Pledge a Religious Exercise that Excludes Nonreligious
The Freedom From Religion Foundation and its family of local plaintiffs will appeal the decision last week by U.S. District Judge Steven J. McAuliffe, District of New Hampshire, to dismiss their challenge of a state law requiring daily recitation of the religious Pledge of Allegiance in public schools. Plaintiffs include a Hanover couple, "Jan and Pat Doe," who are atheist and agnostic respectively, and are members of the Foundation with three children in the public schools. The Foundation, on behalf of its New Hampshire members, is a plaintiff.
The plaintiffs' suit, filed in October 2007, named Congress and three local school districts. Members of Congress intervened, as did the Knights of Columbus and a variety of individual religionists. The judge in the case was married to Christa McAuliffe, the teacher who died in the space shuttle disaster of 1986. The Foundation's attorney, Michael Newdow, of Sacramento, made international headlines when the 9th U.S. Court of Appeals ruled in his favor in 2002 that "under God" in school pledges was unconstitutional.
Circuit Judge Alfred T. Goodwin, a 79-year-old Richard Nixon appointee, famously wrote: "A profession that we are a nation 'under God' is identical to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god.' " That historic ruling was vacated after the Supreme Court invalidated Newdow's standing. Newdow, an emergency room doctor who moonlights as a state/church attorney, relaunched the lawsuit in California, which he won at the district court level. The appeal of his victory by California schools has sat at the 9th Circuit for more than two years. The Foundation's New Hampshire case was filed two years ago in October.
Annie Laurie Gaylor, Foundation co-president, said, "We strongly disagree with McAuliffe's characterization of 'under God' in the pledge as 'a permissible acknowledgment of the nation's religious heritage and character.' This ignores the history of the pledge. It was written in 1892 by a liberal clergyman with no references to a god. Only in 1954, after lobbying by the Knights of Columbus and other religious groups, did Congress tamper with the pledge, ruin the rhythm and divide our previously indivisible nation by inserting 'under God.' We further disagree that our founders would not have considered the godly reference to be an establishment of religion, as the judge claims," Gaylor added. "Our founders left god out of the Constitution. Our founders adopted a secular motto, 'E Pluribus Unum,' and they didn't pray at the constitutional convention, which shows intent."
Dan Barker, Foundation co-president, criticized the court's suggestion that the Pledge of Allegiance has to be considered "as a whole." McAuliffe compared "under God" in the pledge to nativity displays on public land approved by the Supreme Court because they include "secular trimmings," Barker noted. "This is throwing aside 70 years of passionate precedent by the Supreme Court conferring special protections upon the rights of schoolchildren to be free from government-fostered religion."
The judge agreed a one-time prayer at a public commencement ceremony would be constitutionally intolerable, yet overlooked the fact that nonreligious children are subject to a daily religious recitation that ties patriotism to godliness. Even though the law permits children to abstain, the daily message of government endorsement of belief in a god cannot be escaped, Barker added.
"We thank Mike Newdow, who is very brilliant and very dedicated, and has generously undertaken this litigation on a contingency basis, with the Foundation paying only costs," Gaylor said.
"We are also grateful for the determination and commitment of our New Hampshire parent plaintiffs, without whom the case could not be taken," added Barker. The Foundation also thanks the New England donor who has contributed toward legal costs.