Edward R. Myers, individually and as guardian of minor children v. Loudoun County Public Schools; Commonwealth of Virginia

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 EDWARD R. MYERS, individually and
as guardian of minor children,
Plaintiff-Appellant,
v.
LOUDOUN COUNTY PUBLIC SCHOOLS;
COMMONWEALTH OF VIRGINIA,
Defendants-Appellees,
No. 03-1364  and
UNITED STATES OF AMERICA,
Intervenor-Appellee,
and
EDGAR B. HATRICK, Superintendent,
Defendant.


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 STATE OF ALABAMA; STATE OF
ALASKA; STATE OF ARKANSAS;
STATE OF COLORADO; STATE OF
DELAWARE; STATE OF FLORIDA;
STATE OF GEORGIA; STATE OF HAWAII;
STATE OF IDAHO; STATE OF ILLINOIS;
STATE OF INDIANA; STATE OF KANSAS;
STATE OF KENTUCKY; STATE OF
MARYLAND; STATE OF MISSISSIPPI;
STATE OF MONTANA; STATE OF NEVADA; STATE OF NORTH CAROLINA;
STATE OF NORTH DAKOTA; STATE OF
OHIO; STATE OF OKLAHOMA; STATE OF
OREGON; STATE OF PENNSYLVANIA;
STATE OF SOUTH CAROLINA; STATE OF
SOUTH DAKOTA; STATE OF TENNESSEE;
STATE OF TEXAS; STATE OF UTAH;
STATE OF WASHINGTON; STATE OF
WYOMING,
Amici Supporting Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-02-1528-A)
Argued: March 18, 2005
Decided: August 10, 2005
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the opinion.
Judge Duncan wrote a separate concurring opinion. Judge Motz wrote
a separate opinion concurring in the judgment.
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COUNSEL
ARGUED: David H. Remes, COVINGTON & BURLING, Washing-
ton, D.C., for Appellant. Charles Lyman Becker, REED SMITH,
L.L.P., Philadelphia, Pennsylvania; Maureen Riley Matsen, Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees. Robert Mark Loeb,
UNITED STATES DEPARTMENT OF JUSTICE, Civil Division,
Appellate Staff, Washington, D.C., for Intervenor, the United States.
ON BRIEF: Andrew A. Ruffino, Christine I. Magdo, COVINGTON
& BURLING, New York, New York, for Appellant. E. William
Chapman, REED SMITH, L.L.P., Leesburg, Virginia; Jason H. Bal-
lum, REED SMITH, L.L.P., Richmond, Virginia, for Appellee Lou-
doun County School Board. Judith Williams Jagdmann, Attorney
General of Virginia, William E. Thro, State Solicitor General, A.
Cameron O’Brion, Associate Solicitor General, Richmond, Virginia,
for Appellee Commonwealth of Virginia. Peter D. Keisler, Assistant
Attorney General, Paul J. McNulty, United States Attorney, Lowell
V. Sturgill, Jr., Civil Division, Appellate Staff, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor, the
United States. Troy King, Attorney General of Alabama, John J. Park,
Jr., Assistant Attorney General, Charles B. Campbell, Assistant Attor-
ney General, OFFICE OF THE ATTORNEY GENERAL STATE OF
ALABAMA, Montgomery, Alabama, for the State of Alabama; Scott
J. Nordstrand, Acting Attorney General of Alaska, Juneau, Alaska;
Mike Beebe, Attorney General of Arkansas, Little Rock, Arkansas;
John W. Suthers, Attorney General of Colorado, Denver, Colorado;
M. Jane Brady, Attorney General of Delaware, Wilmington, Dela-
ware; Charles J. Crist, Jr., Attorney General of Florida, Tallahassee,
Florida; Thurbert E. Baker, Attorney General of Georgia, Atlanta,
Georgia; Mark J. Bennett, Attorney General of Hawaii, Honolulu,
Hawaii; Lawrence G. Wasden, Attorney General of Idaho, Boise,
Idaho; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois;
Steve Carter, Attorney General of Indiana, Indianapolis, Indiana; Phill
Kline, Attorney General of Kansas, Topeka, Kansas, Gregory D.
Stumbo, Attorney General of Kentucky, Frankfort, Kentucky; J.
Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Mary-
land; Jim Hood, Attorney General of Mississippi, Jackson, Missis-
sippi; Mike McGrath, Attorney General of Montana, Helena,
Montana; Brian Sandoval, Attorney General of Nevada, Carson City,
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Nevada; Roy Cooper, Attorney General of North Carolina, Raleigh,
North Carolina; Wayne Stenehjem, Attorney General of North
Dakota, Bismarck, North Dakota; Jim Petro, Attorney General of
Ohio, Columbus, Ohio; W. A. Drew Edmondson, Attorney General
of Oklahoma, Oklahoma City, Oklahoma; Hardy Myers, Attorney
General of Oregon, Salem, Oregon; Thomas W. Corbett, Jr., Attorney
General of Pennsylvania, Harrisburg, Pennsylvania; Henry McMaster,
Attorney General of South Carolina, Columbia, South Carolina; Law-
rence E. Long, Attorney General of South Dakota, Pierre, South
Dakota; Paul G. Summers, Attorney General of Tennessee, Nashville,
Tennessee; Greg Abbott, Attorney General of Texas, Austin, Texas;
Mark L. Shurtleff, Attorney General of Utah, Salt Lake City, Utah;
Rob McKenna, Attorney General of Washington, Olympia, Washing-
ton; Patrick J. Crank, Attorney General of Wyoming, Cheyenne,
Wyoming, Amici Curiae Supporting Appellees.
OPINION
WILLIAMS, Circuit Judge:
Edward R. Myers, on behalf of himself and his minor children,
appeals the dismissal of his action, alleging that Va. Code Ann.
