David Croft, et al v. Rick Perry

Filing

PUBLISHED OPINION FILED. [09-10347 Affirmed ] Judge: EGJ , Judge: EMG , Judge: KS Mandate pull date is 11/03/2010 [09-10347]

David Croft, et al v. Rick Perry

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 13, 2010 N o . 09-10347 Lyle W. Cayce Clerk

D A V I D WALLACE CROFT, As Parents and Next Friend of their minor C h ild r e n ; SHANNON KRISTINE CROFT, As Parents and Next Friend of t h e ir minor Children; JOHN DOE, As Parents and Next Friend of their minor C h ild r e n ; JANE DOE, As Parents and Next Friend of their minor Children, Plaintiffs - Appellants versu s R I C K PERRY, Governor of the State of Texas, Defendant - Appellee

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e JOLLY and GARZA, Circuit Judges, and STARRETT,* District Judge. E . GRADY JOLLY, Circuit Judge: I n this appeal, the plaintiffs, David and Shannon Croft and John and Jane D o e , parents of minor children who attend public schools in Texas, challenge the T e x a s pledge of allegiance, as amended to include the phrase "one state under G o d ," and a provision of the Texas Education Code requiring students to recite t h e pledge daily. They seek injunctive and declaratory relief against Texas G o v e r n o r Rick Perry, arguing that the pledge and education provision violate the

*

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

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No. 09-10347 E s t a b lis h m e n t Clause of the First Amendment to the United States Constitution a s incorporated by the Fourteenth Amendment. O n cross-motions for summary judgment, the district court found that the p la in t iffs brought only facial challenges to the pledge, concluded that the pledge a n d education provision satisfy the Establishment Clause under any applicable t e s t , and granted summary judgment in favor of the defendant. On appeal, the p la in t iffs argue that the district court erred in treating their claim as a facial c h a lle n g e ; the plaintiffs also reassert their arguments that the amended pledge v io la t e s the Establishment Clause. Because we agree that the pledge and the e d u c a t io n provision do not violate the Establishment Clause, we AFFIRM. I. I n 2007, the Texas state legislature amended the Texas state pledge of a lle g ia n c e to include, for the first time, the words "under God." As amended, the p le d g e reads, "Honor the Texas flag; I pledge allegiance to thee, Texas, one state u n d e r God, one and indivisible." Tex. Gov't Code Ann. § 3100.101 (West 2008). Under § 25.082 of the Texas Education Code,1 students are required to recite the s t a t e pledge once daily unless excused by a parent. Tex. Educ. Code Ann. § 25.082 (West 2006).

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§ 25.082. SCHOOL DAY; PLEDGES OF ALLEGIANCE; MINUTE OF 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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No. 09-10347 P r io r to passage the amendment underwent several rounds of debate in t h e state legislature and was subject to analysis by research committees from t h e state House of Representatives and Senate. In the course of debate, two p u r p o s e s for inserting the phrase "under God" into the pledge were advanced. First, in the state House of Representatives, Representative Riddle, the bill's s p o n s o r , explained that "there was something missing out of our state pledge b e c a u s e it wasn't consistent with our national pledge." According to her, "what t h is bill does, it simply replicates, mirrors our national pledge." When asked to a m e n d the bill to include other language from the national pledge, such as "with lib e r t y and justice for all," Representative Debbie Riddle declined, explaining t h a t "it says what we wanted it to say" and that she "didn't think of" mirroring o t h e r parts of the national pledge. Second, in the state Senate, Senator Dan Patrick, after pointing to r e fe r e n c e s to God strewn throughout founding-era documents, expressed an in t e n t io n to "acknowledge our Judeo Christian heritage by placing the words u n d e r God in the state pledge." Bill analyses prepared by the House and Senate r e s e a r c h committees also identified acknowledgment of religious heritage as the p r im a r y purpose for the bill. According to the Senate committee, "[s]ince the fo u n d in g of the United States through modern times, there has been a link to G o d in the political and social culture of the United States. . . . Placing the p h r a s e `under God' in the Texas state pledge may best acknowledge this h e r it a g e ." B e fo r e the district court, the plaintiffs argued that the amended pledge v i o l a t e s the Establishment Clause in four ways: (1) the pledge's use of the s in g u la r "God" impermissibly favors monotheistic over polytheistic beliefs; (2) t h e amendment does not have a secular purpose or effect, as any stated purpose is pretext for a religious motivation; (3) the pledge impermissibly endorses r e l i g i o u s belief by affirming that Texas is organized "under God"; and (4) the 3

