IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

_________________________________________ 

 ) 

THE FREEDOM FROM RELIGION ) 

 FOUNDATION, et al. ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Action No. 07-356 (SM) 

 ) 

THE CONGRESS OF THE UNITED STATES ) 

OF AMERICA, et al. ) 

 ) 

 Defendants, ) 

 ) 

THE STATE OF NEW HAMPSHIRE, ) 

 ) 

 Defendant-Intervenor, ) 

and ) 

 ) 

MURIEL CYRUS, et al., ) 

 ) 

 Defendant-Intervenors. ) 

_________________________________________ ) 

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

OF DEFENDANT-INTERVENORS MURIEL CYRUS, et al. 

Bradford T. Atwood (NH Bar No. 8512) Kevin J. Hasson (admitted pro hac vice) 

CLAUSON ATWOOD & SPANEAS Eric C. Rassbach (admitted pro hac vice) 

10 Buck Road THE BECKET FUND FOR RELIGIOUS LIBERTY

Hanover, NH 03755 1350 Connecticut Ave., NW, Suite 605 

Telephone: (603) 643-2102 Washington, DC 20036 

Facsimile: (603) 643-1287 Telephone: (202) 955-0095 

 Facsimile: (202) 955-0090 

Case 1:07-cv-00356-SM Document 43 Filed 03/11/08 Page 1 of 15
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

ARGUMENT...................................................................................................................................2 

I. Plaintiffs have neither organizational standing nor standing to challenge 

 the Pledge itself....................................................................................................................2 

A. FFRF lacks organizational standing because its claims require the personal 

 participation of affected members already named in the suit. .................................2 

B. Plaintiffs make no attempt to show standing (taxpayer or otherwise) to 

 challenge the Pledge itself, rather than the School Districts’ Pledge policies.........3 

II. Plaintiffs state no claim for relief under the Establishment Clause.....................................4 

A. Plaintiffs completely fail to respond to Schoolchildren’s argument that the 

 God of the Pledge is a philosophical idea, not a theological one. ...........................5 

B. Plaintiffs’ objections entitle them only to Barnette relief—the right to opt out......6 

C. Pledge recitation passes the Lemon/Boyajian test. ..................................................7 

1. There is no impermissible purpose. .............................................................7 

2. The Pledge does not have the primary effect of advancing religion. ..........8 

III. Plaintiffs abandon or fail to support their other claims......................................................10 

CONCLUSION..............................................................................................................................10 

CERTIFICATE OF SERVICE 

Case 1:07-cv-00356-SM Document 43 Filed 03/11/08 Page 2 of 15
iii 

TABLE OF AUTHORITIES

Cases

Access 123, Inc. v. Markey’s Lobster Pool, Inc., 2001 WL 920051 (D.N.H. 2001)...................... 3 

Access 4 All, Inc. v. Trump Int’l Hotel and Tower, 458 F.Supp.2d 160 (S.D.N.Y. 2006) ............. 3 

Barnette v. West Virginia Board of Education, 47 F.Supp 241 (S.D.W.Va. 1942) ................. 7, 10 

Boyajian v. Gatzunis, 212 F.3d 1 (1st Cir. 2000) ....................................................................... 4, 7 

City of New Orleans v. Dukes, 427 U.S. 297 (1976).................................................................... 10 

Crowley v. Smithsonian Inst., 636 F.2d 738 (D.C. Cir. 1980)........................................................ 2 

Disabled in Action of Metropolitan New York v. Trump Int’l Hotel & Tower,

2003 WL 1751785 (S.D.N.Y. 2003) ........................................................................................... 3 

Elk Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301 (2004) .................................................. 8 

Hunt v. Washington State Apple Advertising Com’n, 432 U.S. 333, 343 (1977)....................... 2, 3 

Jones v. United States, 529 U.S. 848, 857 (2000) .......................................................................... 6 

Lemon v. Kurtzman, 403 U.S. 602 (1971) .................................................................................. 4, 7 

