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PLEDGE OF ALLEGIANCE “I OBJECT!” Tim W. Thompson Kelley, Scritsmier & Byrne, P.C. North Platte, Nebraska.

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Presentation on theme: "PLEDGE OF ALLEGIANCE “I OBJECT!” Tim W. Thompson Kelley, Scritsmier & Byrne, P.C. North Platte, Nebraska."— Presentation transcript:

1 PLEDGE OF ALLEGIANCE “I OBJECT!” Tim W. Thompson Kelley, Scritsmier & Byrne, P.C. North Platte, Nebraska

2 LB 990 Outline, page 1

3 Proposed Rule 10 Amendment Each public school district shall require each such district’s schools to establish a period of time during the school day, when a majority of pupils is scheduled to be present, during which pupils will be lead in the recitation of the Pledge of Allegiance in the presence of the flag of the United States of America, in grades kindergarten through twelve. Pupil participation in the recitation of the Pledge of Allegiance shall be voluntary. Pupils not participating in the recitation of the Pledge shall be permitted to silently stand or remain seated but shall be required to respect the rights of those pupils electing to participate. Outline, page 2

4 History of the Pledge The original Pledge, authored by Francis Bellamy in 1892, read: I pledge allegiance to my Flag and to the Republic for which it stands one Nation indivisible, with Liberty and Justice for all. In 1923, “my Flag” became “the Flag of the United States.” In 1924, “of America” was added. In 1942, the Pledge was formally included in the U.S. Flag Code. The current practice of placing one’s right hand over one’s heart while reciting the Pledge began this year. In 1954, Congress added “under God” after “one Nation.” Michael Moore’s proposed Pledge: I pledge allegiance to the people of the United States of America, and to the Republic, for which we stand, one Nation, part of one World, with Liberty and Justice for all. Outline, page 3

5 First Amendment to the Constitution of the United States of America “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

6 Minersville Sch. Dist. V. Bd. Of Educ. (1940) Parents, who were Jehovah’s Witnesses, objected to their children being required to recite the Pledge. The Pledge at issue was the “early Pledge.” Parents believed that pledging allegiance to the flag violated the tenets of their religion which prevented them from worshipping idols and graven images. Any pupil who refused to say the Pledge was sent home and the parents were threatened with criminal prosecution. U.S. Supreme Court ducked the difficult issues and simply held that the parents’ remedy was to change school policy through democratic means. Outline, page 3

7 W. Va. St. Bd. Of Educ. V. Barnette (1943) This case involved Jehovah’s Witnesses as well. Parents objected to their children being disciplined for refusing to say the Pledge. Still under the old Pledge and, thus, a free-speech case as opposed to an Establishment Clause case. U.S. Supreme Court overturned its decision in Minersville. Supreme Court held that a child cannot be punished for his or her refusal to salute the Flag and recite the Pledge. Barnette is still good law and, since 1943, school districts have been unable to discipline students who refuse to salute the Flag or recite the Pledge. Outline, page 4

8 Lynch v. Donnelly (1984) Not a Pledge case at all, yet an important Establishment Clause case. Pawtucket, Rhode Island erected an annual Christmas display which included a Christmas tree, a Santa Clause house, and a banner proclaiming “Seasons Greetings.” The city-sponsored display also included a crèche scene. In a 5/4 split, the U.S. Supreme Court ruled that the display did not violate the Establishment Clause. The crèche scene had a legitimate secular purpose within a larger holiday display celebrating the season and the origins of Christmas, which have long been a part of Western culture. The concurring opinion described “historical acknowledgement” – the essence of which is that state and federal governments have historically incorporated religious symbols and practices into the public sphere before, during, and after the framing of the Constitution and Bill of Rights. Because of this incorporation, the Framers did not intend to forbid such practices and such practices are not therefore “ceremonial” and not a governmental endorsement of religion. Outline, page 5

9 Allegany County v. ACLU (1989) Not a Pledge case, but another crèche case. A crèche scene was placed on the county courthouse steps without any other display. At another publically-owned location, a Menorah was part of a larger Christmas display incorporating Christmas trees and other “signs of the season.” The Court found the crèche scene inappropriate, but the Menorah was lawful. Dicta in the case suggested that “under God” in the Pledge of Allegiance would pass constitutional scrutiny. Outline, page 6

