IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10347

DAVID WALLACE CROFT, As Parents and Next Friend of their minor

Children; SHANNON KRISTINE CROFT, As Parents and Next Friend of

their minor Children; JOHN DOE, As Parents and Next Friend of their minor

Children; JANE DOE, As Parents and Next Friend of their minor Children,

Plaintiffs - Appellants

versus

RICK PERRY, Governor of the State of Texas,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY and GARZA, Circuit Judges, and STARRETT, District Judge.

*

E. GRADY JOLLY, Circuit Judge:

In this appeal, the plaintiffs, David and Shannon Croft and John and Jane

Doe, parents of minor children who attend public schools in Texas, challenge the

Texas pledge of allegiance, as amended to include the phrase “one state under

God,” and a provision of the Texas Education Code requiring students to recite

the pledge daily. They seek injunctive and declaratory relief against Texas

Governor Rick Perry, arguing that the pledge and education provision violate the

United States Court of Appeals

Fifth Circuit

F I L E D

October 13, 2010

Lyle W. Cayce

Clerk

 District Judge of the Southern District of Mississippi, sitting by designation. *

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Establishment Clause ofthe First Amendment to the United States Constitution

as incorporated by the Fourteenth Amendment.

On cross-motions for summary judgment, the district court found that the

plaintiffs brought only facial challenges to the pledge, concluded that the pledge

and education provision satisfy the Establishment Clause under any applicable

test, and granted summary judgment in favor of the defendant. On appeal, the

plaintiffs argue that the district court erred in treating their claim as a facial

challenge; the plaintiffs also reassert their arguments that the amended pledge

violates the Establishment Clause. Because we agree that the pledge and the

education provision do not violate the Establishment Clause, we AFFIRM.

I.

In 2007, the Texas state legislature amended the Texas state pledge of

allegiance to include, for the first time, the words “under God.” As amended, the

pledge reads, “Honor the Texas flag; I pledge allegiance to thee, Texas, one state

under God, one and indivisible.” Tex. Gov’t Code Ann. § 3100.101 (West 2008).

Under § 25.082 of the Texas Education Code, students are required to recite the

1

state pledge once daily unless excused by a parent. Tex. Educ. Code Ann.

§ 25.082 (West 2006).

 § 25.082. SCHOOL DAY; PLEDGES OF ALLEGIANCE; MINUTE OF 1

SILENCE. 

. . .

(b) The board of trustees of each school district shall require students, once

during each school day at each school in the district, to recite:

(1) the pledge of allegiance to the United States flag in

accordance with 4 U.S.C. Section 4, and its subsequent

amendments; and

(2) the pledge of allegiance to the state flag in accordance with

Subchapter C, Chapter 3100, Government Code.

(c) On written request from a student's parent or guardian, a school district

shall excuse the student from reciting a pledge of allegiance under Subsection

(b).

This education code provision predates the current version of the Texas pledge.

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Prior to passage the amendment underwent several rounds of debate in

the state legislature and was subject to analysis by research committees from

the state House of Representatives and Senate. In the course of debate, two

purposes for inserting the phrase “under God” into the pledge were advanced.

First, in the state House of Representatives, Representative Riddle, the bill’s

sponsor, explained that “there was something missing out of our state pledge

because it wasn’t consistent with our national pledge.” According to her, “what

this bill does, it simply replicates, mirrors our national pledge.” When asked to

amend the bill to include other language from the national pledge, such as “with

liberty and justice for all,” Representative Debbie Riddle declined, explaining

that “it says what we wanted it to say” and that she “didn’t think of” mirroring

other parts of the national pledge.

Second, in the state Senate, Senator Dan Patrick, after pointing to

references to God strewn throughout founding-era documents, expressed an

intention to “acknowledge our Judeo Christian heritage by placing the words

under God in the state pledge.” Bill analyses prepared by the House and Senate

research committees also identified acknowledgment of religious heritage as the

primary purpose for the bill. According to the Senate committee, “[s]ince the

founding of the United States through modern times, there has been a link to

God in the political and social culture of the United States. . . . Placing the

phrase ‘under God’ in the Texas state pledge may best acknowledge this

heritage.”