§ 22.1-202(C) (Michie 2003) (the Recitation Statute), which provides
for daily, voluntary recitation of the Pledge of Allegiance (the Pledge)
in Virginia’s public schools, violates the Establishment Clause. The
district court, applying the three part test of Lemon v. Kurtzman, 403
U.S. 602 (1971), upheld the Recitation Statute, concluding that the
statute did not have a religious purpose or effect and did not create
an excessive governmental entanglement with religion. Because the
Pledge is not a religious exercise and does not threaten an establish-
ment of religion, we affirm.
I.
Myers belongs to the Anabaptist Mennonite faith, which condemns
the mixture of church and state. Anabaptist Mennonites are a Chris-
tian sect that "left Central Europe in late 1600 because of religious
persecution for belief in the separation of church and state." (J.A. at
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7.) According to the Mennonite Confession of Faith, "[t]he primary
allegiance of all Christians is to Christ’s kingdom, not the state or
society. Because their citizenship is in heaven, Christians are called
to resist the idolatrous temptation to give to the state the devotion that
is owed to God." (J.A. at 7.)
Myers resides in Loudoun County, Virginia, and, at the time he
filed his complaint, his two sons attended Loudoun County public
schools, one in first grade and one in third grade. Because of Myers’s
belief in a separation of church and state and his fear that Loudoun
County was indoctrinating his children with a "‘God and Country’
religious worldview," (J.A. at 7), Myers objected to Loudoun Coun-
ty’s policy of having all school-aged children recite the Pledge each
school day.
Loudoun County’s policy was enacted pursuant to the Recitation
Statute, which provides:
Each school board shall require the daily recitation of the
Pledge of Allegiance in each classroom of the school divi-
sion and shall ensure that the flag of the United States is in
place in each such classroom. Each school board shall deter-
mine the appropriate time during the school day for the reci-
tation 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 appro-
priate 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 stand-
ing 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. School boards shall provide
appropriate accommodations for students who are unable to
comply with the procedures described herein due to disabil-
ity.
The school board’s code of conduct shall apply to disruptive
behavior during the recitation of the Pledge in the same
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manner as provided for other circumstances of such behav-
ior.
Va. Code Ann. § 22.1-202(C).1
The Pledge was enacted in 1942, during World War II, in order "to
codify and emphasize the existing rules and customs pertaining to the
display and use of the flag of the United States of America." H.R.
Rep. No. 2047, 77th Cong., 2d Sess. 1 (1942). The Pledge was
amended in 1954, and it now reads: "I pledge allegiance to the flag
of the United States of America, and to the Republic for which it
stands, one Nation under God, indivisible, with liberty and justice for
all." 4 U.S.C.A. § 4 (West 2005) (the Pledge statute).
On October 15, 2002, Myers, who is not an attorney, filed a lawsuit
under 42 U.S.C.A. § 1983 (West 2003)2 against the Loudoun County
1As the text of the Recitation Statute makes clear, students are permit-
ted to opt-out of reciting the Pledge, and thus it does not present the con-
stitutional problems at issue in West Virginia v. Barnette, 319 U.S. 624
(1943). In Barnette, the Court struck down a West Virginia statute that
mandated daily recitation of the Pledge by school children and required
expulsion of students who refused to participate. 319 U.S. at 627-29. The
Court, explaining that "no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opin-
ion," struck the statute as violating the Free Speech clause of the First
Amendment as incorporated by the Fourteenth Amendment. Id. at 642.
Because the Recitation Statute permits students to opt-out, no concern
regarding free speech arises.
242 U.S.C.A. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper pro-
ceeding for redress. . .
Original jurisdiction over suits alleging a cause of action under § 1983
is vested in the district courts pursuant to 28 U.S.C.A. § 1343 (West
1993).
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School Board (the Board) in the United States District Court for the
Eastern District of Virginia. Acting pro se on behalf of himself and
his two minor children, Myers alleged that the daily recitation of the
Pledge in Loudoun County schools violated the Establishment Clause,
and, accordingly, that the Recitation Statute was facially unconstitu-
tional.3 The district court interpreted Myers’s complaint to provide
that the Recitation Statute, by requiring recitation of the Pledge, was
attempting to establish a "‘civil religion of God and Country’ as a
state supported religion." (J.A. at 64.) The Commonwealth of Virginia
intervened to defend the constitutionality of the Recitation Statute,
and moved, in conjunction with the Board, for dismissal of Myers’s
action pursuant to Federal Rule of Civil Procedure 12(b)(6) (West
1992). Following a hearing, the district court granted the motion to
dismiss, concluding that, under the three-part Lemon test, the Recita-
tion Statute was constitutional on its face and as applied by the Board.
Myers noted a timely appeal.4 On appeal, Myers contends that
because of the inclusion of the words "under God," the Pledge is a
religious exercise and that, accordingly, the Recitation Statute violates
the Establishment Clause. We possess jurisdiction under 28 U.S.C.A.
§ 1291 (West 1993).
3Myers’s complaint raised a litany of claims in addition to the facial
Establishment Clause challenge, including claims under the Free Exer-
cise Clause, the Due Process Clause of the Fourteenth Amendment, Title
IV of the Civil Rights Act of 1964, and an as-applied challenge under the
Establishment Clause. The district court rejected each of these claims,
and Myers expressly abandoned all but his two Establishment Clause
claims on appeal. We address the facial challenge in the text. As for the
as-applied challenge, we have reviewed the parties’ briefs and supple-
mentary materials and find no reason to disagree with the district court’s
conclusion that Myers suffered no cognizable harm from Loudoun Coun-
ty’s actions allowing the Boy Scouts to recruit on school grounds, post-
ing the national motto, and giving meal coupons to students who exhibit
good citizenship. See Myers v. Loudoun County Sch. Bd., 251 F.Supp.2d
1262, 1270, 1273, 1276 (E.D.Va. 2003).