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No. 09-10347 p le d g e 's recitation in schools pursuant to § 25.082 of the Texas Education Code im p e r m is s ib ly coerces religious belief. A fte r reviewing the pledge's language and the legislative history, the d is t r ic t court rejected each of the plaintiffs' theories as to how the pledge violates th e Establishment Clause and granted summary judgment to the defendant. On a p p e a l, the plaintiffs argue that the district court erred in treating their com p la in t as a facial challenge, generally questioning the constitutionality of the s t a t u t e , rather than as an as-applied challenge questioning the constitutionality o f the statute as specifically applied to their children. The plaintiffs further a r g u e and that the district court erred in holding that the pledge itself survived a n y constitutional attack. W e consider each of the plaintiffs' arguments separately. II. W e review the district court's grant of summary judgment de novo, a p p ly in g 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 a p p r o p r ia te where the submissions show that there is no genuine issue as to any m a t e r ia l fact and that the moving party is entitled to judgment as a matter of la w . Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A. A t the outset of its opinion, the district court noted that the plaintiffs fa ile d to identify whether their objection to the pledge was a facial challenge or a n as-applied challenge. Because the plaintiffs showed no evidence of the

m a n n e r in which the pledge was specifically administered unconstitutionally a g a in s t them, as parents or as next friends of their minor children, the district c o u r t treated their challenge as facial and required that they "`show that under n o circumstances could the law be constitutional.'" Dist. Ct. op. at 4 (citing B a r n e s v. Mississippi, 922 F.2d 1335, 1343 (5th Cir. 1993)). 4

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No. 09-10347 T h e plaintiffs argue that applying this "heightened burden" was error, as t h e r e is no distinction between facial and as-applied challenges in the context of t h e Establishment Clause. According to the plaintiffs, once an individual with s t a n d in g challenges the government's conduct, that conduct is reviewed under o n e or all of the several tests used by the Supreme Court to identify E s t a b lis h m e n t Clause violations; no showing of unconstitutionality under all c ir c u m s t a n c e s is required. T h e plaintiffs are incorrect. Both we and the Supreme Court have

r e c o g n iz e d the difference between facial and as-applied Establishment Clause c h a lle n g e s . See Bowen v. Kendrick, 487 U.S. 589, 601­602, 620­21 (1988)

(c o n c lu d in g that the Adolescent Family Life Act was facially constitutional, but r e m a n d in g for consideration of its constitutionality as applied to "pervasively s e c t a r ia n " institutions); Henderson v. Stalder, 287 F.3d 374, 380 n.6 (5th Cir. 2 0 0 2 ) (denying standing for a facial challenge, but leaving open the possibility o f standing on an as-applied challenge); Jones v. Clear Creek Indep. Sch. Dist., 9 7 7 F.2d 963, 969 n.10 (5th Cir. 1992) (deciding the issue of facial c o n s t it u t io n a lit y , but leaving open the possibility for an as-applied challenge). In fact, in a related case brought by these same plaintiffs challenging Texas's m o m e n t of silence statute, Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2 0 0 9 ), we declined to consider the hypothetical Lemon entanglements posed by t h e plaintiffs, pointing out that "speculative possibilities may be fertile ground fo r as-applied challenges if they occur," but were inappropriate on facial review. Croft, 562 F.3d at 750. B e c a u s e a distinction exists between facial and as-applied Establishment C la u s e challenges, we must consider where the plaintiffs' claims belong. The S u p r e m e Court has recently explained that where the "plaintiffs' claim and the r e lie f that would follow . . . reach beyond the particular circumstances of th[o]se p la in t iffs ," the plaintiffs must "satisfy our standards for a facial challenge to the 5