10 Sherman v. Community Consol. Sch. Dist. #21 of Wheeling Township (1992) An Illinois statute required all elementary students at public schools to recite the Pledge. A student’s father argued the Establishment and Free Speech clauses of the First Amendment prevented the district from enforcing the Pledge rule. The father was concerned that his child would be subjected to social pressure to conform and a sense of exclusion if he did not participate. The statute did not provide an opt-out. The Seventh Circuit held that, although the statute did not provide an opt-out, since Barnette, it was assumed that students cannot be required to recite the Pledge. The Court believed that teachers could be required to lead the Pledge and otherwise communicate patriotic values to their students. The Pledge is a secular, rather than a sectarian vow, which could be required – so long as students are free to not participate. Outline, page 6

11 Meyers v. Loudon County Pub. Sch. (2005) The school’s policy required recitation of the Pledge, but provided that no student could be compelled to recite the Pledge if the student’s parents objected on religious, philosophical, or other grounds. If the parents objected, the students could quietly stand or sit at their desks while others recited the Pledge. Meyers asserted that the school district was indoctrinating his children with a “God and country religious world view.” As an Anabaptist Mennonite, Meyers believed the allegiance of all Christians is to Christ’s Kingdom and not to the state or society. The Fourth Circuit concluded that the Pledge, unlike prayer, is not a religious exercise or activity, but a patriotic one. Although the Pledge contained a religious phrase, the inclusion of those two words did not alter the nature of the Pledge as a patriotic activity. Outline, page 7

12 Newdow v. Elk Grove Unified Sch. Dist. (2005) In 2003, Michael Newdow, a devout atheist, sued Elk Grove Unified School District and asserted that the District’s policy of requiring the Pledge violated the Establishment clause. A Ninth Circuit panel, in a split decision, found that the District’s policy violated the Establishment Clause. Newdow’s former spouse challenged Newdow’s authority to bring the case. The Ninth Circuit concluded that the custody order did not deprive Newdow of standing. U.S. Supreme Court concluded that Newdow, as a non-custodial parent, lacked standing to bring the case in federal court. Outline, page 8

13 Newdow v. Rio Linda Union Sch. Dist. (2010) Additional plaintiffs joined Newdow and additional defendant districts were added. The Ninth Circuit panel again concluded that the District’s policy regarding voluntary recitation of the Pledge violated the Establishment Clause. A restraining order was entered, but then “stayed.” In 2010, the full Ninth Circuit considered the Establishment Clause objection to the Pledge. The Ninth Circuit concluded that recitation of the Pledge is a patriotic exercise which does not violate the Establishment Clause. The purpose of the Pledge was principally to inspire patriotism and the contents of the Pledge – its wording as a whole, the preamble to the statute, and the Nation’s history – demonstrate that it is predominately a patriotic exercise. The phrase “one Nation under God” does not turn a patriotic exercise into a religious activity. Outline, page 9

14 Historical References Legislative prayer, Marsh v. Chambers (1983) Government declaration of Thanksgiving as a public holiday [T]he Proclamation of October 3, 1789, which begins: “Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor” and then sets Thursday, November 26, 1789, as a day “to be devoted…to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care.” “In God We Trust” on coins and bills Opening court sessions with “God save the United States and this honorable court.” James Madison, the author of the First Amendment, issued presidential proclamations of religious fasting and thanksgiving

15 Historical References Thomas Jefferson signed treaties sending ministers into the Indian Nations Witnesses in court have taken oaths on the Bible Declaration of Independence contains multiple references to God, e.g., “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…” Lincoln’s Gettysburg Address: “…that this nation, under God, shall have a new birth of freedom and that government of the people, by the people, and for the people, shall not perish from the earth.” Lincoln’s second inaugural address included 14 references to God among its 699 words

16 Potential Issues Going Forward Indirect coercion by teacher. Outline, page 10

17 Potential Issues Going Forward Direct or indirect coercion from classmates. Teacher refusal to lead students in Pledge. Disrespectful “opt-outs.” Toehold for school prayer. Board members opt-out.

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