624 F.3d 157 (5th Cir. 2010), 09-10347, Croft v. Perry

Docket Nº:09-10347.
Citation:624 F.3d 157
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:David Wallace CROFT, As Parents and Next Friend of their minor Children; Shannon Kristine Croft, As Parents and Next Friend of their minor Children; John Doe, As Parents and Next Friend of their minor Children; Jane Doe, As Parents and Next Friend of their minor Children, Plaintiffs-Appellants, v. Rick PERRY, Governor of the State of Texas, Defenda
Attorney:Woody Dean Cook (argued), Dallas, TX, for Plaintiffs-Appellants. James C. Ho., Sol. (argued), Adam Warren Aston, Reed Neal Smith, Austin, TX, for Perry. Steven W. Fitschen, Nat. Legal Found., Dallas, TX, for Wallbuilders, Inc., Amicus Curiae. Kelly J. Shackelford, Chief Counsel, Jeffrey Carl Mate...
Judge Panel:Before JOLLY and GARZA, Circuit Judges, and STARRETT,[*] District Judge.
Case Date:October 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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624 F.3d 157 (5th Cir. 2010)

David Wallace CROFT, As Parents and Next Friend of their minor Children; Shannon Kristine Croft, As Parents and Next Friend of their minor Children; John Doe, As Parents and Next Friend of their minor Children; Jane Doe, As Parents and Next Friend of their minor Children, Plaintiffs-Appellants,

v.

Rick PERRY, Governor of the State of Texas, Defendant-Appellee.

No. 09-10347.

United States Court of Appeals, Fifth Circuit.

October 13, 2010

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Woody Dean Cook (argued), Dallas, TX, for Plaintiffs-Appellants.

James C. Ho., Sol. (argued), Adam Warren Aston, Reed Neal Smith, Austin, TX, for Perry.

Steven W. Fitschen, Nat. Legal Found., Dallas, TX, for Wallbuilders, Inc., Amicus Curiae.

Kelly J. Shackelford, Chief Counsel, Jeffrey Carl Mateer, Gen. Counsel (argued), Liberty Legal Institute, Plano, TX, for Am. Legion Dept. of Texas, Amicus Curiae.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY and GARZA, Circuit Judges, and STARRETT,[*] District Judge.

E. GRADY JOLLY, Circuit Judge:

In this appeal, the plaintiffs, David and Shannon Croft and John and Jane Doe, parents of minor children who attend public schools in Texas, challenge the Texas pledge of allegiance, as amended to include the phrase " one state under God," and a provision of the Texas Education Code requiring students to recite the pledge daily. They seek injunctive and declaratory relief against Texas Governor Rick Perry, arguing that the pledge and education provision violate the Establishment Clause of the First Amendment to the United States Constitution as incorporated by the Fourteenth Amendment.

On cross-motions for summary judgment, the district court found that the plaintiffs brought only facial challenges to the pledge, concluded that the pledge and education provision satisfy the Establishment Clause under any applicable test, and granted summary judgment in favor of the defendant. On appeal, the plaintiffs argue that the district court erred in treating their claim as a facial challenge; the plaintiffs

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also reassert their arguments that the amended pledge violates the Establishment Clause. Because we agree that the pledge and the education provision do not violate the Establishment Clause, we AFFIRM.

I.

In 2007, the Texas state legislature amended the Texas state pledge of allegiance to include, for the first time, the words " under God." As amended, the pledge reads, " Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." Tex. Gov't Code Ann. § 3100.101 (West 2008). Under § 25.082 of the Texas Education Code,1 students are required to recite the state pledge once daily unless excused by a parent. Tex. Educ.Code Ann. § 25.082 (West 2006).

Prior to passage the amendment underwent several rounds of debate in the state legislature and was subject to analysis by research committees from the state House of Representatives and Senate. In the course of debate, two purposes for inserting the phrase " under God" into the pledge were advanced. First, in the state House of Representatives, Representative Riddle, the bill's sponsor, explained that " there was something missing out of our state pledge because it wasn't consistent with our national pledge." According to her, " what this bill does, it simply replicates, mirrors our national pledge." When asked to amend the bill to include other language from the national pledge, such as " with liberty and justice for all," Representative Debbie Riddle declined, explaining that " it says what we wanted it to say" and that she " didn't think of" mirroring other parts of the national pledge.

