Myers v. Loudoun County School Bd.

• Decision Date: 21 February 2003
• Docket Number: No. CIV. 02-1528-A.,CIV. 02-1528-A.
• Parties: Edward R. MYERS, Plaintiff, v. LOUDOUN COUNTY SCHOOL BOARD, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

251 F.Supp.2d 1262

Edward R. MYERS, Plaintiff, v. LOUDOUN COUNTY SCHOOL BOARD, et al., Defendants.

No. CIV. 02-1528-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 21, 2003.

Edward R. Myers, pro Se.

E. William Chapman, on brief and oral argument, Leesburg, VA, for Defendants.

Kelly A. Sherrill, Reed Smith, on brief, for Defendants.

Alison P. Landry, Asst. Atty. Gen., on brief and oral argument, intervenor for Defendants.

MEMORANDUM OPINION

CACHERIS, District Judge.

This matter is before the Court on the Commonwealth of Virginia's Motion to Intervene as of Right under 28 U.S.C. § 2403(b) and Defendants' and Intervener's Motion to Dismiss under Rule 12(b)(6). The Plaintiff challenges the daily recitation of the pledge of allegiance in the public schools and the posting of the national motto "In God We Trust" in public school buildings. For the reasons set forth below the Defendants' and Intervener's Motions to Dismiss are granted.

I. Background

Plaintiff Edward Myers, ("Myers"), acting pro se, brings suit against the Loudoun County School Board¹ ("the School") and Dr. Edgar B. Hatrick ("Hatrick"), Superintendent of the School.² Myers brings the suit on behalf of his two minor children, who are elementary school students enrolled in the School.

The gist of Myers' Complaint is that the School's implementation of two Virginia statutes, designed to foster patriotism and respect for country, is unconstitutional. In particular, Myers challenges (1) the facial validity of the Virginia statute mandating that students enrolled in public school in Virginia recite the pledge of allegiance at least one time every school day (the "pledge statute");³ (2) the School's implementation of the pledge statute; and (3) the School's implementation of a Virginia statute requiring schools to post the national motto "In God We Trust" in every public school building (the "motto statute").⁴

More specifically, Myers claims that the pledge statute facially, and both statutes as applied by the School, violate his and his children's rights as protected by the First Amendment to the United States Constitution. In fact, Myers claims that his and his children's rights are violated because these statutes and the manner in which they are applied by the School (1) establish, "civil religion of God and Country" as a state supported religion; and (2) prevent he and his children from freely exercising their Anabaptist Mennonite religion, which specifically forbids "worship" of a secular state because such worship is "idolatrous."

In his Complaint, Myers requests injunctive and declaratory relief against the School.⁵ In response, the School brings this motion to dismiss. Additionally, the Commonwealth of Virginia brings a motion to intervene as of right in this action,⁶ as well as a motion to dismiss this action under Rule 12(b)(6).

II. Standard of Review

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint, see Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994), and should be denied unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." De Sole v. United States, 947 F.2d 1169, 1177 (4th Cir.1991) (citations omitted); see also Conley v. Gibson, 355 U.S. 41, 45-^6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In passing on a motion to dismiss, "the material allegations of the complaint are taken as admitted." Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (citations omitted). Moreover, "the complaint is to be liberally construed in favor of plaintiff." Id. In addition, a motion to dismiss must be assessed in light of Rule 8's liberal pleading standards, which require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8.

III. Analysis

Myers articulates his challenges to the Virginia statutes, and the School's implementation thereof, via 42 U.S.C. § 1983, a statutory mechanism by which a private citizen may obtain monetary, declaratory or injunctive relief for the violation of his civil rights by a "person [acting] under color of any statute, ordinance, regulation, custom, or usage, of any State[.]" 42 U.S.C. § 1983. A school board is a "person" who may be held liable under section 1983. See B.M.H. by C.B. v. Sch. Bd. of City of Chesapeake, Va., 833 F.Supp. 560, 564 n. 6 (E.D.Va.1993)(Clarke, J.).