Before the district court, the plaintiffs argued that the amended pledge

violates the Establishment Clause in four ways: (1) the pledge’s use of the

singular “God” impermissibly favors monotheistic over polytheistic beliefs; (2)

the amendment does not have a secular purpose or effect, as any stated purpose

is pretext for a religious motivation; (3) the pledge impermissibly endorses

religious belief by affirming that Texas is organized “under God”; and (4) the

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pledge’s recitation in schools pursuant to § 25.082 of the Texas Education Code

impermissibly coerces religious belief.

After reviewing the pledge’s language and the legislative history, the

district court rejected each of the plaintiffs’ theories as to how the pledge violates

the Establishment Clause and granted summary judgment to the defendant. On

appeal, the plaintiffs argue that the district court erred in treating their

complaint as a facial challenge, generally questioning the constitutionality of the

statute, rather than as an as-applied challenge questioning the constitutionality

of the statute as specifically applied to their children. The plaintiffs further

argue and that the district court erred in holding that the pledge itself survived

any constitutional attack.

We consider each of the plaintiffs’ arguments separately.

II.

We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. E.g., Golden Bridge Tech., Inc.

v. Motorola, Inc., 547 F.3d 266, 270 (5th Cir. 2008). Summary judgment is

appropriate where the submissions show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A.

At the outset of its opinion, the district court noted that the plaintiffs

failed to identify whether their objection to the pledge was a facial challenge or

an as-applied challenge. Because the plaintiffs showed no evidence of the

manner in which the pledge was specifically administered unconstitutionally

against them, as parents or as next friends of their minor children, the district

court treated their challenge as facial and required that they “‘show that under

no circumstances could the law be constitutional.’” Dist. Ct. op. at 4 (citing

Barnes v. Mississippi, 922 F.2d 1335, 1343 (5th Cir. 1993)).

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The plaintiffs argue that applying this “heightened burden” was error, as

there is no distinction between facial and as-applied challenges in the context of

the Establishment Clause. According to the plaintiffs, once an individual with

standing challenges the government’s conduct, that conduct is reviewed under

one or all of the several tests used by the Supreme Court to identify

Establishment Clause violations; no showing of unconstitutionality under all

circumstances is required.

The plaintiffs are incorrect. Both we and the Supreme Court have

recognized the difference between facial and as-applied Establishment Clause

challenges. See Bowen v. Kendrick, 487 U.S. 589, 601–602, 620–21 (1988)

(concluding that the Adolescent Family Life Act was facially constitutional, but

remanding for consideration of its constitutionality as applied to “pervasively

sectarian” institutions); Henderson v. Stalder, 287 F.3d 374, 380 n.6 (5th Cir.

2002) (denying standing for a facial challenge, but leaving open the possibility

of standing on an as-applied challenge); Jones v. Clear Creek Indep. Sch. Dist.,

977 F.2d 963, 969 n.10 (5th Cir. 1992) (deciding the issue of facial

constitutionality, but leaving open the possibility for an as-applied challenge).

In fact, in a related case brought by these same plaintiffs challenging Texas’s

moment of silence statute, Croft v. Governor of Texas, 562 F.3d 735 (5th Cir.

2009), we declined to consider the hypothetical Lemon entanglements posed by

the plaintiffs, pointing out that “speculative possibilities may be fertile ground

for as-applied challenges if they occur,” but were inappropriate on facial review.

Croft, 562 F.3d at 750.

Because a distinction exists between facial and as-applied Establishment

Clause challenges, we must consider where the plaintiffs’ claims belong. The

Supreme Court has recently explained that where the “plaintiffs’ claim and the

relief that would follow . . . reach beyond the particular circumstances of th[o]se

plaintiffs,” the plaintiffs must “satisfy our standards for a facial challenge to the

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extent of that reach.” John Doe No. 1 v. Reed, 130 S.Ct. 2811, 2817 (2010) (citing

United States v. Stevens, 130 S.Ct. 1577, 1587 (2010)).