4Although, on appeal, the United States has intervened to defend the
constitutionality of the Pledge statute, it is worth noting that Myers’s
challenge is not to the Pledge statute itself, but to the Recitation Statute’s
requirement that the Pledge be recited in Virginia public schools. In addi-
tion to the amicus brief of the United States, the State of Alabama, joined
by thirty other states, has filed an amicus brief supporting the constitu-
tionality of the Recitation Statute.
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II.
As noted, Myers filed his complaint pro se on behalf of himself and
his minor children. Although the Appellees did not argue that the dis-
trict court erred in allowing Myers to litigate pro se below, we never-
theless raised this threshold issue at oral argument sua sponte because
an "infant is always the ward of every court wherein his rights or
property are brought into jeopardy, and is entitled to the most jealous
care that no injustice be done to him." Doe v. Bd. of Educ., 165 F.3d
260, 264 (4th Cir. 1998) (quoting Wenger v. Canastota Cent. Sch.
Dist., 146, F.3d 123, 125 (2d Cir. 1998) (holding that appellate court
has an obligation sua sponte to inquire into whether pro se parent had
authority to litigate claims on behalf of his minor children)).
In addressing this issue, it is useful to delineate the nature of the
claims that Myers presses. First, Myers alleges that he himself has
suffered an injury cognizable under the Establishment Clause from
his children’s daily exposure to the Pledge; i.e., that the Pledge policy
infringes his right to direct the religious education of his children.
Second, Myers alleges that his minor children have suffered an injury
cognizable under the Establishment Clause from their exposure to the
daily recitation of the Pledge in Loudoun County’s school classrooms.
While Myers had the authority to litigate his own claim below, we
conclude, for the reasons that follow, that Myers did not have the
authority to litigate his children’s claim below. We believe, however,
that remand of their claim is not necessary.
The Federal Rules of Civil Procedure, incorporating Virginia law,
authorize Myers to raise his children’s claim despite the fact that their
claim seeks to vindicate their rights.5 The difficulty therefore is not
5Myers’s children, as minors, lack the capacity to sue under Virginia
law. See Fed. R. Civ. P. 17(b) ("capacity to sue . . . shall be determined
by the law of the state in which the district court is held"); Va. Code
Ann. § 8.01-8 (Michie 2000) ("Any minor entitled to sue may do so by
his next friend."). He, as their parent, may assert claims on their behalf.
See Fed. R. Civ. P. 17(c) ("An infant or incompetent person who does
not have a duly appointed representative may sue by a next friend. . . .");
Va. Code Ann. § 8.01-8 ("Either or both parents may sue on behalf of a
minor as his next friend.").
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that Myers asserted his children’s claim, but rather that he attempted
to litigate that claim pro se. An individual unquestionably has the
right to litigate his own claims in federal court, before both the district
and appellate courts. See 28 U.S.C.A. 1654 (West 1994) ("In all
courts of the United States the parties may plead and conduct their
own cases personally or by counsel. . . ."); United States v. Lawrence,
605 F.2d 1321, 1324 (4th Cir. 1979) ("Under [§ 1654] . . . a [litigant]
in federal court has long been guaranteed the right to self-
representation. . . ."). This right "reflects a respect for the choice of
an individual citizen to plead his or her own cause." Cheung v. Youth
Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). It
"is a right of high standing, not simply a practice to be honored or dis-
honored by a court depending on its assessment of the desiderata of
a particular case." Id.
The right to litigate for oneself, however, does not create a coordi-
nate right to litigate for others. See Oxendine v. Williams, 509 F.2d
1405, 1407 (4th Cir. 1975) (holding that a pro se prisoner may not lit-
igate the interests of other prisoners in class action). The reasoning
behind this rule is two-fold: it protects the rights of those before the
court, see id. ("the competence of a layman [litigating for] himself [is]
clearly too limited to allow him to risk the rights of others"), and jeal-
ously guards the judiciary’s authority to govern those who practice in
its courtrooms, see Collingsgru v. Palmyra Bd. of Educ., 161 F.3d
225, 231 (3d Cir. 1998) ("Requiring a minimum level of competence
protects not only the [client] but also his or her adversaries and the
court from poorly drafted, inarticulate, and vexatious claims.").
Myers contends that Federal Rule of Appellate Procedure 3(c)(2)
(West Supp. 2005), which provides that "[a] pro se notice of appeal
is considered filed on behalf of the signer and the signer’s spouse and
minor children (if they are parties), unless the notice clearly indicates
otherwise," implicitly contemplates that a pro se parent may litigate
the claims of his minor children. We do not believe, however, that
Rule 3(c)(2) bears the inference Myers draws. Instead, that rule
implicitly acknowledges that an appellant must file his notice of
appeal within a certain limited time after the district court has entered
judgment, see Fed. R. App. P. 4(a)(1)(A) (West Supp. 2005), and that
at that time the appellant, who presumably lost before the district
court and may accordingly be dissatisfied with counsel’s perfor-
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mance, may be without counsel. Rule 3(c)(2) therefore simply allows
a pro se litigant proceeding on behalf of his minor children to file a
timely notice of appeal before securing appellate counsel.6
We therefore join the vast majority of our sister circuits in holding
that non-attorney parents generally may not litigate the claims of their
minor children in federal court. See Shepherd v. Wellman, 313 F.3d
963, 970 (6th Cir. 2002); Navin v. Park Ridge Sch. Dist, 270 F.3d
1147, 1149 (7th Cir. 2001); Devine v. Indian River County Sch. Bd.,
121 F.3d 576, 581 (11th Cir. 1997); Johns v. County of San Diego,
114 F.3d 874, 877 (9th Cir. 1997); Osei-Afriyie v. Med. Coll., 937
F.2d 876, 882-83 (3d Cir. 1991); Cheung, 906 F.2d at 61; Meeker v.
