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A child says the Pledge of Allegiance as 24 children representing 18 countries take the Oath of Allegiance at a naturalization ceremony at the Smithsonian's National Museum of American History in Washington on June 12, 2010. UPI/Alexis C. Glenn Photo via Newscom

The U.S. Court of Appeals for the First Circuit has upheld the constitutionality of public school children reciting “under God” in Pledge of Allegiance, rebuffing a prominent atheist group’s attempt to stop the practice.

The Freedom From Religion Foundation filed a lawsuit in 2007 on behalf of two New Hampshire parents and their three children, challenging the state’s School Patriot Act, which requires that public schools authorize a time for students to voluntarily participate in reciting the Pledge of Allegiance. The lawsuit alleged that the statute violates the Constitution’s Establishment Clause, as well as the First Amendment’s guarantee of free exercise of religion.

In its unanimous decision, however, the court’s three-judge panel ruled, “That the phrase ‘under God’ has some religious content … is not determinative of the New Hampshire Act’s constitutionality. This is in part because the Constitution does not ‘require complete separation of church and state.’

“It takes more than the presence of words with religious content to have the effect of advancing religion,” the court continued. “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.”

For this high-profile case, the Wisconsin-based FFRF enlisted well-known atheist activist Michael Newdow to argue its case.

Supporting the Pledge in the court battle was The National Legal Foundation, the Foundation for Moral Law, the Alliance Defense Fund and the American Center for Law & Justice, which filed a brief on behalf of 42 members of the 111th Congress and more than 80,000 Americans who signed on to the ACLJ’s Committee to Protect “Under God.”

“This appeals court reached a significant and sound decision that underscores what most Americans understand – that the recitation of the Pledge of Allegiance embraces patriotism, not religion,” said Jay Sekulow, chief counsel of the ACLJ. “The decision not only upholds the constitutionality of the Pledge, it rejects another fruitless attempt by the Freedom from Religion Foundation to twist and distort the Constitution with its flawed reasoning.”

“The Pledge of Allegiance shouldn’t be banned from the nation’s public schools simply to appease an atheist group’s political agenda,” commented ADF Senior Legal Counsel David Cortman. “The court did the right thing in affirming the district court’s dismissal of this case. Acknowledgements of the nation’s unquestionable religious heritage do not have to be stripped from the public square. We do not need to scratch ‘In God We Trust’ off our coins, remove references to our ‘Creator’ from the Declaration of Independence when used in class, or remove ‘under God’ from the Pledge of Allegiance.”


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