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No. 09-10347 e x t e n t of that reach." John Doe No. 1 v. Reed, 130 S.Ct. 2811, 2817 (2010) (citing U n ite d States v. Stevens, 130 S.Ct. 1577, 1587 (2010)). A s described above, the plaintiffs bring four Establishment Clause c h a lle n g e s . None are limited to the "particular circumstances of [the] plaintiffs," a n d so each is clearly a facial attack. The first three--sect preference, the L e m o n test, and endorsement--are best construed as a facial challenge to the p le d g e itself, Tex. Gov't Code Ann. § 3100.101. The last--coercion--is best c o n s t r u e d 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 t h e relief sought by the plaintiffs: that the pledge be invalidated in its entirety, n o t merely that it not be applied to them or their children. To successfully m o u n t a facial challenge, the plaintiffs must show that there is no set of c ir c u m s t a n c e s under which either the language of the pledge or the requirement t h a t children recite the pledge in classrooms is constitutional. If the plaintiffs s u c c e s s fu l ly show either provision to be unconstitutional in every application, t h e n that provision will be struck down as invalid. B. B efore turning to the plaintiffs' specific arguments, we will review national p le d g e precedent, which undoubtedly is relevant as Texas's use of the phrase " o n e state under God" was designed to mirror the "one nation under God" found in the pledge of allegiance to the United States flag. T h e Supreme Court has never directly addressed the constitutionality of t h e 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 A lle g h e n y v. ACLU, 492 U.S. 602­03 (1989). The closest case to deciding the is s u e , Elk Grove Unified School District. v. Newdow, was resolved on standing g r o u n d s , but three justices would have upheld the pledge either as a recognition o f the importance of religious beliefs to our founding, 542 U.S. 1, 32 (2001) 6

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No. 09-10347 (R e h n q u is t , 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 id e a ls that our flag symbolizes" and its recitation as "a patriotic exercise d e s ig n e d 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 s e r io u s ly . See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1 9 9 7 ); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980). O n the strength of these Supreme Court cases, the three circuits which h a v e addressed the national pledge have found it constitutional.2 In Sherman v . Community Consolidated School District 21, the Seventh Circuit explained t h a t references to God in our nation's earliest history make clear that the fo u n d e r s did not "deem[] ceremonial invocations of God as `establishment.'" 980 F .2 d 437, 445 (7th Cir. 1992). In Myers v. Loudoun County Public Schools, the F o u r t h Circuit, also upholding the national pledge, noted that the inclusion of " u n d e r God" "does not alter the nature of the pledge as a patriotic activity" and p o s e s "none of the harms" of "sponsorship, financial support, [or] active in v o lv e m e n t . . . in religious activity," all of which are condemned by the E s t a b lis h m e n t Clause. 418 F.3d 395, 407­08 (4th Cir. 2005). In Newdow v. Rio L in d a Union School District, the Ninth Circuit concluded that "both the purpose a n d effect of the Pledge are that of a predominantly patriotic, not a religious, e x e r c is e ," 597 F.3d 1007, 1037 (9th Cir. 2010), and so upheld both the pledge a n d a school district policy of daily recitation under the Lemon, endorsement, a n d coercion tests. W it h respect to the dicta of the Supreme Court and the holdings of these c ir c u it s that the national pledge is constitutional, the defendant argues that the

We have also recognized, in dicta, the national pledge's likely constitutionality. See Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 198 (5th Cir. 2006); Murray v. City of Austin, 947 F.2d 147, 154­55 (5th Cir. 1991).

