, May 22, 1979, at 272. Sen- 
ator Lemke then called for the election of federal judges 
and added: "Maybe we ought to abolish the Supreme Court 
and have a dictatorship like in Russia because in Russia 
at least they say a pledge of allegiance to their own flag." 
Ibid. It is hard to believe that an elected official of Illi- 
nois prefers totalitarian government to democracy under 
law just because dictatorships employ more patriotic slo- 
gans, which dictators may deem necessary to their suc- 
cess. That two state senators are able to bring obloquy 
upon themselves does not help us know whether para. 27-3 
means "all pupils" rather than "willing pupils". Senator 
Nimrod, the bill's sponsor, treated the recitation as non- 
compulsory. Id. at 270-71. Statements on the floor of the 
state's lower chamber may be read either way. These un- 
enlightening exchanges do not show that Illinois enacted 
a law that would be stillborn under Barnette. 
 
   Notwithstanding the lack of penalties or efforts by teach- 
ers to induce pupils to recite, there remains social pres- 
sure to do so and a sense of exclusion when one's beliefs 
enforce silence during a ceremony others welcome. When 
discussing the Pledge of Allegiance, four Justices remarked: 
"[I]t borders on sophistry to suggest that the 'reasonable' 
atheist would not feel less than a 'full membe[r] of the 
political community' every time his fellow Americans re- 
cited, as part of their expression of patriotism and love 
for country, a phrase he believed to be false." Allegheny 
County v. Pittsburgh ACLU, 492 U.S. 573, 673 (1989) 
(Kennedy, J., joined by Rehnquist, C.J., and White & 
Scalia, JJ.). Concerns of this kind, among others, led Jus- 
tice Kennedy (this time speaking for a majority in Lee 
v. Weisman) to treat prayer during a high school gradua- 
tion as a form of compulsion, even though the student 
may remain silent without overt penalty. Engel v. Vitale, 
370 U.S. at 430-31, the first of the school-prayer cases, 
expressed a similar conclusion. We have postponed to Part 
IV discussion the effect of "under God". But perhaps the 
rationale of Barnette, when joined with the school-prayer 
cases, equates social pressure with legal pressure. If as 
Barnette holds no state may require anyone to recite the 
Pledge, and if as the prayer cases hold the recitation by 
a teacher or rabbi of unwelcome words is coercion, then 
the Pledge of Allegiance becomes unconstitutional under 
all circumstances, just as no school may read from a holy 
scripture at the start of class. 
 
   As an analogy this is sound. As an understanding of the 
first amendment it is defective--which was Justice Ken- 
nedy's point in Allegheny. The religion clauses of the first 
amendment do not establish general rules about speech 
or schools; they call for religion to be treated different- 
ly. Recall that for now we are treating the Pledge as a 
patriotic expression, even though the objections to public 
patriotism may be religious (as they were in Barnette). 
Patriotism is an effort by the state to promote its own 
survival, and along the way to teach those virtues that 
justify its survival. Public schools help to transmit those 
virtues and values. Separation of church from state does 
not imply separation of state from state. Schools are en- 
titled to hold their causes and values out as worthy sub- 
jects of approval and adoption, to persuade even though 
they cannot compel, and even though those who resist 
persuasion may feel at odds with those who embrace the 
values they are taught. 
 