As described above, the plaintiffs bring four Establishment Clause

challenges. None are limited to the “particular circumstances of [the] plaintiffs,”

and so each is clearly a facial attack. The first three—sect preference, the

Lemon test, and endorsement—are best construed as a facial challenge to the

pledge itself, Tex. Gov’t Code Ann. § 3100.101. The last—coercion—is best

construed as a facial challenge to the education provision, Tex. Educ. Code Ann.

§ 25.082. Our conclusion that the challenges are facial attacks is confirmed by

the relief sought by the plaintiffs: that the pledge be invalidated in its entirety,

not merely that it not be applied to them or their children. To successfully

mount a facial challenge, the plaintiffs must show that there is no set of

circumstances under which either the language of the pledge or the requirement

that children recite the pledge in classrooms is constitutional. If the plaintiffs

successfully show either provision to be unconstitutional in every application,

then that provision will be struck down as invalid.

B.

Before turning to the plaintiffs’ specific arguments, we will review national

pledge precedent, which undoubtedly is relevant as Texas’s use of the phrase

“one state under God” was designed to mirror the “one nation under God” found

in the pledge of allegiance to the United States flag.

The Supreme Court has never directly addressed the constitutionality of

the national pledge, but has suggested in dicta, time and again, that the pledge

is constitutional. See Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of

Allegheny v. ACLU, 492 U.S. 602–03 (1989). The closest case to deciding the

issue, Elk Grove Unified School District. v. Newdow, was resolved on standing

grounds, but three justices would have upheld the pledge either as a recognition

of the importance of religious beliefs to our founding, 542 U.S. 1, 32 (2001)

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(Rehnquist, C.J.), or as a form of ceremonial deism, id. at 36 (O’Connor, J.).

Even the majority described the pledge as “a public acknowledgment of the

ideals that our flag symbolizes” and its recitation as “a patriotic exercise

designed to foster national unity and pride in those principles.” 542 U.S. at 6.

Although dicta, we do take such pronouncements from the Supreme Court

seriously. See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir.

1997); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980).

On the strength of these Supreme Court cases, the three circuits which

have addressed the national pledge have found it constitutional. In Sherman

2

v. Community Consolidated School District 21, the Seventh Circuit explained

that references to God in our nation’s earliest history make clear that the

founders did not “deem[] ceremonial invocations of God as ‘establishment.’” 980

F.2d 437, 445 (7th Cir. 1992). In Myers v. Loudoun County Public Schools, the

Fourth Circuit, also upholding the national pledge, noted that the inclusion of

“under God” “does not alter the nature of the pledge as a patriotic activity” and

poses “none of the harms” of “sponsorship, financial support, [or] active

involvement . . . in religious activity,” all of which are condemned by the

Establishment Clause. 418 F.3d 395, 407–08 (4th Cir. 2005). In Newdow v. Rio

Linda Union School District, the Ninth Circuit concluded that “both the purpose

and effect of the Pledge are that of a predominantly patriotic, not a religious,

exercise,” 597 F.3d 1007, 1037 (9th Cir. 2010), and so upheld both the pledge

and a school district policy of daily recitation under the Lemon, endorsement,

and coercion tests.

With respect to the dicta of the Supreme Court and the holdings of these

circuits that the national pledge is constitutional, the defendant argues that the

 We have also recognized, in dicta, the national pledge’s likely constitutionality. See 2

Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 198 (5th Cir. 2006); Murray v. City of

Austin, 947 F.2d 147, 154–55 (5th Cir. 1991).

