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. )

)

REPLY IN SUPPORT OF INTERVENOR-DEFENDANT

THE UNITED STATES OF AMERICA’S RENEWED MOTION TO DISMISS

In our renewed motion to dismiss, we established that Plaintiffs’ parental and familial rights

claims under the U.S. Constitution are foreclosed by the First Circuit’s decision in Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008), because the Pledge-recitation practices of the defendant school districts

impose no cognizable burden on Plaintiffs’ free exercise rights. See Dkt. No. 56-2. In their

opposition, Plaintiffs conflate this analysis with a rehashing of their Establishment Clause claim,

which is analytically distinct, and stubbornly deny the relevance of the Supreme Court’s recognition

in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), that daily Pledge recitation

does not impair parental rights. Plaintiffs’ reasoning should be rejected. Parker and Elk Grove

plainly control here, and require dismissal of Plaintiffs’ parental and familial rights claims.

ARGUMENT

Plaintiffs’ principal response is that Parker has no application to their parental and familial

rights claims because, in that case, the plaintiffs did not raise an Establishment Clause claim. See

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Pls.’ Opp’n at 7-8 [Dkt. No. 57]. That is irrelevant. As Parker explains in detail, parental and

familial rights claims are properlyweighed in “tandem” with free exercise claims, with the threshold

constitutional question being “whether the plaintiff’s free exercise is interfered with at all.” Parker,

514 F.3d at 99 (citation omitted). Plaintiffs cite no authority for the proposition that an otherwise

moribund parental or familial rights claim is revived when paired with an Establishment Clause

claim, and we are aware of none. These claims are independent of one another, and the parental and

familial rights claims fail under Parker.

Plaintiffs alternatively suggest that “dicta from Parker” actually support their parental and

familial rights claims — specifically, they contend that the 1954 Act that added the words “under

God” to 4 U.S.C. § 4 is a law “targeting” religious groups that, under Employment Division v.

Smith, 494 U.S. 872 (1990), must be justified by a compelling interest. See Pls.’ Opp’n at 8-9

(citing Parker, 514 F.3d at 96). That, too, is incorrect. As the Parker court explained, the Smith

analysis applies only where, as a threshold matter, the plaintiff has demonstrated a constitutionally

significant burden on his free exercise rights. See Parker, 514 F.3d at 98-99 (“[T]he level of

justification the government must demonstrate . . . is irrelevant” where the plaintiffs “have not

described a constitutional burden on their rights, or on those of their children.”). As we have

explained, there is no cognizable burden on free exercise here. See Dkt. No. 56-2.

Finally, Plaintiffs urge the Court to disregard the Supreme Court’s recognition in Elk Grove

that a school district’s daily Pledge recitation practices did nothing to “impair[] Newdow’s right to

instruct his daughter in his religious views,” grasping for the distinction that, in Elk Grove, the

plaintiff was a noncustodial parent, while here, Plaintiffs are custodial parents. See Pls.’ Opp’n at

9-11. That distinction is immaterial — and, indeed, counterintuitive. If daily Pledge recitation does

not impair the rights of noncustodial parents, then a fortiori it does not impair the rights of custodial

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parents, who have an even greater opportunity to counteract exposure to religiously offensive

concepts by “instructing the[ir] child differently” or “plac[ing] [the concepts] in the family’s moral

or religious context.” See Parker, 514 F.3d at 105. Moreover, this is plainly not a distinction that

the First Circuit thought meaningful in Parker, which involved custodial parents and nevertheless

relied on Elk Grove for this point of law. See id. at 105-06 (quoting Elk Grove, 542 U.S. at 16).

The remainder of Plaintiffs’ opposition is largely devoted to rehashing their Establishment

Clause claim — including a lengthy regurgitation of the argument that Sherman v. Community

Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), cert. denied, 508 U.S. 950 (1993),

which rejected a similar challenge to the Pledge of Allegiance, was wrongly decided. Plaintiffs’

Establishment Clause claim has already been fully briefed, and should be rejected for the reasons

previously explained. See Dkt. Nos. 16-2 & 42.

CONCLUSION

For the foregoing reasons, in addition to those set forth in our opening brief [Dkt. No. 56-2]

and the memoranda of law submitted in support of the Federal Defendants’ Motion to Dismiss [Dkt.

Nos. 16-2 & 42], the United States’s renewed motion to dismiss should be granted.

Dated: January 12, 2009 Respectfully submitted,

GREGORY G. KATSAS

Assistant Attorney General

THOMAS P. COLANTUONO

United States Attorney

JAMES J. GILLIGAN

Assistant Director, Federal Programs Branch

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 /s/ Eric B. Beckenhauer 

ERIC B. BECKENHAUER, Cal. Bar No. 237526

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave. NW

Washington, DC 20530

Telephone: (202) 514-3338

Facsimile: (202) 616-8470

E-mail: eric.beckenhauer@usdoj.gov

Counsel for the United States of America

Case 1:07-cv-00356-SM Document 59 Filed 01/12/09 Page 4 of 5
CERTIFICATE OF SERVICE

 I hereby certify that on January 12, 2009, the foregoing document was filed with the Clerk

of Court via the CM/ECF system, causing it to be served on Michael A. Newdow and Rosanna T.

Fox, counsel for the Plaintiffs; David H. Bradley, counsel for the School District Defendants; Nancy

Smith, counsel for intervenor-defendant the State of New Hampshire; and Eric C. Rassbach, Kevin

J. Hasson, and Bradford T. Atwood, counsel for intervenor-defendants Muriel Cyrus, et al.

 /s/ Eric B. Beckenhauer 

ERIC B. BECKENHAUER

Trial Attorney

U.S. Department of Justice

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