Thursday, August 11, 2005

Fourth Circuit Upholds Virginia Law Requiring Pledge of Allegiance in Schools

In Myers v. Loudoun County Pub. Sch. , No. 03-1364 (4th Cir. August 10, 2005) (PDF), a three-judge panel of the Fourth Circuit held that Va. Code Ann. § 22.1-202(C), which provides for daily, voluntary recitation of the Pledge of Allegiance in Virginia’s public schools, did not violate the Establishment Clause of the United States Constitution.

The majority opinion, written by Judge Karen Williams, regarded the pledge's phrase "one Nation under God" as a patriotic reference to a divine creator that does not offend the constitution. Quoting Justice Holmes, the court noted that "sometimes 'a page of history is worth a volume of logic.'" The opinion cites a number of patriotic references to the Deity dating back to the Declaration of Independence, and notes 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." "The Pledge is much less of a threat to establish a religion than legislative prayer, the open prayers to God found in Washington’s prayer of thanksgiving, and the Declaration of Independence."

"Undoubtedly," the majority wrote, "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."

Like the famous Newdow case, this case had its own issue regarding the father's ability to prosecute the claims of his children. The suit was brought in the district court pro se by an Anabaptist Mennonite with children in the Loudon County public schools. Unlike Newdow, however, the father in this case was not an attorney. Joining several other circuit courts of appeals, the court held that "non-attorney parents generally may not litigate the claims of their minor children in federal court." However, the court found remand to be unnecessary in this case because "resolution of the children’s claim is based purely on an issue of law, and that claim is in no meaningful way prejudiced by Myers’s pro se representation below."

The concurring opinions, written by Judges Allyson Duncan and Diana Gribbon Motz, would have placed more reliance on the abundant dicta from the United States Supreme Court that the Pledge is constitutional.

Judge Duncan: "I believe that this case is best resolved by reliance upon (1) the Supreme Court’s repeated assurances, albeit in dicta, that the Pledge does not violate the Establishment Clause, and (2) authority suggesting that recitation of the Pledge is not a religious activity, but rather a "patriotic exercise designed to foster national unity and pride" in the ideals that the flag symbolizes."

Judge Gribbon-Motz: "We need not search further than these assurances [of the Supreme Court] to resolve the issue before us, and I would not do so."

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