McCreary County v. ACLU of Kentucky, 545 U.S. 844, 860 (2005).............................................. 7 

Pharmaceutical Care Management Ass’n v. Rowe, 429 F.3d 294 (1st Cir. 2005)......................... 3 

Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996) ........................................................................ 9 

United Food and Commercial Workers Union Local 751 v. Brown Group,

517 U.S. 544, 554 (1996) ............................................................................................................ 3 

United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) ... 6 

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) .......................... passim 

Statutes

4 U.S.C. § 4................................................................................................................................. 1, 7 

Other Authorities

EDWARD CRAIG, THE SHORTER ROUTLEDGE ENCYCLOPEDIA OF PHILOSOPHY (2005) ................... 5 

H.R. REP. NO. 1693, 83d Cong., 2d Sess. ....................................................................................... 8 

INTRODUCTION TO ARISTOTLE (Richard McKeon, ed., 2d. ed. 1973)............................................. 5 

ISAAC HUSIK, A HISTORY OF MEDIAEVAL JEWISH PHILOSOPHY (1916).......................................... 5 

JOEL L. KRAEMER, PHILOSOPHY IN THE RENAISSANCE OF ISLAM (1986) ........................................ 5 

Case 1:07-cv-00356-SM Document 43 Filed 03/11/08 Page 3 of 15
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INTRODUCTION 

 Despite the 73 pages they spend responding to the various motions to dismiss, Plaintiffs’ 

opposition is most remarkable for what it doesn’t say. Plaintiffs don’t respond at all to 

Schoolchildren’s argument that the Court should seek to construe 4 U.S.C. § 4 in a way that 

renders it constitutional. They don’t explain why the word “God” must mean the specific 

“(Christian) Monotheistic” deity they don’t believe in, rather than any number of other, equally 

plausible non-religious meanings, including the Philosophers’ God. They don’t explain why 

they are any different than Jehovah’s Witnesses—people who also sit out recitation of the Pledge 

because of their religious scruples. And they also don’t explain why they should get a heckler’s 

veto based on their beliefs about religion while the Jehovah’s Witnesses in Barnette didn’t. 

 Plaintiffs do make a couple of important admissions in response. First, they admit that 

the only FFRF members affected by this lawsuit are the Doe Plaintiffs. That means that FFRF 

can’t meet the standard for organizational standing, since its individual members will have to 

participate in the lawsuit as named (albeit anonymous) plaintiffs. It also means that FFRF’s 

participation is entirely superfluous—FFRF is in fact a vanity plaintiff. 

 Second, Plaintiffs admit that the Congress’ purpose in amending the Pledge in 1954 was 

to distinguish the American system of inalienable rights from the Soviet system of rights given 

by the State and taken away by the State. Plaintiffs’ complaint turns out to be about the 

“manner” in which Congress acted, not its purpose for acting. 

 Plaintiffs want this Court to treat the words “one nation under God” as a declaration of an 

established religion like the one they open their opposition with. But saying it doesn’t make it 

so. Plaintiffs are entitled to their opinion that the Pledge establishes “Monotheism,” just as 

creationists are entitled to believe that the Smithsonian is establishing the religion of “Secular 

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Humanism,” see Crowley v. Smithsonian Inst., 636 F.2d 738, 742-43 (D.C. Cir. 1980) or the 

Jehovah’s Witnesses in Barnette were entitled to believe that the Flag is an idol. But the 

Constitution does not require any government to share those opinions. It requires only that the 

government protect a “sphere of intellect and spirit” for those whose religious beliefs do not 

allow them to participate. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 

642 (1943). That sphere of conscience is protected by the remedy they already have—opting out 

of reciting the Pledge. 

ARGUMENT 

I. Plaintiffs have neither organizational standing nor standing to challenge the Pledge itself. 

A. FFRF lacks organizational standing because its claims require the personal 

participation of affected members already named in the suit. 

