Testing the limits of pledging allegiance

Pledging allegiance to the flag may seem like a simple act, but it is not immune from controversy or constitutional inquiry. The limits on school systems have been tested over the years, and there have been some recent court decisions on the issue.

Before looking at the decisions, it is important to note that the Pledge of Allegiance, as a ceremonial activity, promotes both civic awareness and patriotism. The Pledge represents an opportunity to reflect on the fact that, although we are a diverse people, we share a national identity as citizens who are committed to the promise of liberty and justice for all. With that being said, we need to be cognizant of the rights of those who may not wish to participate in this ceremony.

A federal district court in New Hampshire has ruled that the state’s statute requiring the recitation of the Pledge of Allegiance in schools does not violate the U.S. Constitution’s Establishment or Free Exercise of Religion Clauses. You can view the full decision by clicking here. It also rejected claims that the state’s pledge law violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In addition, it summarily dismissed the claim that the pledge law was void as against public policy on the ground of failure to state a claim upon which relief could be granted. Lastly, the district court dismissed all state law claims without prejudice, allowing them to be refiled in state court.

In that case, the parents of three public school students objected to their children being subjected to recitation of the Pledge of Allegiance in school. Specifically, the parents, who identify themselves and their children as atheist or agnostic, contended the pledge offended their and their children’s rights under the First Amendment of the U.S. Constitution’s Establishment and Free Exercise of Religion Clauses because of the inclusion of the phrase “under God” in the pledge. They also raised Fourteenth Amendment due process and equal protection claims, along with the claim that the pledge law was void as against public policy. In the aftermath of September 11 attacks, the state legislature passed the New Hampshire Patriot Act, which provided for the daily recitation of the pledge in the state’s schools. The statute made student participation voluntary by providing an opt-out clause. While conceding that the children were not compelled to recite the pledge, the parents sought assurances from the principals at their children’s schools that the pledge would not be recited in their children’s classes. However, no such assurances were given.

After briefly discussing the various approaches federal courts have taken to addressing the constitutionality of recitation of the pledge in school, the district court applied the three-prong Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). Regarding the secular purpose prong, it concluded that both the express purpose of the New Hampshire statute (continuing “the policy of teaching [the] country’s history to the elementary and secondary pupils of [the] state”) and the legislative history of the statute demonstrated a secular purpose. It pointed out that the record of the legislative discussions made clear that the law was enacted for patriotic, not religious, reasons. It also noted that the fact that when the pledge recitation law was revised by the legislature it was separated from the provision allowing recitation of the “Lord’s prayer” in schools, further supported the view the law had a secular purpose. Turning to the primary effect prong, the district court stressed that the government may not coerce an individual to support or participate in religion or its exercise. However, it found no coercive effect was present under New Hampshire’s law.

In 2008, The U.S. Court of Appeals for the Eleventh Circuit (AL, FL, GA) in Frazier v. Winn struck down a Florida state law that it found requires all students to stand at attention during the Pledge of Allegiance, even those excused from reciting the Pledge. However, the court upheld the law’s requirement that a student obtain parental permission to be excused from participating. You can view the Frazier decision by clicking here.

For a look at more cases under the religion clause of the first amendment, click here.