United States Court of Appeals 

For the First Circuit 

No. 09-2473 

FREEDOM FROM RELIGION FOUNDATION, ET AL., 

Plaintiffs, Appellants, 

HANOVER SCHOOL DISTRICT, ET AL., 

Defendants, Appellees. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Steven J. McAuliffe, U.S. District Judge] 

Before 

Lynch, Chief Judge, 

Howard and Thompson, Circuit Judges. 

Michael Newdow with whom Rosanna Fox was on brief for 

appellants. 

Nancy J. Smith, Senior Assistant Attorney General, with whom 

Michael A. Delaney, Attorney General, was on brief for appellee 

State of New Hampshire. 

Lowell V. Sturgill, Jr., Attorney, Civil Division, with whom 

Tony West, Assistant Attorney General, Thomas P. Colantuano, United 

States Attorney, and Robert M. Loeb, Attorney, Civil Division, were 

on brief for appellee United States. 

Kevin J. Hasson with whom Eric Rassbach and Luke Goodrich were 

on brief for appellees Muriel Cyrus et al. 

Steven W. Fitschen on brief for The National Legal Foundation, 

amicus curiae. 

Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Shannon Demos, 

Tessa L. Dysart, and John Anthony Simmons, Sr., on brief for 

American Center for Law & Justice et al., amicus curiae 

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John A. Eidsmoe, Roy S. Moore, and Benjamin D. DuPré on brief 

for Foundation for Moral Law, amicus curiae. 

Jeremy D. Tedesco and David A. Cortman on brief for Alliance 

Defense Fund and Cornerstone Policy Research, amicus curiae. 

November 12 , 2010 

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LYNCH, Chief Judge. The question presented is whether 

the New Hampshire School Patriot Act, N.H. Rev. Stat. Ann. 

§ 194:15-c ("the New Hampshire Act"), which requires that the 

state's public schools authorize a period during the school day for 

students to voluntarily participate in the recitation of the Pledge 

of Allegiance, violates the First or Fourteenth Amendment to the 

Constitution of the United States. We hold that the statute is 

constitutional and affirm entry of judgment for defendants. 

I. 

Plaintiffs are The Freedom From Religion Foundation, its 

members Jan and Pat Doe, and their three children who attend New 

Hampshire public schools (collectively "FFRF"). Jan and Pat Doe 

identify themselves as atheist and agnostic, respectively, and 

their children as either atheist or agnostic. At the time the 

amended complaint was filed in 2008, the eldest child was in sixth 

grade and attended a middle school jointly administered by New 

Hampshire's Hanover and Dresden school districts, while the younger 

two children were enrolled in a public elementary school operated 

by the Hanover district. Pursuant to the New Hampshire Act, the 

Pledge of Allegiance ("the Pledge") is routinely recited in the Doe 

children's classrooms under the leadership of their teachers.1 

1 FFRF alleges that the Doe children "have all been led by 

their public school teachers in recitations of the Pledge of 

Allegiance." First Am. Complt. ¶ 43, ECF No. 52. New Hampshire 

has not contested this. The parties have not provided any other 

specific information about the operation of the statute such as the 

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The full text of the New Hampshire Act, enacted in 2002, 

is as follows: 

I. As a continuation of the policy of 

teaching our country's history to the 

elementary and secondary pupils of this state, 

this section shall be known as the New 

Hampshire School Patriot Act. 

I I. A school district shall authorize 

a period of time during the school day for the 

recitation of the pledge of allegiance. Pupil 

participation in the recitation of the pledge 

of allegiance shall be voluntary. 

III. Pupils not participating in the 

recitation of the pledge of allegiance may 

silently stand or remain seated but shall be 

required to respect the rights of those pupils 

electing to participate. If this paragraph 

shall be declared to be unconstitutional or 

otherwise invalid, the remaining paragraphs in 

this section shall not be affected, and shall 

continue in full force and effect. 

N.H. Rev. Stat. Ann. § 194:15-c. 

Several aspects of the statute are worth note. By 

expressly requiring that student participation in the recitation of 

the Pledge be voluntary, New Hampshire has created a framework in 

which a school or educator would violate state law by any actions 

that rendered student participation involuntary. In addition, the 

statute allows any student not to participate in the recitation of 

the Pledge regardless of the student's reasons for nonparticipation. Those who do not participate may either stand 

silently or remain seated. The only obligation imposed on nonprocedures used or the number of students who participate. 

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participants is that they respect the rights of those students 

electing to participate. 

The New Hampshire Act itself does not identify the words 

of the Pledge or otherwise specify which words should be used. The 

parties accept that the words of the Pledge that are used in New 

Hampshire schools are those codified in federal law: "I pledge 

allegiance to the Flag of the United States of America, and to the 

Republic for which it stands, one Nation under God,2 indivisible, 

with liberty and justice for all." 4 U.S.C. § 4 ("the federal 

Pledge statute"). The Pledge, which dates to 1892,3 was first 

codified in 1942 to clarify the "rules and customs pertaining to 

the display and use of the flag of the United States of America." 