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Texas pledge is “constitutionally indistinguishable” from the national pledge and

urges us to follow the above cases. The plaintiffs, however, argue that the

national pledge precedent is inapplicable here, as its adoption over fifty years

ago is sufficiently historic to make it constitutional today. Neither party is

3

entirely correct. Under many tests, what also matters are the circumstances of

the pledge’s adoption, and in this regard the Texas pledge is constitutionally

unique. When looking, however, to legitimate purposes for using the language

“under God,” as well as its likely effect when introduced into a pledge, analyses

of the national pledge are relevant and not made less so by its age when

compared to the youth of the Texas pledge.

With these persuasive cases as a backdrop, we turn to our review of

Texas’s state pledge.

III.

In reviewing the constitutionality of a challenged government action under

the Establishment Clause, we use a “multi-test analysis” that has “result[ed]

from an Establishment Clause jurisprudence rife with confusion and from our

own desire to be both complete and judicious in our decision-making.” Freiler,

185 F.3d at 344. The plaintiffs point us to four “tests,” each of which derives

from a different Supreme Court case and each of which, they allege, is fatal to

the Texas pledge. For reasons we explain, we hold that the pledge survives this

constitutional challenge.

A.

First, the plaintiffs argue that the pledge fails Larson v. Valente’s no-sectpreference test, a test they style a “basic threshold criterion” for the

constitutionality of government action. The pledge fails, they allege, because its

 Texas’s amended pledge is only three years old. 3

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reference to a singular “God” rather than the plural “gods” shows official

preference for monotheistic belief over polytheistic belief.

“The clearest command of the Establishment Clause is that one religious

denomination cannot be officially preferred over another.” Larson v. Valente,

456 U.S. 228, 244 (1982). This command is violated when, for example, the

government elevates particular religious imagery, thus “demonstrat[ing] . . .

allegiance to a particular sect or creed,” County of Allegheny, 492 U.S. at 603–05,

or engages in legislative favoritism, thus “fail[ing] to exercise governmental

authority in a religiously neutral way,” Board of Educ. of Kiryas Joel Village

School Dist. v. Grumet, 512 U.S. 687, 703 (1994). It is not, however, violated

with “nonsectarian references to religion” such as “references to God in the motto

and the pledge.” County of Allegheny, 492 U.S. at 603. As Justice O’Connor has

explained, this is because a “simple reference to a generic ‘God’ . . . does not refer

to a nation ‘under Jesus’ or ‘under Vishnu,’ but instead acknowledges religion in

a general way.” Elk Grove Unified School Dist., 542 U.S. at 42.

The plaintiffs provide no cognizable constitutional reason to reject Justice

O’Connor’s rationale as applicable in this case. The term God is adequately

generic to acknowledge a wide range of religious belief, monotheistic and

polytheistic alike. A reference to “God” may not reach every belief system, but

it is a “tolerable attempt” at acknowledging religion without favoring a

particular sect or belief. Id. We thus hold that the pledge’s use of the singular

“God” does not favor a particular faith in violation of the Establishment Clause.

B.

Second, the plaintiffs argue that the pledge fails the Lemon test, which is

perhaps the most criticized, but still the most widely-used, test for identifying

Establishment Clause violations. Under Lemon, a statute violates the

Establishment Clause if (1) it does not have a secular purpose, (2) its principal

or primary effect advances or inhibits religion, or (3) it creates excessive

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government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602,

612–13 (1971). The plaintiffs focus on Lemon’s first and second prongs. For the

following reasons, we hold that the pledge satisfies both.

1.

Under Lemon’s first prong, the state must identify a secular purpose for

the “under God” amendment to the pledge. The plaintiffs argue the legislative

history demonstrates there was no secular purpose behind amending the Texas

pledge to include “one state under God.” Any purported secular interest in

mirroring the national pledge was proved a sham, the plaintiffs contend, when

the legislature refused also to include the phrase “with liberty and justice for

all.” According to the defendant, however, “the Legislature sincerely (and

understandably) believed that simply tracking the language of the U.S. Pledge

affirming that we are ‘under God’ was the safest and smoothest means of

achieving its purpose to acknowledge our religious heritage.” Id.

