Federal Court Dismisses Challenge to Pledge of Allegiance and “Under God”

“The Pledge of Allegiance is a time-honored exercise that embraces patriotism, not religion” - Jay Sekulow, chief counsel of the ACLJ

WASHINGTON, Oct. 1, 2009—Today, the American Center for Law and Justice (ACLJ), representing more than 50 members of Congress and more than 80,000 Americans in an amicus brief, said Wednesday's decision by a federal court in New Hampshire to dismiss a lawsuit challenging the Pledge of Allegiance and the phrase "under God" represents a "sound and well reasoned decision." 

"We're extremely pleased with the sound and well reasoned decision issued by the court - a decision that rejects another attempt to rewrite history by targeting the Pledge and the phrase ‘under God,'" said Jay Sekulow, chief counsel of the ACLJ, the nation's top conservative public interest law firm.  "The lawsuit was dismissed and the court concluded that the New Hampshire statute giving students an opportunity to voluntarily recite the Pledge in school is constitutional and consistent with the First Amendment."

In 2007, the Freedom From Religion Foundation, represented by Michael Newdow, 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.  Specifically, the lawsuit challenged the 1954 addition of the words "under God" and the practice of reciting the Pledge in public schools as a patriotic exercise.

On Sept. 30, Chief Judge Steven McAuliffe issued an order rejecting the Plaintiffs' arguments and dismissing the complaint.  The court applied several different Establishment Clause tests and held that the school districts had not violated the Establishment Clause of the First Amendment of the Constitution.

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 court declared, "[t]he New Hampshire Pledge statute has a secular legislative purpose. It was enacted to enhance instruction in the Nation's history, and foster a sense of patriotism.  Its primary effect neither advances nor inhibits religion. It does not foster excessive government involvement with religion. The court was also very clear that the pledge statute implemented by the New Hampshire school districts does not have the effect of coercing children to support or participate in religion or its exercise.  Read the full opinion here.

In 2008, the ACLJ filed an amicus brief in U.S. District Court in Concord, New Hampshire.  The ACLJ's friend-of-the-court brief argued that the Pledge and the phrase "one Nation, under God" do not violate the Constitution, saying the words "simply echo the sentiments found in the Declaration of Independence and recognize the undeniable truth that our freedoms come from God."  The brief contended:  "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," the brief argued, "it does not compel the federal judiciary to redact religious references in every area of public life in order to suit atheistic sensibilities."  Read the full amicus brief here. 

In its amicus brief, the ACLJ represented 51 members of the 110th Congress including three Senators:  Sam Brownback, James M. Inhofe, and Ted Stevens.  Also represented are 48 members of the House:  Robert B. Aderholt, W. Todd Akin, Rodney Alexander, J. Gresham Barrett, Roscoe G. Bartlett, Rob Bishop, Marsha Blackburn, Roy Blunt, Ken Calvert, Chris Cannon, Tom Cole, John Abney Culberson, Mario Diaz-Balart, John T. Doolittle, Tom Feeney, Jeff Flake, J. Randy Forbes, Trent Franks, Scott Garrett, Phil Gingrey, Virgil H. Goode, Jeb Hensarling, Wally Herger, Peter Hoekstra, Duncan Hunter, Walter B. Jones, Ric Keller, Steve King, Jack Kingston, John Kline, Frank D. Lucas, John M. McHugh, Donald A. Manzullo, Jim Marshall, Gary G. Miller, Jeff Miller, Sue Wilkins Myrick, Stevan Pearce, Mike Pence, Joseph R. Pitts, Pete Sessions, John B. Shadegg, John Shimkus, Mark E. Souder, John Sullivan, Lee Terry, Dave Weldon, and Joe Wilson. The ACLJ also represented the Committee to Protect "Under God," which consists of more than 80,000 Americans.

John Anthony Simmons, a Hampton, N.H. attorney assisted the ACLJ in this case.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.  The ACLJ is online at www.aclj.org.  The ACLJ's online newsroom can be accessed at www.DeMossNews.com/aclj.

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