See Act of June 22 , 1942, Pub. L. No. 77-623, 56 Stat. 377. The 

words "under God" were added in 1954. See Act of June 14, 1954, 

Pub. L. No. 83-396, 68 Stat. 249.4 

2 Throughout the opinion, we refer to "God" as used in the 

text of the Pledge. 

3 In 1892, as part of the commemoration of the 400th 

anniversary of Christopher Columbus's discovery of America, a 

national magazine for youth proposed that students in school recite 

the following affirmation: "I pledge allegiance to my Flag and the 

Republic for which it stands: one Nation indivisible, with Liberty 

and Justice for all." Elk Grove Unified Sch. Dist. v. Newdow, 542 

U.S. 1, 6 (2004) (citing J. Baer, The Pledge of Allegiance: A 

Centennial History, 1892-1992, at 3 (1992)) (internal quotation 

marks omitted). 

4 The taking of a pledge of allegiance pre-dates 

Christianity. Certain Athenian males, at puberty, took a longer 

pledge, the opening three sentences of which were: "We will never 

bring disgrace to this, our city, by any act of dishonesty or 

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The procedural history of the case before us is not 

complicated. On November 1, 2007, FFRF filed a lawsuit against the 

United States Congress and United State of America ("the Federal 

Defendants"), the Hanover School District and Dresden School 

District ("the School Districts"), and School Administrative Unit 

70.5 FFRF sought a declaration that the federal Pledge statute and 

the recitation of the Pledge in New Hampshire's public schools 

violated various provisions of the U.S. Constitution, the New 

We 

alone 

cowardice, nor ever desert our suffering comrades in ranks. 

will fight for the ideals and sacred things of the city, both 

and with many; we will revere and obey the city's law and do our 

best to incite a like respect and reverence in those above us who 

are prone to annul and set them at naught. We will strive 

unceasingly to quicken the public's sense of civic duty, that thus, 

in all these ways, we will transmit this city not only not less, 

but greater, better, and more beautiful than it was transmitted to 

us." Pledge of Allegiance, Lapham's Quarterly, Fall 2010, at 98. 

5 FFRF's claim against School Administrative Unit 70, which 

controls the high schools that the Doe children will eventually 

attend, was dropped in the amended complaint. 

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Hampshire Constitution, and federal and state law,6 and requested 

injunctive relief to ensure the end of these violations.7 

The State of New Hampshire, the United States of America, 

and Muriel Cyrus--a student in the Hanover School district, joined 

by a group of other students, five of their parents, and the 

Knights of Columbus--filed motions to intervene to assist in the 

defense of the New Hampshire Act.8 The court granted these 

motions. 

6 Specifically, FFRF sought a declaration that Congress 

violated the Establishment and Free Exercise Clauses in passing the 

Act of 1954, which added the words "under God" to the Pledge; that 

the words "under God" in the Pledge violated the Establishment and 

Free Exercise Clauses of the First Amendment, the Equal Protection 

component of the Fifth Amendment, and The Religious Freedom 

Restoration Act (RFRA); and that the School Districts, in having 

their agents lead the recitation of the Pledge, violated the 

Establishment and Free Exercise Clauses of the First Amendment, the 

Equal Protection Clause of the Fourteenth Amendment, the RFRA, 

Article 6 of the New Hampshire Constitution, and other provisions 

of New Hampshire state law. 

7 FFRF asked the court to "demand" that Congress act to 

remove the words "under God" from 4 U.S.C. § 4; that the United 

States use its power to remove the words "under God" from 4 U.S.C. 

§ 4; and that the School Districts cease and desist using the 

Pledge. 

8 Although the United States was already a defendant with 

respect to FFRF's claim that 4 U.S.C. § 4 is unconstitutional on 

its face, it was not a defendant with respect to FFRF's claims 

challenging the recitation of the Pledge in New Hampshire schools, 

and it therefore moved to intervene as a defendant against what it 

took to be an as-applied challenge to 4 U.S.C. § 4. While the 

district court allowed the United State to intervene, it ultimately 

rejected the argument that the federal statute was being "applied," 

as the statute merely prescribes the text of the Pledge and does 

not command any person to recite it or lead others in its 

recitation. 

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On August 7, 2008, the Federal Defendants filed a motion 

to dismiss the claims against them, which the court granted.9 The 

constitutionality of the federal Pledge statute, 4 U.S.C. § 4, is 

not at issue in this appeal. 

