FFRF asks Supreme Court to overturn 'under God' in pledge decision

The Freedom From Religion Foundation has asked the U.S. Supreme Court to declare unconstitutional the practice of requiring public school students to recite or listen to the religious Pledge of Allegiance. FFRF filed a Petition For Writ of Certiorari on March 25, appealing a November 2010 decision by the 1st U.S. Circuit Court of Appeals in Freedom From Religion Foundation v. Hanover School District. FFRF, the plaintiff in the case along with a New Hampshire FFRF family with children in the schools, is represented by attorney Michael Newdow.

Congress tampered with the Pledge of Allegiance in 1954, at the behest of several religious lobbying efforts, adding "under God" into the previously secular pledge, first written in 1892. (Read more about the history of the Pledge of Allegiance and various challenges.)

FFRF and a Hanover couple with children in the schools filed suit in federal court on Oct. 31, 2007, challenging the daily recitation of the Pledge of Allegiance required by a 2002 state law, also naming Congress as defendants. In early 2008, 51 members of Congress won court permission to intervene in the case, including three U.S. religious senators — Sam Brownback, James M. Inhofe and Ted Stevens. A number of individual religionists as well as the Knights of Columbus, which originally spearheaded the 1950s drive to insert God into the pledge, also intervened. U.S. Dist. Judge Steven J. McAuliffe eventually dismissed Congress as a defendant, then ruled against FFRF in 2008. A 3-judge panel of the 1st U.S. Circuit Court of Appeals ruled last fall against FFRF's challenge of the New Hampshire School Patriot Act.

"This is violation will not go away," noted FFRF Co-President Annie Laurie Gaylor. "FFRF continues to receive so many requests by our members to restore the original pledge, and by parents of schoolchildren and students in public schools around the nation who are offended, stigmatized, embarrassed or even disciplined for not wishing to recite a religious pledge."

Calling the lower courts in "hopeless disarray" over the issue of religion in public schools, FFRF has asked the Supreme Court to clear up the confusion. The various circuit court decisions upholding the religious Pledge give entirely different, often contradictory, and sometimes illogical reasons for allowing schools to interfere with the religious views of its atheist students. “It is possible that what unifies these diverse holdings,” Newdow suggests in the petition, “is that all of them manifest the evil that the Establishment Clause exists to stifle — i.e., ‘political division along religious lines.' "

FFRF’s petition cites Judge Manion of the 7th Circuit Court of Appeals previously critiquing the ceremonial deism argument: “ ‘A civic reference to God does not become permissible under the First Amendment only when it has been repeated so often that it is sapped of religious significance.’ Otherwise, he noted, this would imply that, in 1954, the Pledge ‘violated the Establishment Clause because [it] had not yet been rendered meaningless by repetitive use.' "

Although some lower courts have allowed the religious pledge on the basis that it is not a prayer, FFRF’s petition points out that “[N]othing in the First Amendment limits laws ‘respecting an establishment of religion’ to prayer.” Newdow cites authorities and President Bush to show that the pledge is indeed considered a prayer. The petition also challenges the bad history behind many of the lower court decisions.

Although some judges have argued that the Pledge of Allegiance is merely an “acknowledgment” of our religious heritage, Newdow asks: “[W]hat does ‘acknowledging’ religion have to do with patriotism? ‘Acknowledging’ that the Framers believed there was a God is no more patriotic than ‘acknowledging’ that they were white, were male, were Protestant, or were rich. Especially when the purpose is to extol the virtues of one race, gender, wealth category or religious viewpoint over another (which is the manifest message of the ‘under God’ verbiage), it would seem to be the antithesis of patriotism to make such an ‘acknowledgment.’ ”

“This case involves the nation’s most disenfranchised religious minority,” the petition continues. “Surely, no one seriously doubts that ‘under God’ in the Pledge would have been struck down had there been panels of Atheistic jurists hearing these cases. . . . [A]s is the case in the legislature, the representation of nonbelievers in the judiciary is woefully diminished as compared with their numbers in the population at large.

“It is hoped that this Court, in particular, will be sensitive to this problem, since each of the current justices is a member of a minority reigion, that, like Atheism, was also (at one time) despised and disenfranchised,” Newdow writes in the petition.  “In fact, the God that most public school teachers proclaim this nation to be ‘under’ each morning apparently advocates for murdering the plaintiffs here: ‘Whoever blasphemes the name of the Lord shall surely be put to death.’ ” [Leviticus 24:16]

Although some of the lower courts argue that the religious pledge is permissible because there is no coercion involved (the New Hampshire law says individual participation is "voluntary"), FFRF’s petition disputes that claim. Pressure to conform and to please authorities is great among young schoolchildren. However, coercion is irrelevant, since "coercion" is not the Establishment Clause test. "This court has stated that '[t]he touchstone for our analysis is the principle that the 'First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’ ” Citing the McCollum, Engel, Abington, Stone, Wallace, Edwards, Lee, and Santa Fe Supreme Court decisions: “[I]n every one of the nine cases heard by this court where there was even a hint of governmental infusion of religious dogma in the public schools, the Court has struck down the challenged activity.”

“We are hoping,” says FFRF Co-President Dan Barker, “that the Supreme Court will realize that the time has come to stop disenfranchising nontheists. We are ‘one nation indivisible, with liberty and justice for all.’ ”

FFRF would like to publicly thank not only the New Hampshire local plaintiffs who have made the lawsuit possible, but attorney Michael Newdow, who has worked pro bono with brilliance and dedication.

The Freedom From Religion Foundation, based in Madison, Wis., a 501(c)(3) nonprofit educational charity, is the nation's largest association of freethinkers (atheists, agnostics), and has been working since 1978 to keep religion and government separate.

FFRF is a non-profit, educational organization. All dues and donations are deductible for income-tax purposes.

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