New Hampshire Federal Court Rejects Challenge To Pledge of Allegiance

In Freedom from Religion Foundation v. Hanover School District, (D NH, Sept. 30, 2009), a New Hampshire federal district court dismissed a constitutional challenge to the recital of the Pledge of Allegiance in school classrooms. Atheist and agnostic parents and students raised Establishment Clause, free exercise, equal protection and due process claims. Perhaps the most interesting part of the court's opinion was its lengthy Establishment Clause analysis. In concluding that the New Hampshire statute mandating recitation of the pledge in classrooms, but making student participation voluntary, passed the Lemon test, the court said in part:

the Pledge of Allegiance is not a religious prayer, nor is it a "nonsectarian prayer" .... and its recitation in schools does not constitute a "religious exercise." The Pledge does not thank God. It does not ask God for a blessing, or for guidance. It does not address God in any way.... Rather, the Pledge, in content and function, is a civic patriotic statement.... Peer or social pressure to participate in a school exercise not of a religious character does not implicate the Establishment Clause, and as a civic or patriotic exercise, the statute is clear in making participation completely voluntary....

The words "under God" undeniably come from the vocabulary of religion, or, at the least, reflect a theistic orientation, but no more so than the benign deism reflected in the national trust in God declared on our currency, or in ceremonial intercessions to "save this Honorable Court" .... It may well be that some, perhaps many, people required to employ U.S. currency, or socially pressured to stand during civic ceremonies, feel offended by what seems to them an imposition of theistic doctrine. But the Constitution prohibits the government from establishing a religion, or coercing one to support or participate in religion, a religious exercise, or prayer. It does not mandate that government refrain from all civic, cultural, and historic references to a God.....

When Congress added the words "under God," to the Pledge in 1954, its actual intent probably had far more to do with politics than religion — more to do with currying favor with the electorate than with an Almighty. (God, if God exists, is probably not so easily fooled.) In the intervening half century since the words were added, rote repetition has, as Justice Brennan observed, removed any significant religious content embodied in the words, if there ever was significant religious (as opposed to political) content embodied in those words. Today, the words remain religious words, but plainly fall comfortably within the category of historic artifacts — reflecting a benign or ceremonial civic deism that presents no threat to the fundamental values protected by the Establishment Clause.