FFRF filed an amended complaint on November 17 , 2008, 

naming only the School Districts as defendants. FFRF alleged that 

the School Districts had or would violate the rights of the Doe 

children under the First Amendment's Establishment and Free 

Exercise Clauses; the rights of the Doe parents under the Free 

Exercise Clause; the rights of both the Doe children and their 

parents under the Due Process and Equal Protection Clauses; and the 

Doe parents' federal constitutional rights of parenthood, as well 

as the Doe children's concomitant rights.10 The United States, New 

Hampshire, and Cyrus then renewed their motions to dismiss.11 

On September 30, 2009, the district court dismissed all 

of FFRF's federal claims on their merits,12 and issued a final 

9 The Federal Defendants' motion also requested dismissal 

of the claims against the School Districts on the grounds that FFRF 

failed to state a claim, but this part of the motion was denied, as 

the School Districts had not filed a motion to dismiss. 

10 FFRF also advanced a variety of state law claims that are 

not before us on appeal. 

11 The district court construed these motions to dismiss as 

having been advanced by the School Districts as well. 

12 Having done so, the court found that principles of comity 

counseled in favor of not exercising supplemental jurisdiction over 

the remaining state law claims and dismissed the state claims 

without prejudice. 

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judgment in favor of the United States, the School Districts, and 

Cyrus. 

FFRF filed a timely notice of appeal from the district 

court's dismissal of its federal claims against the School 

Districts. 

I I. 

The issue on appeal is whether the New Hampshire Act 

requiring that its public schools provide a period for the 

voluntary recitation of the Pledge violates the Establishment 

Clause, Free Exercise Clause, Equal Protection Clause, or Due 

Process Clause. We review de novo the district court's dismissal 

of FFRF's amended complaint under Rule 12(b)(6), accepting as true 

all well-pleaded facts in the complaint and drawing all reasonable 

inferences in the plaintiffs' favor. Sutliffe v. Epping Sch. 

Dist., 584 F.3d 314, 325 (1st Cir. 2009). The issue is one of 

law.13 No material facts are in dispute. 

A. The Pledge Does not Violate the Establishment Clause 

Under the Establishment Clause, "Congress shall make no 

law respecting an establishment of religion." U.S. Const. amend. 

I. Although applicable originally only against the federal 

13 Every federal circuit court that has addressed a state 

pledge statute has rejected the claim of unconstitutionality. See 

Croft v. Perry, No. 09-10347, 2010 WL 3991719 (5th Cir. Oct. 13, 

2010); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (2010); 

Myers v. Loudoun County Pub. Sch., 418 F.3d 395 (4th Cir. 2005); 

Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 

1992). 

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government, the Establishment Clause was incorporated to apply to 

the states by the Fourteenth Amendment. Everson v. Bd. of Educ., 

330 U.S. 1, 8 (1947). 

In determining whether a law runs afoul of this 

prohibition, the Supreme Court has articulated three interrelated 

analytical approaches: the three-prong analysis set forth in Lemon 

v. Kurtzman, 403 U.S. 602, 612-13 (1971); the "endorsement" 

analysis, first articulated by Justice O'Connor in her concurrence 

in Lynch v. Donnelly, 465 U.S. 668, 688 (1984), and applied by a 

majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573 

(1989); and the "coercion" analysis of Lee v. Weisman, 505 U.S. 

577, 587 (1992).14 Before applying the three approaches to the case 

before us, we first address a few general matters. 

FFRF's argument is that the School Districts' Pledge 

practices pursuant to the New Hampshire Act are religious for 

purposes of the First Amendment because the Pledge itself is a 

religious exercise in that it uses the phrase "under God." FFRF 

argues that despite the voluntary nature of any student 

participation in the Pledge, the result is nonetheless the 

establishment by the state of religion. 

14 There is an abundance of commentary from courts and 

others as to the relationship between these three analytical 

approaches. See, e.g., Freethought Soc. of Greater Philadelphia v. 

Chester County, 334 F.3d 247, 256-62 (3rd Cir. 2003); Mellen v. 

Bunting, 327 F.3d 355, 370-71 (4th Cir. 2003); Adland v. Russ, 307 

F.3d 471, 479 (6th Cir. 2002). We bypass the question. 

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As to the first part of the argument, we begin with the 

unremarkable proposition that the phrase "under God" has some 

religious content. In our view, mere repetition of the phrase in 

secular ceremonies does not by itself deplete the phrase of all 

religious content.15 A belief in God is a religious belief. That 

the phrase has some religious content is demonstrated by the fact 

that those who are religious, as well as those who are not, could 

reasonably be offended by the claim that it does not. See Myers v. 

Loudoun County Pub. Sch., 418 F.3d 395, 407 (4th Cir. 2005) 

("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 also Van Orden v. 

Perry, 545 U.S. 677, 695-96 (2005) (Thomas, J., concurring) 

("[W]ords such as 'God' have religious significance. . . . Telling 

either nonbelievers or believers that the words 'under God' have no 

meaning contradicts what they know to be true."). 