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No. 09-10347 T e x a s pledge is "constitutionally indistinguishable" from the national pledge and u r g e s us to follow the above cases. The plaintiffs, however, argue that the n a t io n a l pledge precedent is inapplicable here, as its adoption over fifty years a g o is sufficiently historic to make it constitutional today.3 Neither party is e n tir e ly correct. Under many tests, what also matters are the circumstances of t h e pledge's adoption, and in this regard the Texas pledge is constitutionally u n iq u e . When looking, however, to legitimate purposes for using the language " u n d e r God," as well as its likely effect when introduced into a pledge, analyses o f the national pledge are relevant and not made less so by its age when c o m p a r e d to the youth of the Texas pledge. W it h these persuasive cases as a backdrop, we turn to our review of T e x a s 's state pledge. III. In reviewing the constitutionality of a challenged government action under t h e Establishment Clause, we use a "multi-test analysis" that has "result[ed] fr o m an Establishment Clause jurisprudence rife with confusion and from our o w n desire to be both complete and judicious in our decision-making." Freiler, 1 8 5 F.3d at 344. The plaintiffs point us to four "tests," each of which derives fr o m a different Supreme Court case and each of which, they allege, is fatal to t h e Texas pledge. For reasons we explain, we hold that the pledge survives this c o n s t it u t io n a l challenge. A. F ir s t , the plaintiffs argue that the pledge fails Larson v. Valente's no-sectp r e fe r e n c e test, a test they style a "basic threshold criterion" for the c o n s t it u t io n a lit y of government action. The pledge fails, they allege, because its

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Texas's amended pledge is only three years old.

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No. 09-10347 r e fe r e n c e to a singular "God" rather than the plural "gods" shows official p r e fe r e n c e for monotheistic belief over polytheistic belief. " T h e clearest command of the Establishment Clause is that one religious d e n o m in a t io n cannot be officially preferred over another." Larson v. Valente, 4 5 6 U.S. 228, 244 (1982). This command is violated when, for example, the g o v e r n m e n t elevates particular religious imagery, thus "demonstrat[ing] . . . a lle g ia n c e to a particular sect or creed," County of Allegheny, 492 U.S. at 603­05, o r engages in legislative favoritism, thus "fail[ing] to exercise governmental a u t h o r ity in a religiously neutral way," Board of Educ. of Kiryas Joel Village S c h o o l Dist. v. Grumet, 512 U.S. 687, 703 (1994). It is not, however, violated w it h "nonsectarian references to religion" such as "references to God in the motto a n d the pledge." County of Allegheny, 492 U.S. at 603. As Justice O'Connor has e x p la in e d , this is because a "simple reference to a generic `God' . . . does not refer t o 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 'C o n n o r 's rationale as applicable in this case. The term God is adequately g e n e r ic to acknowledge a wide range of religious belief, monotheistic and p o ly t h e is t ic alike. A reference to "God" may not reach every belief system, but it is a "tolerable attempt" at acknowledging religion without favoring a p a r tic u la r sect or belief. Id. We thus hold that the pledge's use of the singular " G o d " does not favor a particular faith in violation of the Establishment Clause. B. S e c o n d , the plaintiffs argue that the pledge fails the Lemon test, which is p e r h a p s the most criticized, but still the most widely-used, test for identifying E s t a b lis h m e n t Clause violations. Under Lemon, a statute violates the

E s t a b lis h m e n t Clause if (1) it does not have a secular purpose, (2) its principal o r primary effect advances or inhibits religion, or (3) it creates excessive 9

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No. 09-10347 g o v e r n m e n t entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 6 1 2 ­ 1 3 (1971). The plaintiffs focus on Lemon's first and second prongs. For the fo llo w in g reasons, we hold that the pledge satisfies both. 1. U n d e r Lemon's first prong, the state must identify a secular purpose for t h e "under God" amendment to the pledge. The plaintiffs argue the legislative h is t o r y demonstrates there was no secular purpose behind amending the Texas p le d g e to include "one state under God." Any purported secular interest in m ir r o r in g the national pledge was proved a sham, the plaintiffs contend, when t h e legislature refused also to include the phrase "with liberty and justice for a ll." According to the defendant, however, "the Legislature sincerely (and

