The Lawletter Vol 35 No 1, January 3, 2010
Steve Friedman—Senior Attorney, Constitutional Law
The U.S. Supreme Court has never directly addressed the constitutionality of the Pledge of Allegiance, but it has repeatedly suggested, albeit in dicta, that the Pledge is constitutional. See Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (although the issue was resolved on standing grounds, three Justices opined that they would have upheld the Pledge either as a recognition of the importance of religious beliefs to our founding, see id. at 32 (Rehnquist, C.J., concurring), or as a form of ceremonial deism, id. at 36 (O'Connor, J., concurring). On the other hand, several circuit courts of appeal have directly addressed the issue.
In fact, just this past year, the First, Fifth, and Ninth Circuits have joined the Fourth and Seventh Circuits in rejecting various constitutional challenges to state Pledge statutes. See Freedom From Religion Found. v. Hanover Sch. Dist., No. 09-2473, 2010 WL 4540588 (1st Cir. Nov. 12, 2010); Croft v. Perry, 624 F.3d 157 (5th Cir. 2010); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010); Myers v. Loudoun County Pub. Sch., 418 F.3d 395 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).
As seen in the above-cited cases, the Pledge statutes have been attacked on a variety of constitutional theories. The most common means of challenging the statutes is the Establishment Clause, which prohibits the government from establishing a state religion or otherwise favoring or disfavoring any particular religion. See U.S. Const. amend I. A closely related challenge is based on the Free Exercise Clause, which prohibits the government from compelling the affirmation of religious beliefs or punishing the expression of religious beliefs. See id. Although only addressed in the most recent First Circuit decision, two other possible bases upon which to challenge the Pledge statutes are the Equal Protection and Due Process Clauses. See id. amend XIV. Whereas equal protection guarantees that those who are similarly situated will be treated alike, see id., due process prohibits the government from interfering with certain fundamental rights and liberty interests, see id., including "the fundamental right of parents to make decisions concerning the care, custody, and control of their children," Troxel v. Granville, 530 U.S. 57, 66 (2000).
In short, however, all five circuits to have addressed the issue have held that public school teachers may lead the recitation of the Pledge in class, provided that the students' participation therein is truly voluntary and not coerced. See Freedom From Religion Found. (addressing all four constitutional theories); Croft (addressing just the Establishment Clause theory); Newdow (addressing just the Establishment Clause theory); Myers (addressing just the Establishment Clause theory); Sherman (addressing the Establishment Clause and Free Exercise Clause theories).
Read More
Topics:
legal research,
constitutional law,
Steve Friedman,
The Lawletter Vol 35 No 1,
Pledge of Allegiance,
constitutional challenge,
Establishment Clause,
Free Exercise Clause
The Lawletter Vol 35 No 1, January 3, 2011
Topics:
legal research,
products liability,
Jeremy Taylor,
The Lawletter Vol 35 No 1,
design defect,
failure to warn,
Sonic Restaurants,
restaurants,
Louisiana,
negligence cause of action
The Lawletter Vol 34, No 12, December 7, 2010
Topics:
legal research,
estate tax,
Economic Growth and Tax Relief Reconciliation Act,
EGTRRA,
Permanent Estate Tax Relief for Families,
Farmers and Small Businesses Act of 2009,
H.R. 4154,
111th Cong.,
tax,
Anne Hemenway,
The Lawletter Vol 34 No 12,
sunset provision
The Lawletter Vol 34, No 11, November 19, 2010
Topics:
legal research,
bankruptcy,
Tim Snider,
The Lawletter Vol 34 No 11,
credit,
unpaid purchase price,
existing loan,
negative equity,
hanging paragraph,
cramming down,
purchase money security interest,
vehicle trade-in
The Lawletter, Vol 34 No 9, October 8, 2010
Read More
Topics:
Dora Vivaz,
legal research,
employment law,
retaliation claim,
exhaustion of administrative remedies,
unlawful employment discrimination,
separate discrete act,
The Lawletter Vol 34 No 9,
civil rights
Lawletter Vol 34 No 9, October 8, 2010
Topics:
legal research,
Charlene Hicks,
Delaware,
corporations,
The Lawletter Vol 34 No 9,
bylaw amendements,
written consent,
takeover,
proxy,
vote buying
The Lawletter, Vol 34 No 9, October 8, 2010
Topics:
legal research,
John Buckley,
The Lawletter Vol 34 No 9,
Insurance,
insurance coverage,
economic loss,
economic injuries claim,
bodily injury
The Lawletter, Vol 34 No 9, October 8, 2010
Topics:
legal research,
mortgages,
Anne Hemenway,
Home Affordable Mortgage Program,
loan services,
mortgage loans,
loan modification,
Housing and Economic Recovery Act of 2008,
The Lawletter Vol 34 No 9
The Lawletter Vol 34, No 8, September 21, 2010
Topics:
Dora Vivaz,
legal research,
discrimination,
The Lawletter Vol 34 No 8,
heightened scrutiny test,
disparate treatment,
disability discrimination,
prima facie,
protected group,
heightened scrutiny,
Fair Housing Act,
burden-shifting analysis,
civil rights
