The 1st Circuit U.S. Court of Appeals issued a ruling Nov. 12 against FFRF’s challenge of the New Hampshire School Patriot Act requiring daily classroom recitation of the godly Pledge of Allegiance.
Attorney Michael Newdow filed the suit in 2007 on behalf of FFRF and its New Hampshire members with school-age children. It challenged the 2002 law that mandated that students who didn’t say the pledge can “silently stand or remain seated, but shall be required to respect the rights of those pupils electing to participate.”
The record shows that the law was intended to further “the policy of teaching our country’s history to the elementary and secondary pupils of this state.” The history of the pledge shows that it was secular from its 1892 inception until religious lobbies tampered with it in 1954, said Annie Laurie Gaylor, FFRF co-president.
The American Religious Identification Survey 2008 shows that the Northeast is the least religious area, with 22% identifying as nonreligious. New Hampshire is the least religious state, with 29% identifying as nonreligious.
“The legislators who belatedly enacted this law in 2002 had the advantage of hindsight. They adopted this law at a time when they should have been aware that a significant number of state citizens are nonreligious,” commented Gaylor. “It shouldn’t be OK to exclude nearly a third of the state’s population in a daily school ritual that turns nonbelievers into political outsiders.”
Gaylor also contested the decision’s claim that students who don’t participate can have many reasons besides religion. While that might be true at the secondary level, it is not true of elementary school students, she said. “The youngest nonparticipants are likely to be children of parents who are nontheistic or belong to minority religions such as Jehovah’s Witnesses, who are conscious that their parents disagree with the pledge. It is farcical to maintain that a kindergartner or third grader would be sophisticated enough to have a ‘political disagreement with reciting the Pledge, [or] a desire to be different.’ ”
Among the groups filing motions to intervene in the case was the Knights of Columbus, a Catholic men’s group. The Knights of Columbus was one of several religious lobbies which successfully added “under God” to the previously secular pledge in 1954.
The interference of the Knights proves the religious advancement of placing “under God” in the pledge, noted FFRF Co-President Dan Barker.
District Judge Steven McAuliffe, widower of “teacher in space” Christa McAuliffe, who died in the 1986 Challenger shuttle explosion, ruled against FFRF and its plaintiffs in Nov. 2009.
The appeals court, citing an earlier decision, said that “public schools are not obliged to shield individual students from ideas which potentially are religiously offensive.”
“But our public schools are required to shield students by ensuring they do not establish a religion, or show a preference for belief over nonbelief,” Barker said.
Citing a phrase from the Lynch v. Donnelly U.S. Supreme Court decision, the appeals court stated “the Constitution does not ‘require complete separation of church and state.’ ” The Lynch case approved a government-fostered nativity display which was dwarfed by secular displays. The appeals court compared the pledge to a holiday display and “under God” to a nativity within such a so-called constitutional display.
“It’s absurd to argue that because the rest of the pledge is patriotic and secular, that renders the words ‘under God’ somehow secular,” said Gaylor. In 2002, Newdow won a historic ruling by the 9th Circuit that declared “under God” in the pledge unconstitutional. That challenge was dismissed by the U.S. Supreme Court for lack of standing. But Newdow, an emergency room doctor with a law degree, has broadened his challenge to other federal districts because of widespread protests of “under God” in the pledge.
Newdow and the plaintiffs are mulling a challenge in state court.