Croft v. Perry

Case: 09-10347 Document: 00511262049 Page: 1 Date Filed: 10/13/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 13, 2010

No. 09-10347 Lyle W. Cayce
Clerk

DAVID WALLACE CROFT, As Parents and Next Friend of their minor
Children; SHANNON KRISTINE CROFT, As Parents and Next Friend of
their minor Children; JOHN DOE, As Parents and Next Friend of their minor
Children; JANE DOE, As Parents and Next Friend of their minor Children,

Plaintiffs - Appellants

versus

RICK PERRY, Governor of the State of Texas,

Defendant - Appellee

Appeal from the United States District Court
for the Northern District of Texas

Before JOLLY and GARZA, Circuit Judges, and STARRETT,* District Judge.
E. GRADY JOLLY, Circuit Judge:
In this appeal, the plaintiffs, David and Shannon Croft and John and Jane
Doe, parents of minor children who attend public schools in Texas, challenge the
Texas pledge of allegiance, as amended to include the phrase “one state under
God,” and a provision of the Texas Education Code requiring students to recite
the pledge daily. They seek injunctive and declaratory relief against Texas
Governor 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

Establishment Clause of the First Amendment to the United States Constitution
as incorporated by the Fourteenth Amendment.
On cross-motions for summary judgment, the district court found that the
plaintiffs brought only facial challenges to the pledge, concluded that the pledge
and education provision satisfy the Establishment Clause under any applicable
test, and granted summary judgment in favor of the defendant. On appeal, the
plaintiffs argue that the district court erred in treating their claim as a facial
challenge; the plaintiffs also reassert their arguments that the amended pledge
violates the Establishment Clause. Because we agree that the pledge and the
education provision do not violate the Establishment Clause, we AFFIRM.
I.
In 2007, the Texas state legislature amended the Texas state pledge of
allegiance to include, for the first time, the words “under God.” As amended, the
pledge reads, “Honor the Texas flag; I pledge allegiance to thee, Texas, one state
under 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
state pledge once daily unless excused by a parent. Tex. Educ. Code Ann.
§ 25.082 (West 2006).

1
§ 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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Prior to passage the amendment underwent several rounds of debate in
the state legislature and was subject to analysis by research committees from
the state House of Representatives and Senate. In the course of debate, two
purposes for inserting the phrase “under God” into the pledge were advanced.
First, in the state House of Representatives, Representative Riddle, the bill’s
sponsor, explained that “there was something missing out of our state pledge
because it wasn’t consistent with our national pledge.” According to her, “what
this bill does, it simply replicates, mirrors our national pledge.” When asked to
amend the bill to include other language from the national pledge, such as “with
liberty and justice for all,” Representative Debbie Riddle declined, explaining
that “it says what we wanted it to say” and that she “didn’t think of” mirroring
other parts of the national pledge.
Second, in the state Senate, Senator Dan Patrick, after pointing to
references to God strewn throughout founding-era documents, expressed an
intention to “acknowledge our Judeo Christian heritage by placing the words
under God in the state pledge.” Bill analyses prepared by the House and Senate
research committees also identified acknowledgment of religious heritage as the
primary purpose for the bill. According to the Senate committee, “[s]ince the
founding of the United States through modern times, there has been a link to
God in the political and social culture of the United States. . . . Placing the
phrase ‘under God’ in the Texas state pledge may best acknowledge this
heritage.”
Before the district court, the plaintiffs 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

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pledge’s recitation in schools pursuant to § 25.082 of the Texas Education Code
impermissibly coerces religious belief.
After reviewing the pledge’s language and the legislative history, the
district court rejected each of the plaintiffs’ theories as to how the pledge violates
the Establishment Clause and granted summary judgment to the defendant. On
appeal, the plaintiffs argue that the district court erred in treating their
complaint as a facial challenge, generally questioning the constitutionality of the
statute, rather than as an as-applied challenge questioning the constitutionality
of the statute as specifically applied to their children. The plaintiffs further
argue and that the district court erred in holding that the pledge itself survived
any constitutional attack.
We consider each of the plaintiffs’ arguments separately.
II.
We review the district court’s grant of summary judgment de novo,
applying 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
appropriate where the submissions show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A.
At the outset of its opinion, the district court noted that the plaintiffs
failed to identify whether their objection to the pledge was a facial challenge or
an as-applied challenge. Because the plaintiffs showed no evidence of the
manner in which the pledge was specifically administered unconstitutionally
against them, as parents or as next friends of their minor children, the district
court treated their challenge as facial and required that they “‘show that under
no circumstances could the law be constitutional.’” Dist. Ct. op. at 4 (citing
Barnes v. Mississippi, 922 F.2d 1335, 1343 (5th Cir. 1993)).

