The U.S. Court of Appeals for the 1st Circuit heard arguments on Thursday about whether a New Hampshire statute that requires school districts to provide time for public elementary students to recite the Pledge of Allegiance on a voluntary basis is constitutional.

The panel hearing Freedom From Religion Foundation v. U.S. focused largely on whether the “under God” phrase is religious or a nod to the political philosophy holding that Americans have inalienable rights.

The appeal is of a 2009 District of New Hampshire dismissal of a case filed by the foundation, parents referred to as Jan Doe and Pat Doe and their three minor children against the Dresden, N.H., and Hanover, N.H., school districts.

The appellants claim the district court erred in dismissing the case because they’ve proved that including “under God” in the pledge violates the U.S. Constitution’s establishment clause, which bars Congress from making laws supporting a religion.

Mike Newdow, an emergency room physician and sometime lawyer who argued for the foundation and the other plaintiffs before the 1st Circuit, said that the phrase “violates the equality that ought to be the basis of any law.”

“When you’re the political insider you have a tendency to ignore or disregard the prejudices you have,” Newdow said. “What they’re asking you is to allow a constitutional violation because it’s patriotic and it’s our history and tradition.”

Chief Judge Sandra Lynch grilled New Hampshire Senior Assistant Attorney General Nancy Smith about what she meant by her assertion that the New Hampshire School Patriot Act, a 2002 law that replaced an earlier pledge statute, “provided for voluntary recitation of the pledge of allegiance.”

Smith said that in practice, how the pledge is recited is “up to the principal of each school — it’s not a district-wide policy.”

“What do the students who don’t want to participate do?” Lynch asked.

Smith answered that “they can sit quietly or stand quietly.”

Lynch asked Smith to explain the state’s argument that “under God” does not advance religion.

“As the district court found, you have to look at the entire 31 words [of the pledge]. ‘Under God’ does not transform it into a religious prayer. It’s a description of the philosophical founding of our nation,” Smith said.

Justice Department lawyer Lowell Sturgill Jr. argued for the U.S. government, which intervened in the case to defend the constitutionality of the federal pledge of allegiance statute. Sturgill, an attorney in the department’s civil division, noted that the plaintiffs’ amended complaint dropped a claim challenging the federal statue, but the Justice Department still wanted to defend the New Hampshire statute.

Sturgill asserted that the phrase referenced the nation’s political philosophy. “We’re a nation with inalienable rights,” he said.

Judge Rogeriee Thompson asked Sturgill to address the other side’s argument that Congress added “under God” to the pledge in 1954. Sturgill replied that the real issue is the 2002 law, wherein Congress re-enacted the pledge.

“In the text of that statute, the finding Congress made [was that the] purpose was to acknowledge the religious heritage of the country,” Sturgill said.

Lynch asked Sturgill to address whether the average 1st through 3d grader would read the words “under God” as a statement of political philosophy rather than a reference to a deity.

“The argument is a little bit silly,” Lynch said. “It deprives the term ‘under God’ of any religious significance. It also strikes me it’s not a necessary argument to sustain the position of New Hampshire. Aren’t there arguments available that, even if this is not understood as primarily a statement of political philosophy, nonetheless it does not advance religion? Why aren’t you making this argument?”

“The plaintiffs’ primary argument is that it’s coercive, [but] it’s not a prayer and it’s not devotional,” Sturgill replied.

During Newdow’s rebuttal, Lynch noted that the primary purpose of the establishment clause test is ensuring that government actions do not advance religion. “That is not a statement about people being political outsiders,” Lynch said. “Being a political outsider isn’t the test under the establishment clause.”

“Here the government came in and told us we’re doing this to specifically acknowledge that we are people who do believe in and want our government to operate under divine guidance,” Newdow said.

Other circuits are mulling challenges to the pledge. In the 9th Circuit, Newdow is petitioning for rehearing of Newdow v. Rio Linda Union School District following a 2-1 ruling in March that the pledge does not violate the establishment clause.

In 2004, the U.S. Supreme Court reversed a 9th Circuit victory for Newdow in Elk Grove Unified School Dist. v. Newdow. The Supreme Court concluded that Newdow lacked standing to bring the case because he was the noncustodial parent.

Sheri Qualters can be contacted at squalters@alm.com.