Myers v. Loudoun County Public Schools

418 F.3d 395

Edward R. MYERS, individually and as guardian of minor children, Plaintiff-Appellant, v. LOUDOUN COUNTY PUBLIC SCHOOLS; Commonwealth of Virginia, Defendants-Appellees, and United States of America, Intervenor-Appellee, and Edgar B. Hatrick, Superintendent, Defendant State of Alabama; State of Alaska; State of Arkansas; State of Colorado; State of Delaware; State of Florida; State of Georgia; State of Hawaii; State of Idaho; State of Illinois; State of Indiana; State of Kansas; State of Kentucky; State of Maryland; State of Mississippi; State of Montana; State of Nevada; State of North Carolina; State of North Dakota; State of Ohio; State of Oklahoma; State of Oregon; State of Pennsylvania; State of South Carolina; State of South Dakota; State of Tennessee; State of Texas; State of Utah; State of Washington; State of Wyoming, Amici Supporting Appellee.

No. 03-1364.

United States Court of Appeals, Fourth Circuit.

Argued March 18, 2005.

Decided August 10, 2005.

ARGUED:

David H. Remes, Covington & Burling, Washington, D.C., for Appellant. Charles Lyman Becker, Reed Smith, L.L.P., Philadelphia, Pennsylvania; Maureen Riley Matsen, Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. Robert Mark Loeb, United States Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for Intervenor, the United States.

ON BRIEF:

Andrew A. Ruffino, Christine I. Magdo, Covington & Burling, New York, New York, for Appellant. E. William Chapman, Reed Smith, L.L.P., Leesburg, Virginia; Jason H. Ballum, Reed Smith, L.L.P., Richmond, Virginia, for Appellee Loudoun County School Board. Judith Williams Jagdmann, Attorney General of Virginia, William E. Thro, State Solicitor General, A. Cameron O'Brion, Associate Solicitor General, Richmond, Virginia, for Appellee Commonwealth of Virginia. Peter D. Keisler, Assistant Attorney General, Paul J. McNulty, United States Attorney, Lowell V. Sturgill, Jr., Civil Division, Appellate Staff, United States Department of Justice, Washington, D.C., for Intervenor, the United States. Troy King, Attorney General of Alabama, John J. Park, Jr., Assistant Attorney General, Charles B. Campbell, Assistant Attorney General, Office of the Attorney General State of Alabama, Montgomery, Alabama, for the State of Alabama; Scott J. Nordstrand, Acting Attorney General of Alaska, Juneau, Alaska; Mike Beebe, Attorney General of Arkansas, Little Rock, Arkansas; John W. Suthers, Attorney General of Colorado, Denver, Colorado; M. Jane Brady, Attorney General of Delaware, Wilmington, Delaware; Charles J. Crist, Jr., Attorney General of Florida, Tallahassee, Florida; Thurbert E. Baker, Attorney General of Georgia, Atlanta, Georgia; Mark J Bennett, Attorney General of Hawaii, Honolulu, Hawaii; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois; Steve Carter, Attorney General of Indiana, Indianapolis, Indiana; Phill Kline, Attorney General of Kansas, Topeka, Kansas, Gregory D. Stumbo, Attorney General of Kentucky, Frankfort, Kentucky; J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Maryland; Jim Hood, Attorney General of Mississippi, Jackson, Mississippi; Mike McGrath, Attorney General of Montana, Helena, Montana; Brian Sandoval, Attorney General of Nevada, Carson City, Nevada; Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota; Jim Petro, Attorney General of Ohio, Columbus, Ohio; W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, Oklahoma; Hardy Myers, Attorney General of Oregon, Salem, Oregon; Thomas W. Corbett, Jr., Attorney General of Pennsylvania, Harrisburg, Pennsylvania; Henry McMaster, Attorney General of South Carolina, Columbia, South Carolina; Lawrence E. Long, Attorney General of South Dakota, Pierre, South Dakota; Paul G. Summers, Attorney General of Tennessee, Nashville, Tennessee; Greg Abbott, Attorney General of Texas, Austin, Texas; Mark L. Shurtleff, Attorney General of Utah, Salt Lake City, Utah; Rob McKenna, Attorney General of Washington, Olympia, Washington; Patrick J. Crank, Attorney General of Wyoming, Cheyenne, Wyoming, Amici Curiae Supporting Appellees.

Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion. Judge DUNCAN wrote a separate concurring opinion. Judge MOTZ wrote a separate opinion concurring in the judgment.