15 Even those who find no Establishment Clause violations 

under the doctrine of "ceremonial deism" do not necessarily deny 

that the phrase has some religious content. See, e.g., Sherman, 

980 F.2d at 445-47. Justice Brennan, dissenting in Lynch v. 

Donnelly, 465 U.S. 668 (1984), famously said: "I would suggest that 

such practices as . . . the references to God contained in the 

Pledge of Allegiance can best be understood . . . as a form a 

'ceremonial deism,' protected from Establishment Clause scrutiny 

chiefly because they have lost through rote repetition any 

significant religious content." Id. at 716 (Brennan, J., 

dissenting) (footnote omitted). We understand Justice Brennan to 

have considered the context and circumstances of the usage of the 

phrase. 

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That the phrase "under God" has some religious content, 

however, is not determinative of the New Hampshire Act's 

constitutionality. This is in part because the Constitution does 

not "require complete separation of church and state." Lynch, 465 

U.S. at 673. The fact of some religious content is also not 

dispositive because there are different degrees of religious and 

non-religious meaning. The Supreme Court has upheld a wide variety 

of governmental actions that have some religious content. See, 

e.g., Van Orden, 545 U.S. at 681 (upholding the display of the Ten 

Commandments on the Texas State Capitol grounds); County of 

Allegheny, 492 U.S. at 578-79 (upholding the display of a Chanukah 

menorah outside a government building); Lynch, 465 U.S. at 670-72 

(upholding the display of a Nativity scene in a public Christmas 

display); Marsh v. Chambers, 463 U.S. 783, 784-86 (1983) (upholding 

a state legislature's practice of opening each day with a prayer 

led by a chaplain paid with state funds). 

The Pledge and the phrase "under God" are not themselves 

prayers, nor are they readings from or recitations of a sacred text 

of a religion. That fact does not itself dispose of the 

constitutional question either. There are many religiously infused 

practices that do not rise to the level of prayer that are clearly 

prohibited by the Establishment Clause. In the public school 

context, the Supreme Court has struck down the teaching of creation 

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science, Edwards v. Aguillard, 482 U.S. 578 (1987), and the display 

of a Ten Commandments poster, Stone v. Graham, 449 U.S. 39 (1980). 

Special considerations are involved when a claim involves 

public school students. In the Establishment Clause context, 

public schools are different, in part because the students are not 

adults, and in part because a purpose of a public school is to 

inculcate values and learning. "Recognizing the potential dangers 

of school-endorsed religious practice," the Supreme Court has 

"shown particular 'vigilan[ce] in monitoring compliance with the 

Establishment Clause in elementary and secondary schools.'" Bd. of 

Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 264 (1990) 

(alteration in original) (quoting Edwards, 482 U.S. at 583-584). 

For example, while the Court has upheld a state legislature's 

practice of opening each day with a prayer led by a chaplain paid 

with state funds, Marsh, 463 U.S. at 784-86, it has repeatedly 

found that prayers, invocations, and other overtly religious 

activities in public schools violate the Establishment Clause. 

See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) 

(invalidating a school policy of permitting the delivery of 

student-led prayer before high school football games); Lee, 505 

U.S. 577 (invalidating the delivery of an invocation by a member of 

the clergy at graduation ceremonies); Wallace v. Jaffree, 472 U.S. 

38 (1985) (invalidating a period of silence for meditation or 

voluntary prayer); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 

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203 (1963) (invalidating a required Bible reading before each 

school day); Engel v. Vitale, 370 U.S. 421 (1962) (invalidating the 

saying of a daily prayer). 

The question is where along this spectrum of cases falls 

the voluntary, teacher-led recitation of the Pledge, including the 

phrase "under God," by pupils in New Hampshire's public schools. 

We turn to the Court's different analytical measures for 

Establishment Clause claims. 

1. The Three-factored Lemon Analysis 

Under the Lemon analysis,16 a court must consider three 

factors: "First, the statute must have a secular legislative 

purpose; second, its principal or primary effect must be one that 

neither advances nor inhibits religion; finally, the statute must 

not foster 'an excessive government entanglement with religion.'" 

Lemon, 403 U.S. at 612-13 (quoting Walz v. Tax Commission, 397 U.S. 

664, 674 (1970)) (citation omitted). As FFRF does not allege 

entanglement, the third prong is not at issue here. 

FFRF concedes that the New Hampshire Act has a secular 

purpose--the promotion of patriotism--but insists that this does 

16 Although the Lemon analysis has been often criticized, 

including by members of the Supreme Court, see Freethought Soc.,334 

F.3d at 256 (collecting cases), the Court has never expressly 

rejected it in cases such as this, and we have continued to apply 

it in the First Circuit. See, e.g., Boyajian v. Gatzunis, 212 F.3d 

1, 4 (1st Cir. 2000). The Lemon factors have, in the years since 

their first use in 1971, been described as "no more than helpful 

sign posts." Van Orden v. Perry, 545 U.S. 677, 685 (2005) (quoting 

Hunt v. McNair, 413 U.S. 734, 741 (1973)). 