   Consider what a general assimilation of religion to patri- 
otism and other values would mean for the public schools. 
The majority in Lee remarked, 112 S. Ct. at 2657: "By 
the time they are seniors, high school students no doubt 
have been required to attend classes and assemblies and 
to complete assignments exposing them to ideas they find 
distasteful or immoral or absurd or all of these." They 
are required to read books promoting ideas they find wicked. 
Sometimes their creed may teach that reading such ma- 
terial is itself sinful. Canon law in the Roman Catholic 
Church, and equivalent rules of other religions, restricts 
the reading of books that misrepresent or undermine the 
faith. See Redmond A. Burke, What is the Index? (1952). 
(The Catholic Church suspended publication of the Index 
Librorum Prohibitorum in 1966 but did not abolish the 
distinction between moral and immoral literature.) Cases 
arising out of religious beliefs that particular books should 
not be read include Mozert v. Hawkins County Board of 
Education, 827 F.2d 1058, 1061-62 (6th Cir. 1987), and 
Smith v. Mobile Board of School Commissioners, 827 F.2d 
684 (11th Cir. 1987). See also Wisconsin v. Yoder, 406 U.S. 
205 (1972). Students not only read books that question or 
conflict with their tenets but also write essays about them 
and take tests--questions for which their teachers prescribe 
right answers, which the students must give if they are to 
receive their degrees. The diversity of religious tenets in 
the United States ensures that anything a school teaches 
will offend the scruples and contradict the principles of 
some if not many persons. The problem extends past gov- 
ernment and literature to the domain of science; the re- 
ligious debate about heliocentric astronomy is over, but 
religious debates about geology and evolution continue. 
An extension of the school-prayer cases could not stop 
with the Pledge of Allegiance. It would extend to the 
books, essays, tests, and discussions in every classroom. 
 
   A pupil who takes exception to the prescribed curriculum 
of the public schools--whether the textbooks or the class 
discussions or the civic ceremonies such as the Pledge of 
Allegiance--is asserting a right to accommodation of his 
political or religious beliefs. Humane government often 
calls for accommodation; programs such as tuition vouch- 
ers serve this interest without offending other constitu- 
tional norms. Witters v. Washington Department of Ser- 
vices for the Blind, 474 U.S. 481 (1986). See also Michael 
W. McConnell, The Selective Funding Problem: Abortions 
and Religious Schools, 104 Harv. L. Rev. 989 (1991). But 
see Zobrest v. Catalina Foothills School District, 963 F.2d 
1190 (9th Cir. 1992), cert. granted, No. 92-94 (Oct. 5, 1992). 
Government nonetheless retains the right to set the cur- 
riculum in its own schools and insist that those who can- 
not accept the result exercise their right under Pierce v. 
Society of Sisters, 268 U.S. 510 (1925), and select private 
education at their own expense. The private market sup- 
ports a profusion of schools, many tailored to religious 
or cultural minorities, making the majoritarian curriculum 
of the public schools less oppressive. We agree with Judge 
Boggs that "school boards may set curricula bounded only 
by the Establishment Clause" even though pupils may 
find the books and classroom discourse offensive or im- 
moral. Mozert, 827 F.2d at 1080 (concurring opinion). By 
remaining neutral on religious issues, the state satisfies 
its duties under the free exercise clause. Employment 
Division v. Smith, 494 U.S. 872 (1990). All that remains 
is Barnette itself, and so long as the school does not com- 
pel pupils to espouse the content of the Pledge as their 
own belief, it may carry on with patriotic exercises. Ob- 
jection by the few does not reduce to silence the many 
who want to pledge allegiance to the flag "and to the Re- 
public for which it stands". 
 
IV 
 
   All of this supposes that the Pledge is a secular rather 
than sectarian vow. Everything would be different if it 
were a prayer or other sign of religious devotion. Does 
"under God" make the Pledge a prayer, whose recitation 
violates the establishment clause of the first amendment? 
 
   The district court trudged through the three elements 
identified by the Court in Lemon, concluding that the 
Pledge passes every test. Of course Lemon was not de- 
vised to identify prayer smuggled into civic exercises, and 
its status as a general-purpose tool for administering the 
establishment clause is in doubt. Rumblings of discontent 
are frequent. The Court heard Lee v. Weisman in large 
part to reconsider Lemon, and Lee concluded without re- 
newing Lemon's lease. The majority opinion reserved deci- 
sion on the future of Lemon. 112 S. Ct. at 2655. Three 
members of the majority signed an opinion employing 
Lemon, 112 S. Ct. at 2663-64 (Blackmun, J., joined by 
Stevens & O'Connor, JJ.), but one member of this group 
has expressed doubts. Aguilar v. Felton, 473 U.S. 402, 
426-30 (1985) (O'Connor, J., dissenting). The author of the 
majority opinion in Lee has disparaged Lemon, see Al- 
legheny, 492 U.S. at 655-56 (opinion of Kennedy, J.). The 
fifth member of the majority in Lee wrote a concurring 
opinion that did not rely on or endorse Lemon. 112 S. 
Ct. at 2667-78 (Souter, J.). And four Justices proposed to 
jettison Lemon forthwith. 112 S. Ct. at 2685 (Scalia, J., 
dissenting, joined by Rehnquist, C.J., and White & Thomas, 
JJ.). So we are not disposed to resolve this case by parsing 
Lemon. 
 
