New Hampshire pledge of allegiance law is constitutional
Freedom from Religion Foundation v. Hanover Sch. Dist., No. 09-2473 (1st Cir. Nov. 12, 2010)
Abstract: A U.S. Court of Appeals for the First Circuit three-judge panel has ruled that New Hampshire’s law requiring the daily recitation of the pledge of allegiance in the state’s public schools, while allowing students to opt-out of participation, does not violate the First Amendment’s Establishment or Free Exercise of Religion Clauses, or the Fourteenth Amendment’s Equal Protection or Due Process Clauses. The panel concluded that the inclusion of the phrase “under God” in the pledge did not convert the recitation of the pledge from a patriotic exercise to a religious one. It likewise rejected the free exercise claim on the ground that schools are not constitutionally obligated to shield students from mere exposure to ideas that are potentially offensive to the student’s religious beliefs. In regard to the equal protection claim, the panel concluded that the law does “not require different treatment of any class of people because of their religious beliefs.” Lastly, it found that the due process claim had been waived.
Facts/Issues: In the aftermath of the September 11 attacks, the state legislature had passed the New Hampshire Patriot Act, which provided for the daily recitation of the pledge in the state’s schools. The statute made student participation voluntary by providing an opt-out clause. The parents of three public school students objected to their children being subjected to recitation of the Pledge of Allegiance in school. Specifically, the parents, who identify themselves and their children as atheist or agnostic, contended that the pledge offended their own and their children’s rights under the First Amendment’s Establishment and Free Exercise of Religion Clauses because of the inclusion of the phrase “under God” in the pledge. They also raised Fourteenth Amendment due process and equal protection claims, along with the claim that the pledge law was void as against public policy. While conceding that the children were not compelled to recite the pledge, the parents sought assurances from the principals at their children’s schools that the pledge would not be recited in their children’s classes. However, no such assurances were given.
The parents, represented by the Freedom from Religion Foundation (FDRF), filed suit against the school districts where their children attended school. Because the suit implicated both state and federal pledge laws, New Hampshire and the United States were allowed to intervene as defendants. The gravamen of the parents’ First Amendment claims was that because the federal law mandated inclusion of the phrase “under God” in the pledge, the state law subjected their children to having to listen to a pledge containing the phrase, thereby offending the Establishment and Free Exercise of Religion Clauses’ guarantee of government neutrality in matters of religion. They sought a declaration that the pledge laws are unconstitutional and an injunction prohibiting recitation of the pledge in the schools districts named in the suit.
The district court ruled that the state statute requiring the recitation of the Pledge of Allegiance in schools does not violate the Establishment or Free Exercise Clauses. It also rejected claims that the statute violated the Due Process and Equal Protection Clauses. The court summarily dismissed the claim that the pledge law was void as against public policy on the ground of failure to state a claim upon which relief could be granted. Lastly, the district court dismissed all state law claims without prejudice, allowing them to be refiled in state court.
Ruling/Rationale: The First Circuit panel affirmed the lower court. It began its analysis with the question of whether the law, which requires recitation of the pledge, violates the Establishment Clause because of the inclusion of the phrase “under God” in the pledge. It subjected the law to scrutiny under the three tests mandated by the U.S. Supreme Court for determining a law’s constitutionality under the Establishment Clause. The panel first applied the three-prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602,(1971): (1) the law must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and, (3) the law must not foster “an excessive government entanglement with religion.” It noted that the entanglement prong was not at issue. It rejected FFRF’s argument that even though New Hampshire’s law has a secular purpose, the federal government had an impermissibly religious one when it included the phrase “under God” in the pledge. It found that argument went to Lemon’s principal or primary effect prong and, therefore, focused its analysis on that prong.
Conceding the religious nature of the phrase, the panel, nonetheless, considered the pledge’s text as a whole, taking into account the context and circumstances in which the phrase was employed. It found that under New Hampshire’s law the ”recitation is a patriotic exercise designed to foster national unity and pride in those principles,” in which “students promise fidelity to our flag and our nation, not to any particular God, faith, or church.” The panel, therefore, concluded that law’s primary effect was one of promoting patriotism through the pledge, rather advancing religion.
The court then applied the “endorsement” analysis, first articulated by Justice O’Connor in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 688 (1984), and applied by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573 (1989). The phrase “under God,” explained the court, occurred in a context accompanied by no other religious language or symbolism and, as a result, a reasonable observer would view the recitation as a secular exercise.
Lastly, the panel found the coercion test articulated in Lee v. Weisman, 505 U.S. 577, 587 (1992) unavailing because the exercise at issue in the present case — silence, unlike those in which coercion has been found, “is not an expression of participation in the Pledge” under the New Hampshire law. Instead, it found that a “student who remains silent during the saying of the Pledge engages in overt non-participation by doing so, and this non-participation is not itself an expression of either religious or non-religious belief.”
Relying on the First Circuit’s decision in Parker v. Hurley, 514 F.3d 87, 103 (1st Cir. 2008), the panel concluded that students’ mere exposure to the religious content in the pledge did not violate the Free Exercise Clause: ”the mere fact that a child is exposed on occasion in public school to a concept offensive to a parent’s religious belief does not inhibit the parent from instructing the child differently.” Finally, the panel rejected FFRF’s contention that the law failed to treat believers and non-believers alike in violation of the Equal Protection Clause because recitation of the pledge was “leading students in affirming that God exists,” creating ”a social environment that perpetuates prejudice against atheists and agnostics.” To contrary, it concluded, the law does “not require different treatment of any class of people because of their religious beliefs,” nor does it “give preferential treatment to any particular religion.”
Freedom from Religion Foundation v. Hanover Sch. Dist., No. 09-2473 (1st Cir. Nov. 12, 2010)
[Editor's Note: A summary of the district court's opinion is available at the first link below. In October 2010, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (TX, LA, MS) ruled that the inclusion of the phrase “under God” in the Texas state pledge of allegiance does not violate the U.S. Constitution’s Establishment Clause; nor does the statutory provision requiring daily recitation of the pledge by students. The panel concluded that the facial challenge to the state pledge and the statute requiring its recitation in school failed because the pledge, which is in essence a patriotic exercise, has not been fundamentally altered by the inclusion of the phrase “under God,” which merely acknowledges Texas’s religious heritage. A summary of the opinion is available at the second link below.]
