Upholding the Pledge of Allegiance - KOTA Territory News

Upholding the Pledge of Allegiance



Gary Jensen
Beardsley, Jensen and Von Wald

Does authorizing time each day for elementary students to voluntarily recite the pledge of allegiance – with its phrase of "under God" – violate a student's constitutional rights?


No, it does not, according to the United States Court of Appeals for the First Circuit which upheld validity of the New Hampshire School Patriot Act in the case of Freedom from Religion Foundation v. Hanover School District, 2010 WL 4540588.


The New Hampshire School Patriot Act passed in 2002 provides, among other things, that:


A school district shall authorize a period of time during the school day for the recitation of the pledge of allegiance. Pupil participation in the recitation of the pledge of allegiance shall be voluntary.


Pupils not participating in the recitation of the pledge of allegiance may silently stand or remain seated but shall be required to respect the rights of those pupils electing to participate.


In addition to the Freedom From Religion Foundation, two of its members and their three children brought this lawsuit. The parents identified themselves as atheist and agnostic, respectively, and their grade school age children as either atheist or agnostic. The children's elementary school routinely recited the Pledge of Allegiance under the leadership of their teachers.


In reaching its decision, the Court explained that the phrase, "under God," obviously has "some religious content," but that did not end the inquiry because, "the Constitution does not „require complete separation of church and state." Likewise, the Court noted that its inquiry doesn't end simply because the Pledge and the phrase "under God" are not themselves prayer. "There are many religiously infused practices that do not rise to the level of prayer that are clearly prohibited by the Establishment Clause" (examples being the teaching of creation science or display of a Ten Commandments poster).


In an elaborate constitutional analysis, the Court concluded that the Pledge of Allegiance does not violate the constitutional right against the Establishment of Religion, the Free Exercise of Religion, or the Equal Protection Clause.


As for the issue of the Free Exercise of Religion, the court stated:


Because the Doe children allege mere exposure to the religious content of the Pledge, they cannot state a claim under the Free Exercise Clause, nor can their parents, as „the mere fact that a child is exposed on occasion in public school to a concept offensive to a parent's religious belief does not inhibit the parent from instructing the child differently.


As for the Equal Protection of Law clause, the court stated:

[The Act] applies equally to those who believe in God, those who do not, and those who do not have a belief either way, giving adherents of all persuasions the right to participate or not participate in reciting the pledge, for any reason or no reason.


If you're interested in this issue, the Court's decision will be educational for you to read. 


E-mail Gary


Lawline@KOTATV.com is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.


1.      You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future? 


2.      You learn another person is hurt using a machine that has injured others in the past and will injure others in the future? 


3.      You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?  


What should you do? 


Try to prevent the next accident, injury, and catastrophe from happening. 


How can you do that? 


Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.


Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.   


Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker. 

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