Another Appeals Court Weighs Pledge in Schools

By Mark Walsh — September 15, 2010 2 min read
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It seems that one way or another, the controversy over the Pledge of Allegiance in public schools is headed back to the U.S. Supreme Court.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, heard arguments last week in a case challenging a New Hampshire law that requires schools to set aside time daily for students to voluntarily recite the pledge.

As with a past case and a pending case out of California, the New Hampshire suit challenges the inclusion of the words “under God” in the pledge.

A federal district court upheld the New Hampshire statute in February, ruling that the law has the permissible secular effect of “teaching our country’s history to the elementary and secondary pupils of this state” and that it does not have the effect of coercing children to support or participate in religion.

The Freedom From Religion Foundation appealed the ruling to the First Circuit, and it enlisted longtime pledge challenger Michael A. Newdow, of California, to argue its case.

Sheri Qualters, of The National Law Journal, has this account of the Sept. 9 oral arguments in Freedom From Religion Foundation v. United States. A recording of the oral argument is available on the 1st Circuit’s Web site, although it takes a bit of navigation to reach the right place under the “Court Calendar” button.

The statute is being defended by the state of New Hampshire, and the U.S. Department of Justice intervened to defend acts of Congress that added “under God” to the pledge in 1954 and reaffirmed that version of the pledge in 2002.

Newdow, the physician and lawyer who has crusaded for years against “under God” in the pledge and the motto “In God We Trust” on the nation’s money, maintains a Web site that has briefs and documents from both sides in the New Hampshire case.

In March, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled against Newdow and a group of atheist parents who challenged school-led recitations of the pledge as an unconstitutional establishment of religion. The court said the pledge was predominantly a patriotic exercise. I blogged on the decision here.

Newdow is seeking review by a larger of panel 9th Circuit judges in the case involving the Rio Linda Independent School District in northern California.

Newdow was also behind an earlier case challenging the pledge in his own daughter’s school, which the U.S. Supreme Court weighed in 2004 but disposed of on procedural grounds in Elk Grove Unified School District v. Newdow.

A version of this news article first appeared in The School Law Blog.