ACLJ: Appeals Court Decision Upholding Constitutionality of Pledge of Allegiance in NH Schools "Significant and Sound"

November 15, 2010

(Washington, DC) The American Center for Law and Justice (ACLJ) said today a federal appeals court decision upholding the constitutionality of the Pledge of Allegiance - including the phrase "under God" - in New Hampshire schools, represents a significant and sound decision that sends a message: patriotic, time-honored traditions should be embraced - not targeted for extinction - in our public schools.

The ACLJ represented more than 40 members of Congress and more than 80,000 Americans in filing its amicus brief in this case and urged the appeals court to conclude that the Pledge did not violate the First Amendment.

"This appeals court reached a significant and sound decision that underscores what most Americans understand - that the recitation of the Pledge of Allegiance embraces patriotism, not religion," said Jay Sekulow, Chief Counsel of the ACLJ.  "The decision not only upholds the constitutionality of the Pledge, it rejects another fruitless attempt by the Freedom From Religion Foundation (FFRF) to twist and distort the Constitution with its flawed reasoning.  This decision reflects a sensible realization that it's permissible for state legislators - in this case - in New Hampshire - to enact a statute in which the primary effect, as the court correctly concluded, 'is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation.'"

In its decision issued November 12, a three-judge panel of the U.S. Court  of Appeals for the First Circuit reached this conclusion:  "We hold that the New Hampshire School Patriot Act and the voluntary, teacher-led recitation of the Pledge by the state's public school students do not violate the Constitution. We affirm the order and judgment of the district court dismissing FFRF's complaint."

At issue was a New Hampshire statute, the New Hampshire School Patriot Act, that permitted students to voluntarily recite the Pledge in school.  A federal district court upheld the constitutionality of the state law and the FFRF appealed to the First Circuit.

In its decision, the appeals court also determined: "It takes more than the presence of words with religious content to have the effect of advancing religion, let alone to do so as a primary effect."   Further, the court asserted:  "The New Hampshire School Patriot Act's primary effect is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation."

The appeals court also rejected claims that the recitation of the Pledge is an endorsement of religions:   "The Pledge's affirmation that ours is a 'nation, under God' is not a mere reference to the fact that many Americans believe in a deity, nor to the undeniable historical significance of religion in the founding of our nation. As the Supreme Court recognized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), to recite the Pledge is to 'declare a belief' and 'affirm[] . . . an attitude of mind.' Id. at 631, 633. In reciting the Pledge, a student affirms a belief in its description of the nation."

The complete opinion is posted here.

The ACLJ filed its amicus brief with the First Circuit on behalf of 42 members of the 111th Congress - including two U.S. Senators and 40 members of the U.S. House of Representatives.  The ACLJ also represented more than 80,000 Americans who signed on to the ACLJ's Committee to Protect "Under God" - including many parents of school-age children who attend public schools and desire to recite the Pledge of Allegiance in its entirety.

You can read the ACLJ amicus brief here.

The decision by the First Circuit comes just weeks after a federal district court in Wisconsin rejected another flawed legal challenge by the FFRF - this time challenging the constitutionality of engravings of the national motto and Pledge of Allegiance at the Capitol Visitor Center in Washington, D.C.  In September, a federal judge threw out that lawsuit concluding the plaintiffs did not have legal standing to bring the case.  In that challenge, the ACLJ represented 50 members of Congress in an amicus brief asking the court to reject the suit.  That brief is posted here.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.