First Circuit Upholds New Hampshire Law that Requires Public Schools to Set Aside Time for Voluntary Recitation of Pledge of Allegiance

12 November 2010 – U.S. First Circuit
Joseph Hepworth

The United States Court of Appeals for the First Circuit ruled on 12 November 2010 that a New Hampshire law requiring public schools to set aside time for voluntary recitation of the Pledge of Allegiance does not violate the First Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment. The New Hampshire law required the public schools to provide time for reciting the Pledge but also required the schools to allow children to decline to participate for any reason. In Freedom from Religion Foundation v. Hanover School District, an atheist/agnostic family with children in elementary school sued the school district claiming that the law violated both the Establishment Clause and the Free Exercise Clause of the First Amendment because the pledge includes the words “under God.”

The court rejected all of the family’s claims. Applying the Lemon test, the court ruled that the law had a secular purpose (to promote patriotism in the wake of September 11, 2001), the primary effect of the act was the advancement of patriotism, not religion, and the law did not entangle government in religion. Applying the “endorsement analysis,” the court concluded that the law did not endorse religion or any particular religion. It reasoned that the two words, “under God” were more similar to a crèche as part of a larger secular holiday display than to a crèche standing alone. Finally, the court upheld the law under the “coercion analysis.” The court concluded that the pledge is not as coercive as a prayer or a moment of silence, particularly in light of the two religious words being couched in non-religious text.

The court also rejected the family’s free-exercise claim concluding that other students reciting the Pledge did not violate the children’s right to the free exercise of atheism. Quoting from a prior decision, the court ruled the “public schools are not obligated to shield individual students from ideas which potentially are religiously offensive.”