Wednesday, April 23, 2014

New School Prayer Lawsuit

Matawan-Aberdeen Regional School District in New Jersey is being sued over the Pledge of Allegiance.  Anonymous parents and the American Humanist Association are bringing the suit. They argue that the the phrase "under God" in the Pledge of Allegiance discriminates against atheists.  The pledge

publicly disparages plaintiffs' religious beliefs, calls plaintiffs' patriotism into question, portrays plaintiffs as outsiders and second-class citizens, and forces (the child) to choose between nonparticipation in a patriotic exercise or participation in a patriotic exercise that is invidious to him and his religious class.

. . .

While plaintiffs recognize that (the child) has the right to refuse participation in the flag-salute exercise and pledge recitation, the child does not wish to be excluded from it, and in fact wants to be able to participate in an exercise that does not portray other religious groups as first-class citizens and his own as second-class.

To bolster their claim that the Pledge reinforces prejudice against atheists and Humanists, they cite to studies showing atheists are the most disliked and distrusted group in the country.

Unlike prior claims brought and rejected under the First Amendment of the United States Constitution, this claim proceeds under the New Jersey Constitution, which may make a difference.

In Newdow v. Rio Linda Union School District, 597 F.3d 1007 (9th Cir. 2010), the Ninth Circuit held that the Pledge in school did not violate the establishment clause.  It reasoned that the words "under God" cannot be read alone, but must be read in the context of the entire pledge.  Based on this context, the court held that the pledge and this phrase were patriotic not religious.  It also pointed out that 

The Supreme Court has agreed the Pledge is a “patriotic exercise designed to foster national unity and pride.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Even the dissent agrees on this determinative point. Dissent at 4040 (“[T]he recitation of the Pledge both as originally written and as amended is a patriotic exercise....”). The question about which we disagree is whether this patriotic activity is turned into a religious activity because it includes words with religious meaning.

The 2010 decision by the 9th Circuit, however, was a shift in course, as some earlier decisions in the circuit had found the pledge to violate the Establishment Clause.  The past history, as described by the court in Newdow, follows the jump.

This is not the first time the Pledge has been challenged in our Circuit. In 2000, Newdow brought a similar Establishment Clause challenge against the Elk Grove Unified School District's policy requiring teachers to lead their classes in the recitation of the Pledge. Newdow v. United States Congress, 2000 WL 35505916, at *1 (E.D.Cal. July 21, 2000). The district court rejected Newdow's challenge and dismissed his complaint. Id.

A divided panel of this Circuit reversed. Newdow v. United States Congress, 292 F.3d 597 (9th Cir.2002) (“ Newdow I”). In its opinion, the panel held Newdow had standing as a parent to challenge Elk Grove's Pledge-recitation policy, because the policy interfered with his right to direct his daughter's religious upbringing. Id. at 602. Over Judge Fernandez's dissent, the majority (of which Judge Reinhardt was a member) held Elk Grove's policy violated the Establishment Clause. Id. at 612.

Following the panel's decision in Newdow I, the mother of Newdow's daughter intervened in the case to challenge Newdow's standing to sue on the basis that a California Superior Court had awarded her sole legal custody of the daughter. Newdow v. United States Congress, 313 F.3d 500, 502 (9th Cir.2002) (“ Newdow II ”). The panel held the custody order did not deprive Newdow of standing to challenge the Elk Grove Pledge-recitation policy, even though he had lost custody of his daughter. Id. at 502–03.

The panel then issued an order amending its opinion in Newdow I and denying panel rehearing and rehearing en banc. Newdow v. United States Congress, 328 F.3d 466 (9th Cir.2003) (“ Newdow III ”). The amended opinion did not reach the question whether the Pledge was constitutional and instead invalidated, again over Judge Fernandez's dissent, only the Elk Grove School District's policy. Id. at 490. Nine judges of our Circuit dissented from the denial of rehearing en banc. See Newdow III, 328 F.3d at 471, 482.

The Supreme Court of the United States reversed. Elk Grove, 542 U.S. at 5, 124 S.Ct. 2301. The Court held that Newdow, as a noncustodial parent with interests potentially adverse to those of his daughter, failed to satisfy the requirements of “prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Id. at 11, 124 S.Ct. 2301 (citation and internal quotation marks omitted). Accordingly, the Court held the Newdow III panel erred by reaching the merits of Newdow's Establishment Clause challenge. Id. at 17, 124 S.Ct. 2301.

Plaintiffs, including Jan Roe who has full custody of her daughter, filed this action contending the teacher-led recitation of the Pledge in California public schools violates the Establishment Clause. Newdow v. United States Congress, 383 F.Supp.2d 1229 & n. 1 (E.D.Cal.2005) (“ Newdow IV”).

The district court dismissed the majority of plaintiffs' claims. As to the plaintiffs' Establishment Clause claim against the recitation of the Pledge in the School District, the district court held this court's decision in Newdow III remained binding *1016 authority, despite the Supreme Court's decision in Elk Grove Unified Sch. Dist. v. Newdow. Newdow IV, 383 F.Supp.2d at 1240–41. Relying on Newdow III, the district court held the School District's Policy requiring the daily, voluntary recitation of the Pledge by students violated the Establishment Clause. “Because this court is bound by the Ninth Circuit's holding in Newdow III, it follows that the school districts' policies violate the Establishment Clause. Accordingly, upon a properly-supported motion, the court must enter a restraining order to that effect.” Id. at 1242. The district court stayed the permanent injunction pending any appeals to this court and to the Supreme Court. This timely appeal followed.

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