WILLIAMS, Circuit Judge.

Edward R. Myers, on behalf of himself and his minor children, appeals the dismissal of his action, alleging that Va.Code Ann. § 22.1-202(C) (Michie 2003) (the Recitation Statute), which provides for daily, voluntary recitation of the Pledge of Allegiance (the Pledge) in Virginia's public schools, violates the Establishment Clause. The district court, applying the three part test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), upheld the Recitation Statute, concluding that the statute did not have a religious purpose or effect and did not create an excessive governmental entanglement with religion. Because the Pledge is not a religious exercise and does not threaten an establishment of religion, we affirm.

I.

Myers belongs to the Anabaptist Mennonite faith, which condemns the mixture of church and state. Anabaptist Mennonites are a Christian sect that "left Central Europe in late 1600 because of religious persecution for belief in the separation of church and state." (J.A. at 7.) According to the Mennonite Confession of Faith, "[t]he primary allegiance of all Christians is to Christ's kingdom, not the state or society. Because their citizenship is in heaven, Christians are called to resist the idolatrous temptation to give to the state the devotion that is owed to God." (J.A. at 7.)

Myers resides in Loudoun County, Virginia, and, at the time he filed his complaint, his two sons attended Loudoun County public schools, one in first grade and one in third grade. Because of Myers's belief in a separation of church and state and his fear that Loudoun County was indoctrinating his children with a "`God and Country' religious worldview," (J.A. at 7), Myers objected to Loudoun County's policy of having all school-aged children recite the Pledge each school day.

Loudoun County's policy was enacted pursuant to the Recitation Statute, which provides:

Each school board shall require the daily recitation of the Pledge of Allegiance in each classroom of the school division and shall ensure that the flag of the United States is in place in each such classroom. Each school board shall determine the appropriate time during the school day for the recitation of the Pledge. During such Pledge of Allegiance, students shall stand and recite the Pledge while facing the flag with their right hands over their hearts or in an appropriate salute if in uniform; however, no student shall be compelled to recite the Pledge if he, his parent or legal guardian objects on religious, philosophical or other grounds to his participating in this exercise. Students who are thus exempt from reciting the Pledge shall remain quietly standing or sitting at their desks while others recite the Pledge and shall make no display that disrupts or distracts others who are reciting the Pledge. School boards shall provide appropriate accommodations for students who are unable to comply with the procedures described herein due to disability.

The school board's code of conduct shall apply to disruptive behavior during the recitation of the Pledge in the same manner as provided for other circumstances of such behavior.

Va.Code Ann. § 22.1-202(C).¹

The Pledge was enacted in 1942, during World War II, in order "to codify and emphasize the existing rules and customs pertaining to the display and use of the flag of the United States of America." H.R.Rep. No.2047, 77th Cong., 2d Sess. 1 (1942). The Pledge was amended in 1954, and it now reads: "I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all." 4 U.S.C.A. § 4 (West 2005) (the Pledge statute).

On October 15, 2002, Myers, who is not an attorney, filed a lawsuit under 42 U.S.C.A. § 1983 (West 2003)² against the Loudoun County School Board (the Board) in the United States District Court for the Eastern District of Virginia. Acting pro se on behalf of himself and his two minor children, Myers alleged that the daily recitation of the Pledge in Loudoun County schools violated the Establishment Clause, and, accordingly, that the Recitation Statute was facially unconstitutional.³ The district court interpreted Myers's complaint to provide that the Recitation Statute, by requiring recitation of the Pledge, was attempting to establish a "`civil religion of God and Country' as a state supported religion." (J.A. at 64.) The Commonwealth of Virginia intervened to defend the constitutionality of the Recitation Statute, and moved, in conjunction with the Board, for dismissal of Myers's action pursuant to Federal Rule of Civil Procedure 12(b)(6) (West 1992). Following a hearing, the district court granted the motion to dismiss, concluding that, under the three-part Lemon test, the Recitation Statute was constitutional on its face and as applied by the Board. Myers noted a timely appeal.⁴ On appeal, Myers contends that because of the inclusion of the words "under God," the Pledge is a religious exercise and that, accordingly, the Recitation Statute violates the Establishment Clause. We possess jurisdiction under 28 U.S.C.A. § 1291 (West 1993).

II.

As noted, Myers filed his complaint pro se on behalf of himself and his minor children. Although the Appellees did not argue that the district court erred in allowing Myers to litigate pro se below, we nevertheless raised this threshold...