The Pledge of Allegiance Cases

http://www.becketfund.org/wp-content/uploads/2013/06/Mass-Pledge-Permission-e1370982637464.jpgRound Four: Becket Fund Fights for Students to Defend “Under God”

Doe v. Acton-Boxborough Regional School District, Massachusetts, 2011-current

After three failed attempts to strike down “under God” on the federal level, atheist advocates now seek to challenge it on the state level in Acton-Boxborough, Massachusetts.

On October 21, 2011, the Becket Fund for Religious Liberty filed a request to intervene in the case on behalf of students who want to continue saying the Pledge of Allegiance, their parents, and the Knights of Columbus. The Becket Fund entered the case to defend the Pledge from yet another constitutional challenge to the words “under God”.

This case, brought by the American Humanist Association, alleges that the Pledge violates the equal protection rights of humanists and atheists and demands the court declare it unconstitutional under the Massachusetts Constitution.  If they have it their way, Massachusetts will only allow patriotic ceremonies if they do not refer to God.

On June 8, 2012, a Massachusetts state court upheld the Pledge as constitutional.  The case is now before the Supreme Judicial Court of Massachusetts.  The court held oral argument September 4, 2013.

On May 9, 2014, the Becket Fund secured its fourth victory in preserving the Pledge when Massachusetts’ highest court unanimously upheld the words “Under God.”

Round Three: Becket Fund intervenes against Newdow in New Hampshire

Freedom From Religion Foundation v. Hanover School District, New Hampshire, 2007-2011

The next round in the fight over the Pledge has sprouted in New England, where Dr. Newdow, along with the Wisconsin-based, Freedom From Religion Foundation, filed suit on Halloween 2007 to stop optional recitation in the Hanover, New Hampshire public schools. Representing three New Hampshire families and the Knights of Columbus, the Becket Fund intervened and asked the federal district court to dismiss Newdow’s challenge to the Pledge in New Hampshire.

The district court rejected Newdow’s challenge and he then appealed to the First Circuit Court of Appeals in Boston. Hasson again argued the case for the Pledge as the quintessential statement of what the American political philosophy is. In November 2010, the First Circuit joined every other appellate court to rule on the issue. As Hasson stated: “The Constitution doesn’t ban the word God from public discourse, in California or New Hampshire, in the Pledge or anywhere else.”

Dr. Newdow appealed to the Supreme Court.  In June 2011, the Supreme Court refused to hear the case.

Round Two: Becket Fund Argues for “under God” at the Ninth Circuit

Newdow v. Rio Linda Union School District, California, 2005-2010

Just a year after his procedural defeat at the Supreme Court, Newdow again filed suit in California challenging the Pledge’s use of the words “under God.” The Becket Fund intervened on behalf of parents of California public school students who sought to continue voluntarily reciting the Pledge in school. As Seamus Hasson explained, “This is about a lot more than just how school kids start their day. It’s about where the next generation thinks its rights come from – the Creator or the State.”

After Newdow’s victory in federal district court, the Becket Fund appealed the case to the Ninth Circuit. In December 2007, in a lively argument before a packed courtroom that included several of Dr. Newdow’s boisterous supporters, Mr. Hasson argued the case on behalf of schoolchildren and their parents, showing that the phrase “under God” has always been used in American history as a way of protecting rights, not violating them.

After considering the case for almost two-and-a-half years, in March 2010 the Ninth Circuit reversed itself and upheld the constitutionality of the words “under God.” Remarkably, the court that once held that saying “under God” was like saying a prayer adopted the Becket Fund’s position that the Pledge is a statement of political philosophy.

Dr. Newdow appealed the decision to the Supreme Court, which rejected his attempt on procedural grounds.  He chose not to try again.

Round One: Supreme Court Dismisses Newdow on a Technicality

Elk Grove Unified School District v. Newdow, California, 2000-2004

In March of 2000, Newdow sued to challenge the constitutionality of the wording of the Pledge on behalf of his daughter, who was a student in California public schools. The Ninth Circuit Court of Appeals later agreed that public schools violate the First Amendment by leading their students in a voluntary recitation of the Pledge that includes the words “under God.” While the Supreme Court initially agreed to give full review of the case, in June, 2004, the Court reversed the Ninth Circuit’s ruling on a technicality: Newdow lacked standing to bring the suit in federal court on behalf of his daughter because he did not have custody of her.

The Becket Fund filed an amicus curiae (“friend-of-the-court”) brief before the Supreme Court on behalf of the Knights of Columbus, explaining why the phrase “under God” was added to the Pledge of Allegiance and how that addition is constitutional. The brief argued that the phrase “under God” is a statement of political philosophy reflecting a premise of the nation’s founding and was added at the height of the Cold War to distinguish the conception of rights in the United States from that in the U.S.S.R.

Still, it was disappointing that the case was decided on the issue of Dr. Newdow’s standing to bring the suit rather than its merits. As the Becket Fund’s president said, “You win some, you lose some, and some get rained out. It’s a shame the Court couldn’t unify around the same principle that has been unifying the rest of us since the Declaration of Independence: our rights are secure because they come from a higher authority than the state. Sooner or later, the Court will have to face up to that.”

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For more information, or to arrange an interview with one of the attorneys, please contact Emily Hardman, Communications Director, at ehardman@becketfund.org or call 202.349.7224.

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