In support of his section 1983 action, Myers claims three separate constitutional injuries. Specifically, Myers claims that (1) the pledge statute is unconstitutional on its face; (2) the pledge statute, as it is applied by the School, is unconstitutional; and (3) the motto statute, as it is applied by the School, is unconstitutional.⁷

Each of these three constitutional injuries is premised on Myers' theory that the statutes violate his and his children's rights under the First Amendment. In fact, Myers appears to challenge that the statutes and their application violate both the Establishment Clause and the Free Exercise Clause of the First Amendment.

The First Amendment to the Federal Constitution provides in relevant part that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" U.S. Const, amend. I. Although originally applicable only to the federal government, the First Amendment and its protection for the freedom of religious worship is now applicable to the states by operation of the Fourteenth Amendment. See Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 2465,153 L.Ed.2d 604 (2002).

In fact, the First Amendment guarantees two distinct rights with respect to free religious worship. Specifically, the First Amendment guarantees that the government shall not (1) establish a religion (the "Establishment Clause"); and (2) prevent a citizen from freely exercising the religion of the citizen's choosing (the "Free Exercise Clause"). See Brown v. Gilmore, 258 F.3d 265, 273-74 (4th Cir.2001). Broadly stated, "[b]oth clauses are designed to protect religious liberty." Id. at 274 (citations omitted).

Challenges brought to the constitutionality of a statute, or application thereof, based on violation of the Establishment Clause are evaluated using the test announced by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Though several justices and other courts have criticized the test, and sometimes other formulations have been employed, Lemon remains binding law in this Circuit. See Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283, 288 (4th Cir.2000). "Under Lemon, to withstand an Establishment Clause challenge, (1) a statute must have a secular legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; and (3) it must not foster an excessive governmental entanglement with religion." Brown, 258 F.3d at 275 (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105).

In contrast, evaluation of a claim under the Free Exercise Clause requires a court to employ the following test: "if a law is neutral and of general applicability,

then it cannot violate an individual's Free Exercise rights regardless of its reasonableness even if it has the incidental effect of burdening the individual's practice of religion." Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.1997)(citing Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). With these concepts in mind, the Court now addresses the challenges Plaintiff makes against the School.

A. Facial Challenge to the Pledge Statute.

Myers appears to claim in his Complaint that the pledge statute is unconstitutional on its face. More narrowly, Myers appears to claim that the pledge statute violates the Establishment Clause, because it creates and supports the state sponsored religion of "God and Country."

Myers' claim, as it relates to the pledge statute's impermissible state establishment of religion, is unique. Indeed, previous claims brought challenging the constitutionality of the pledge of allegiance as violative of the Establishment Clause focused on Congress' insertion of the phrase "under God" as establishing monotheism as a state sanctioned religion. See Newdow v. United States Congress, 292 F.3d 597, 599 (9th Cir.2002) petition for reh'g en banc pending;⁸ Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Township, 980 F.2d 437, 439^0 (7th Cir.1992). In contrast, Myers objects to the Pledge in its entirety, not simply the phrase "under God."

In fact, Myers claims that the Commonwealth has subtly, slowly and surely instituted a state supported religion in violation of the Establishment Clause. Specifically, Myers claims that statutes like the pledge statute further the implementation of the state sponsored religion which he interchangeably labels "civil religion," "civic religion" and "God and Country" religion (for purpose of convenience, the Court will refer to this singular concept as "civil religion").

Indeed, Myers asserts that civil religion operates analogously to most sectarian religions. In drawing the particular analogy, Myers observes (1) that the tenets of civil religion are recorded for posterity in a variety of songs, writings, oaths and other assertions of devotion; (2) that these tenets are inculcated by ritual recitations of the of the words which define them; and (3) that the virtues and mores which underlie the tenets of this civil religion are preached to the children entrusted to the care of the Commonwealth in the Commonwealth's public schools.

In response, the School and the Commonwealth describe Myers' claim as "make-believe" and the product "of scholars' or college professors' opinions." (School's Mem. in Support at p.19; Commonwealth's Reply Mem. at p.7). But the Defendants' belittling of Myers' argument is plainly inappropriate. Indeed, no less an authority...