Courts are “normally deferential to a [legislative] articulation of a secular

purpose.” Edwards v. Aguillard, 482 U.S. 578, 587 (1987). Nevertheless, we do

review to ensure that the alleged secular purpose is the actual purpose, Wallace

v, Jaffree, 472 U.S. 38, 56 (1985); in other words, it “must be ‘sincere’; a law will

not pass constitutional muster if the secular purpose articulated by the

legislature is merely a ‘sham,’” id. at 64 (Powell, J., concurring), or “merely

secondary to a religious one,” McCreary County v. ACLU, 545 U.S. 844, 864

(2005). However, the statute need not have “exclusively secular” objectives to

meet the sincerity standard; the touchstone is neutrality, and it is only “[w]hen

the government acts with the ostensible and predominant purpose of advancing

religion [that] it violates” the first prong of the Lemon test. Id. at 860.

Importantly, “the eyes that look to purpose belong to an ‘objective observer’,” and

require no “judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862. In

sum, “openly available data [must] support a commonsense conclusion that a

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religious objective permeated the government’s action.” Id. at 863. The purpose

test is “rarely . . . determinative.” Id. at 859.

There can be no doubt that mirroring the national pledge and

acknowledging the state’s religious heritage are permissible secular purposes.

Acknowledgment of religious heritage, although religiously oriented, “is no less

secular simply because it is infused with a religious element.” Freiler, 185 F.3d

at 345. The same is true of the defendant’s mirroring rationale.

The legislative history is also persuasive in showing that these secular

purposes were the actual purposes and not “sham” purposes devised to shield an

actual motivation to advance Christianity. “In undertaking [a] ‘sham’ inquiry,

we consider whether [the challenged action] furthers the particular purposes

articulated by the [legislature] or whether the [challenged action] contravenes

those avowed purposes.” Id. at 344. For example, in Wallace v. Jaffree, Alabama

amended its moment of silence statute from authorizing “meditation” to

authorizing “meditation or voluntary prayer.” 472 U.S. at 40. Because the

existing statute adequately protected students’ rights to engage in voluntary

prayer, the Court refused to accept the purported secular interest in protecting

voluntary prayer, inferring instead an intent to express endorsement for prayer

activities. Id. at 59. Unlike Wallace, here the inserted language advances both

of the defendant’s asserted purposes, neither of which were satisfied under the

prior version of the pledge. That one of the amendment’s secular purposes could

arguably have been better advanced by also incorporating “with liberty and

justice for all” is irrelevant to our analysis.

4

Of course, if one legislator was motivated by a desire to advance religion, that is not 4

enough to defeat other legislators' sincere interest in acknowledging the state's religious

heritage; that "[s]ome legislators may have religious motives . . . does not invalidate an act

with an otherwise secular legislative purpose." Croft, 562 F.3d at 742-43 (citing Bd. of Educ.

of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 249 (1990)).

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Ultimately, the alleged secular purposes in mirroring the federal pledge

and acknowledging the state’s religious heritage are not so “implausible or

inadequate,” McCreary County, 545 U.S. at 865, that they ought not be credited.

Nor have the plaintiffs presented other evidence indicating that the secular

purposes are a “sham” or “secondary” to some overriding legislative interest in

coercing Texas’s population into religious practice or reverence. Accordingly, we

hold that the pledge satisfies Lemon’s first prong.

2.

Under Lemon’s second prong, a statute will be held unconstitutional if its

principal or primary effect advances or inhibits religion. The plaintiffs argue

that “requiring a declaration from school children that Texas is ‘one state under

god’, or requiring school children who are not monotheists to sit and listen while

teachers and other students recite that Texas is ‘one state under God’, advances

monotheistic religion and inhibits polytheistic or non-theistic religions.” As

such, the pledge as recited in Texas schools “in fact conveys a message of

endorsement or disapproval.” Lynch, 465 U.S. at 690 (O’Connor, J., concurring).

