Each school board shall require the daily recitation of the Pledge of Allegiance in each classroom of the school division and shall ensure that the flag of the United States is in place in each such classroom. Each school board shall determine the appropriate time during the school day for the recitation of the Pledge. During such Pledge of Allegiance, students shall stand and recite the Pledge while facing the flag with their right hands over their hearts or in an appropriate salute if in uniform; however, no student shall be compelled to recite the Pledge if he, his parent or legal guardian objects on religious, philosophical or other grounds to his participating in this exercise. Students who are thus exempt from reciting the Pledge shall remain quietly standing or sitting at their desks while others recite the Pledge and shall make no display that disrupts or distracts others who are reciting the Pledge.Mr. Myers, an Anabaptist Mennonite, on behalf of his two sons in 1st and 3rd grade, argued "that Loudoun County was indoctrinating his children with a "‘God and Country’ religious worldview," slip op. at 5, but never explained why the "opt-out" clause was insufficient to prevent the claimed injury.
Further analysis to come; for now, some quotes from Judge Karen Williams' majority opinion:
- The [Establishment Clause], however, does not say that in every and all aspects there shall be a separation of Church and State." Zorach v. Clausen, 343 U.S. 306, 312 (1954). Instead, the Establishment Clause must also be viewed with the understanding that "[w]e are a religious people whose institutions presuppose a Supreme Being." Id. at 313. "The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself." Abington Sch. Dist. v. Schempp, 374 U.S. 203, 213 (1963). The Establishment Clause "does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises . . . as to have meaningful and practical impact." Id. at 308 (Goldberg, J., concurring). Thus, the Court has "declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history." Walz v. Tax Comm’n, 397 U.S. 664, 671 (1970).
Slip op. at 13 (footnote omitted) - I need not catalogue exhaustively the list of official acknowledgments of religion in American life that have not been challenged as establishments of religion. For purposes of my discussion, it suffices to note that "[o]ur history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders." Lynch, 465 U.S. at 675. We have "an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Id. at 674. If the founders viewed legislative prayer and days of thanksgiving as consistent with the Establishment Clause, it is difficult to believe they would object to the Pledge, with its limited reference to God.
Slip op. at 16. - In addition to this history of religious acknowledgment, in the specific context before us, the Court and the individual Justices thereof have made clear that the Establishment Clause, regardless of the test to be used, does not extend so far as to make unconstitutional the daily recitation of the Pledge in public school. . . In fact, just last term, in Elk Grove United Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004), several justices offered lengthy defenses of the constitutionality of a State’s policy requiring daily, voluntary, recitation of the Pledge by public school children. . . [I]n the context of this case it is perhaps more noteworthy that, given the vast number of Establishment Clause cases to come before the Court, not one Justice has ever suggested that the Pledge is unconstitutional. In an area of law sometimes marked by befuddlement and lack of agreement, such unanimity is striking.
Slip op. at 16, 17, 18. - Myers argues that Congress’s addition of the phrase "under God" to the Pledge reflects an impermissible religious purpose. The dicta affirming the Pledge, of course, came after that amendment, and therefore undercuts Myers argument. Moreover, Myers does not argue that the drafters of the Recitation Statute had an impermissible religious purpose.
Slip op. at 18 n.12. - Undoubtedly, the Pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words "under God" contain no religious significance. . . The inclusion of those two words, however, does not alter the nature of the Pledge as a patriotic activity. The Pledge is a statement of loyalty to the flag of the United States and the Republic for which it stands; it is performed while standing at attention, facing the flag, with right hand held over heart. See also West Virginia v. Barnette, 319 U.S. 624, 641 (1943) (referring to the Pledge as a "patriotic ceremony"). . . Even assuming that the recitation of the Pledge contains a risk of indirect coercion, the indirect coercion is not threatening to establish religion, but patriotism. "Separation of church from state does not imply separation of state from state." Sherman, 980 F.2d at 444. . . Because the Pledge is by its nature a patriotic exercise, not a religious exercise, the school prayer cases, Lee, Schempp, and Engel, are not controlling. Moreover, as the history of our nation makes clear, acknowledgments of religion by government simply do not threaten to establish religion in the same manner that even voluntary school prayer does.
Slip op. at 20-21.
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