Freedom From Religion Found. v. Hanover Sch. Dist.

• Decision Date: 12 November 2010
• Docket Number: No. 09-2473,09-2473
• Citation: 626 F.3d 1
• Parties: FREEDOM FROM RELIGION FOUNDATION, et al., Plaintiffs, Appellants, v. HANOVER SCHOOL DISTRICT, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

626 F.3d 1

FREEDOM FROM RELIGION FOUNDATION, et al., Plaintiffs, Appellants,

v.HANOVER SCHOOL DISTRICT, et al., Defendants, Appellees.

No. 09-2473.

United States Court of Appeals,First Circuit.

Heard Sept. 9, 2010.

Decided Nov. 12, 2010.

Michael Newdow with whom Rosanna Fox, was on brief, for appellants.

Nancy J. Smith, Senior Assistant Attorney General, with whom Michael A. Delaney, Attorney General, was on brief, for appellee State of New Hampshire.

Lowell V. Sturgill, Jr., Attorney, Civil Division, with whom Tony West, Assistant Attorney General, Thomas P. Colantuano, United States Attorney, and Robert M. Loeb, Attorney, Civil Division, were on brief, for appellee United States.

Kevin J. Hasson with whom Eric Rassbach and Luke Goodrich, were on brief, for appellees Muriel Cyrus et al.

Steven W. Fitschen, on brief, for The National Legal Foundation, amicus curiae.

Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Shannon Demos, Tessa L. Dysart, and John Anthony Simmons, Sr., on brief, for American Center for Law & Justice et al., amicus curiae.

John A. Eidsmoe, Roy S. Moore, and Benjamin D. DuPré, on brief, for Foundation for Moral Law, amicus curiae.

Jeremy D. Tedesco and David A. Cortman, on brief, for Alliance Defense Fund and Cornerstone Policy Research, amicus curiae.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

LYNCH, Chief Judge.

The question presented is whether the New Hampshire School Patriot Act,N.H.Rev.Stat. Ann. § 194:15-c ("the New Hampshire Act"), which requires that the state's public schools authorize a period during the school day for students to voluntarily participate in the recitation of the Pledge of Allegiance, violates the First or Fourteenth Amendment to the Constitution of the United States. We hold that the statute is constitutional and affirm entry of judgment for defendants.

I.

Plaintiffs are The Freedom From Religion Foundation, its members Jan and Pat Doe, and their three children who attend New Hampshire public schools (collectively "FFRF"). Jan and Pat Doe identify themselves as atheist and agnostic, respectively, and their children as either atheist or agnostic. At the time the amended complaint was filed in 2008, the eldest child was in sixth grade and attended a middle school jointly administered by New Hampshire's Hanover and Dresden school districts, while the younger two children were enrolled in a public elementary school operated by the Hanover district. Pursuant to the New Hampshire Act, the Pledge of Allegiance ("the Pledge") is routinely recited in the Doe children's classrooms under the leadership of their teachers.¹

The full text of the New Hampshire Act, enacted in 2002, is as follows:

I. As a continuation of the policy of teaching our country's history to the elementary and secondary pupils of this state, this section shall be known as the New Hampshire School Patriot Act.

II. A school district shall authorize a period of time during the school day for the recitation of the pledge of allegiance. Pupil participation in the recitation of the pledge of allegiance shall be voluntary.

III. Pupils not participating in the recitation of the pledge of allegiance may silently stand or remain seated but shall be required to respect the rights of those pupils electing to participate. If this paragraph shall be declared to be unconstitutional or otherwise invalid, the remaining paragraphs in this section shall not be affected, and shall continue in full force and effect.

N.H.Rev.Stat. Ann. § 194:15-c.

Several aspects of the statute are worth note. By expressly requiring that student participation in the recitation of the Pledge be voluntary, New Hampshire has created a framework in which a school or educator would violate state law by any actions that rendered student participation involuntary. In addition, the statute allows any student not to participate in the recitation of the Pledge regardless of the student's reasons for non-participation. Those who do not participate may either stand silently or remain seated. The only obligation imposed on non-participants is that they respect the rights of those students electing to participate.