Schoolchildren demonstrated that FFRF lacked organizational standing because it failed 

to allege that it had any “members [who] would otherwise have standing to sue.” Hunt v.

Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977) ; see Schoolchildren 

Mem. at 4-5. Specifically, FFRF failed to identify members with a cognizable injury, because 

none of its members paid taxes or attended school in the defendant school districts. 

Schoolchildren Mem. at 4-5. FFRF cannot claim organizational standing on the basis of its 

members’ dislike for the Pledge, however vehement. 

In its response, FFRF admitted that its only members who pay taxes to or attend the 

Hanover School District are the named Doe Plaintiffs. Opp. at 10-11. It does not allege that it 

has any other members who live and pay taxes in Hanover. Id. Because FFRF failed to 

concretely allege any of these facts in its Complaint—clarifying them only in response to a 

motion to dismiss—it should be dismissed outright. But even were it properly pleaded, the 

presence of the Does cannot save FFRF. The very nature of organizational standing is that “an 

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association may have standing to assert the claims of its members.” Hunt, 432 U.S. at 342. 

Where the only eligible members are already asserting their own claims, organizational standing 

is superfluous. See, e.g., Access 4 All, Inc. v. Trump Int’l Hotel and Tower, 458 F.Supp.2d 160, 

173-75 (S.D.N.Y. 2006) (dismissing organizational plaintiff because its claims were identical to 

named member plaintiff’s claims) (citing Access 123, Inc. v. Markey’s Lobster Pool, Inc., 2001 

WL 920051 at *4 (D.N.H. 2001); Disabled in Action of Metropolitan New York v. Trump Int’l 

Hotel & Tower, 2003 WL 1751785, at *10 (S.D.N.Y. 2003)). FFRF should not be permitted to 

bring a case merely because it wants its name in the caption. 

FFRF’s standing also fails because the Does’ participation is necessary for both the claim 

asserted and the relief requested. See Hunt, 432 U.S. at 343. Not only will the Court require 

evidence from the named Doe Plaintiffs supporting their claims of coercion, it will also require 

the Doe Plaintiffs’ participation so that it may assess their claims for damages. See Complaint at 

20 (requesting “other and further relief”). The third prong of the Hunt test for organizational 

standing is generally “understood to preclude associational standing when an organization seeks 

damages on behalf of its members.” United Food and Commercial Workers Union Local 751 v.

Brown Group, 517 U.S. 544, 554 (1996).1

 Here, the Does’ participation is necessary in order to 

assess damages and recover relief. FFRF may not assert organizational standing. 

B. Plaintiffs make no attempt to show standing (taxpayer or otherwise) to challenge the 

Pledge itself, rather than the School Districts’ Pledge policies. 

Schoolchildren demonstrated that Plaintiffs lack both state and federal taxpayer standing 

to challenge the Pledge. Schoolchildren Mem. at 4-6. Plaintiffs fail to defend their claim for 

 

1

 See also Pharmaceutical Care Management Ass’n v. Rowe, 429 F.3d 294, 307 (1st Cir. 

2005) (explaining that where plaintiffs have claims for damages, individual participation is 

necessary “so that the members [rather than the association] could recover their own damages.”). 

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taxpayer standing at all, claiming standing based upon “stigmatic injury” instead.2

 

Schoolchildren Mem. at 4-11. They continue to assert generalized grievances based on the 

language of the Pledge itself, without demonstrating that the existence of the Pledge is related to 

an appropriation or that it increased Plaintiffs’ taxes in any appreciable way. See id. But an 

appropriation (or at least an appreciable increase in tax dollars) is a necessary prerequisite for 

both federal and state taxpayer standing. Schoolchildren Mem. at 4-6. Because Plaintiffs have 

failed to allege any tax appropriation for the Pledge, they cannot establish taxpayer standing. 

