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U.S. Federal Court Gives Constitutional Nod to New Hampshire Patriot Act Authorizing Daily Time for Public School Students to Cite the Pledge of Allegiance

In the most recent of legal challenges to the recitation of our country’s Pledge of Allegiance by public school students, the U. S. Federal Court of Appeals for the First Circuit rendered a decision last month in the case of Freedom From Religion Foundation v. Hanover School District, 09-2473. In this case, the Court upheld as constitutional the New Hampshire Public School Patriot Act that authorizes a period of time each school day for voluntary participation by its public school students in the recitation of the Pledge of Allegiance. This case did not consider the constitutionality of the federal Pledge statute, but was limited to an examination of the constitutionality of New Hampshire’s Patriot’s Act.

FFRF claimed the New Hampshire law violated the Establishment, Free Exercise, Equal Protection and Due Process Clauses of both the U.S. and New Hampshire Constitutions. In upholding the New Hampshire law as constitutional, the Court applied the well established federally recognized three part Lemon test and considered whether the statute has a secular purpose, whether its principal or primary effect is one that neither advances nor inhibits religion, and lastly, whether the statute fosters an excessive government entanglement with religion.

The Court ruled that the law passed the Lemon test on all three prongs concluding that the New Hampshire Act enacted in 2002 in the aftermath of September 11, 2001, had a secular purpose, namely the promotion of patriotism, and did not have the primary effect of the advancement of religion, but rather the advancement of patriotism through a pledge to the flag as a symbol of the nation.

In dismissing FFRF’s argument that the words “under God” violated the Constitution and made outcasts of students unwilling to participate in the recitation of the Pledge, the Court found it significant that the New Hampshire law gives students the option to choose or not to choose to recite the Pledge. The Court reasoned that students can choose not to participate for a variety of reasons which have nothing to do with religion at all or for no reason at all. Accordingly, the Court looking at the words “under God” in the context of the thirty –one word pledge and after giving due consideration to the context and circumstances surrounding the recitation of the Pledge, concluded that the New Hampshire law does not have the effect of endorsing religion.

While noting that the phrase “under God” found in the Pledge has some religious content, the Court did not find it determinative of the Act’s constitutionality reasoning that the Constitution does not require complete separation of church and state. Court did not find the fact that the Pledge and the phrase under God are not prayers as dispositive either concluding that many religiously infused practices do not rise to the level of prayer, but are clearly prohibited by the Establishment Clause. The Court cited the teaching of creation science as one such example. The Court recognized the potential danger to elementary and secondary school student of school- endorsed religious practice but ultimately reasoned that it was a question of where on the spectrum this case involving voluntary, teacher-led recitation of the Pledge, including the phrase” under God” falls.

What are the implications of this case for CT boards and students?

Connecticut law is not dissimilar to New Hampshire’s. CGS 10-230 requires that boards of education develop a policy to ensure that time is available each school day for students in the schools under its jurisdiction to recite the “Pledge of Allegiance”. Further it provides that nothing in the statute be construed to require any person to recite the “Pledge of Allegiance”. While the Second Circuit has not weighed in on this dispute, following the reasoning of the First Circuit Court, CT school districts appear on firm ground in adopting and carrying out the state mandated policy.

A trivia note: The words “under God” were added to the Pledge of Allegiance in 1954 by the U.S. Congress in response to pressure from the Knights of Columbus.