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not end the inquiry. FFRF argues that Congress had an 

impermissible religious purpose when it added the words "under God" 

to the text of the Pledge in 1954, and that this fact must be 

considered in our analysis. Even if so, the argument does not go 

to the first factor. We look at the purpose of New Hampshire when 

it enacted the statute in 2002, in the aftermath of the tragedy of 

September 11, 2001. Because FFRF has stipulated that New Hampshire 

had a secular purpose,17 its claim of impermissible governmental 

purpose clearly fails on the first prong of Lemon. 

FFRF argues, under the second factor, that the principal 

or primary effect of the New Hampshire Act is the advancement of 

religion. The Pledge's affirmation that ours is a "nation, under 

God" is not a mere reference to the fact that many Americans 

believe in a deity, nor to the undeniable historical significance 

of religion in the founding of our nation. As the Supreme Court 

recognized in West Virginia State Board of Education v. Barnette, 

319 U.S. 624 (1943), to recite the Pledge is to "declare a belief" 

and "affirm[] . . . an attitude of mind." Id. at 631, 633. In 

reciting the Pledge, a student affirms a belief in its description 

of the nation.18 For this reason, it is unconstitutional under the 

17 There is no claim that New Hampshire articulated a 

patriotic purpose as a subterfuge meant to avoid First Amendment 

strictures. 

18 See Douglas Laycock, Theology Scholarships, The Pledge of 

Allegiance, and Religious Liberty: Avoiding the Extremes but 

Missing the Liberty, 118 Harv. L. Rev. 156, 228 (2004) ("To affirm 

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Free Speech Clause to require that students recite the Pledge in 

public schools. See id. at 642 ("If there is any fixed star in our 

constitutional constellation, it is that no official, high or 

petty, can prescribe what shall be orthodox in politics, 

nationalism, religion, or other matters of opinion or force 

citizens to confess by word or act their faith therein."). 

In looking at the effect of the state's creation of a 

daily period for the voluntary recitation of the Pledge, we must 

consider the text as a whole and must take account of context and 

circumstances. See, e.g., Van Orden, 545 U.S. at 701 (Breyer, J., 

concurring in the judgment) (“[T]o determine the message that the 

text here conveys, we must examine how the text is used. And that 

inquiry requires us to consider the context of the display.”); 

County of Allegheny, 492 U.S. at 598 (“[T]he effect of a créche 

display turns on its setting.”). It takes more than the presence 

of words with religious content to have the effect of advancing 

religion, let alone to do so as a primary effect. 

As to context, there is no claim that a student is 

required to advance a belief in theism (or monotheism), nor is 

this description necessarily affirms the propositions included in 

that description: that there is a God, and only one, of such a 

nature that a nation can be under that God."). But see Elk Grove, 

542 U.S. at 26 (Rehnquist, C.J., concurring in the judgment) 

("[T]he Pledge itself is a patriotic observance focused primarily 

on the flag and the Nation, and only secondarily on the description 

of the Nation."). 

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there any claim that a student is even encouraged by the faculty to 

say the Pledge if the student chooses not to do so. 

By design, the recitation of the Pledge in New Hampshire 

public schools is meant to further "the policy of teaching our 

country's history to the elementary and secondary pupils of this 

state." N.H. Rev. Stat. Ann. § 194:15-c. "The very purpose of a 

national flag is to serve as a symbol of our country." Elk Grove 

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 (2004) (quoting Texas 

v. Johnson, 491 U.S. 397, 405 (1989)) (internal quotation marks 

omitted). As the Court has observed, "the Pledge of Allegiance 

evolved as a common public acknowledgment of the ideals that our 

flag symbolizes. Its recitation is a patriotic exercise designed 

to foster national unity and pride in those principles." Id. In 

reciting the Pledge, students promise fidelity to our flag and our 

nation, not to any particular God, faith, or church. 

The New Hampshire School Patriot Act's primary effect is 

not the advancement of religion, but the advancement of patriotism 

through a pledge to the flag as a symbol of the nation. 

2 . The Endorsement Analysis 

Under the related endorsement analysis, courts must 

consider whether the challenged governmental action has the purpose 

or effect of endorsing, favoring, or promoting religion. County of 

Allegheny, 492 U.S. at 593-94. "The Establishment Clause, at the 

very least, prohibits government from appearing to take a position 

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on questions of religious belief or from 'making adherence to a 

religion relevant in any way to a person's standing in the 

political community.'" County of Allegheny, 492 U.S. at 593-94 

(quoting Lynch, 465 U.S. at 687 (O'Connor, J., concurring)). A 

practice in which the state is involved may not "send[] the 

ancillary message to members of the audience who are 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.'" Santa Fe, 

530 U.S. at 309-10 (quoting Lynch, 465 U.S. at 688 (O'Connor, J., 

concurring)). 