II. Plaintiffs state no claim for relief under the Establishment Clause. 

 Schoolchildren argued in their opening brief that the Pledge does not implicate the 

Establishment Clause at all, because the word “God” as used in the Pledge has a philosophical 

rather than a theological meaning. Schoolchildren Mem. at 9-18. The God of the Pledge is not a 

“(Christian) Monotheistic” God, but the Philosophers’ God—a concept that originated by at least 

the time of Aristotle, well before the advent of Christianity. Schoolchildren Mem. at 8-9. 

Plaintiffs don’t respond to this argument, nor to Schoolchildren’s argument that where a federal 

statute has more than one possible meaning, this Court is charged with construing the statute to 

ensure constitutionality. See Opp. generally. Plaintiffs also fail to respond to Schoolchildren’s 

argument that Barnette controls the outcome of this case. 

 The Pledge and its recitation are also constitutional even if the Establishment Clause and 

the Lemon/Boyajian test are implicated. Plaintiffs make no argument about the School Districts’ 

purpose and admit that Congress’ predominant purpose was to distinguish between the American 

and Soviet systems of rights. Opp. at 34-36. Plaintiffs rely on “principled dicta” from dissenting 

opinions to distinguish statements in Supreme Court precedent stating that the Pledge does not 

 

2

 “Stigmatic injury” does nothing to help FFRF, which admittedly has no presence in the 

defendant school districts aside from the Does. 

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advance religion. Opp. 56-60. Finally, Plaintiffs admit that the entanglement prong is not 

implicated. Opp. at 34 n.23. 

A. Plaintiffs completely fail to respond to Schoolchildren’s argument that the God of 

the Pledge is a philosophical idea, not a theological one. 

 Schoolchildren demonstrated in their opening memorandum that the Pledge is a 

statement of philosophy, not theology, and thus cannot offend the Establishment Clause. Indeed, 

the specific words “under God” have been used by Bracton, Coke, Blackstone, Washington, 

Hamilton, Madison, Jefferson, Lincoln and others throughout Anglo-American legal history to 

recognize that the rights of every person are rooted in a source outside of, and prior to, the State. 

Schoolchildren Mem. at 9-18. The God they referred to was the Philosophers’ God—the God 

that Aristotle, Avicenna, Maimonides, Leibniz and others derived from the structure of human 

reason itself. See ARISTOTLE, METAPHYSICS at 12.7 (1072b), reproduced in INTRODUCTION TO 

ARISTOTLE 321 (Richard McKeon, ed., 2d. ed. 1973) (using the term “God” to describe his 

famous “first mover” that, he reasoned, “exists of necessity, and in so far as it exists by 

necessity, its mode of being is good.”); JOEL L. KRAEMER, PHILOSOPHY IN THE RENAISSANCE OF 

ISLAM 289 n.47 (1986) (Avicenna); ISAAC HUSIK, A HISTORY OF MEDIAEVAL JEWISH 

PHILOSOPHY xliii-xlv (1916); (Maimonides); EDWARD CRAIG, THE SHORTER ROUTLEDGE 

ENCYCLOPEDIA OF PHILOSOPHY 320 (2005) (Leibniz). Plaintiffs may object to the idea of a 

Philosopher’s God on philosophical or even religious grounds, but that does not change the fact 

that the idea itself is a philosophical one. And a philosophical idea cannot violate the 

Establishment Clause. 

 Moreover, Plaintiffs’ reply amply demonstrates that their case is entirely dependent on 

this Court deciding that the term “God” is always and forever a religious term. For if there is 

even a single gloss of the term “God” that is not religious, then this Court has to rule against 

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Plaintiffs. That’s because this Court is charged with construing federal statutes in a way that 

ensures their constitutionality. See Jones v. United States, 529 U.S. 848, 857 (2000) (quoting 

United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)) 

(“‘where a statute is susceptible of two constructions, by one of which grave and doubtful 

constitutional questions arise and by the other of which such questions are avoided, our duty is to 

adopt the latter.’”). Thus if this Court can conclude that the God of the Pledge is the 

Philosopher’s God, it must conclude that the God of the Pledge is the Philosopher’s God. 