Kercher, 782 F.2d 153, 154 (10th Cir. 1986).7 Applying this rule here,
we conclude that Myers was not authorized to litigate pro se the claim
of his minor children.
6Myers also argues that Virginia law allows a parent to litigate his
minor children’s claims pro se, see, e.g., Coffey v. Va. Birth-Related Neu-
rological Injury Comp. Program, 558 S.E.2d 563 (Va. Ct. App. 2002),
and contends we should interpret 28 U.S.C.A. § 1654 by deferring to
Virginia law and allowing him to do the same here. We reject this con-
tention. Even assuming that Coffrey represented Virginia’s position on
this matter and that we should give respect to that position in interpreting
a federal statute, Coffey holds only that a pro se parent may litigate his
children’s claims before the Workers’s Compensation Commission. 558
S.E.2d at 566. We are aware of no Virginia case authorizing a non-
attorney parent to litigate his minor children’s claims before a court of
law.
7In Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir. 2002) and in Harris
v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000), the Second and Fifth Circuits
allowed non-attorney parents to represent minor children pro se in
appeals from the denial of SSI benefits, noting the unique policy consid-
erations involved in such cases. Machadio, 276 F.3d at 107; Harris, 209
F.3d at 416. Even if, in the appropriate case, we were to adopt the hold-
ings of Machadio and Harris, we, like the Second Circuit, would have
no trouble limiting that rule to the unique facts involved in an SSI appeal.
Compare Machadio, 276 F.3d at 107 (holding that a pro se parent may
litigate on behalf of his minor child in an SSI appeal) with Cheung v.
Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)
(holding that a non-attorney parent generally may not litigate pro se on
behalf of a minor child).
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We suspect that in the rare cases in which a non-attorney parent lit-
igates his children’s claim in the district court, remand for further pro-
ceedings will be the only course of action on appeal that ensures the
children’s interests are not prejudiced by their well-meaning, but
legally untrained parents. See, e.g., Cheung, 906 F.2d at 61 (remand-
ing child’s claim litigated by a non-attorney parent for retention or
appointment of counsel, or, failing either of these options, for dis-
missal of the claim without prejudice). We do not believe, however,
that remand is warranted here. The children, like their father, now
have competent counsel, and they have specifically asked us to decide
the appeal. Moreover, as discussed in more detail below, our resolu-
tion 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 rep-
resentation below.
With this threshold issue resolved, we now turn to the merits of this
appeal.
III.
We review de novo the district court’s dismissal of Myers’s com-
plaint under Federal Rule of Civil Procedure 12(b)(6), "accept[ing] as
true all well-pleaded allegations." T.G. Slater & Son, Inc. v. Donald
P. & Patricia A. Brennan L.L.C., 385 F.3d 836, 841 (4th Cir. 2004).
Myers brought this suit under § 1983, alleging that the Recitation
Statute violates the Establishment Clause of the First Amendment.
A.
The Establishment Clause provides, "Congress shall make no law
respecting an establishment of religion." U.S. Const. amend. I.
Although applicable originally only against the federal government,
the Establishment Clause has been incorporated against the states by
the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1, 8
(1947).
There is "no single mechanical formula that can accurately draw
the constitutional line in every case." Van Orden v. Perry, No. 03-
1500, slip op. at 2 (June 27, 2005) (Breyer, J., concurring in the judg-
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ment). Instead, in "borderline cases," there can be no "test-related
substitute for the exercise of legal judgment." Id. at 3. The history of
our nation, coupled with repeated dicta from the Court respecting the
constitutionality of the Pledge guides our exercise of that legal judg-
ment in this case.
1.
As Justice Holmes recognized in New York Trust Co. v. Eisner, 256
U.S. 345, 349 (1921), sometimes "a page of history is worth a volume
of logic." And, in the context of this case, the Establishment Clause
of the First Amendment must be viewed "in the light of its history and
the evils it was designed forever to suppress."8 Everson, 330 U.S. at
14-15. A review of the Establishment Clause’s historical setting
reveals that the "first and most immediate purpose [of the Establish-
8I do not present this historical analysis to argue that the Establishment
Clause does not embody the idea that the "First Amendment mandates
governmental neutrality between [one] religion and [another] religion,
and between religion and nonreligion." McCreary County v. Am. Civil
Liberties Union, No. 03-1693, slip op. at 11 (June 27, 2005) (citations
omitted). See Van Orden v. Perry, No. 03-1500, slip op. at 7 (plurality)
(June 27, 2005) ("[O]ur analysis is driven both by the nature of [the
Pledge] and by our Nation’s history."); see also Van Orden, slip op. at
1 (Breyer, J., concurring in the judgment) (noting that "[o]ne must refer
. . . to the basic purposes of [the Religion Clauses]" in interpreting them).
Rather, I present it to show that certain patriotic references to the Deity
do not violate the neutrality principle. Judge Duncan’s suggestion that
my use of a historical analysis to support my conclusion that the Pledge
does not violate the Establishment Clause "comes close[ ] . . . to the line
drawn by . . . McCreary," post at 22, is therefore unfounded. My discus-
sion relies heavily upon Supreme Court cases that themselves relied on
historical practice. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984);
Marsh v. Chambers, 463 U.S. 783 (1983). McCreary did not purport to
overrule or limit the analysis in those cases. If McCreary’s neutrality
principle is as vibrant as my good sister suggests, it seems Van Orden,
decided on the same day, would not have garnered the concurrences of
a majority of Justices. See Van Orden, slip op. at 2 (Breyer, J., concur-
ring in the judgment) ("[T]he Establishment Clause does not compel the
government to purge from the public sphere all that in any way partakes
of the religious. See, e.g., Marsh[ ]. Such absolutism is . . . inconsistent
with our national traditions. . . ." (emphasis added)).
