Court OKs NH law allowing 'God' pledge in schools

By Denise Lavoie
AP Legal Affairs Writer / November 15, 2010

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BOSTON—The constitutionality of a New Hampshire law that requires schools to authorize a time each day for students to voluntarily recite the Pledge of Allegiance has been upheld by a federal appeals court that found the oath's reference to God doesn't violate students' rights.

A three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston on Friday affirmed a ruling by a federal judge who found that students can use the phrase "under God" when reciting the pledge.

The ruling came in a lawsuit filed by The Freedom From Religion Foundation, a Madison, Wis., educational group working for the separation of church and state; two group members, identified as Jan and Pat Doe; and their three children, who attend public schools in the Hanover school district in New Hampshire and the Dresden district in New Hampshire and Vermont.

The parents, who identified themselves and their children as atheist and agnostic, said the pledge is a religious exercise because it uses the phrase "under God." They argued the recitation of the pledge at school made their children "outsiders" to their peers on the grounds of their religion.

The pledge, written in 1892 by socialist writer and Baptist minister Francis Bellamy, partly to help heal sectional hatred still lingering from the Civil War decades earlier, is: "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all."

The law challenged by the lawsuit is the New Hampshire School Patriot Act, which was enacted in 2002 months after the Sept. 11, 2001, terrorist attacks. Under the law, student participation in the pledge is voluntary. Students who choose not to recite the pledge may stand silently or remain seated.

In its ruling, the 1st Circuit agreed with a U.S. District judge in New Hampshire, who ruled in October 2009 that the law is constitutional.

"In reciting the Pledge, students promise fidelity to our flag and our nation, not to any particular God, faith, or church," Chief Judge Sandra Lynch wrote for the court. "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."

California physician and attorney Michael Newdow, who has fought for years to strip the phrase "under God" from the Pledge of Allegiance, said he likely will appeal the ruling by asking the three-judge panel to reconsider or to refer the case to the full appeals court for a hearing.

"Once again, we have federal judges doing what is politically popular as opposed to upholding the Constitution," said Newdow, who represented the plaintiffs in the case.

He said the case isn't about "whether you believe in God or don't believe in God."

"It's whether you believe in the government respecting us all equally or the government favoring your religious views," he said.

New Hampshire Senior Assistant Attorney General Nancy J. Smith did not immediately return telephone calls seeking comment Monday.

The American Center for Law and Justice, which filed a friend-of-the-court brief in the case, praised the ruling.

"This appeals court reached a significant and sound decision that underscores what most Americans understand -- that the recitation of the Pledge of Allegiance embraces patriotism, not religion," the group's chief counsel, Jay Sekulow, said in a statement.