Strongly disagreeing, the defendant counters that “considered as a whole, the

Texas Pledge, like the U.S. Pledge, is plainly a patriotic, rather than religious,

exercise.”

The statute’s primary effect is “seen from the eyes of a reasonable

observer, informed and aware of his surroundings.” Van Orden v. Perry, 351

F.3d 173, 180 (5th Cir. 2003). Also, the challenged conduct must be viewed “as

an entirety, and on its contextual history, not merely the portion . . . claimed to

constitute a religious symbol.” Briggs v. Mississippi, 331 F.3d 499, 506 (5th Cir.

2003); see also Lynch, 465 U.S. at 680. Some benefit flowing from state

legislation or policy to religion is permissible: “not every law that confers an

‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone,

constitutionally invalid.” Lynch, 465 U.S. at 683. Nor does the Establishment

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Clause forbid statutes whose “effect merely happens to coincide or harmonize

with the tenets of some . . . religions.” Id.

At the outset of our analysis of the pledge statute, we rejected the

argument that we must look to the primary effect of the amendment inserting

the words “one state under God” rather than to the primary effect of the pledge

as a whole. The Supreme Court has been plain that context matters. See

County of Allegheny, 492 U.S. at 597 (“[T]he effect of the government’s use of

religious symbolism depends on its context.” ). The whole of the thing always

matters because “[f]ocus exclusively on the religious component of any activity

would inevitably lead to its invalidation under the Establishment Clause.”

Lynch, 465 U.S. at 668. Accordingly, in Briggs we reviewed Mississippi’s entire

state flag, rather than just the inclusion of a St. Andrew’s cross, 331 F.3d at 506,

and in Murray we reviewed the City of Austin’s entire city insignia, 947 F.3d at

156, rather than just the inclusion of a Latin cross.

Looking at the pledge as a whole, we find little reason to conclude that

individuals who encounter the pledge could “fairly understand [its] purpose” to

be the endorsement of religious belief. County of Allegheny, 492 U.S. at 594.

There is no compelling reason to believe that with the inclusion of the words “one

state under God,” the Texas pledge—once a patriotic exercise—now primarily

endorses religious belief in violation of the Establishment Clause. A reasonable

observer would conclude that the pledge remains a patriotic exercise, intended

to inculcate fidelity to the state and respect for its history and values, one of

which is its religious heritage. Accordingly, we hold that the pledge satisfies

Lemon’s second prong.

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C.

Third, the plaintiffs argue that the pledge fails Lynch’s “endorsement

test.” These arguments essentially reassert the arguments made relating to

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Lemon’s second prong, which we have discussed above. In brief, the plaintiffs

argue, with feeling, that “[i]t borders on sophistry to suggest that the

‘reasonable’ polytheist public school child . . . would not feel less than a full

member of the political community every time his fellow Texas classmates

recited . . . a phrase he also believed to be false.” The defendant, with bluntness,

counters that the pledge “simply acknowledges, within a broader patriotic

statement, a basic historic fact about our Nation: that religion was significant

to our Founders and to their enduring political philosophy.”

Lynch v. Donnelly tells us that the government runs afoul of the

Establishment Clause when it endorses a particular religious belief, because

“[e]ndorsement sends a message to nonadherents that they are outsiders, not full

members of the political community, and an accompanying message to adherents

that they are insiders, favored members of the political community.” 465 U.S.

at 688. This endorsement analysis is similar to the second prong of the Lemon

test. Under each we review to ensure that, irrespective of the actual purpose,

government conduct does not “in fact convey[] a message of endorsement or

disapproval,” thereby “aid[ing] one religion, aid[ing] all religions, or favor[ing]

one religion over another.” Freiler, 185 F.3d at 346 (internal citation omitted);

see also County of Allegheny, 492 U.S. at 592 (explaining the concern with

endorsement as a refinement of Lemon’s second prong); Briggs, 331 F.3d at 506

(noting similarity and treating the tests together).