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The plaintiffs argue that applying this “heightened burden” was error, as
there is no distinction between facial and as-applied challenges in the context of
the Establishment Clause. According to the plaintiffs, once an individual with
standing challenges the government’s conduct, that conduct is reviewed under
one or all of the several tests used by the Supreme Court to identify
Establishment Clause violations; no showing of unconstitutionality under all
circumstances is required.
The plaintiffs are incorrect. Both we and the Supreme Court have
recognized the difference between facial and as-applied Establishment Clause
challenges. See Bowen v. Kendrick, 487 U.S. 589, 601–602, 620–21 (1988)
(concluding that the Adolescent Family Life Act was facially constitutional, but
remanding for consideration of its constitutionality as applied to “pervasively
sectarian” institutions); Henderson v. Stalder, 287 F.3d 374, 380 n.6 (5th Cir.
2002) (denying standing for a facial challenge, but leaving open the possibility
of standing on an as-applied challenge); Jones v. Clear Creek Indep. Sch. Dist.,
977 F.2d 963, 969 n.10 (5th Cir. 1992) (deciding the issue of facial
constitutionality, but leaving open the possibility for an as-applied challenge).
In fact, in a related case brought by these same plaintiffs challenging Texas’s
moment of silence statute, Croft v. Governor of Texas, 562 F.3d 735 (5th Cir.
2009), we declined to consider the hypothetical Lemon entanglements posed by
the plaintiffs, pointing out that “speculative possibilities may be fertile ground
for as-applied challenges if they occur,” but were inappropriate on facial review.
Croft, 562 F.3d at 750.
Because a distinction exists between facial and as-applied Establishment
Clause challenges, we must consider where the plaintiffs’ claims belong. The
Supreme Court has recently explained that where the “plaintiffs’ claim and the
relief that would follow . . . reach beyond the particular circumstances of th[o]se
plaintiffs,” the plaintiffs must “satisfy our standards for a facial challenge to the

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No. 09-10347

extent of that reach.” John Doe No. 1 v. Reed, 130 S.Ct. 2811, 2817 (2010) (citing
United States v. Stevens, 130 S.Ct. 1577, 1587 (2010)).
As described above, the plaintiffs bring four Establishment Clause
challenges. None are limited to the “particular circumstances of [the] plaintiffs,”
and so each is clearly a facial attack. The first three—sect preference, the
Lemon test, and endorsement—are best construed as a facial challenge to the
pledge itself, Tex. Gov’t Code Ann. § 3100.101. The last—coercion—is best
construed 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
the relief sought by the plaintiffs: that the pledge be invalidated in its entirety,
not merely that it not be applied to them or their children. To successfully
mount a facial challenge, the plaintiffs must show that there is no set of
circumstances under which either the language of the pledge or the requirement
that children recite the pledge in classrooms is constitutional. If the plaintiffs
successfully show either provision to be unconstitutional in every application,
then that provision will be struck down as invalid.
B.
Before turning to the plaintiffs’ specific arguments, we will review national
pledge precedent, which undoubtedly is relevant as Texas’s use of the phrase
“one state under God” was designed to mirror the “one nation under God” found
in the pledge of allegiance to the United States flag.
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)

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(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).
On the strength of these Supreme Court cases, the three circuits which
have addressed the national pledge have found it constitutional.2 In Sherman
v. Community Consolidated School District 21, the Seventh Circuit explained
that references to God in our nation’s earliest history make clear that the
founders did not “deem[] ceremonial invocations of God as ‘establishment.’” 980
F.2d 437, 445 (7th Cir. 1992). In Myers v. Loudoun County Public Schools, the
Fourth Circuit, also upholding the national pledge, noted that the inclusion of
“under God” “does not alter the nature of the pledge as a patriotic activity” and
poses “none of the harms” of “sponsorship, financial support, [or] active
involvement . . . in religious activity,” all of which are condemned by the
Establishment Clause. 418 F.3d 395, 407–08 (4th Cir. 2005). In Newdow v. Rio
Linda Union School District, the Ninth Circuit concluded that “both the purpose
and effect of the Pledge are that of a predominantly patriotic, not a religious,
exercise,” 597 F.3d 1007, 1037 (9th Cir. 2010), and so upheld both the pledge
and a school district policy of daily recitation under the Lemon, endorsement,
and coercion tests.
With respect to the dicta of the Supreme Court and the holdings of these
circuits that the national pledge is constitutional, the defendant argues that the

2
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, 154–55 (5th Cir. 1991).