 B. Plaintiffs’ objections entitle them only to Barnette relief—the right to opt out. 

 The Establishment Clause is also not implicated because Plaintiffs already have the only 

remedy they would be entitled to under the First Amendment—the right to sit the Pledge out. In 

Barnette, the Jehovah’s Witness plaintiffs sought relief from a statute that required them to recite 

the Pledge. Barnette, 319 U.S. at 629. The Court ruled that West Virginia could not 

constitutionally require them to recite the Pledge. Id. at 642. But the Court did not hold that the 

government could not lead children in reciting the Pledge in the Barnette plaintiffs’ presence. Id.

 Under the approach Plaintiffs urge, mere recital of the Pledge in the presence of those 

who believe it to be idol worship would violate the Establishment Clause, because it purportedly 

coerces those children to recite the Pledge in violation of their religious beliefs. But Barnette

was about compulsory participation in Pledge recitation, not merely being present while the 

Pledge is said. See id. at 631 (challenge to “compulsory salute and slogan”); id. at 644 (Black 

and Douglas, JJ., concurring) (“we cannot say that a failure, because of religious scruples, to 

assume a particular physical position and to repeat the words of a patriotic formula creates a 

grave danger to the nation”); id. at 645 (Murphy, J., concurring) (reciting Pledge “join[ing] in a 

public chorus of affirmation of private belief”); Barnette v. West Virginia Board of Education, 

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47 F.Supp 241, 255 (S.D.W.Va. 1942) (“the regulation of the Board requiring that school 

children salute the flag is void in so far as it applies to children having conscientious scruples 

against giving such salute”) (emphases added). Thus the Constitution requires only that 

children be allowed to opt out of the Pledge, not that they be given the right to silence others. 

C. Pledge recitation passes the Lemon/Boyajian test. 

 Pledge recitation passes the test first set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), 

as interpreted by the First Circuit in Boyajian v. Gatzunis, 212 F.3d 1 (1st Cir. 2000). 

1. There is no impermissible purpose. 

 In their motion to dismiss, Schoolchildren argued that (a) the only relevant purpose was 

Hanover School District’s purpose in instituting Pledge recitation in its schools and (b) that the 

only “ostensible and predominant purpose” for that policy was to comply with New Hampshire 

law. Schoolchildren Mem. at 6-7 (citing McCreary County v. ACLU of Kentucky, 545 U.S. 844, 

860 (2005)). Plaintiffs make no response to this argument, focusing instead exclusively on 

Congress’ purpose in amending the Pledge statute in 1954. See Opp. at 34-36 (discussing 

Lemon’s purpose prong solely with respect to 1954 amendment). 

 Plaintiffs also fail to respond with any reason why Congress’ purpose is relevant to their 

claims against the School Districts. See Opp. generally; see also Complaint generally (no 

mention of School Districts’ purpose). 4 U.S.C. § 4 is not self-executing: it does not require 

Plaintiffs to say the Pledge, nor does it require New Hampshire or the school district Defendants 

to institute Pledge recitation policies. Congress’ purpose in amending 4 U.S.C. § 4 is therefore 

simply irrelevant to Plaintiffs’ claims against the School Districts. 

 As for Plaintiffs’ Establishment Clause claims against the Federal Defendants, on reply 

Plaintiffs admit that Schoolchildren, Schoolchildren Mem. at 14-17 (and the other Defendants) 

Case 1:07-cv-00356-SM Document 43 Filed 03/11/08 Page 10 of 15
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were right: Congress had the purpose in 1954 of distinguishing the American system of 

inalienable rights from the Soviet system of rights on sufferance. See Opp. at 35-36. Plaintiffs’ 

purpose argument is instead revealed to be a quibble about how Congress went about 

distinguishing the two systems: “where Congress sought ‘to highlight a foundational difference 

between the United States and Communist nations,’ the Constitution was still violated because of 

the illicit, purely religious manner in which it engaged in that purported goal.” Opp. at 35 

(quoting Federal Defendants’ Br. at 39) (emphasis added). This novel argument is not really 

about Congress’ purpose—it is an argument about the bounds of proper debate within Congress. 

