Defending the Judeo-Christian Heritage, limited government, and the American Constitution
Saturday February 6th 2016

Another Win for the Pledge of Allegiance

Liberty Alerts, American Center for Law and Justice

It did not take long.  It took just weeks for a federal appeals court to reject another attempt by the Freedom From Religion Foundation (FFRF) to challenge the constitutionality of the Pledge of Allegiance in New Hampshire schools.

As you may recall, in mid-November, a three-judge panel of the U.S. Court of Appeals for the First Circuit upheld the constitutionality of the Pledge stating:  “We hold that the New Hampshire School Patriot Act and the voluntary, teacher-led recitation of the Pledge by the state’s public school students do not violate the Constitution. We affirm the order and judgment of the district court dismissing FFRF’s complaint.”

This significant and sound decision echoes what we argued in our friend-of-the-court brief filed in the case.

We represented 42 members of the 111th Congress – including two U.S. Senators and 40 members of the U.S. House of Representatives.  We also represented more than 80,000 Americans who signed on to the ACLJ’s Committee to Protect “Under God” – including many parents of school-age children who attend public schools and desire to recite the Pledge of Allegiance in its entirety.

At issue was a New Hampshire statute, the New Hampshire School Patriot Act, that permitted students to voluntarily recite the Pledge in school.  A federal district court upheld the constitutionality of the state law and the FFRF appealed to the First Circuit.

In its decision in November, the appeals court also determined: “It takes more than the presence of words with religious content to have the effect of advancing religion, let alone to do so as a primary effect.”   Further, the court asserted:  “The New Hampshire School Patriot Act’s primary effect is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation.”

The appeals court also rejected claims that the recitation of the Pledge is an endorsement of religions:   “The Pledge’s affirmation that ours is a ‘nation, under God’ is not a mere reference to the fact that many Americans believe in a deity, nor to the undeniable historical significance of religion in the founding of our nation. As the Supreme Court recognized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), to recite the Pledge is to ‘declare a belief’ and ‘affirm[] . . . an attitude of mind.’ Id. at 631, 633. In reciting the Pledge, a student affirms a belief in its description of the nation.”

Following that decision, the Freedom From Religion Foundation asked the appeals court to reconsider the case – requesting that the three-judge panel rehear the case or that the entire First Circuit panel hear the case.  This week, the appeals court rejected both requests.

We’re not surprised by that outcome.  It is clear that the FFRF continues to promote a twisted and distorted view of the Constitution its pursuit to have the Pledge declared unconstitutional in New Hampshire schools.

It’s now up to the FFRF to decide if they want to ask the U.S. Supreme Court to take this case.  They have 90 days to file a Petition for a Writ of Certiorari at the high court, asking the Justices to take the case.

If they do indeed file the petition, we will immediately file an amicus brief asking the court not to waste judicial resources on such a flawed argument and urge the high court to reject the request to hear the case – keeping the appeals court decision intact.

We will keep you posted on developments as this case progresses.

Used with the permission of the American Center for Law and Justice.