The New Hampshire Act itself does not identify the words of the Pledge or otherwise specify which words should be used. The parties accept that the words of the Pledge that are used in New Hampshire schools are those codified in federal law: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation underGod, ² indivisible, with liberty and justice for all." 4 U.S.C. § 4 ("the federal Pledge statute"). The Pledge, which dates to 1892,³ was first codified in 1942 to clarify the "rules and customs pertaining to the display and use of the flag of the United States of America." See Act of June 22, 1942, Pub.L. No. 77-623, 56 Stat. 377. The words "under God" were added in 1954. See Act of June 14, 1954, Pub.L. No. 83-396, 68 Stat. 249. ⁴

The procedural history of the case before us is not complicated. On November 1, 2007, FFRF filed a lawsuit against the United States Congress and United State of America ("the Federal Defendants"), the Hanover School District and Dresden School District ("the School Districts"), and School Administrative Unit 70.⁵ FFRF sought a declaration that the federal Pledge statute and the recitation of the Pledge in New Hampshire's public schools violated various provisions of the U.S. Constitution, the New Hampshire Constitution, and federal and state law,⁶ and requested injunctive relief to ensure the end of these violations.⁷

The State of New Hampshire, the United States of America, and Muriel Cyrus—a student in the Hanover School district, joined by a group of other students, five of their parents, and the Knights of Columbus—filed motions to intervene to assist in the defense of the New Hampshire Act.⁸ The court granted these motions.

On August 7, 2008, the Federal Defendants filed a motion to dismiss the claims against them, which the court granted.⁹ The constitutionality of the federal Pledge statute, 4 U.S.C. § 4, is not at issue in this appeal.

FFRF filed an amended complaint on November 17, 2008, naming only the School Districts as defendants. FFRF alleged that the School Districts had or would violate the rights of the Doe children under the First Amendment's Establishment and Free Exercise Clauses; the rights of the Doe parents under the Free Exercise Clause; the rights of both the Doe children and their parents under the Due Process and Equal Protection Clauses; and the Doe parents' federal constitutional rights of parenthood, as well as the Doe children's concomitant rights.¹⁰ The United States, New Hampshire, and Cyrus then renewed their motions to dismiss.¹¹

On September 30, 2009, the district court dismissed all of FFRF's federal claims on their merits,¹² and issued a final judgment in favor of the United States, the School Districts, and Cyrus.

FFRF filed a timely notice of appeal from the district court's dismissal of its federal claims against the School Districts.

II.

The issue on appeal is whether the New Hampshire Act requiring that its public schools provide a period for the voluntary recitation of the Pledge violates the Establishment Clause, Free Exercise Clause, Equal Protection Clause, or Due Process Clause. We review de novo the district court's dismissal of FFRF's amended complaint under Rule 12(b)(6), accepting as true all well-pleaded facts in the complaint and drawing all reasonable inferences in the plaintiffs' favor. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009). The issue is one of law.¹³ No material facts are in dispute.

A. The Pledge Does not Violate the Establishment Clause

Under the Establishment Clause, "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. Although applicable originally only against the federal government, theEstablishment Clause was incorporated to apply to the states by the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

In determining whether a law runs afoul of this prohibition, the Supreme Court has articulated three interrelated analytical approaches: the three-prong analysis set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); the "endorsement" analysis, first articulated by Justice O'Connor in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), and applied by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); and the "coercion" analysis of Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).¹⁴ Before applying the three approaches to the case before us, we first address a few general matters.

FFRF's argument is that the School Districts' Pledge practices pursuant to the New Hampshire Act are religious for purposes of the First Amendment because the Pledge itself is a religious exercise in that it uses the phrase "under God." FFRF argues that despite the voluntary nature of any student participation in the Pledge, the result is nonetheless the establishment by the state of religion.

As to the first part of the argument, we begin with the unremarkable proposition that the phrase "under God" has some religious content. In our view, mere repetition of the phrase in secular ceremonies does not by itself deplete the phrase of all religious content.¹⁵ A belief in God is a religious belief. That the phrase has some religious content is demonstrated by the fact that those who are religious, as well as those who are not, could reasonably be offended by the claim that it does not. See Myers v. Loudoun County Pub. Sch., 418 F.3d 395, 407 (4th Cir.2005) ("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."); see also Van...