1st Circuit turns away attack on Pledge of Allegiance

CONCORD, N.H. — The U.S. Court of Appeals for the 1st Circuit Friday upheld the dismissal of an atheist group’s lawsuit that attacked the phrase “under God” in the Pledge of Allegiance. Alliance Defense Fund attorneys filed a friend-of-the-court brief with the court in April that argued that the historical practice of reciting the phrase as part of the Pledge in no way violates the U.S. Constitution. The brief also argued that the group Freedom From Religion Foundation had no standing to bring the suit in the first place.

“The Pledge of Allegiance shouldn’t be banned from the nation’s public schools simply to appease an atheist group’s political agenda,” said ADF Senior Counsel David Cortman.  “The court did the right thing in affirming the district court’s dismissal of this case. Acknowledgements of the nation’s unquestionable religious heritage do not have to be stripped from the public square. We do not need to scratch ‘In God We Trust’ off our coins, remove references to our ‘Creator’ from the Declaration of Independence when used in class, or remove ‘under God’ from the Pledge of Allegiance.”

In October 2007, FFRF sued over a New Hampshire law that allows public school students to voluntarily participate in the recitation of the Pledge of Allegiance. FFRF alleged in its suit, Freedom From Religion Foundation v. United States, that the children and their parents they represent suffered legal injury while the Pledge was recited at school because the words “under God” make it a religious activity.

“The courts have repeatedly ruled that the phrase ‘under God’ is constitutional when used in the Pledge of Allegiance,” explained ADF Legal Counsel Jeremy Tedesco.

In its opinion, the 1st Circuit wrote, “That the phrase ‘under God’ has some religious content…is not determinative of the New Hampshire Act’s constitutionality. This is in part because the Constitution does not ‘require complete separation of church and state….’ 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…. FFRF’s premise is that children who choose not to recite the Pledge become outsiders based on their beliefs about religion. That premise is flawed…. There are a wide variety of reasons why students may choose not to recite the Pledge, including many reasons that do not rest on either religious or anti-religious belief…. Furthermore, the constitutionality of a state statute does not turn on the subjective feelings of plaintiffs as to whether a religious endorsement has occurred.”

ADF argued in its friend-of-the-court brief, filed together with Cornerstone Family Research, that the U.S. District Court for the District of New Hampshire ruled correctly when it ruled against FFRF. However, the brief also argued that the district court need not have ruled on the merits of the case at all, since FFRF did not prove that it even has sufficient grounds to bring the lawsuit in the first place: “The Plaintiffs lack standing because their alleged injuries are predicated on a fiction: that inclusion of the words ‘under God’ in the Pledge of Allegiance transforms its recitation into a religious exercise or activity.”