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ment Clause] rested on the belief that a union of government and reli-
gion tends to destroy government and to degrade religion." Engel v.
Vitale, 370 U.S. 421, 431 (1962). The primary evil the Establishment
Clause was intended to combat was the practice of European nations
"compel[ling] [individuals] to support and attend government favored
churches." Id. at 8. With that evil in mind,
The "establishment of religion" clause of the First Amend-
ment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one reli-
gion over another. Neither can force nor influence a person
to go or to remain away from church against his will or
force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing reli-
gious beliefs or disbeliefs, for church attendance or non-
attendance.
Id. at 15-16.
"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 Establish-
ment 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 constitu-
tional objective as illuminated by history." Walz v. Tax Comm’n, 397
U.S. 664, 671 (1970).9
9Some Justices have suggested the Establishment Clause must be inter-
preted to "permit not only legitimate practices two centuries old but also
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The paradigmatic example of the role of history in the Court’s
Establishment Clause jurisprudence is Marsh v. Chambers, 463 U.S.
783 (1983). In Marsh, a Nebraska taxpayer brought suit alleging that
Nebraska’s policy of using public funds to pay for a chaplain to open
each state legislative day with a non-denominational prayer violated
the Establishment Clause. Id. at 785. In upholding this practice, the
Court drew heavily upon the fact that the First Congress, "as one of
its early items of business, adopted the policy of selecting a chaplain
to open each session with prayer." Marsh, 463 U.S. at 787-88. The
Court held that, far from being unconstitutional:
opening legislative sessions with prayer has become part of
the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these
circumstances, an establishment of religion or a step toward
establishment; it is simply a tolerable acknowledgment of
beliefs widely held among the people of this country.
Id. at 792.
Apart from the practice of legislative prayer upheld in Marsh, the
history surrounding our nation’s founding is filled with activities sim-
ilar in kind that illuminate our resolution of this case. The Declaration
of Independence, composed by Thomas Jefferson in 1776, asserted
that all men were "endowed by their Creator with certain unalienable
rights," and claimed that the colonists had the right to "dissolve the
political bands" because of "the laws of nature and of nature’s God."
The Declaration of Independence para. 1 (U.S. 1776). The Constitu-
tion itself claims it was completed in the "Year of Our Lord" 1787,
and exempts Sundays from the President’s ten-day period to exercise
his veto power. U.S. Const. art. VII; art. I § 7.
The First Congress "urged President Washington to proclaim a day
of public thanksgiving and prayer, to be observed by acknowledging
any other practices with no greater potential for an establishment of reli-
gion." See, e.g., County of Allegheny v. Am. Civil Liberties Union, 492
U.S. 573, 669 (1989) (Kennedy, J., concurring in part and dissenting in
part, joined by Rehnquist, Chief J., White, J., and Scalia, J.).
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with grateful hearts, the many and signal favours of Almighty God."
Lynch v. Donnelly, 465 U.S. 668, 675 n. 2 (1984) (internal quotation
marks omitted). In response, President Washington proclaimed such
a day to "offer[ ] our prayers and thanksgiving to the Great Lord and
Ruler of Nations, and beseech Him to pardon our national and other
transgressions."10 Id.
The recognition of religion in these early public pronouncements
is important, unless we are to presume the "founders of the United
States [were] unable to understand their own handiwork." Sherman v.
Cmty Consol. Sch. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992). These
patriotic references to the Deity, moreover, are not limited to the time
surrounding the founding of our nation. The Supreme Court has
opened its sessions since the time of Chief Justice John Marshall in
the early nineteenth century with "God save the United States and this
honorable court." Engel, 370 U.S. at 446 (Stewart, J., dissenting). Our
own court, since its infancy in 1891, has opened sessions with the
same refrain. President Abraham Lincoln, in his Gettysburg Address,
made famous the very phrases to which Myers now objects: "That we
here highly resolve that these dead shall not have died in vain; that
this Nation, under God, shall have a new birth of freedom; and that
government of the people, by the people, and for the people shall not
perish from the Earth." 9 Annals of America 463 (Encyclopedia Bri-
tannica 1968) (emphasis added). Following the Civil War, in 1865,
10Washington also stated in his first inaugural address:
[I]t would be peculiarly improper to omit in this first official act
my fervent supplications to that Almighty Being who rules over
the universe, who presides in the council of nations, and whose
providential aids can supply every human defect, that His bene-
diction may consecrate to the liberties and happiness of the peo-
ple of the United States a Government instituted by themselves
for these essential purposes.
3 Annals of America 344-45 (Encyclopedia Britannica 1968).
Every President since Washington has referred to God in his inaugural
address, including our current President Bush and his immediate pre-
decessors, Presidents Clinton and Bush. Moreover, Presidents swear their
oath of office on a Bible, administered by the Chief Justice of the United
States Supreme Court.
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Congress mandated the inscription of "In God We Trust" on coins.
Act of Mar. 3, 1865, ch. 102 § 5, 13 Stat. 518. In 1956 Congress made
this slogan the National Motto, 36 U.S.C.A. § 302 (West 2001) and
required its placement on all United States currency. 31 U.S.C.A.
§ 5112(d)(1) (West Supp. 2005).
I need not catalogue exhaustively the list of official acknowledg-
ments 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 pro-
nouncements 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 found-
ers 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. 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.
2.
