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A New Hampshire law requiring school districts to set time for public elementary students to voluntarily recite the Pledge of Allegiance is constitutional. So ruled the U.S. Court of Appeals for the 1st Circuit. The Nov. 12 unanimous panel opinion in Freedom From Religion Foundation v. U.S. found that the 2002 New Hampshire School Patriot Act does not violate the First or 14th amendments to the U.S. Constitution, despite the pledge’s “under God” phrase. The decision represents the latest defeat for Michael Newdow, who represented the plaintiffs. Newdow lost a pro se challenge to the Pledge at the U.S. Supreme Court in 2004 and another challenge at the 9th Circuit earlier this year. The 1st Circuit ruling affirmed the District of New Hampshire’s September 2009 dismissal of the case. The Freedom From Religion Foundation, parents referred to as Jan Doe and Pat Doe, and their three minor children sued the Dresden, N.H., and Hanover, N.H., school districts. In the opinion, Chief Judge Sandra Lynch noted that the statue expressly states that student participation in saying the pledge is 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.” Lynch wrote that students who elect not to participate may do so for any reason and have the option to stand silently or remain seated during the pledge. “The only obligation imposed on non-participants is that they respect the rights of those students electing to participate,” Lynch wrote. In her analysis that the New Hampshire law doesn’t violate the establishment clause, Lynch wrote, “it takes more than the presence of words with religious content to have the effect of advancing religion, let alone to do so as a primary effect….The New Hampshire School Patriot Act’s primary effect is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation.” She also rejected the plaintiffs’ argument that the statue is an unconstitutional endorsement of religion: “Here, the words ‘under God’ appear in a pledge to a flag — itself a secular exercise, accompanied by no other religious language or symbolism.” Lynch further concluded that the statue doesn’t involve unconstitutional coercion because, unlike in cases involving school prayer, “silence by students is not an expression of participation in the Pledge. Rather, a student who remains silent during the saying of the Pledge engages in overt non-participation by doing so, and this non-participation is not itself an expression of either religious or non-religious belief.” Lynch’s ruling also explained that the New Hampshire law does not violate the 14th Amendment’s equal protection clause because it gives all students the right to participate or not, for any reason, regardless of their belief systems. Finally, Lynch’s ruling rejected the claim that the New Hampshire law violates the Doe parents’ fundamental constitutional right of parenthood protected by the 14th Amendment’s due process: “Because this claim is adverted to in a perfunctory manner, unaccompanied by any effort at developed argumentation, it is waived.” Judges Jeffrey Howard and O. Rogeriee Thompson joined the opinion. Newdow, a Sacramento, Calif.-based emergency room physician and sometime lawyer, who argued for the foundation at 1st Circuit, said the recent ruling is “frustrating.” “I think that the issue is pretty clear, and I think the courts keep coming out the wrong way,” Newdow said. “They even mentioned that the government is not allowed to lend its power to one or other side in controversies over religious dogma. It seems pretty clear that they’re lending their power to one side. I don’t even see it being close.” The New Hampshire Attorney General’s Office did not respond to requests for comment. The Justice Department, which intervened in the case to defend the constitutionality of the federal Pledge of Allegiance statute, had no comment, according to spokesman Charles Miller. At some point the plaintiffs “have to realize that their argument is just dead on arrival,” said Steve Fitschen, president of the National Legal Foundation. Fitschen’s organization filed an amicus brief supporting the New Hampshire statute on behalf of WallBuilders Inc., an organization that describes itself as supporting America’s “moral, religious, and constitutional foundation.” Fitschen noted that Newdow has lost similar cases. “We were not surprised; we thought it would come out this way,” Fitschen said. In 2004, the U.S. Supreme Court reversed Newdow’s earlier 9th Circuit victory in Elk Grove Unified School Dist. v. Newdow. The high court ruled that Newdow lacked standing to bring the case because he was the noncustodial parent of a daughter who attended public elementary school. Last month, the 9th Circuit denied Newdow’s petition for panel rehearing, and suggestion for rehearing en banc, of Newdow v. Rio Linda Union School District. In March, the 9th Circuit issued a 2-1 ruling that the pledge does not violate the constitution’s establishment clause. In that case, Newdow acted pro se and as the attorney for other plaintiffs. Sheri Qualters can be contacted at [email protected].

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