New Hampshire Pledge of Allegiance Law Upheld

By Mark Walsh — November 14, 2010 3 min read
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A federal appeals court has upheld a New Hampshire law that requires schools to set aside time daily for students to voluntarily recite the Pledge of Allegiance.

The ruling is the second by a federal appeals court this year sustaining teacher-led recitations amid challenges over the inclusion of the words “under God” in the Pledge.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled on Friday 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 Chief Judge Sandra L. Lynch, in Freedom From Religion Foundation v. Hanover School District.

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 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 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 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.

A federal district court upheld the New Hampshire law in 2009, ruling that it 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 1st Circuit, and it enlisted Newdow to argue its case.

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 its Nov. 12 opinion, the 1st Circuit said the New Hampshire law passed muster under the Supreme Court’s various tests for considering possible establishment clause violations.

"[The foundation’s] premise is that children who choose not to recite the Pledge become outsiders based on their beliefs about religion,” Chief Judge Lynch said. “That premise is flawed. Under the New Hampshire Act, both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”

The court also turned aside arguments that the law coerces pupils into participating in the pledge because the students are young and impressionable and they are led by teachers whom they respect as authorities.

“Recitation of the Pledge is not a formal religious exercise” like the clergy-led graduation prayer struck down by the Supreme Court in the 1992 case of Lee v. Weisman, Lynch said.

The ruling in the New Hampshire case is the second this year by a federal appeals court upholding classroom Pledge observances.

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

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.