At the heart of FFRF's claim is its argument that those 

students who choose not to recite the Pledge for reasons of nonbelief in God are quite visibly differentiated from other students 

who stand and participate. The result, FFRF argues, is that the 

recitation of the Pledge makes the Doe children outsiders to their 

peer group on the grounds of their religion. 

FFRF's premise is that children who choose not to recite 

the Pledge become outsiders based on their beliefs about religion. 

That premise is flawed. Under the New Hampshire Act, both the 

choice to engage in the recitation of the Pledge and the choice not 

to do so are entirely voluntary. The reasons pupils choose not to 

participate are not themselves obvious. There are a wide variety 

of reasons why students may choose not to recite the Pledge, 

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including many reasons that do not rest on either religious or 

anti-religious belief. These include political disagreement with 

reciting the Pledge, a desire to be different, a view of our 

country's history or the significance of the flag that differs from 

that contained in the Pledge, and no reason at all. Even students 

who agree with the Pledge may choose not to recite the Pledge. 

Thus, the Doe children are not religiously differentiated from 

their peers merely by virtue of their non-participation in the 

Pledge. 

Furthermore, the constitutionality of a state statute 

does not turn on the subjective feelings of plaintiffs as to 

whether a religious endorsement has occurred. Rather, in the 

endorsement analysis, the court assumes the viewpoint of an 

"objective observer acquainted with the text, legislative history, 

and implementation of the statute." Santa Fe, 530 U.S. at 308 

(quoting Wallace, 472 U.S. at 73, 76 (O'Connor, J., concurring in 

the judgment)).19 Indeed, in a wide variety of contexts, the law 

19 Because it makes no difference to the outcome, we need 

not get into the nuances of which observer is at play: for 

instance, whether the relevant observer is any adult, the parent, 

the student, the mature student, or the immature student. There 

are cases in which the Supreme Court has assumed the viewpoint of 

a high school student affected by the state action. See, e.g., 

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) 

(referring to the view of "an objective Santa Fe High School 

student"); Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 

226, 249-52 (1990) (referring to an objective observer in the 

position of a secondary school student). But the Second Circuit 

has cautioned: "We cannot conclude that it makes equal sense to 

treat a first or second grader as the 'objective observer' who can 

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rejects tests relying on subjectivity and utilizes the analytic 

device of asking how a reasonable and objective observer would view 

the matter in question. See, e.g., Capitol Square Review & 

Advisory Bd. v. Pinette, 515 U.S. 753, 779-781 (1995) (O'Connor, 

J., concurring in part and concurring in the judgment) ("In this 

respect, the applicable observer is similar to the 'reasonable 

person' in tort law, who 'is not to be identified with any ordinary 

individual, who might occasionally do unreasonable things,' but is 

'rather a personification of a community ideal of reasonable 

behavior, determined by the [collective] social judgment.'") 

(quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and 

Keeton on Law of Torts 175 (5th ed. 1984)). 

Adopting the view of the objective observer fully aware 

of the relevant circumstances, we conclude there has been no 

endorsement of religion. The state legislature passed the New 

Hampshire Act in the aftermath of September 11, 2001 with the 

intent of fostering patriotism, see, e.g., N.H.S. Jour. 945-67 

(2002), and that is the statute's effect. Taken in the context of 

the words of the whole Pledge, the phrase "under God" does not 

convey a message of endorsement. 

take account of the text, history, and implementation of a 

challenged policy." Skoros v. City of New York, 437 F.3d 1, 23 (2d 

Cir. 2006); see also Good News Club v. Milford Cent. Sch., 533 U.S. 

9 8, 115 (2001) ("[T]o the extent we consider whether the community 

would feel coercive pressure to engage in the Club's activities, 

the relevant community would be the parents, not the elementary 

school children.") (internal citation omitted). 

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The importance of context in the endorsement inquiry is 

made clear by two cases in which the Supreme Court has addressed 

the display of crèches at Christmas. In the first case, Lynch, the 

Court concluded that although a crèche displayed by the city was 

itself religious, the fact that it was located in a broader holiday 

display clarified to the reasonable observer that the city was, as 

part of the holiday, simply acknowledging religion with the crèche 

and not endorsing it. Lynch, 465 U.S. at 679-80. By contrast, the 

Court in County of Allegheny concluded that a display of a crèche 

in a county courthouse with an angel bearing a banner proclaiming 

"Gloria in Excelsis Deo," with no surrounding secular objects to 

change the message conveyed, was an unconstitutional endorsement of 

religion. County of Allegheny, 492 U.S. at 598. 