In addition to this history of religious acknowledgment, in the spe-
cific 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. Beginning with Engel,
in every case in which the Justices of the Court have made mention
of the Pledge, it has been as an assurance that the Pledge is not impli-
cated by the Court’s interpretation of the Establishment Clause. See
Engel, 370 U.S. at 449-50 (Stewart, J., dissenting); Wallace v. Jaffree,
472 U.S. 38, 78 n. 5 (1985) (O’Connor, J., concurring) ("In my view,
the words ‘under God’ in the Pledge . . . serve as an acknowledgment
of religion with the legitimate secular purposes of solemnizing public
occasions, [and] expressing confidence in the future" (internal quota-
tion marks omitted)); Wallace, 472 U.S. at 88 (Rehnquist, J., dissent-
ing) (holding Pledge unconstitutional "would of course make a
mockery of our decisionmaking in Establishment Clause cases");
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Lynch, 465 U.S. at 716 (Brennan, J., dissenting) ("such practices as
. . . the references to God contained in the Pledge of Allegiance can
best be understood, in Dean Rostow’s apt phrase, as a form of ‘cere-
monial deism,’ protected from Establishment Clause scrutiny chiefly
because they have lost through rote repetition any significant religious
content");11 County of Allegheny v. Am. Civil Liberties Union, 492
U.S. 573, 674 n. 10 (1989) (Kennedy, J., concurring in part and dis-
senting in part) (noting the Pledge cannot be construed as an estab-
lishment of religion); Lee v. Weisman, 505 U.S. 577, 638-39 (1992)
(Scalia, J., dissenting) (same). In Lynch, the Court described the
Pledge as an "example[ ] of reference to our religious history," and
noted that it is "recited by many thousands of public school children
— and adults — every year." Lynch, 465 U.S. at 676. In County of
Allegheny, the Court took pains to remark that "there is an obvious
distinction between creche displays and references to God in the
motto and the pledge," and noted that prior decisions, in dicta, had
"characteriz[ed] [the motto and Pledge] as consistent with the propo-
sition that government may not communicate an endorsement of reli-
gious belief." County of Allegheny, 492 U.S. at 602-03.
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, recita-
tion of the Pledge by public school children. Michael Newdow, like
Myers, objected to a public school policy which mandated daily, vol-
untary, recitation of the Pledge by school children. Id. at 2305.
Although the Court held that Newdow lacked standing, several Jus-
tices, took the opportunity to address the question of the Pledge’s con-
stitutionality. Id. at 2312, 2321, 2327. Each Justice who did so
concluded that the Pledge was constitutional. Id.
11The phrase "ceremonial deism" is somewhat disconcerting because it
suggests that, when "initially used" phrases like "in God we trust" and
"under God" "violated the Establishment Clause because they had not yet
been rendered meaningless by repetitive use." Sherman v. Community
Consolidated Sch. Dist. 21, 980 F.2d 437, 448 (7th Cir. 1992) (Manion,
J., concurring). Moreover, "ceremonial deism" provides no account for
why only words with religious connotations lose meaning, and not words
like "liberty, and justice for all."
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Although we are not bound by dicta or separate opinions of the
Supreme Court, "observations by the Court, interpreting the First
Amendment and clarifying the application of its Establishment Clause
jurisprudence, constitute the sort of dicta that has considerable persua-
sive value in the inferior courts." Lambeth v. Bd. of County Comm’n,
407 F.3d 266, 271 (4th Cir. 2005). See also Sherman, 980 F.2d at 448
("If the Court proclaims that a practice is consistent with the estab-
lishment clause, we take its assurances seriously.") Moreover, in 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 agree-
ment, such unanimity is striking.12
B.
Myers’s primary argument in attempting to avoid this weight of
dicta and history is that daily recitation of the Pledge amounts to daily
recitation of prayer in public schools in violation of Lee. According
to this argument, even if recitation of the Pledge is voluntary, students
will be indirectly coerced into accepting its religious message in vio-
lation of the Establishment Clause.
The Court has reflected upon the important role that indirect coer-
cion plays in determining if a public school activity violates the
Establishment Clause. See Lee, 505 U.S. at 592 ("[P]rayer exercises
in public schools carry a particular risk of indirect coercion."); Engel,
370 U.S. at 431 ("[T]he indirect coercive pressure upon religious
minorities to conform" to prayers "is plain."). For instance, in Lee, a
public high school selected a Rabbi to give a non-denominational
prayer, pursuant to written guidelines provided by school officials, at
high school graduation. 505 U.S. at 581-82. Students were to remain
standing during the prayer, which followed the recitation of the
Pledge. Although high school students were not required to attend
12Myers argues that Congress’s addition of the phrase "under God" to
the Pledge reflects an impermissible religious purpose. The dicta affirm-
ing 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.
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graduation to receive their diplomas or to participate in saying the
prayer, the Court found the practice unconstitutional. Id. at 598. The
Court explained that indirect coercion may be unconstitutional when
government orchestrates "the performance of a formal religious exer-
cise" in a fashion that practically obliges the involvement of non-
participants. Id. at 586.
Of course, as this statement makes clear, all of the cases holding
that indirect coercion of religious activity violates the Establishment
Clause presuppose that the challenged activity is a religious exercise.
See, e.g., Lee, 505 U.S. at 599 ("[t]he sole question presented is
whether a religious exercise may be conducted at a graduation cere-
mony") (emphasis added). See also Newdow v. U.S. Congress, 328
F.3d 466, 476 (9th Cir. 2003) (O’Scannlain, J., dissenting from denial
of rehearing en banc) (noting the "crucial factor" in school prayer
cases is "the nature of the exercise in which the students were asked
to participate"), rev’d by Elk Grove United Sch. Dist., 124 S.Ct. 2301.
