Freedom from Religion Foundation v. Congress of the United States, (D NH, Aug. 7, 2008), is an opinion in a lawsuit challenging the constitutionality of the recitation of the Pledge of Allegiance containing the phrase "under God" in New Hampshire schools. The suit was brought on behalf of atheist and agnostic parents of three New Hampshire school children, and the lead attorney was Michael Newdow who, himself as a plaintiff, had unsuccessfully litigated a challenge to the Pledge in 2004. New Hampshire law permits children who do not wish to recite the Pledge to silently stand or remain seated while other recite it. Parents here however sought to have the recitation of the Pledge eliminated from the classroom.
Suing the U.S. Congress, the United States government, and three school districts, plaintiffs alleged some 16 bases on which recitation of the Pledge should be found unconstitutional or otherwise invalid. These included Establishment Clause and Free Exercise claims, as well as claims that the school district exposed children to emotional harm by requiring their presence in the classroom while the pledge is recited and a claim that the Pledge violates public policy by fostering national divisiveness. Several other parties intervened as defendants to support recitation of the Pledge.
In this decision, the court dismissed claims against the United States Congress. Relying on the "Speech or Debate" clause of the Constitution, it held that courts lack jurisdiction to direct Congress to enact or amend legislation. The court also dismissed the United States as a defendant, finding that plaintiffs lacked taxpayer standing. The United States however remains a party as an Intervenor, as do the state of new Hampshire, the Knights of Columbus and several New Hampshire school students and parents who intervened. (See prior related posting.)