   Our approach is more direct. Must ceremonial references 
in civic life to a deity be understood as prayer, or support 
for all monotheistic religions, to the exclusion of atheists 
and those who worship multiple gods? You can't under- 
stand a phrase such as "Congress shall make no law re- 
specting an establishment of religion" by syllogistic rea- 
soning. Words take their meaning from social as well as 
textual contexts, which is why "a page of history is worth 
a volume of logic." New York Trust Co. v. Eisner, 256 
U.S. 345, 349 (1921) (Holmes, J.). Unless we are to treat 
the founders of the United States as unable to understand 
their handiwork (or, worse, hypocrites about it), we must 
ask whether those present at the creation deemed cere- 
monial invocations of God as "establishment." They did 
not. See Allegheny, 492 U.S. at 671-73 (opinion of Ken- 
nedy, J.). 
 
   James Madison, the author of the first amendment, is- 
sued presidential proclamations of religious fasting and 
thanksgiving./1 Thomas Jefferson, who refused on separa- 
tionist grounds to issue thanksgiving proclamations,/2 none- 
theless signed treaties sending ministers to the Indians./3 
The tradition of thanksgiving proclamations began with 
President Washington, who presided over the constitution- 
al convention./4 From the outset, witnesses in our courts 
have taken oaths on the Bible, and sessions of court have 
opened with the cry "God save the United States and 
this honorable Court." Jefferson's Declaration of Indepen- 
dence contains multiple references to God (for example: 
"We hold these truths to be self-evident, that all men are 
created equal, that they are endowed by their Creator 
with certain unalienable Rights, that among these are Life, 
Liberty, and the pursuit of Happiness."). When Madison 
and Jefferson wrote their famous declarations supporting 
separation of church and state, they invoked the name 
of the Almighty in support./5 
 
   The Founders' tradition has endured. Presidents still 
issue proclamations of thanksgiving. Details such as the 
Pledge of Allegiance and the motto on the coinage testify 
to its force. The Pledge tracks Lincoln's Gettysburg Ad- 
dress, which ends with a wish "that this nation, under 
God, shall have a new birth of freedom and that govern- 
ment of the people, by the people, for the people, shall 
not perish from the earth." The second inaugural address 
of that great statesman and poet concludes: "With malice 
toward none; with charity for all; with firmness in the 
right, as God gives us to see the right, let us strive on to 
finish the work we are in; to bind up the nation's wounds; 
to care for him who shall have borne the battle, and for 
his widow, and his orphan--to do all which may achieve 
and cherish a just and lasting peace among ourselves, and 
with all nations." Pupils who study this address with care 
will find 14 references to God among its 699 words. 
 
   When it decided Engel v. Vitale, the first of the school- 
prayer cases, the Court recognized this tradition and dis- 
tinguished ceremonial references to God from supplications 
for divine assistance: "There is of course nothing in the 
decision reached here that is inconsistent with the fact 
that school children and others are officially encouraged 
to express love for our country by reciting historical doc- 
uments such as the Declaration of Independence which 
contain references to the Deity or by singing officially es- 
poused anthems which include the composer's professions 
of faith in a Supreme Being, or with the fact that there 
are many manifestations in our public life of belief in God. 
Such patriotic or ceremonial occasions bear no true resem- 
blance to the unquestioned religious exercise that the 
State of New York has sponsored in this instance." 370 
U.S. at 435 n.21. To the same effect see Schempp, 374 
U.S. at 306-08 (Goldberg, J., joined by Harlan, J., concur- 
ring). Lynch v. Donnelly, 465 U.S. 668, 676 (1984), includes 
the Pledge in a list of civic exercises with religious con- 
notations, which the Court implied are permissible. See 
also id. at 693 (O'Connor, J., concurring), expressing the 
view that Thanksgiving, "In God We Trust" and similar 
"government acknowledgments of religion serve . . . the 
legitimate secular purposes of solemnizing public occasions 
. . . and encouraging the recognition of what is worthy of 
appreciation in society. For that reason, and because of 
their history and ubiquity, [these] practices are not under- 
stood as conveying approval of particular religious beliefs." 
 
