Pledge of Allegiance challenge stymied in federal court

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CONCORD, N.H. — A federal judge in New Hampshire has tossed a lawsuit seeking to remove the phrase "under God" from the Pledge of Allegiance saying the wording is more secular and legislative in purpose than religious.

The two-word phrase was added to the pledge in 1954 by the U.S. Congress and signed into law by President Dwight D. Eisenhower.

"It was enacted to enhance instruction in the nation's history, and foster a sense of patriotism," Chief Judge Steven McAuliffe, wrote in his opinion, handed down Sept. 30. "Its primary effect neither advances nor inhibits religion. It does not foster excessive government involvement with religion."

According to Jay Sekulow, with the American Center for Law & Justice, the court applied several different Establishment Clause tests and held that the school districts had not violated the Establishment Clause. In keeping with Supreme Court precedent, the court reviewed the phrase "under God" in the context of the rest of the pledge rather than in isolation.

The suit was filed by the Freedom From Religion Foundation, represented by Michael Newdow, who sued two New Hampshire public school districts and Congress on behalf of several parents and students who objected to the voluntary recitation of the Pledge of Allegiance in school.

In 2000, Newdow, a professed atheist, filed a similar federal suit in California on behalf of his daughter. After winning at the appellate level, the case was later tossed by the U.S. Supreme Court, which ruled Newdow had no legal standing as a non-custodial parent. He has also challenged the traditional presidential inaugural prayer for both President George W. Bush and Barack Obama, and the "In God We Trust" motto on U.S. currency.


Historical appeal
Sekulow, representing more than 50 members of Congress and 80,000 Americans, filed an amicus brief challenging the plaintiff's arguments by insisting on the pledge's historical importance.

"These words simply echo the sentiments found in the Declaration of Independence and recognize the undeniable truth that our freedoms come from God," the center's brief read. "These words were placed in the Pledge of Allegiance for the express purpose of reaffirming America's unique understanding of this truth. The United States is different from nations who recognize no higher authority than the state. While the First Amendment affords atheists complete freedom to disbelieve, it does not compel the federal judiciary to redact religious references in every area of public life in order to suit atheistic sensibilities.

In discussing the voluntary practice of reciting the pledge, the judge stated that "patriotism, rather than support of theism over atheism or agnosticism, was the guiding force behind the enactment of the New Hampshire Pledge statute." The statute's legislative history confirmed that it "was enacted for patriotic, not religious, purposes."

McAuliffe added that the pledge is not a religious prayer or exercise and that "peer or social pressure to participate in a school exercise not of a religious character does not implicate the Establishment Clause."

"The pledge does not thank God," he wrote. "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—an affirmation of adherence to the principles for which the nation stands. Inclusion of the words 'under God,' in context, does not convert the pledge into a prayer or religious exercise."

Sekulow lauded the court's ruling.

"This is a sound, well-reasoned decision that underscores what we have argued all along—the pledge and the phrase "under God" should not pose a constitutional crisis. We're extremely pleased that the court concluded that such patriotic exercises as the recitation of the Pledge are consistent with the First Amendment."

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