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Texas Pledge of Allegiance in Schools Upheld

A federal appeals court has upheld the inclusion of the words "one state under God" in the Texas Pledge of Allegiance, which state law requires public schoolchildren to recite daily unless excused by their parents.

The Texas pledge reads: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." The Texas legislature originally adopted it in 1933, and amended it in 2007 with the reference to God. Lawmakers cited the purposes of mirroring the U.S. Pledge of Allegiance's reference to "one nation under God," and to recognize the nation's Judeo-Christian heritage.

The pledge was challenged by two sets of Texas parents as an establishment of religion in violation of the First Amendment of the U.S. Constitution.

A federal district court treated the suit as a facial challenge to the 2007 statute, and it ruled for the state. In its Oct. 13 decision in Croft v. Perry, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously affirmed the lower court's ruling.

"Looking at the pledge as a whole, we find little reason to conclude that individuals who encounter the pledge could fairly understand its purpose to be the endorsement of religious belief," the appeals court said. "A reasonable observer would conclude that the pledge remains a patriotic exercise, intended to inculcate fidelity to the state and respect for its history and values, one of which is its religious heritage."

The appeals court noted that the U.S. Supreme Court has yet to rule directly on whether the inclusion of "one nation under God" in the national pledge comports with the Establishment Clause, but the justices have suggested in dicta and concurring opinions in several cases that the pledge is constitutional. And three federal appeals courts have directly upheld the national pledge as amended by Congress in 1954, the 5th Circuit noted.

This decision seems to me to add to the likelihood that the Supreme Court will take up a case involving the pledge in schools in the near future, whether national or the Texas pledge. See recent discussions of the issue here and here. (Do any other states have a state pledge that is recited in schools?)

The 5th Circuit made no mention of whether students may object to reciting the Texas pledge for reasons of their own conscience, as the Supreme Court's 1943 ruling in West Virginia State Board of Education v. Barnette might suggest. True, the Texas law provides for students to be excused from reciting the state pledge on a parent's written request, but that procedure has been challenged elsewhere (under state laws requiring classroom recitations of the national Pledge) as not sufficiently protecting the rights of students.

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