The argument fails because it is not this Court’s job to go back and edit legislative history from 

1954 to ensure that it doesn’t offend Plaintiffs’ sensibilities. 

 Plaintiffs also make no effort to explain why Justice O’Connor was wrong to hold that 

“those legislators also had permissible secular objectives in mind—they meant, for example, to 

acknowledge the religious origins of our Nation’s belief in the ‘individuality and the dignity of 

the human being.’” Elk Grove, 542 U.S. at 41 (O’Connor, J., concurring in the judgment) 

(quoting H.R. REP. NO. 1693, 83d Cong., 2d Sess., 1.). For Plaintiffs, Justice O’Connor’s 

analysis is convincing only when they cite her as support, see, e.g., Opp. at 66 n.35, not when she 

analyzes the Pledge. See Opp. at 30. 

2. The Pledge does not have the primary effect of advancing religion. 

 In their opening memorandum, Schoolchildren offered three reasons why the Pledge does 

not have the primary effect of advancing religion: (1) the Pledge states our nation’s commitment 

to inalienable rights; (2) the Supreme Court has often used the Pledge as a reference point for 

what is acceptable under the Establishment Clause; and (3) the Pledge endorses a philosophical 

idea, not a religious one. Plaintiffs fail to rebut all three. 

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 As set forth above, the Pledge does not implicate religion, much less advance it, because 

it is a philosophical idea, not a religious one. Plaintiffs’ case requires this Court to declare that 

the word “God” is inherently and always religious, something it may not do. 

 As for the second reason, Schoolchildren pointed out that many Justices have stated that 

the Pledge does not violate the Establishment Clause, and have in fact used the Pledge as a 

yardstick for what is acceptable under the Establishment Clause. Schoolchildren Mem. 18-19. 

Plaintiffs argue that most of these statements are “flimsy dicta” because, they speculate, the 

Justice writing the opinion was “seeking to maintain a consensus against a dissenter.” Opp. at 

42, 56. By contrast, they cite “principled dicta” from dissenting opinions that support their 

position, Opp. at 56-60. Leaving to one side the question of whether dissenting opinions can 

contain “dicta,” it is clear that the Court’s statements that the Pledge is constitutional are not 

dicta in the strict sense—the Pledge has been used as an example that helps the Court determine 

whether the practice in question complies with the Establishment Clause. That reliance is 

therefore one of the “portions of the opinion necessary to th[ose] result[s]” and thus binding. 

Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). This Court should therefore not rely on 

Plaintiffs’ speculations about the motives of the Justices to overrule the holdings in those cases. 

Nor should the Court adopt Plaintiffs’ approach to the only Court of Appeals decisions to reach 

the issue of the Pledge’s constitutionality, since they rely on the one reversed decision and reject 

the two decisions that remain precedent. Opp. at 60-69. 

 Finally, Plaintiffs’ endorsement argument, like their other arguments, hinges on the idea 

that “God” must be religious. Opp. at 29-30. But the reasonable observer—like the many 

reasonable Justices to approve of the Pledge—won’t share Plaintiffs’ aversion, and won’t view 

the use of the words “under God” as a theological claim at all. Schoolchildren Mem. at 19-22. 

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III. Plaintiffs abandon or fail to support their other claims. 

In their opening memorandum, Schoolchildren explained that Plaintiffs fails to state a 

claim under the Free Exercise Clause, RFRA, state statutes, and vague assertions of parental 

rights. Schoolchildren Mem. at 22-23. Plaintiffs fail to respond to Schoolchildren’s arguments. 