Along this spectrum, the two word phrase "under God" in 

the thirty-one words of the Pledge is much closer to the crèche at 

issue in Lynch. The phrase is surrounded by words that modify its 

significance--not by changing its meaning, but rather by providing 

clarity to the message conveyed and its purpose. Cf. Lynch, 465 

U.S. at 692 (O'Connor, J., concurring) ("Although the religious and 

indeed sectarian significance of the crèche . . . is not 

neutralized by the setting, the overall holiday setting changes 

what viewers may fairly understand to be the purpose of the 

display."). Here, the words "under God" appear in a pledge to a 

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flag--itself a secular exercise, accompanied by no other religious 

language or symbolism. 

We reject FFRF's claim of unconstitutional endorsement. 

3. The Coercion Analysis 

Relying heavily on Lee, FFRF finally argues that the 

recitation of the Pledge in public school classrooms 

unconstitutionally coerces the Doe children to "recite a purely 

religious ideology." 

Lee invalidated a public school's practice of inviting 

members of the clergy to give a nonsectarian prayer at its 

graduation ceremonies. Lee, 505 U.S. at 581-82. Although 

attendance at the ceremonies and participation during the prayer 

were voluntary, the Court found that there was indirect pressure on 

attending students to stand or maintain respectful silence during 

the prayer, and that because silence during prayer signifies 

participation, this practice was unconstitutional. Id. at 598. 

Lee held that "the Constitution guarantees that government may not 

coerce anyone to support or participate in religion or its 

exercise." Id. at 587. 

Coercion need not be direct to violate the Establishment 

Clause, but rather can take the form of "subtle coercive pressure" 

that interferes with an individual's "real choice" about whether to 

participate in the activity at issue. Lee, 505 U.S. at 592, 595. 

In public schools, this danger of impermissible, indirect coercion 

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is most pronounced because of the "young impressionable children 

whose school attendance is statutorily compelled." Schempp, 374 

U.S. at 307 (Goldberg, J., concurring). As Lee stated, "prayer 

exercises in public schools carry a particular risk of indirect 

coercion. The concern may not be limited to the context of 

schools, but it is most pronounced there." Lee, 505 U.S. at 592. 

FFRF contends that the Pledge, while not a prayer, is 

more problematic than the prayer at issue in Lee. It argues that 

the students in this case are younger and more impressionable; that 

they are led by teachers whom they respect as authorities, rather 

than by a member of the clergy whom they do not know; that those 

who participate are encouraged to verbalize the words, rather than 

merely listen; that the Pledge occurs every day, rather than once 

or twice in their school career; that a refusal to participate in 

the recitation of the Pledge is more obvious than refusing to 

listen to a prayer; and that unlike at a graduation ceremony, the 

students do not have their parents next to them to support them in 

their non-participation. These concerns do not make the New 

Hampshire Act unconstitutional. At least two factors distinguish 

Lee from this case. 

First, like other courts that have reviewed the Pledge, 

we think it relevant that the religious content of the phrase "under 

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God" is couched in a non-religious text.20 This fact is not 

dispositive, but it is significant. It removes the case from the 

direct scope of Lee, where the Court explained: "These dominant 

facts mark and control the confines of our decision: State officials 

direct the performance of a formal religious exercise . . . ." Lee, 

505 U.S. at 586 (emphasis added). Recitation of the Pledge is not 

a formal religious exercise. 

Second, the logic of Lee does not apply directly to the 

case before us. The Lee finding of unconstitutional coercion can 

be read to result from a three-step analysis involving two premises 

and a conclusion. The Court found that students were being coerced 

into silence during the saying of the prayer; that silence was, in 

the eyes of the community, functionally identical to participation 

in the prayer; and that therefore, students were being functionally 

20 In addressing the claim that the recitation of a pledge 

of allegiance including the phrase "under God" is unconstitutional 

under Lee, other courts have reasoned that the cases are 

fundamentally different because saying the pledge is not itself a 

religious exercise. See, e.g., Croft, 2010 WL 3991719, at *10 ("A 

pledge of allegiance to a flag is not a prototypical religious 

activity."); Rio Linda, 597 F.3d at 1038 ("We agree that the 

students in elementary schools are being coerced to listen to the 

other students recite the Pledge. They may even feel induced to 

recite the Pledge themselves. . . . But the main distinction is 

this: Here, the students are being coerced to participate in a 

patriotic exercise, not a religious exercise."); Myers, 418 F.3d at 

408 ("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 indirect coercion, the indirect coe 

is not threatening to establish religion, but patriotism."). 

coercion 

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coerced into participation in the prayer in violation of the 

Constitution.21 

A key premise is different here. While in Lee, "the act 

of standing or remaining silent was an expression of participation 

in the rabbi's prayer," Lee, 505 U.S. at 593, silence by students 

is not an expression of participation in the Pledge. Rather, a 

student who remains silent during the saying of the Pledge engages 

in overt non-participation by doing so, and this non-participation 

is not itself an expression of either religious or non-religious 

belief. 