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Texas pledge is “constitutionally indistinguishable” from the national pledge and
urges us to follow the above cases. The plaintiffs, however, argue that the
national pledge precedent is inapplicable here, as its adoption over fifty years
ago is sufficiently historic to make it constitutional today.3 Neither party is
entirely correct. Under many tests, what also matters are the circumstances of
the pledge’s adoption, and in this regard the Texas pledge is constitutionally
unique. When looking, however, to legitimate purposes for using the language
“under God,” as well as its likely effect when introduced into a pledge, analyses
of the national pledge are relevant and not made less so by its age when
compared to the youth of the Texas pledge.
With these persuasive cases as a backdrop, we turn to our review of
Texas’s state pledge.
III.
In reviewing the constitutionality of a challenged government action under
the Establishment Clause, we use a “multi-test analysis” that has “result[ed]
from an Establishment Clause jurisprudence rife with confusion and from our
own desire to be both complete and judicious in our decision-making.” Freiler,
185 F.3d at 344. The plaintiffs point us to four “tests,” each of which derives
from a different Supreme Court case and each of which, they allege, is fatal to
the Texas pledge. For reasons we explain, we hold that the pledge survives this
constitutional challenge.
A.
First, the plaintiffs argue that the pledge fails Larson v. Valente’s no-sect-
preference test, a test they style a “basic threshold criterion” for the
constitutionality of government action. The pledge fails, they allege, because its

3
Texas’s amended pledge is only three years old.

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reference to a singular “God” rather than the plural “gods” shows official
preference for monotheistic belief over polytheistic belief.
“The clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another.” Larson v. Valente,
456 U.S. 228, 244 (1982). This command is violated when, for example, the
government elevates particular religious imagery, thus “demonstrat[ing] . . .
allegiance to a particular sect or creed,” County of Allegheny, 492 U.S. at 603–05,
or engages in legislative favoritism, thus “fail[ing] to exercise governmental
authority in a religiously neutral way,” Board of Educ. of Kiryas Joel Village
School Dist. v. Grumet, 512 U.S. 687, 703 (1994). It is not, however, violated
with “nonsectarian references to religion” such as “references to God in the motto
and the pledge.” County of Allegheny, 492 U.S. at 603. As Justice O’Connor has
explained, this is because a “simple reference to a generic ‘God’ . . . does not refer
to 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’Connor’s rationale as applicable in this case. The term God is adequately
generic to acknowledge a wide range of religious belief, monotheistic and
polytheistic alike. A reference to “God” may not reach every belief system, but
it is a “tolerable attempt” at acknowledging religion without favoring a
particular sect or belief. Id. We thus hold that the pledge’s use of the singular
“God” does not favor a particular faith in violation of the Establishment Clause.
B.
Second, the plaintiffs argue that the pledge fails the Lemon test, which is
perhaps the most criticized, but still the most widely-used, test for identifying
Establishment Clause violations. Under Lemon, a statute violates the
Establishment Clause if (1) it does not have a secular purpose, (2) its principal
or primary effect advances or inhibits religion, or (3) it creates excessive

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government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602,
612–13 (1971). The plaintiffs focus on Lemon’s first and second prongs. For the
following reasons, we hold that the pledge satisfies both.
1.
Under Lemon’s first prong, the state must identify a secular purpose for
the “under God” amendment to the pledge. The plaintiffs argue the legislative
history demonstrates there was no secular purpose behind amending the Texas
pledge to include “one state under God.” Any purported secular interest in
mirroring the national pledge was proved a sham, the plaintiffs contend, when
the legislature refused also to include the phrase “with liberty and justice for
all.” According to the defendant, however, “the Legislature sincerely (and
understandably) believed that simply tracking the language of the U.S. Pledge
affirming that we are ‘under God’ was the safest and smoothest means of
achieving its purpose to acknowledge our religious heritage.” Id.
Courts are “normally deferential to a [legislative] articulation of a secular
purpose.” Edwards v. Aguillard, 482 U.S. 578, 587 (1987). Nevertheless, we do
review 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
not pass constitutional muster if the secular purpose articulated by the
legislature is merely a ‘sham,’” id. at 64 (Powell, J., concurring), or “merely
secondary to a religious one,” McCreary County v. ACLU, 545 U.S. 844, 864
(2005). However, the statute need not have “exclusively secular” objectives to
meet the sincerity standard; the touchstone is neutrality, and it is only “[w]hen
the government acts with the ostensible and predominant purpose of advancing
religion [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
require no “judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862. In
sum, “openly available data [must] support a commonsense conclusion that a

