Federal Judge Upholds Pledge of Allegiance in Schools

By Mark Walsh — October 06, 2009 2 min read
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A federal district judge in New Hampshire has upheld the practice of schools leading the Pledge of Allegiance amid a challenge by parents who objected to exposing their children to the words “under God” in the pledge.

The challenge was brought by plaintiffs identified in court papers as the Doe family, The mother and father describe themselves as an atheist and agnostic, respectively, with three children in the Hanover, N.H., school district who also question the existence of God. (The school district is a joint one with Dresden, Vt.)

There is no suggestion in the case that the children have been compelled to recite the pledge. Under a New Hampshire law passed in the wake of the Sept. 11, 2001, terrorist attacks, schools must set aside time for teachers to lead the pledge, but students are not required to recite it. (That would be in keeping with the U.S. Supreme Court’s 1943 decision in West Virginia State Board of Education v. Barnette.)

The Does’ suit alleges violations of the First Amendment’s guarantee of free exercise of religion and prohibition against government establishment of religion, among other legal theories. (The family is being represented by California lawyer Michael Newdow, an atheist who has carried out his own longtime campaign against the inclusion of “under God” in the pledge and school-led recitations of the pledge.)

In a Sept. 20 opinion, U.S. District Judge Steven J.McAuliffe noted that the federal government stepped in to the case to defend the federal Pledge of Alliegiance statute. But since the federal pledge law does not command anyone to recite it, or lead its recitation, the federal law was not really at issue, the judge said.

Judge McAuliffe devoted most of his analysis to the New Hampshire pledge law. Analyzing the state law under various Supreme Court establishment clause tests, the judge concluded that that statute primarily has a secular purpose of promoting patroitism among schoolchildren.

“The legislative history contains a far-reaching discussion of patriotism, and places enactment of the statute in the context of a response to the attacks of September 11, 2001,” the judge said. “That context supports the conclusion 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 judge also adopted the view that the addition of the words “under God” to the pledge by Congress in 1954 was more of a political response to Communism than a desire to promote monotheism.

“The Pledge, taken as a whole, is a civic patriotic affirmation, not a religious exercise, and inclusion of the words ‘under God’ constitutes, at the most, a form of ceremonial or benign deism,” Judge McAuliffe said.

The judge granted the school district’s motion to dismiss the lawsuit.

The Manchester Union-Leader has this story on the decision.

It took me a little bit of searching to find the opinion in Freedom From Religion Foundation v. Hanover School District. If that link doesn’t work, try the search function on the home page of the U.S. District Court for the District of New Hampshire.

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