As we have previously noted, the plaintiffs contend that the pledge violates the only 5

the first two prongs of the three prongs of the Lemon test. Therefore, we need not address the

third prong and continue by considering the plaintiffs’ next assertion, that the pledge fails the

Lynch endorsement test.

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As discussed above, given the context, we conclude that the use of “under

God” acknowledges but does not endorse religious belief. We thus hold that the

pledge does not falter under Lynch’s endorsement test.

D.

Fourth, the plaintiffs argue that the provision mandating recitation of the

pledge, infra n. 2, coerces religious belief as prohibited in Lee v. Weisman, 505

U.S. 577 (1992). According to the plaintiffs, having a teacher lead students in

reciting the pledge exerts psychological coercion on dissenting students to

participate. The defendant points out that the Court has limited its concern

about psychological coercion to religious exercises, specifically prayer.

Certainly, “at a minimum, the [Establishment Clause] guarantees that

government may not coerce anyone to support or participate in religion or its

exercise.” Lee, 505 U.S. at 587. In Lee “State officials direct[ed] the performance

of a formal religious exercise” at a graduation ceremony for a secondary school.

The Court concluded that given the setting and degree of official involvement,

“subtle coercive pressures exist[ed],” such that students could not avoid “the fact

or appearance of participation.” Id. at 588. Although not mentioned by the

parties, we use a three-part test in applying Lee. “[U]nconstitutional coercion

occurs when: (1) the government directs (2) a formal religious exercise (3) in such

a way as to oblige the participation of objectors.” Doe ex rel. Doe v. Beaumont

Indep. Sch. Dist., 173 F.3d 274, 285 (5th Cir. 1999). Application of this coercion

challenge test favors the defendant: recitation of the pledge does not constitute

“a formal religious exercise.”

When identifying a “formal religious exercise,” the “focus is on the

[challenged conduct’s] design, implementation, and effect, and not its purpose

or goal.” Id. at 290. Much like the endorsement test, religious components are

placed in context and the ultimate question is whether “the religious component

of any government practice or policy . . . overwhelm[s] the nonreligious portions.”

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Id. at 291. In Beaumont, we concluded that a public school’s use of clergy to

provide counseling services to students constituted a formal religious exercise

because the program consisted solely of clergy engaging in prototypical pastoral

endeavors and activities. Id. at 292. Even though counseling services may be

secular in nature, the exclusive use of clergy transformed the sessions into a

religious exercise.

Here the state cannot be said to have coerced students to engage in a

religious exercise. A pledge of allegiance to a flag is not a prototypical religious

activity. And, as we have explained, despite the challenged “under God”

amendment, the pledge’s effect remains patriotic; its religious component is

minimal and, when contextualized, clearly understandable as an

acknowledgment of the state’s religious heritage. Nor, unlike the counseling

services at issue in Beaumont, has the method of implementing § 25.082 tainted

an otherwise secular activity: teachers, not religious figures, lead the students

who choose to recite the pledge. We thus hold that the pledge still stands after

applying Lee’s coercion test.

IV.

In summary, neither Texas’s state pledge, Tex. Gov’t Code Ann. §

3100.101, nor the provision of its educational code requiring its recitation by

school children, Tex. Educ. Code Ann. § 25.082, violates the Establishment

Clause. The pledge is a patriotic exercise, and it is made no less so by the

acknowledgment of Texas’s religious heritage via the inclusion of the phrase

“under God.” A pledge can constitutionally acknowledge the existence of, and

even value, a religious belief without impermissibly favoring that value or belief,

without advancing belief over non-belief, and without coercing participation in

a religious exercise. Texas’s pledge is of this sort and consequently survives this

16

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No. 09-10347

challenge. Accordingly, the district court’s judgment dismissing the complaint

is

AFFIRMED.

17

Case: 09-10347 Document: 00511262049 Page: 17 Date Filed: 10/13/2010