Our precedent also recognizes this distinction: "[u]nder the Supreme
Court’s decisions . . . school officials may not, consistent with the
Establishment Clause, compel students to participate in a religious
activity." Mellen v. Bunting, 327 F.3d 355, 371 (4th Cir. 2003)
(emphasis added). Moreover, in all of the cases involving school
prayer, the Court iterated that fleeting references to God in the class-
room were not unconstitutional. See Lee, 505 U.S. at 597 ("We do not
hold that every state action implicating religion is invalid if one or a
few citizens find it offensive."); Schempp, 374 U.S. at 303 ("The ref-
erence to divinity in the revised pledge of allegiance, for example,
may merely recognize the historical fact that our Nation was believed
to have been founded ‘under God.’") (Brennan, J., concurring); Engel,
370 U.S. at 435 n. 21 ("[P]atriotic or ceremonial occasions [like the
recitation of the Declaration of Independence] bear no true resem-
blance to the unquestioned religious exercise that the State . . . has
sponsored in this instance.").
Thus, although religious exercises in public schools, even if volun-
tary, may violate the Constitution because they can indirectly coerce
students into participating, nothing in any of the school prayer cases
suggests the same analysis applies when the challenged activity is not
a religious exercise. And distinguishing this case from Engel and its
progeny is the simple fact that the Pledge, unlike prayer, is not a reli-
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gious exercise or activity, but a patriotic one. "The very purpose of
a national flag is to serve as a symbol of our country . . . ." Texas v.
Johnson, 491 U.S. 397, 405. Pledging allegiance to that flag is "a
common public acknowledgment of the ideals that our flag symbol-
izes. Its recitation is a patriotic exercise designed to foster national
unity and pride in those principles." Elk Grove United Sch. Dist., 124
S.Ct. at 2305; see also Engel, 370 U.S. at 435 n.21; Sherman, 980
F.2d at 445 (noting founding fathers did not deem "ceremonial invo-
cations of God," like the Pledge, "as ‘establishment.’"). Indeed, the
Recitation Statute itself appears in a statutory section mandating that
Virginia public schools teach the history and importance of the flag
in school in order to promote better citizenship among students. Va.
Code Ann. § 22.1-202.
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. See Van Orden, slip op. at 4
(June 27, 2005) (Thomas, J., concurring) ("words such as ‘God’ have
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"). A prayer, by contrast, is "a solemn
and humble approach to Divinity in word or thought." Webster’s
Third New Int’l Dictionary 1782 (1986). It is a personal communica-
tion between an individual and his deity, "with bowed head, on
bended knee." Newdow, 328 F.3d at 478 (O’Scannlain, J., dissenting
from denial of rehearing en banc). The prayers ruled unconstitutional
in Lee, Schempp, and Engel, and were viewed by the Court as dis-
tinctly religious exercises. It was the religious nature of these activi-
ties that gave rise to the concern that non-participating students would
be indirectly coerced into accepting a religious message. The indirect
coercion analysis discussed in Lee, Schempp, and Engel, simply is not
relevant in cases, like this one, challenging non-religious activities.
Even assuming that the recitation of the Pledge contains a risk of indi-
rect coercion, the indirect coercion is not threatening to establish reli-
gion, but patriotism. "Separation of church from state does not imply
separation of state from state." Sherman, 980 F.2d at 444. Thus, the
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fact that indirect coercion may result from voluntary recitation of the
Pledge in school classrooms is of no moment under the Establishment
Clause. 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 volun-
tary school prayer does.
IV.
In sum, "the measure of constitutional adjudication is the ability
and willingness to distinguish between real threat and mere shadow."
Schempp, 374 U.S. at 308 (Goldberg, J., concurring). We feel confi-
dent in stating that "it is difficult to detect any signs of incipient the-
ocracy springing up since the Pledge was amended in 1954."
Newdow, 328 F.3d at 492 n. 4 (Fernandez, J., dissenting); see also
Van Orden, slip op. at 6 (Breyer, J., concurring in the judgment)
(finding relevant, in holding that Ten Commandments display outside
of Texas State Capitol constitutional, that forty years had passed
before a constitutional challenge was raised to the display). The
notion that official acknowledgments of religion and its role in the
founding of our nation such as that in the Pledge "pose a real danger
of establishment of a state church" is simply "farfetched." Lynch, 465
U.S. at 686. The Establishment Clause works to bar "sponsorship,
financial support, and active involvement of the sovereign in religious
activity." Walz, 397 U.S. at 668. The Pledge, which is not a religious
exercise, poses none of these harms and does not amount to an estab-
lishment of religion. Accordingly, the Recitation Statute, requiring
daily, voluntary, recitation of the Pledge in the classrooms of Virgin-
ia’s public schools is constitutional.
V.
For the foregoing reasons, the opinion of the district court is
affirmed.
AFFIRMED
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DUNCAN, Circuit Judge, concurring:
I write to join in all but Part III-A-1 of Judge Williams’ fine opin-
ion. I agree, of course, with her conclusion in that section that the
Pledge does not violate the Establishment Clause. I am concerned,
however, that the analysis—flowing as it does from the premise that
history tells us that some government invocations of religion are insu-
lated from the strictures of the Establishment Clause—comes closer
to crossing the line drawn by the Supreme Court majority in
McCreary County v. Am. Civil Liberties Union, 125 S. Ct. 2722
(2005), than is necessary to sustain the state law at issue here.
One of the most significant points of contention between the major-
ity and the dissent in McCreary focuses on whether official acknowl-
edgments of God (catalogued at length by Justice Scalia in dissent
and cited here in part III-A-1) prove that government may "espouse
submission to the divine will" without offending the principle of
governmental neutrality that undergirds the Establishment Clause.
McCreary, 125 S. Ct. at 2743. Whereas the dissent relied upon histor-
ical evidence tending to show that the Founders believed that some
official acknowledgments of religion were compatible with the Estab-
lishment Clause, the majority cited other evidence suggesting "that
the Framers intended the Establishment Clause to require governmen-
tal neutrality in matters of religion, including neutrality in statements
acknowledging religion." Id. at 2744. Accordingly, a majority of Jus-
tices agreed that, beyond the broad principle of governmental neutral-
ity, "[t]he fair inference is that there was no common understanding
about the limits of the establishment prohibition" at the founding. Id.
