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Croft v. Perry: Texas Pledge Survives Constitutional Challenge

Yesterday, the Fifth Circuit released Croft v. Perry(pdf) in which the Court rejected a facial challenge under the First Amendment to the Texas Pledge of Allegiance, to which the words "under God" were added in 2007.  Judge Jolly wrote the Court's opinion.

The plaintiffs did not want their children saying those two words each morning in class, so of course they sued the Governor. They argued that the amended pledge violates the Establishment Clause in four ways:

(1) the pledge’s use of the singular “God” impermissibly favors monotheistic over polytheistic beliefs;
(2) the amendment does not have a secular purpose or effect, as any stated purpose is pretext for a religious motivation;
(3) the pledge impermissibly endorses religious belief by affirming that Texas is organized “under God”; and
(4) the pledge’s recitation in schools pursuant to § 25.082 of the Texas Education Code impermissibly coerces religious belief.

The Court rejected each argument in turn.  It noted that the Supreme Court's lingo on the Pledge of Allegiance was all dicta, but it was really good dicta:

The Supreme Court has never directly addressed the constitutionality of the 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 Allegheny v. ACLU, 492 U.S. 602–03 (1989). The closest case to deciding the issue, Elk Grove Unified School District. v. Newdow, was resolved on standing grounds, but three justices would have upheld the pledge either as a recognition of the importance of religious beliefs to our founding, 542 U.S. 1, 32 (2001) (Rehnquist, 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 ideals that our flag symbolizes” and its recitation as “a patriotic exercise designed 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 seriously. See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980).

Three other circuits had found the same dicta persuasive, and the Fifth Circuit did too.  For me, that is the principal use for this case: how to use really good dicta.

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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...