u n d e r s t a n d a b ly ) believed that simply tracking the language of the U.S. Pledge a ffir m in g that we are `under God' was the safest and smoothest means of a c h ie v in g its purpose to acknowledge our religious heritage." Id. C o u r t s are "normally deferential to a [legislative] articulation of a secular p u r p o s e ." Edwards v. Aguillard, 482 U.S. 578, 587 (1987). Nevertheless, we do r e v ie w 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 n o t pass constitutional muster if the secular purpose articulated by the le g is la t u r e is merely a `sham,'" id. at 64 (Powell, J., concurring), or "merely s e c o n d a r y to a religious one," McCreary County v. ACLU, 545 U.S. 844, 864 (2 0 0 5 ). However, the statute need not have "exclusively secular" objectives to m e e t the sincerity standard; the touchstone is neutrality, and it is only "[w]hen t h e government acts with the ostensible and predominant purpose of advancing r e lig io n [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 r e q u ir e no "judicial psychoanalysis of a drafter's heart of hearts." Id. at 862. In s u m , "openly available data [must] support a commonsense conclusion that a 10

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No. 09-10347 r e lig io u s objective permeated the government's action." Id. at 863. The purpose t e s t is "rarely . . . determinative." Id. at 859. T h e r e can be no doubt that mirroring the national pledge and a c k n o w le d g in g the state's religious heritage are permissible secular purposes. Acknowledgment of religious heritage, although religiously oriented, "is no less s e c u la r simply because it is infused with a religious element." Freiler, 185 F.3d a t 345. The same is true of the defendant's mirroring rationale. T h e legislative history is also persuasive in showing that these secular p u r p o s e s were the actual purposes and not "sham" purposes devised to shield an a c t u a l motivation to advance Christianity. "In undertaking [a] `sham' inquiry, w e consider whether [the challenged action] furthers the particular purposes a r t ic u la t e d by the [legislature] or whether the [challenged action] contravenes t h o s e avowed purposes." Id. at 344. For example, in Wallace v. Jaffree, Alabama a m e n d e d its moment of silence statute from authorizing "meditation" to a u t h o r iz in g "meditation or voluntary prayer." 472 U.S. at 40. Because the e x is t i n g statute adequately protected students' rights to engage in voluntary p r a y e r , the Court refused to accept the purported secular interest in protecting v o lu n t a r y prayer, inferring instead an intent to express endorsement for prayer a c t iv it ie s . Id. at 59. Unlike Wallace, here the inserted language advances both o f the defendant's asserted purposes, neither of which were satisfied under the p r io r version of the pledge. That one of the amendment's secular purposes could a r g u a b ly have been better advanced by also incorporating "with liberty and ju s tic e for all" is irrelevant to our analysis.4

Of course, if one legislator was motivated by a desire to advance religion, that is not 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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No. 09-10347 U lt im a t e ly , the alleged secular purposes in mirroring the federal pledge a n d acknowledging the state's religious heritage are not so "implausible or in a d e q u a t e ," McCreary County, 545 U.S. at 865, that they ought not be credited. Nor have the plaintiffs presented other evidence indicating that the secular p u r p o s e s are a "sham" or "secondary" to some overriding legislative interest in c o e r c in g Texas's population into religious practice or reverence. Accordingly, we h o ld that the pledge satisfies Lemon's first prong. 2. U n d e r Lemon's second prong, a statute will be held unconstitutional if its p r in c ip a l or primary effect advances or inhibits religion. The plaintiffs argue t h a t "requiring a declaration from school children that Texas is `one state under g o d ', or requiring school children who are not monotheists to sit and listen while t e a c h e r s and other students recite that Texas is `one state under God', advances m o n o th e is t ic religion and inhibits polytheistic or non-theistic religions." As s u c h , the pledge as recited in Texas schools "in fact conveys a message of e n d o r s e m e n t or disapproval." Lynch, 465 U.S. at 690 (O'Connor, J., concurring). Strongly disagreeing, the defendant counters that "considered as a whole, the T e x a s Pledge, like the U.S. Pledge, is plainly a patriotic, rather than religious, e x e r c is e ." The statute's primary effect is "seen from the eyes of a reasonable o b s e r v e r , informed and aware of his surroundings." Van Orden v. Perry, 351 F .3 d 173, 180 (5th Cir. 2003). Also, the challenged conduct must be viewed "as a n entirety, and on its contextual history, not merely the portion . . . claimed to c o n s t it u t e a religious symbol." Briggs v. Mississippi, 331 F.3d 499, 506 (5th Cir. 2 0 0 3 ) ; see also Lynch, 465 U.S. at 680. Some benefit flowing from state

