November 16, 2010
First Circuit Upholds Mandatory Voluntary Pledge in Classrooms
A three-judge panel of the First Circuit on Friday upheld a New Hampshire law requiring school districts to authorize a period of time during the school day for recitation of the Pledge of Allegiance--including the words "under God." Under the law, teachers are to lead their classes in a voluntary recitation of the Pledge. Students may elect not to participate.
The plaintiffs in Freedom From Religion Foundation v. Hanover School District argued that the law violated the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the Due Process Clause. The court rejected each claim.
(Fun fact: Michael Newdow of Elk Grove Unified School District v. Newdow is counsel for the plaintiffs. The Supreme Court in Newdow ruled that Newdow lacked standing as next-of-friend to his daughter to challenge the school district's requirementthat all students recite the Pledge. The problem: Newdow didn't have legal custody over his daughter. There are no similar standing problems here.)
Establishment Clause. The court ruled that the New Hampshire law satisfied each of the Court's approaches--the three-part Lemon test; the "endorsement" test first articulated by Justice O'Connor in concurrence in Lynch v. Donnelly; and the "coercion" analysis of Lee v. Weisman. As to Lemon, the court ruled that New Hampshire had a secular purpose in enacting the requirement--the promotion of patriotism. (The United States's purpose in adding the words "under God" in 1954 is irrelevant.) The law doesn't have the primary or principal purpose of advancing religion, because it's voluntary and meant to further "the policy of teaching our country's history to the elementary and secondary pupils of this state."
As to endorsement, the court relied on the voluntary nature of the recitation. It held that students may elect not to participate for any number of reasons that aren't obvious to the rest of the case. The effect is therefore not to distinguish non-participants on the basis of religion--and therefore not to endorse religion. Moreover, taken in the context of the whole Pledge, the words "under God" don't convey a message of endorsement.
As to coercion, the court ruled that this case is different than Lee. In Lee, students were indirectly coerced into silence during a prayer at graduation; the silence was an act of participating in the prayer. Here, where the words "under God" are couched in an otherwise secular Pledge and where silence does not have any necessary religious connotations, there's simply not the same kind of coercion as in Lee.
Free Exercise. The court rejected this claim, relying on its ruling in Parker v. Hurley. The First Circuit ruled in that case that "[p]ublic schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the students agree with or affirm those ideas, or even participate in discussions about them." Here, mere exposure to the words "under God" does not inhibit their own (or their parents) free exercise.
The court rejected the equal protection and due process claims out of hand: nothing in the New Hampshire law led to any disparate treatment, and the due process argument (apparently based on parental rights) simply wasn't developed.
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