Myers v. Loudoun County Public Schools, No. 03-1364 (4th Cir. Aug. 10, 2005)
The U.S. Court of Appeals for the Fourth Circuit has ruled that Virginia's statute mandating that school boards require the daily recitation of the Pledge of Allegiance in classrooms does not violate the First Amendment's Establishment Clause. The court concluded that the inclusion of the words "under God" does not convert the Pledge from a declaration of patriotism to an unconstitutional religious exercise. Edward Myers, the parent of two Loudoun County Public Schools (LCPS) students, sued in federal district court over the statute and the school district's implementation of the statute. Mr. Myers objected not simply to the phrase "under God," but to the Pledge in its entirety, arguing that the statute offends the Establishment Clause by creating and supporting a state sponsored "civic religion" of "God and Country" and violates his children's free exercise of religion by requiring them to worship a secular state, which their Anabaptist Mennonite faith forbids as "idolatry." Rejecting the facial challenge, the lower court applied the test in
Lemon v. Kurtzman, 403 U.S. 602 (1971), to conclude that that the Pledge statute is secular in purpose, does not promote religion, and does not create excessive entanglement between religion and government. Nor is the manner in which the statute is implemented by the school board coercive, the court found, because participation is voluntary, children are not psychologically coerced, and hearing the Pledge does not constitute punishment. The Fourth Circuit affirmed. Before addressing Mr. Myers's claims, the appeals court joined the majority of the federal circuits in holding that non-attorney parents generally are barred from litigating the claims of their minor children in federal court. Noting however that the children and their father now had competent counsel, the court turned to the merits and pointed out that the Establishment Clause was never intended to remove all recognition of religion from the civic arena, as evidenced by a lengthy history of official acknowledgement of religion in public pronouncements, such as legislative prayers, that have withstood constitutional challenge. Regardless of the Establishment Clause test used, the U.S. Supreme has never concluded that daily recitation of the Pledge is unconstitutional. Citing
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), which was decided on the issue of standing, the Fourth Circuit cited the concurring opinions of several Justices who "offered lengthy defenses of a State's policy requiring daily, voluntary, recitation of the Pledge by public school children." Addressing Mr. Myers's central argument that the Pledge amounts to daily recitation of prayer, the court concluded that the inclusion of the religious phrase "does not alter the nature of the Pledge as patriotic activity." Even assuming that recitation of the Pledge contains a risk of indirect coercion, such coercion does not threaten to establish religion, but patriotism.
Myers v. Loudoun County Public Schools, No. 03-1364 (4th Cir. Aug. 10, 2005)
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Link to full opinion]
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Editor's Note: For background on this case and the Elk Grove
case, see the earlier Legal Clips
items, below. COSA member E. William Chapman of Reed Smith in Leesburg, Virginia, who with colleague Charles Lyman Becker represents the Loudoun County school board in the case, notes that only the "as-applied" challenge necessitated the school board's continued involvement in the appeal, since the state intervened to defend the statute.]
[NSBA School Law pages on district court ruling][NSBA School Law pages on Myers case after Elk Grove ruling]