Sunday, June 21, 2009

Is the Texas pledge of allegiance's new reference to "under God" unconstitutional?

Texas pledge of allegiance reference to “under God” is constitutional
Croft v. Perry, ___F.Supp.2d___ (N.D. Tex. Mar. 26, 2009), is an important case.

A district court has held that a 2007 law amending the Texas Pledge of Allegiance to include the phrase “one state under God” does not violate the Establishment Clause. The Texas Education Code requires school districts to make the recitation of the U.S. and Texas pledges mandatory. Students may opt-out by written request of a parent/guardian.

A group of parents sued alleging that the 2007 amendment’s reference to “God” violates the Establishment Clause. Treating the claim as a facial challenge, the court analyzed the issue under the Lemon v. Kurtzman, 403 U.S. 602 (1971), three-prong test. Because the parties were only contesting the secular purpose prong, the court focused on that prong, along with three other questions raised by the parents: (1) whether the statute unconstitutionally endorses religion; (2) whether the statute favors one religious sect over another; and (3) whether schoolchildren are coerced into affirming a religious belief.

The court first discussed the case law on whether the inclusion of the phrase “under God” in the U.S. Pledge is constitutional. It pointed out that two U.S. Court of Appeals Circuits, the Fourth and the Seventh, had ruled the U.S. Pledge is constitutional, and that the Fifth Circuit had noted that references to God in a motto or pledge have “withstood constitutional scrutiny.” It rejected the parents’ reliance on Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), because the initial panel ruling that inclusion of “God” in the U.S. Pledge rendered it unconstitutional was subsequently withdrawn. Lastly, it noted that the Supreme Court has on several occasions indicated in dicta that the U.S. Pledge is constitutional.

Turning to the question of whether the law has a secular purpose, the district court concluded, based on the legislative history, that the purpose of the law, to have the state pledge mirror the language in the national pledge, is secular in nature. It found without significance the parents’ contention that the motive of some legislators for enacting the law was to promote religion.
With respect to whether the law unconstitutionally endorses religion, it found the endorsement test “closely” tied to Lemon’s purpose prong. Relying on Supreme Court dicta and circuit court rulings that found no endorsement in the words “under God,” it found that the Texas Pledge does not unconstitutionally endorse religion by effect or purpose. Addressing the parents’ claim that the law favors Judeo-Christian beliefs over other religious beliefs, such as Hinduism, the court said the “under God” reference was no more than a “broad acknowledgment of a divine being,” even if it referred to a singular deity. Lastly, the district court rejected the parents’ assertion that the law was unconstitutional because of its coercive effect on students. Citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), it acknowledged the state cannot compel students to recite the pledge, but found that the state had effectively dealt with this ban by providing an opt-out provision.


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