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religious objective permeated the government’s action.” Id. at 863. The purpose
test is “rarely . . . determinative.” Id. at 859.
There can be no doubt that mirroring the national pledge and
acknowledging the state’s religious heritage are permissible secular purposes.
Acknowledgment of religious heritage, although religiously oriented, “is no less
secular simply because it is infused with a religious element.” Freiler, 185 F.3d
at 345. The same is true of the defendant’s mirroring rationale.
The legislative history is also persuasive in showing that these secular
purposes were the actual purposes and not “sham” purposes devised to shield an
actual motivation to advance Christianity. “In undertaking [a] ‘sham’ inquiry,
we consider whether [the challenged action] furthers the particular purposes
articulated by the [legislature] or whether the [challenged action] contravenes
those avowed purposes.” Id. at 344. For example, in Wallace v. Jaffree, Alabama
amended its moment of silence statute from authorizing “meditation” to
authorizing “meditation or voluntary prayer.” 472 U.S. at 40. Because the
existing statute adequately protected students’ rights to engage in voluntary
prayer, the Court refused to accept the purported secular interest in protecting
voluntary prayer, inferring instead an intent to express endorsement for prayer
activities. Id. at 59. Unlike Wallace, here the inserted language advances both
of the defendant’s asserted purposes, neither of which were satisfied under the
prior version of the pledge. That one of the amendment’s secular purposes could
arguably have been better advanced by also incorporating “with liberty and
justice for all” is irrelevant to our analysis.4

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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Ultimately, the alleged secular purposes in mirroring the federal pledge
and acknowledging the state’s religious heritage are not so “implausible or
inadequate,” McCreary County, 545 U.S. at 865, that they ought not be credited.
Nor have the plaintiffs presented other evidence indicating that the secular
purposes are a “sham” or “secondary” to some overriding legislative interest in
coercing Texas’s population into religious practice or reverence. Accordingly, we
hold that the pledge satisfies Lemon’s first prong.
2.
Under Lemon’s second prong, a statute will be held unconstitutional if its
principal or primary effect advances or inhibits religion. The plaintiffs argue
that “requiring a declaration from school children that Texas is ‘one state under
god’, or requiring school children who are not monotheists to sit and listen while
teachers and other students recite that Texas is ‘one state under God’, advances
monotheistic religion and inhibits polytheistic or non-theistic religions.” As
such, the pledge as recited in Texas schools “in fact conveys a message of
endorsement or disapproval.” Lynch, 465 U.S. at 690 (O’Connor, J., concurring).
Strongly disagreeing, the defendant counters that “considered as a whole, the
Texas Pledge, like the U.S. Pledge, is plainly a patriotic, rather than religious,
exercise.”
The statute’s primary effect is “seen from the eyes of a reasonable
observer, informed and aware of his surroundings.” Van Orden v. Perry, 351
F.3d 173, 180 (5th Cir. 2003). Also, the challenged conduct must be viewed “as
an entirety, and on its contextual history, not merely the portion . . . claimed to
constitute a religious symbol.” Briggs v. Mississippi, 331 F.3d 499, 506 (5th Cir.
2003); see also Lynch, 465 U.S. at 680. Some benefit flowing from state
legislation or policy to religion is permissible: “not every law that confers an
‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone,
constitutionally invalid.” Lynch, 465 U.S. at 683. Nor does the Establishment

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Clause forbid statutes whose “effect merely happens to coincide or harmonize
with the tenets of some . . . religions.” Id.
At the outset of our analysis of the pledge statute, we rejected the
argument that we must look to the primary effect of the amendment inserting
the words “one state under God” rather than to the primary effect of the pledge
as a whole. The Supreme Court has been plain that context matters. See
County of Allegheny, 492 U.S. at 597 (“[T]he effect of the government’s use of
religious symbolism depends on its context.” ). The whole of the thing always
matters because “[f]ocus exclusively on the religious component of any activity
would inevitably lead to its invalidation under the Establishment Clause.”
Lynch, 465 U.S. at 668. Accordingly, in Briggs we reviewed Mississippi’s entire
state flag, rather than just the inclusion of a St. Andrew’s cross, 331 F.3d at 506,
and in Murray we reviewed the City of Austin’s entire city insignia, 947 F.3d at
156, rather than just the inclusion of a Latin cross.
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. County of Allegheny, 492 U.S. at 594.
There is no compelling reason to believe that with the inclusion of the words “one
state under God,” the Texas pledge—once a patriotic exercise—now primarily
endorses religious belief in violation of the Establishment Clause. 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. Accordingly, we hold that the pledge satisfies
Lemon’s second prong.

