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When the U.S. Supreme Court rejected Michael Newdow’s constitutional challenge to public school recitation of the Pledge of Allegiance last year, the court did not reach the merits of the case. Rather, the high court held that Newdow-a divorced, noncustodial parent-did not have standing to bring the suit. Elk Grove Unified School District v. Newdow. But in recently rejecting a new challenge to the pledge, the 4th U.S. Circuit Court of Appeals did reach the merits, holding that a Virginia law providing for voluntary recitation of the pledge in public schools did not violate the U.S. Constitution. Myers v. Loudoun County Public Schools, No. 03-1364. Edward Myers, a follower of the Anabaptist Mennonite faith-a Christian denomination with a strong belief in the separation of church and state-lived in Loudoun County, Va., where his two sons attended public schools. Loudoun County Public Schools had a policy of having students recite the Pledge of Allegiance each school day pursuant to a Virginia law known as the “Recitation Statute,” Va. Code Ann. � 22.1-202(C). Myers sued in federal district court, arguing that Congress’ 1954 insertion of “under God” into the pledge made its recitation in public schools a violation of the establishment clause of the First Amendment. The district court dismissed Myers’ suit, and he appealed. Relying on dicta Affirming, the 4th Circuit held that the statute did not violate the establishment clause because the recitation of pledge had neither a religious purpose nor effect, nor did it create an excessive government entanglement with religion. With a lack of precedential guidance from Newdow, the 4th Circuit panel relied extensively on Supreme Court dicta in reaching its decision in Myers. The 4th Circuit’s use of comments by individual Supreme Court justices in dicta-where several have opined that school recitation of the pledge was constitutional-evoked vastly different reactions from the attorneys in the case. “The judges really exaggerated the weight of dicta and sidestepped their function of deciding the issues before them,” said David Remes of Washington’s Covington & Burling, who represented Myers on a pro bono basis. Charles Becker of Reed Smith’s Philadelphia office, counsel for Loudoun County Public Schools, saw it differently. “There is a view in the federal courts that when Supreme Court justices say things, it means something,” Becker said, defending the panel’s use of dicta. The 4th Circuit joined the 7th Circuit in upholding the pledge in the schools, and Remes said Myers had not decided whether to seek certiorari.

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