le g is la t io n or policy to religion is permissible: "not every law that confers an `in d ir e c t ,' `remote,' or `incidental' benefit upon [religion] is, for that reason alone, c o n s t it u t io n a lly invalid." Lynch, 465 U.S. at 683. Nor does the Establishment 12

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No. 09-10347 C la u s e forbid statutes whose "effect merely happens to coincide or harmonize w it h the tenets of some . . . religions." Id. A t the outset of our analysis of the pledge statute, we rejected the a r g u m e n t that we must look to the primary effect of the amendment inserting t h e words "one state under God" rather than to the primary effect of the pledge a s a whole. The Supreme Court has been plain that context matters. See C o u n t y of Allegheny, 492 U.S. at 597 ("[T]he effect of the government's use of r e lig io u s symbolism depends on its context." ). The whole of the thing always m a t t e r s because "[f]ocus exclusively on the religious component of any activity w o u ld inevitably lead to its invalidation under the Establishment Clause." Lynch, 465 U.S. at 668. Accordingly, in Briggs we reviewed Mississippi's entire s t a t e flag, rather than just the inclusion of a St. Andrew's cross, 331 F.3d at 506, a n d in Murray we reviewed the City of Austin's entire city insignia, 947 F.3d at 1 5 6 , rather than just the inclusion of a Latin cross. Looking at the pledge as a whole, we find little reason to conclude that in d iv id u a ls who encounter the pledge could "fairly understand [its] purpose" to b e 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 s t a t e under God," the Texas pledge--once a patriotic exercise--now primarily e n d o r s e s religious belief in violation of the Establishment Clause. A reasonable o b s e r v e r would conclude that the pledge remains a patriotic exercise, intended t o inculcate fidelity to the state and respect for its history and values, one of w h ic h is its religious heritage. Accordingly, we hold that the pledge satisfies L e m o n 's second prong.

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No. 09-10347 C. T h ir d , the plaintiffs argue that the pledge fails Lynch's "endorsement t e s t ."5 These arguments essentially reassert the arguments made relating to L e m o n 's second prong, which we have discussed above. In brief, the plaintiffs a r g u e , with feeling, that "[i]t borders on sophistry to suggest that the `r e a s o n a b le ' polytheist public school child . . . would not feel less than a full m e m b e r of the political community every time his fellow Texas classmates r e c it e d . . . a phrase he also believed to be false." The defendant, with bluntness, c o u n t e r s that the pledge "simply acknowledges, within a broader patriotic s t a t e m e n t , a basic historic fact about our Nation: that religion was significant t o our Founders and to their enduring political philosophy." L y n c h v. Donnelly tells us that the government runs afoul of the E s t a b lis h m e n t Clause when it endorses a particular religious belief, because " [e ]n d orse m en t sends a message to nonadherents that they are outsiders, not full m e m b e r s of the political community, and an accompanying message to adherents t h a t they are insiders, favored members of the political community." 465 U.S. a t 688. This endorsement analysis is similar to the second prong of the Lemon t e s t . Under each we review to ensure that, irrespective of the actual purpose, g o v e r n m e n t conduct does not "in fact convey[] a message of endorsement or d is a p p r o v a l," thereby "aid[ing] one religion, aid[ing] all religions, or favor[ing] o n e religion over another." Freiler, 185 F.3d at 346 (internal citation omitted); s e e also County of Allegheny, 492 U.S. at 592 (explaining the concern with e n d o r s e m e n t as a refinement of Lemon's second prong); Briggs, 331 F.3d at 506 (n o t in g similarity and treating the tests together).