They concede RFRA does not apply to the School Districts, Opp. at 70, but do not respond to 

Schoolchildren’s showing that they have no standing to bring a RFRA claim against the federal 

government, and that mere offense at a school curriculum cannot constitute a “substantial 

burden” under RFRA. Schoolchildren Mem. at 22. Nor do they explain how the Free Exercise 

is violated when they are able to opt out—the precise relief awarded by the Supreme Court in 

Barnette, which was itself a Free Exercise case. See Barnette v. West Virginia Board of 

Education, 47 F.Supp. 251, 254 (S.D.W.Va. 1942) (“must the religious freedom of plaintiffs give 

way because there is a clear and present danger to the state if these school children do not salute 

the flag?”). Schoolchildren Mem. at 22-23. Finally, Plaintiffs abandon their claims under state 

statutes and undefined parental privacy rights. Intervenors demonstrated those claims were 

nonsensical and unsupported. Schoolchildren Mem. at 23. These claims should be dismissed.3

 

CONCLUSION 

Plaintiffs have failed to state any claim upon which relief can be granted. Schoolchildren 

therefore respectfully request that their Motion to Dismiss be granted. 

 

3

 Plaintiffs’ Equal Protection claims fail for the same reason that their First Amendment 

claims do—the Pledge simply doesn’t implicate religion. However, contrary to Federal 

Defendants’ argument, Federal Defendants’ Mem. at 37 n.17, religion is a suspect class for 

purposes of Equal Protection analysis. See City of New Orleans v. Dukes, 427 U.S. 297, 303 

(1976) (suspect classifications triggering strict scrutiny include “race, religion [and] alienage”). 

Case 1:07-cv-00356-SM Document 43 Filed 03/11/08 Page 13 of 15
Dated: March 11, 2008 Respectfully submitted, 

 /s/ Eric C. Rassbach_ 

Bradford T. Atwood Kevin J. Hasson (admitted pro hac vice) 

New Hampshire State Bar No. 8512 Eric C. Rassbach (admitted pro hac vice) 

Clauson Atwood & Spaneas The Becket Fund for Religious Liberty 

10 Buck Road 1350 Connecticut Ave., NW, Suite 605 

Hanover, NH 03755 Washington, DC 20036 

Telephone: (603) 643-2102 Telephone: (202) 955-0095 

Email: batwood@cas-law.net Email: erassbach@becketfund.org 

 khasson@becketfund.org 

Case 1:07-cv-00356-SM Document 43 Filed 03/11/08 Page 14 of 15
CERTIFICATE OF SERVICE

 I hereby certify that on March 11, 2008, I electronically filed the foregoing document 

with the Clerk of the United States District Court for the District of New Hampshire by using the 

CM/ECF system. The following parties will be electronically served by the CM/ECF system: 

Michael A. Newdow 

P.O. Box 233345 

Sacramento, CA 95823 

Email: newdowlaw@gmail.com 

Rosanna T. Fox 

O’Brien Law Firm, P.C. 

One Sundial Avenue, 5th Floor 

Manchester, NH 03103 

Email: rosief13@comcast.net 

Eric B. Beckenhauer 

Theodore C. Hirt 

U.S. Department of Justice, Civil Federal Programs 

20 Massachusetts Avenue, NW 

Washington, DC 20001 

Email: eric.beckenhauer@usdoj.gov 

 theodore.hirt@usdoj.gov 

Gretchen Leah Witt 

U.S. Attorney’s Office 

James C. Cleveland Federal Building 

53 Pleasant St., 4th Floor 

Concord, NH 03301 

Email: gretchen.witt@usdoj.gov 

David H. Bradley 

Stebbins Bradley Harvey Miller & Brooks PA 

41 South Park St., P.O. Box 382 

Hanover, NH 03755 

Email: dbradley@stebbinsbradley.com 

Dated: March 11, 2008 /s/ Eric C. Rassbach _

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