RICHMOND, Va. (BP)–A federal appeals court Aug. 10 upheld the recitation of the Pledge of Allegiance in Virginia’s public schools, ruling that the phrase “under God” does not violate the U.S. Constitution’s prohibition of government-established religion.
Virginia law requires the daily recitation of the Pledge, although students are allowed to opt out if their parents object on religious or other grounds. The case involves a Mennonite father of two children who sued the state, saying the phrase “under God” makes the Pledge unconstitutional and arguing that the Pledge itself violates his religion, which prohibits the intertwining of church and state.
A three-judge panel of the Fourth Circuit Court of Appeals unanimously upheld the Virginia law. A lower court had done the same. The Fourth Circuit covers Virginia, Maryland, North Carolina, South Carolina and West Virginia.
“[T]he Pledge, unlike prayer, is not a religious exercise or activity, but a patriotic one,” Judge Karen J. Williams wrote for the court. “… The Pledge … does not amount to an establishment of religion.”
Thirty states filed friend-of-the-court briefs, siding with the Virginia law. It is not known if Edward R. Myers, the Mennonite father, will appeal.
The court’s ruling comes more than a year after atheist Michael Newdow failed in his bid to prevent Pledge recitation in his daughter’s California school district. In that case the Supreme Court ruled against Newdow on a technicality, saying he did not have legal standing to represent his daughter. Newdow has since re-filed the case in federal court with several co-plaintiffs, apparently giving him the legal standing he needs. Newdow and the others want the phrase “under God” stripped from the Pledge altogether. Congress added the phrase in 1954.
In her ruling Williams noted that no Supreme Court justice has “ever suggested that the Pledge is unconstitutional.”
“Undoubtedly, the Pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words ‘under God’ contain no religious significance,” she wrote. “The inclusion of those two words, however, does not alter the nature of the Pledge as a patriotic activity.”
Although the law was upheld unanimously, the three-judge panel had significant disagreement, and the other two judges wrote concurring opinions. Judge Allyson K. Duncan disagreed with Williams’ inclusion of an historical analysis of the role of religion in American society. Judge Diana Gribbon Motz went even further, saying she concurred “in the judgment — but only the judgment,” and even suggested that requiring recitation of the Pledge might be unconstitutional.
In a lengthy list of historical references, Williams noted the Declaration of Independence contains a reference to the “Creator,” the Constitution refers to the “Year of Our Lord,” the first Congress urged President Washington to “proclaim a day of public thanksgiving and prayer,” and the Supreme Court opens with “God save the United States and this honorable court.”
“If the founders viewed legislative prayer and days of thanksgiving as consistent with the Establishment Clause, it is difficult to believe they would object to the Pledge, with its limited reference to God,” Williams wrote. “The Pledge is much less of a threat to establish a religion than legislative prayer, the open prayers to God found in Washington’s prayer of thanksgiving, and the Declaration of Independence.”
Duncan said Williams’ historical analysis “comes closer” to crossing boundaries set by the Supreme Court — particularly in this year’s case in which the Supreme Court struck down a Kentucky Ten Commandments display — “than is necessary to sustain the state law at issue here.”
Motz suggested she would vote to overturn the law if not for Supreme Court precedent.
“[R]equiring recitation of the Pledge, with its invocation of a monotheistic God, might well be seen as both favoring religion over nonreligion and ‘preferring’ one religious tradition over others,” she wrote. “However, the Justices of the Supreme Court have stated, repeatedly and expressly, that the Pledge of Allegiance’s mention of God does not violate the First Amendment. I would affirm the district court’s judgment solely on the basis of this considerable authority.”
The case is Myers v. Loudoun County Public Schools (03-1364).
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