Second, in the state Senate, Senator Dan Patrick, after pointing to references to God strewn throughout founding-era documents, expressed an intention to " acknowledge our Judeo Christian heritage by placing the words under God in the state pledge." Bill analyses prepared by the House and Senate research committees also identified acknowledgment of religious heritage as the primary purpose for the bill. According to the Senate committee, " [s]ince the founding of the United States through modern times, there has been a link to God in the political and social culture of the United States .... Placing the phrase ‘ under God’ in the Texas state pledge may best acknowledge this heritage."

Before the district court, the plaintiffs argued that the amended pledge violates the Establishment Clause in four ways: (1) the pledge's use of the singular " God" impermissibly favors monotheistic over polytheistic beliefs; (2) the amendment does not have a secular purpose or effect, as any stated purpose is pretext for a religious motivation; (3) the pledge impermissibly endorses religious belief by affirming that Texas is organized " under God" ; and

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(4) the pledge's recitation in schools pursuant to § 25.082 of the Texas Education Code impermissibly coerces religious belief.

After reviewing the pledge's language and the legislative history, the district court rejected each of the plaintiffs' theories as to how the pledge violates the Establishment Clause and granted summary judgment to the defendant. On appeal, the plaintiffs argue that the district court erred in treating their complaint as a facial challenge, generally questioning the constitutionality of the statute, rather than as an as-applied challenge questioning the constitutionality of the statute as specifically applied to their children. The plaintiffs further argue and that the district court erred in holding that the pledge itself survived any constitutional attack.

We consider each of the plaintiffs' arguments separately.

II.

We review the district court's grant of summary judgment de novo, applying the same standard as the district court. E.g., Golden Bridge Tech., Inc. v. Motorola, Inc., 547 F.3d 266, 270 (5th Cir.2008). Summary judgment is appropriate where the submissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A.

At the outset of its opinion, the district court noted that the plaintiffs failed to identify whether their objection to the pledge was a facial challenge or an as-applied challenge. Because the plaintiffs showed no evidence of the manner in which the pledge was specifically administered unconstitutionally against them, as parents or as next friends of their minor children, the district court treated their challenge as facial and required that they " ‘ show that under no circumstances could the law be constitutional.’ " Dist. Ct. op. at 4 (citing Barnes v. Mississippi, 992 F.2d 1335, 1343 (5th Cir.1993)).

The plaintiffs argue that applying this " heightened burden" was error, as there is no distinction between facial and as-applied challenges in the context of the Establishment Clause. According to the plaintiffs, once an individual with standing challenges the government's conduct, that conduct is reviewed under one or all of the several tests used by the Supreme Court to identify Establishment Clause violations; no showing of unconstitutionality under all circumstances is required.

The plaintiffs are incorrect. Both we and the Supreme Court have recognized the difference between facial and as-applied Establishment Clause challenges. See Bowen v. Kendrick, 487 U.S. 589, 601-02, 620-21, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (concluding that the Adolescent Family Life Act was facially constitutional, but remanding for consideration of its constitutionality as applied to " pervasively sectarian" institutions); Henderson v. Stalder, 287 F.3d 374, 380 n. 6 (5th Cir.2002) (denying standing for a facial challenge, but leaving open the possibility of standing on an as-applied challenge); Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963, 969 n. 10 (5th Cir.1992) (deciding the issue of facial constitutionality, but leaving open the possibility for an as-applied challenge). In fact, in a related case brought by these same plaintiffs challenging Texas's moment of silence statute, Croft v. Governor of Texas, 562 F.3d 735 (5th Cir.2009), we declined to consider the hypothetical Lemon entanglements posed by the plaintiffs, pointing out that " speculative

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possibilities may be fertile ground for as-applied challenges if they occur," but were inappropriate on facial review. Croft, 562 F.3d at 750.

Because a distinction exists between facial and as-applied Establishment Clause challenges, we must consider where the plaintiffs' claims belong. The Supreme Court has recently explained that where the " plaintiffs' claim and the relief that would follow ... reach beyond the particular circumstances of th[o]se plaintiffs," the plaintiffs must " satisfy our standards for a facial challenge to the extent of that reach." John Doe No. 1 v. Reed, __ U.S. __, 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (2010) (citing United States v. Stevens, __ U.S. __, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010)).

As described above, the plaintiffs bring four Establishment Clause challenges. None are limited to the " particular circumstances of [the] plaintiffs," and so each is clearly a facial attack. The first three-sect preference, the Lemon test, and endorsement-are best construed as a facial challenge to the pledge itself, Tex. Gov't Code Ann. § 3100.101. The last-coercion-is best construed as a facial challenge to the education provision, Tex. Educ.Code Ann. § 25.082. Our conclusion that the challenges are facial attacks is confirmed by the relief sought by the plaintiffs: that the pledge be invalidated in its entirety, not merely that...

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