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C.
Third, the plaintiffs argue that the pledge fails Lynch’s “endorsement
test.”5 These arguments essentially reassert the arguments made relating to
Lemon’s second prong, which we have discussed above. In brief, the plaintiffs
argue, with feeling, that “[i]t borders on sophistry to suggest that the
‘reasonable’ polytheist public school child . . . would not feel less than a full
member of the political community every time his fellow Texas classmates
recited . . . a phrase he also believed to be false.” The defendant, with bluntness,
counters that the pledge “simply acknowledges, within a broader patriotic
statement, a basic historic fact about our Nation: that religion was significant
to our Founders and to their enduring political philosophy.”
Lynch v. Donnelly tells us that the government runs afoul of the
Establishment Clause when it endorses a particular religious belief, because
“[e]ndorsement sends a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to adherents
that they are insiders, favored members of the political community.” 465 U.S.
at 688. This endorsement analysis is similar to the second prong of the Lemon
test. Under each we review to ensure that, irrespective of the actual purpose,
government conduct does not “in fact convey[] a message of endorsement or
disapproval,” thereby “aid[ing] one religion, aid[ing] all religions, or favor[ing]
one religion over another.” Freiler, 185 F.3d at 346 (internal citation omitted);
see also County of Allegheny, 492 U.S. at 592 (explaining the concern with
endorsement as a refinement of Lemon’s second prong); Briggs, 331 F.3d at 506
(noting similarity and treating the tests together).

5
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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As discussed above, given the context, we conclude that the use of “under
God” acknowledges but does not endorse religious belief. We thus hold that the
pledge does not falter under Lynch’s endorsement test.
D.
Fourth, the plaintiffs argue that the provision mandating recitation of the
pledge, 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
reciting the pledge exerts psychological coercion on dissenting students to
participate. The defendant points out that the Court has limited its concern
about psychological coercion to religious exercises, specifically prayer.
Certainly, “at a minimum, the [Establishment Clause] guarantees that
government may not coerce anyone to support or participate in religion or its
exercise.” Lee, 505 U.S. at 587. In Lee “State officials direct[ed] the performance
of a formal religious exercise” at a graduation ceremony for a secondary school.
The Court concluded that given the setting and degree of official involvement,
“subtle coercive pressures exist[ed],” such that students could not avoid “the fact
or appearance of participation.” Id. at 588. Although not mentioned by the
parties, we use a three-part test in applying Lee. “[U]nconstitutional coercion
occurs 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
Indep. Sch. Dist., 173 F.3d 274, 285 (5th Cir. 1999). Application of this coercion
challenge test favors the defendant: recitation of the pledge does not constitute
“a formal religious exercise.”
When identifying a “formal religious exercise,” the “focus is on the
[challenged conduct’s] design, implementation, and effect, and not its purpose
or goal.” Id. at 290. Much like the endorsement test, religious components are
placed in context and the ultimate question is whether “the religious component
of any government practice or policy . . . overwhelm[s] the nonreligious portions.”

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Id. at 291. In Beaumont, we concluded that a public school’s use of clergy to
provide counseling services to students constituted a formal religious exercise
because the program consisted solely of clergy engaging in prototypical pastoral
endeavors and activities. Id. at 292. Even though counseling services may be
secular in nature, the exclusive use of clergy transformed the sessions into a
religious exercise.
Here the state cannot be said to have coerced students to engage in a
religious exercise. A pledge of allegiance to a flag is not a prototypical religious
activity. And, as we have explained, despite the challenged “under God”
amendment, the pledge’s effect remains patriotic; its religious component is
minimal and, when contextualized, clearly understandable as an
acknowledgment of the state’s religious heritage. Nor, unlike the counseling
services at issue in Beaumont, has the method of implementing § 25.082 tainted
an otherwise secular activity: teachers, not religious figures, lead the students
who choose to recite the pledge. We thus hold that the pledge still stands after
applying Lee’s coercion test.
IV.
In summary, neither Texas’s state pledge, Tex. Gov’t Code Ann. §
3100.101, nor the provision of its educational code requiring its recitation by
school children, Tex. Educ. Code Ann. § 25.082, violates the Establishment
Clause. The pledge is a patriotic exercise, and it is made no less so by the
acknowledgment of Texas’s religious heritage via the inclusion of the phrase
“under God.” A pledge can constitutionally acknowledge the existence of, and
even value, a religious belief without impermissibly favoring that value or belief,
without 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

challenge. Accordingly, the district court’s judgment dismissing the complaint
is
AFFIRMED.

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