FFRF's claim of unconstitutional coercion under Lee 

fails. 

B. The Pledge Does Not Violate the Free Exercise Clause 

Under the Free Exercise Clause, the government may not 

"(1) compel affirmation of religious beliefs; (2) punish the 

21 See Lee v. Weisman, 505 U.S. 577, 593 (1992) ("The 

undeniable fact is that the school district's supervision and 

control of a high school graduation ceremony places public 

pressure, as well as peer pressure, on attending students to stand 

as a group or, at least, maintain respectful silence during the 

invocation and benediction. . . . There can be no doubt that for 

many, if not most, of the students at the graduation, the act of 

standing or remaining silent was an expression of participation in 

the rabbi's prayer. That was the very point of the religious 

exercise. It is of little comfort to a dissenter, then, to be told 

that for her the act of standing or remaining in silence signifies 

mere respect, rather than participation. What matters is that, 

given our social conventions, a reasonable dissenter in this milieu 

could believe that the group exercise signified her own 

participation or approval of it. Finding no violation under these 

circumstances would place objectors in the dilemma of 

participating, with all that implies, or protesting."). 

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expression of religious doctrines it believes to be false; (3) 

impose special disabilities on the basis of religious views or 

religious status; or (4) lend its power to one side or the other in 

controversies over religious authorities or dogma." Parker v. 

Hurley, 514 F.3d 87 , 103 (1st Cir. 2008). The First Amendment's 

prohibition on laws "prohibiting the free exercise" of religion is 

incorporated against the states by the Fourteenth Amendment. 

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). 

FFRF contends that the recitation of the Pledge in the 

Doe children's classrooms violates their ability to freely believe 

in atheism or agnosticism, and places an unconstitutional burden on 

the Doe parents' free exercise right to instill their religious 

values in their children. This claim is foreclosed by Parker. 

In Parker, we explained that "[p]ublic schools are not 

obliged to shield individual students from ideas which potentially 

are religiously offensive, particularly when the school imposes no 

requirement that the student agree with or affirm those ideas, or 

even participate in discussions about them." Parker, 514 F.3d at 

106. Because the Doe children allege mere exposure to the religious 

content of the Pledge, they cannot state a claim under the Free 

Exercise Clause, nor can their parents, as "the mere fact that a 

child is exposed on occasion in public school to a concept offensive 

to a parent's religious belief does not inhibit the parent from 

instructing the child differently." Id. at 105. 

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C. The Pledge Does Not Violate the Equal Protection Clause 

Under the Equal Protection Clause of the Fourteenth 

Amendment, the Constitution "guarantees that those who are similarly 

situated will be treated alike." In re Subpoena to Witzel, 531 F.3d 

113, 118 (1st Cir. 2008). Invoking the Equal Protection Clause, 

FFRF contends that the School Districts have a duty to show equal 

respect for the Does' atheist and agnostic beliefs, that they are 

in breach of this duty by leading students in affirming that God 

exists, and that they created a social environment that perpetuates 

prejudice against atheists and agnostics. However, the New 

Hampshire Act does "not require different treatment of any class of 

people because of their religious beliefs," nor does it "give 

preferential treatment to any particular religion." Wirzburger v. 

Galvin, 412 F.3d 271, 283 (1st Cir. 2005). Rather, as the district 

court found, "it applies equally to those who believe in God, those 

who do not, and those who do not have a belief either way, giving 

adherents of all persuasions the right to participate or not 

participate in reciting the pledge, for any or no reason." 

Therefore, FFRF's equal protection claim fails. 

D. The Pledge Does Not Violate the Due Process Clause 

FFRF's final allegation is that the recitation of the 

Pledge in the Doe children's classrooms violates the Doe parents' 

fundamental constitutional right of parenthood protected by the Due 

Process Clause of the Fourteenth Amendment. FFRF argues that this 

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right is embraced within the general right of parenthood recognized 

by Troxel v. Granville, 530 U.S. 57 , 65 (2000). Because this claim 

is adverted to in a perfunctory manner, unaccompanied by any effort 

at developed argumentation, it is waived. United States v. Zannino, 

895 F.2d 1, 17 (1st Cir. 1990). In any event, the claim lacks 

merit, as "the substantive due process clause . . . does not give 

[parents] the degree of control over their children's education that 

their requested relief seeks." Parker, 514 F.3d at 102-03. 

III. 

We hold that the New Hampshire School Patriot Act and the 

voluntary, teacher-led recitation of the Pledge by the state's 

public school students do not violate the Constitution. We affirm 

the order and judgment of the district court dismissing FFRF's 

complaint. 

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