   Justice Brennan, among the most stalwart of separa- 
tionists, expressed similar thoughts when concurring in 
Schempp, 374 U.S. at 303-04: 

[W]e have simply interwoven the motto [In God We 
Trust] so deeply into the fabric of our civil polity that 
its present use may well not present that type of involvement
which the First Amendment prohibits. This 
general principle might also serve to insulate the vari- 
ous patriotic exercises and activities used in the pub- 
lic schools and elsewhere which, whatever may have 
been their origins, no longer have a religious purpose 
or meaning. The reference to divinity in the revised 
pledge of allegiance, for example, may merely recog- 
nize the historical fact that our Nation was believed 
to have been founded "under God." Thus reciting the 
pledge may be no more of a religious exercise than 
the reading aloud of Lincoln's Gettysburg Address, 
which contains an allusion to the same historical fact. 

By the time of Marsh v. Chambers, 463 U.S. 783, 818 
(1983) (dissenting opinion), Justice Brennan was equivocal: 
"I frankly do not know what should be the proper disposi- 
tion of features of our public life such as 'God save the 
United States and this Honorable Court,' 'In God We 
Trust,' 'One Nation Under God,' and the like. I might 
well adhere to the view expressed in Schempp that such 
mottoes are consistent with the Establishment Clause, not 
because their import is de minimis, but because they have 
lost any true religious significance." In Lynch, 465 U.S. at 
716 (dissenting opinion), Justice Brennan concluded that "the 
reference to God contained in the Pledge of Allegiance 
to the flag can best be understood, in Dean Rostow's apt 
phrase, as a form of 'ceremonial deism,' protected from 
Establishment Clause scrutiny chiefly because [it has] lost 
through rote repetition any significant religious content." 
(Footnote omitted.) This court adopted such an approach 
when observing in ACLU v. St. Charles, 794 F.2d 265, 
271 (7th Cir. 1986), that both "In God We Trust" and 
Christmas trees are secular, having lost their original re- 
ligious significance. See also Allegheny, 492 U.S. at 616 
(opinion of Blackmun, J.). 
 
   An outcry in dissent that one or another holding logical- 
ly jeopardizes the survival of this tradition always pro- 
vokes assurance that the majority opinion carries no such 
portent. Engel was the first of these, and Allegheny, 492 
U.S. at 602-03, the most recent: "Our previous opinions 
have considered in dicta the motto and the pledge, char- 
acterizing them as consistent with the proposition that the 
government may not communicate an endorsement of re- 
ligious belief. . . . We need not return to the subject of 
'ceremonial deism,' . . . because there is an obvious dis- 
tinction between creche displays and references to God 
in the motto and the pledge." Plaintiffs observe that the 
Court sometimes changes its tune when it confronts a sub- 
ject directly. True enough, but an inferior court had best 
respect what the majority says rather than read between 
the lines. If the Court proclaims that a practice is con- 
sistent with the establishment clause, we take its assur- 
ances seriously. If the Justices are just pulling our leg, 
let them say so. 
 
   The judgment of the district court with respect to the 
Attorney General of Illinois is vacated, and that portion 
of the case is remanded with instructions to dismiss for 
want of jurisdiction. In all other respects the judgment 
is affirmed. 
 
 
FOOTNOTES 
 
 
/1 
   See Leonard W. Levy, The Establishment Clause: Religion and 
the First Amendment 100 (1986). In 1817, after leaving office,
Madison confessed that these proclamations violated the
principles of separation for which he stood but pleaded "the
legal aphorism de minimis non curat lex." Elizabeth Fleet (ed.),
Madison's "Detached Memoranda", 3 William & Mary Quarterly 534, 
559 (1946), reprinted in Philip B. Kurland & Ralph Lerner 
(eds.), 5 The Founders' Constitution 104 (1987). 
 
 
/2 
   See his letter to Rev. Samuel Miller, in 5 The 
Founders' Constitution 98-99. 
 