As Justice O’Connor observed, "[r]easonable minds can disagree
about how to apply the Religion Clauses in a given case. But the goal
of the Clauses is clear: to carry out the Founders’ plan of preserving
religious liberty to the fullest extent possible in a pluralistic society."
Id. at 2746 (O’Connor, J., concurring). McCreary thus reaffirmed the
principle that "the ‘First Amendment mandates governmental neutral-
ity between religion and religion, and between religion and nonreli-
gion.’" Id. at 2733 (quoting Epperson v. Arkansas, 393 U.S. 97, 104
(1968)).* Mindful of McCreary’s lessons, I believe that this case is
*I intend no suggestions about the "vibrancy" of this principle beyond
what is suggested by the quoted language itself.
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best resolved by reliance upon (1) the Supreme Court’s repeated
assurances, albeit in dicta, that the Pledge does not violate the Estab-
lishment 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. Elk Grove United Sch. Dist. v. Newdow, 124 S. Ct. 2301,
2305 (2004). I do not believe that we need to go any further to resolve
the issue before us.
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:
The Supreme Court has spoken repeatedly on the precise issue we
address today. The Court has consistently said that inclusion of the
phrase "under God" in the Pledge of Allegiance does not offend the
Establishment Clause. For this reason, I concur in the judgment —
but only the judgment.
In a series of cases beginning with Engel v. Vitale, 370 U.S. 421
(1962), and continuing through Elk Grove Unified Sch. Dist. v. New-
dow, 124 S. Ct. 2301 (2004), the Court and many Justices individu-
ally have unequivocally stated, albeit in dicta, that the Pledge of
Allegiance to a "Nation under God" does not violate the Constitution.
Moreover, no member of the Supreme Court has ever suggested the
contrary. See ante at 16-17.
We and our sister circuits have "frequently noted" that lower fed-
eral courts generally must treat the "carefully considered language of
the Supreme Court, even if technically dictum, . . . as authoritative."
Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004)
(internal quotation marks and citation omitted) (collecting cases).
Such deference is especially appropriate when, as here, we encounter
a decades-long succession of statements from the Court that answers
the specific question before us. See Lambeth v. Bd. of Comm’rs, 407
F.3d 266, 271 (4th Cir. 2005) (noting the "considerable persuasive
value" of repeated Supreme Court dicta stating that the national
motto, "In God We Trust," does not violate the Establishment
Clause).
We need not search further than these assurances to resolve the
issue before us, and I would not do so. For without the Court’s
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explicit guidance, this could be an extremely close case, requiring
navigation through the Supreme Court’s complicated Establishment
Clause jurisprudence. At least one Justice has recognized the difficul-
ties involved. See Newdow, 124 S. Ct. at 2327-30 (Thomas, J., con-
curring in the judgment).
First, a pledge to a country "under God" might be regarded as reli-
gious activity. Certainly, the Supreme Court has clarified that prayer
is not the only religious activity with which the First Amendment is
concerned. See Good News Club v. Milford Cent. Sch., 533 U.S. 98,
119 (2001) (characterizing a Christian organization’s activities,
including a Bible lesson and memorization of Bible verses, as "reli-
gious activity"); Lee v. Weisman, 505 U.S. 577, 586 (1992) (noting
Establishment Clause precedents dealing with "prayer and religious
exercise") (emphasis added); Sch. Dist. of Abingdon Township v.
Schempp, 374 U.S. 203, 223 (1963) (characterizing activity including
the selection and reading of Bible verses and recitation of the Lord’s
Prayer as "religious ceremony"). To suggest that a pledge to a country
"under God" does not constitute a religious activity might seem to
denigrate the importance and sanctity of the belief in God held by
many. Indeed, it is the conjunction of religion and the state that
affronts Myers’ deeply-held religious convictions and the teachings of
his Anabaptist Mennonite faith.
Second, the statute at issue, requiring daily recitation of the Pledge
in public elementary school classrooms, might be seen as offending
the principle of neutrality that undergirds the Establishment Clause.
The Court recently again reaffirmed that "the ‘First Amendment man-
dates governmental neutrality between religion and religion, and
between religion and nonreligion.’" McCreary County v. Am. Civil
Liberties Union, 2005 WL 1498988, at *10 (June 27, 2005) (quoting
Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). The government
cannot "force a person to profess a belief or disbelief in any religion."
Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (internal quotation
marks omitted). Yet, by invoking "one Nation under God," the Pledge
certainly raises the specter of religion, implicating concerns about the
government’s neutrality.
Because the phrase "under God" does "entail an affirmation that
God exists," Newdow, 124 S. Ct. at 2329 (Thomas, J., concurring in
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the judgment), it may be "anathema to those who reject God’s exis-
tence." Van Orden v. Perry, 2005 WL 1500276, at *9 (June 27, 2005)
(Thomas, J., concurring). Moreover, the nonreligious may not be the
only people offended by this affirmation. The Supreme Court has
long recognized that some religions practiced in this country "do not
teach what would generally be considered a belief in the existence of
God." Torcaso, 367 U.S. at 495 n.11; see also Van Orden, 2005 WL
1500276, at *20 & n.18 (Stevens, J., dissenting). So, requiring recita-
tion of the Pledge, with its invocation of a monotheistic God, might
well be seen as both favoring religion over nonreligion and "prefer[r-
ing]" one religious tradition over others. Everson v. Bd. of Educ., 330
U.S. 1, 15 (1947).
However, the Justices of the Supreme Court have stated, repeatedly
and expressly, that the Pledge of Allegiance’s mention of God does
not violate the First Amendment. I would affirm the district court’s
judgment solely on the basis of this considerable authority.
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