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Pledge law upheld by federal court

Last modified: 11/16/2010 12:00:00 AM
A federal appeals court has found that a New Hampshire law requiring schools to schedule voluntary recitation of the Pledge of Allegiance does not unconstitutionally force religion upon students.

The ruling came in a lawsuit brought by a Hanover couple who claimed the rights of their three young children were violated when elementary school and middle school teachers led their classes in daily recitation of the pledge because it describes the United States as a nation 'under God.' The parents, identified only as Jan and Pat Doe, said their children, like them, were atheist or agnostic.

The couple in 2007 joined with the Freedom From Religion Foundation, a Madison, Wis., organization promoting the separation of church and state, to sue the local school districts and the federal government. Their lawsuit challenged the constitutionality of the New Hampshire School Patriot Act, a law enacted in 2002 amid discussion of the Sept. 11, 2001, terrorist attacks.

The law requires schools to establish a time during the school day for students to voluntarily recite the Pledge of Allegiance. It does not require students to stand during the pledge or give any reason for not joining the recitation, but it does ask them to be silent and respectful.

The New Hampshire law does not include the text of the pledge, but the federal government codified its language in law in 1942. The words 'under God' were added in 1954. The pledge originally was proposed in 1892 by a national youth magazine seeking to commemorate the 400th anniversary of Christopher Columbus's discovery of America, according to the appeals court decision.

The panel of judges on the U.S. Court of Appeals for the First Circuit on Friday rejected the claim that exposing children to group recitation of the Pledge of Allegiance violated their constitutional rights. The judges, a Clinton nominee, a George W. Bush nominee and an Obama nominee, agreed the pledge references religion, but they said its purpose is to encourage patriotism. The ruling affirms a 2009 ruling by U.S. District Judge Steven McAuliffe at the federal court in Concord.

'In reciting the Pledge, students promise fidelity to our flag and our nation, not to any particular God, faith or church,' wrote Chief Judge Sandra Lynch. '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 judges ruled that the phrase 'under God' must be considered within the context of a nonreligious proclamation. They also rejected the Freedom From Religion Foundation's argument that the recitation of the pledge makes outsiders of children who abstain for religious reasons. The choice to participate is voluntary, and there are a number of reasons why students might decide not to recite, the judges wrote.

The decision was applauded by the American Center for Law & Justice, a Washington-based legal organization that defends the free speech rights of religious groups. The center filed a friend-of-the-court brief signed by 41 Republican lawmakers and a lone Democrat.

'The Freedom From Religion Foundation has a disdain for all religious people but specifically attacks the Judeo-Christian founding of our country,' said the center's chief counsel, Jay Sekulow. 'This is not about advancing religion. It's about advancing patriotism.'

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, said her group and the Hanover parents are prepared to resurrect the case in the state courts. She said the addition of the words 'under God' to the pledge distorted the history and goals of the United States.

'We should be pledging allegiance, we think, to the Constitution, which is secular and godless and guarantees personal conscience in matters of religion,' she said.

Gaylor said lawmakers in New Hampshire should have considered research indicating that New England leads the nation in the proportion of residents who are not religious. A 2008 survey by Trinity College in Hartford, Conn., found 29 percent of New Hampshire residents had no religion. In 1990, the same survey found 9 percent of New Hampshire residents had no religion.

(Karen Langley can be reached at 369-3316 or klangley@cmonitor.com.)


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