 
/3 
   The treaties are collected in Robert L. Cord, Separa- 
tion of Church and State: Historical Fact and Current 
Fiction 261-70 (1982). 
 
 
/4 
   E.g., the Proclamation of October 3, 1789, which begins: 
"Whereas it is the duty of all nations to acknowledge the 
providence of Almighty God, to obey His will, to be 
grateful for His benefits, and humbly to implore His pro- 
tection and favor" and then sets Thursday, November 26, 
1789, as a day "to be devoted . . . to the service of that 
great and glorious Being who is the beneficent author of 
all the good that was, that is, or that will be; that we 
may then all unite in rendering unto Him our sincere and 
humble thanks for His kind care", and much more in the 
same vein. 5 The Founders' Constitution 94. Washington 
issued this proclamation on the joint recommendation of 
both Houses of Congress, ibid., which only days before 
(on September 25) had sent the text of the establishment 
clause to the states for ratification. 
 
 
/5 
   Here is the preamble to Virginia's Act for Establishing 
Religious Freedom, which Jefferson drafted in 1779 (and 
the state enacted in 1785): "Well aware that the opinions 
and belief of men depend not on their own will, but follow 
involuntarily the evidence proposed to their minds, that 
Almighty God hath created the mind free, and manifested 
his Supreme will that free it shall remain, by making it 
altogether insusceptible of restraint: That all attempts to 
influence it by temporal punishments or burthens, or by 
civil incapacitations, tend only to beget habits of hypocrisy 
and meanness, and are a departure from the plan of the 
holy author of our religion, who being Lord both of body 
and mind, yet chose not to propagate it by coercions on 
either, as was in his Almighty power to do, but to ex- 
tend it by its influence on reason alone". 5 The Founders' 
Constitution 77. 
 
 



 
 
   MANION, Circuit Judge, concurring.    I concur with the 
court's fine opinion and conclusion that reciting the Pledge 
of Allegiance does not offend the establishment clause. I 
write separately to emphasize that we need not totally 
denude the Pledge by reducing its language to the lowest 
common denominator of "ceremonial deism" as favored 
by Justice Brennan. A civic reference to God does not 
become permissible under the First Amendment only when 
it has been repeated so often that it is sapped of religious 
significance. Such an approach implies that phrases like 
"in God we trust" or "under God", when initially used on 
American coinage or in the Pledge of Allegiance, violated 
the Establishment Clause because they had not yet been 
rendered meaningless by repetitive use. As this court 
shows, the Founders demonstrate by their behavior that 
the First Amendment was not intended to prohibit states 
from sanctioning ceremonial invocations of God. Such state 
action simply does not amount to an establishment of 
religion. 
 
   Another problem with the concept of "ceremonial deism" 
is that it selects only religious phrases as losing their 
significance through rote repetition. Why only "under 
God"? Why not "indivisible", "liberty and justice for all"? 
Do not these equally repeated phrases also lose their 
meaning under the logic of "ceremonial deism"? The an- 
swer, quite simply, is that a court cannot deem any words 
to lose their meaning over the passage of time. Each term 
used in public ceremony has the meaning intended by the 
term.  
 
   There is a significant difference in a result which strikes 
down the Pledge as an endorsement of religion, and one 
which leaves the Pledge intact, accompanied by the offi- 
cial pronouncement that it is meaningless. While under 
the first alternative the Pledge is prohibited from civic 
functions, under the second alternative the Pledge is al- 
lowed, and people are free to ignore the pronouncement 
of this court, and recite the Pledge with any degree of 
meaning they desire. 
 
   There is no need, however, to apply either alternative. 
The Pledge of Allegiance with all of its intended mean- 
ing does not effectuate an establishment of religion. If 
legislative prayer based upon the Judeo-Christian tradi- 
tion is permissible under Marsh v. Chambers, 463 U.S. 
783, 103 S.Ct. 3330 (1983), and a Christmas nativity scene 
erected by a city government is permissible under Lynch 
v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355 (1984), then cer- 
tainly the less specific reference to God in the Pledge of 
Allegiance cannot amount to an establishment of religion. 
We need not drain the meaning from the reference to 
reach this conclusion.