As we have previously noted, the plaintiffs contend that the pledge violates the only 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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No. 09-10347 A s discussed above, given the context, we conclude that the use of "under G o d " acknowledges but does not endorse religious belief. We thus hold that the p le d g e does not falter under Lynch's endorsement test. D. F o u r t h , the plaintiffs argue that the provision mandating recitation of the p le d g e , 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 r e c it in g the pledge exerts psychological coercion on dissenting students to p a r tic ip a t e . The defendant points out that the Court has limited its concern a b o u t psychological coercion to religious exercises, specifically prayer. C e r t a in ly , "at a minimum, the [Establishment Clause] guarantees that g o v e r n m e n t may not coerce anyone to support or participate in religion or its e x e r c is e ." Lee, 505 U.S. at 587. In Lee "State officials direct[ed] the performance o f a formal religious exercise" at a graduation ceremony for a secondary school. The Court concluded that given the setting and degree of official involvement, " s u b t le coercive pressures exist[ed]," such that students could not avoid "the fact o r appearance of participation." Id. at 588. Although not mentioned by the p a r tie s , we use a three-part test in applying Lee. "[U]nconstitutional coercion o c c u r s 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 I n d e p . Sch. Dist., 173 F.3d 274, 285 (5th Cir. 1999). Application of this coercion c h a lle n g e test favors the defendant: recitation of the pledge does not constitute " a formal religious exercise." W h e n identifying a "formal religious exercise," the "focus is on the [c h a lle n g e d conduct's] design, implementation, and effect, and not its purpose o r goal." Id. at 290. Much like the endorsement test, religious components are p la c e d in context and the ultimate question is whether "the religious component o f any government practice or policy . . . overwhelm[s] the nonreligious portions." 15

Case: 09-10347

Document: 00511262049

Page: 16

Date Filed: 10/13/2010

No. 09-10347 I d . at 291. In Beaumont, we concluded that a public school's use of clergy to p r o v id e counseling services to students constituted a formal religious exercise b e c a u s e the program consisted solely of clergy engaging in prototypical pastoral e n d e a v o r s and activities. Id. at 292. Even though counseling services may be s e c u la r in nature, the exclusive use of clergy transformed the sessions into a r e lig io u s exercise. H e r e the state cannot be said to have coerced students to engage in a r e lig io u s exercise. A pledge of allegiance to a flag is not a prototypical religious a c t iv it y . And, as we have explained, despite the challenged "under God"

a m e n d m e n t , the pledge's effect remains patriotic; its religious component is m in im a l and, when contextualized, clearly understandable as an

a c k n o w le d g m e n t of the state's religious heritage. Nor, unlike the counseling s e r v ic e s at issue in Beaumont, has the method of implementing § 25.082 tainted a n otherwise secular activity: teachers, not religious figures, lead the students w h o choose to recite the pledge. We thus hold that the pledge still stands after a p p ly in g Lee's coercion test. IV . I n summary, neither Texas's state pledge, Tex. Gov't Code Ann. § 3 1 0 0 .1 0 1 , nor the provision of its educational code requiring its recitation by s c h o o l children, Tex. Educ. Code Ann. § 25.082, violates the Establishment C la u s e . The pledge is a patriotic exercise, and it is made no less so by the a c k n o w le d g m e n t of Texas's religious heritage via the inclusion of the phrase " u n d e r God." A pledge can constitutionally acknowledge the existence of, and e v e n value, a religious belief without impermissibly favoring that value or belief, w it h o u t advancing belief over non-belief, and without coercing participation in a religious exercise. Texas's pledge is of this sort and consequently survives this

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Case: 09-10347

Document: 00511262049

Page: 17

Date Filed: 10/13/2010

No. 09-10347 c h a lle n g e . Accordingly, the district court's judgment dismissing the complaint is AFFIRMED.

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