Justices Decline to Hear Pledge of Allegiance Challenge

By Mark Walsh — June 13, 2011 3 min read
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The U.S. Supreme Court on Monday declined to take up another challenge to school-led recitations of the Pledge of Allegiance.

The justices declined without comment to consider a federal appeals court decision that upheld a New Hampshire law requiring schools to set aside time daily for students to voluntarily recite the Pledge.

The case was one of two in which the lawyer and activist Michael A. Newdow has challenged school recitations of the Pledge because of the inclusion of the words “under God.”

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, had ruled in November that the New Hampshire requirement does not violate the First Amendment’s prohibition against government establishment of religion or other provisions of the U.S. Constitution.

“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,” said the unanimous opinion, by 1st Circuit Chief Judge Sandra L. Lynch.

The challenge was brought by plaintiffs identified in court papers as the Doe family. The mother and father describe themselves as 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.)

Under the 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 Doe family’s suit alleged that the statute violates the establishment clause, as well as the First Amendment’s guarantee of free exercise of religion. The family was being represented by Newdow, a California lawyer and 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.

The statute was defended not only by the state of New Hampshire, but also by intervening students and parents, the Knights of Columbus, and the U.S. Department of Justice, which sought to defend acts of Congress that added “under God” to the pledge in 1954 and reaffirmed that version of the pledge in 2002.

In his appeal to the Supreme Court in Freedom From Religion Foundation v. United States (Case No. 10-1214), Newdow argued, among other things, that atheists are the nation’s “most disenfranchised religious minority” and were deserving of the high court’s protection.

The state of New Hampshire, the federal government, and other supporters of the state law all declined to file responses to Newdow’s appeal, and the Supreme Court did not request any responses.

Newdow has one other pending case involving the Pledge that has not yet reached the high court.

In March 2010, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled against Newdow and a group of California atheist parents who challenged school-led recitations of the pledge as an unconstitutional establishment of religion. That court also held that the pledge was predominantly a patriotic exercise.

Newdow’s request for review by a larger panel of 9th Circuit judges in the case involving the Rio Linda Independent School District in northern California still appears to be pending more than a year after the panel issued its decision.

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

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