The Pledge of Allegiance survived review by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over 11 Western states. In Newdow v. Rio Linda Union School District the atheist parents of a number of students in the Rio Linda Union School District in California filed a lawsuit arguing that a school district’s policy requiring that teachers lead willing students in the recitation of the Pledge each day violates the Establishment Clause of the federal Constitution, which prohibits endorsement of or entanglement with religion by the Government. The school district’s policy implements California law, which requires public elementary schools to conduct “appropriate patriotic exercises” and provides that one way to satisfy the requirement is by daily recitation of the Pledge. Under the school district’s policy, no student is forced to participate in the recitation of the Pledge if he or she is unwilling.

The parents argued that their children were forced to listen to the Pledge, even if they were not forced to participate. Because the Pledge contains the words “under God,” the parents maintained, the school district policy offends their belief that there is no God, interferes with their ability to direct the upbringing of their children, and indoctrinates their children with the belief that God exists against their parents’ wishes.

The Ninth Circuit held, in a 2-1 vote, that the daily, voluntary recitation of the Pledge did not violate the constitutional rights of the parents or the students. The court held that despite the one line “under God,” the Pledge has a primarily “patriotic” purpose, not a primarily “religious” purpose. The court held that atheist parents do not have the right to prevent teachers from leading other students in what is essentially a patriotic activity, simply because it has the secondary effect of offending their atheistic beliefs. The Ninth Circuit’s decision is in line with a 1992 decision by the Seventh Circuit Court of Appeals, the federal appellate court with jurisdiction over Illinois, which held that an Illinois law mandating voluntary recitation of the Pledge at school was constitutional.

Notably, the panel decision is directly in conflict with a prior decision by the full Ninth Circuit in 2002 in a lawsuit by one of the same parents involved in the current case. In that case, the Ninth Circuit had held that the Pledge had a religious purpose and that the recitation in school was unconstitutional. In a 133-page opinion, the sole dissenting judge in the most recent case argued that nothing has changed since 2002 to lead to a different ruling. The United States Supreme Court vacated the Ninth Circuit’s earlier opinion, however, on a procedural basis, ruling that the parent was not entitled to sue on his child’s behalf because he was not the custodial parent. As such, the prior decision is no longer binding law.