Pledge of Allegiance Victory in Federal Court

I want to report to you an important victory in the ongoing battle to protect the Pledge of Allegiance and the phrase, One nation, under God.  As you may recall, we represented more than 50 members of Congress and more than 80,000 Americans in a critical amicus brief filed with a federal court in New Hampshire where a lawsuit was filed challenging the constitutionality of the Pledge.  The suit was brought by The Freedom From Religion Foundation, represented by Michael Newdow, who sued two New Hampshire public school districts and Congress on behalf of several parents and students who objected to the voluntary recitation of the Pledge of Allegiance in school.

 

Specifically, the lawsuit challenged the addition of the words under God in 1954 in the Pledge and the practice of reciting the Pledge in public schools as a patriotic exercise.

 

Now, after nearly two years, Chief Judge Steven McAuliffe issued an order rejecting the Plaintiffs arguments and dismissing the complaint. The court applied several different Establishment Clause tests and held that the school districts had not violated the Establishment Clause. In keeping with Supreme Court precedent, the court reviewed the phrase under God in the context of the rest of the Pledge rather than in isolation. The court declared, [t]he New Hampshire Pledge statute has a secular legislative purpose. It was enacted to enhance instruction in the Nations history, and foster a sense of patriotism. Its primary effect neither advances nor inhibits religion. It does not foster excessive government involvement with religion.

 

You can read the opinion here.  

 

The court stated that the New Hampshire statute authorizing the voluntary recitation of the Pledge plainly has a secular legislative purpose, namely, continuing the policy of teaching our countrys history to the elementary and secondary pupils of this state and promoting patriotism. The court stated that patriotism, rather than support of theism over atheism or agnosticism, was the guiding force behind the enactment of the New Hampshire Pledge statute. The statutes legislative history confirmed that it was enacted for patriotic, not religious, purposes.

 

The court was also very clear that the pledge statute implemented by the New Hampshire school districts does not have the effect of coercing children to support or participate in religion or its exercise.

 

In the words of the federal court:

 

. . . [T]he Pledge of Allegiance is not a religious prayer, nor is it a nonsectarian prayer of the sort at issue in Lee, 505 U.S. at 589, and its recitation in schools does not constitute a religious exercise. The Pledge does not thank God. It does not ask God for a blessing, or for guidance. It does not address God in any way. . . . Rather, the Pledge, in content and function, is a civic patriotic statementan affirmation of adherence to the principles for which the Nation stands. Inclusion of the words under God, in context, does not convert the Pledge into a prayer or religious exercise, as discussed in greater detail later. Peer or social pressure to participate in a school exercise not of a religious character does not implicate the Establishment Clause, and as a civic or patriotic exercise, the statute is clear in making participation completely voluntary.

 

This is a critically important decision one that parallels the arguments in our amicus brief which is posted here. 

 

In our brief filed with the court, we asked the court to dismiss the lawsuit and uphold the use of the Pledge as a patriotic exercise. The brief stated:

 

[T]he words one Nation under God in the Pledge of Allegiance in no way violate either the Establishment Clause or the Free Exercise Clause of the First Amendment to the United States Constitution. These words simply echo the sentiments found in the Declaration of Independence and recognize the undeniable truth that our freedoms come from God. These words were placed in the Pledge of Allegiance for the express purpose of reaffirming Americas unique understanding of this truth. The United States is different from nations who recognize no higher authority than the State. While the First Amendment affords atheists complete freedom to disbelieve, it does not compel the federal judiciary to redact religious references in every area of public life in order to suit atheistic sensibilities.

 

In this decision, the court cited with approval decisions from the Fourth and Seventh Circuits that rejected challenges to the use of the Pledge, stating that the courts had persuasively concluded that the phrase under God does not transform the Pledge into a prayer, or its recitation into a religious exercise.

 

More from the opinion:

 

I am of the view that the Fourth and Seventh Circuits got it right. The words under God undeniably come from the vocabulary of religion, or, at the least, reflect a theistic orientation, but no more so than the benign deism reflected in the national trust in God declared on our currency, or in ceremonial intercessions to save this Honorable Court at the commencement of many court proceedings. It may well be that some, perhaps many, people required to employ U.S. currency, or socially pressured to stand during civic ceremonies, feel offended by what seems to them an imposition of theistic doctrine. But the Constitution prohibits the government from establishing a religion, or coercing one to support or participate in religion, a religious exercise, or prayer. It does not mandate that government refrain from all civic, cultural, and historic references to a God.

 

This is a sound, well-reasoned decision that underscores what we have argued all along the Pledge and the phrase under God should not pose a constitutional crisis. We're extremely pleased that the court concluded that such patriotic exercises as the recitation of the Pledge are consistent with the First Amendment.