Freedom from Religion Foundation v. Hanover School District

The year was 2007, the night—Halloween, but trick-or-treaters dressed as ghosts and hobgoblins weren’t the only ones stirring up fanciful fears in New England. No, Dr. Michael Newdow, an atheist and ordained minister in the Universal Life Church, along with the Wisconsin-based Freedom From Religion Foundation (FFRF), filed suit to silence the Pledge of Allegiance in public schools across New Hampshire. Why? They found the phrase “under God” spooky.

Representing three New Hampshire families and the Knights of Columbus, Becket intervened, urging the federal district court to dismiss Newdow’s third suit attacking the Pledge in less than 7 years.

After losing at the district court, Newdow appealed to the First Circuit Court of Appeals in Boston. The Founder and now President Emeritus of Becket, Seamus Hasson, personally defended the Pledge as the quintessential expression of American political philosophy. “The Constitution doesn’t ban the word God from public discourse, in California or New Hampshire, in the Pledge or anywhere else,” Hasson declared.

Mr. Hasson demonstrated that historic appeals to “Nature’s God” in the Declaration of Independence, Washington’s Farewell Address, and Lincoln’s Gettysburg Address are not primarily religious. Instead, such phrases embody our Founder’s political philosophy. By adding “under God” to the Pledge of Allegiance in 1954 (reaffirmed in 2002), Congress not only contrasted the mutually exclusive conceptions of human rights envisioned by the United States and the U.S.S.R., but affirmed that our rights come from an authority higher than the State.

In November 2010, the First Circuit joined every other appellate court to rule on the issue by affirming the constitutionality of the Pledge of Allegiance. The Court unanimously held that the primary effect of voluntarily reciting the Pledge, in accordance with the New Hampshire School Patriot Act, “is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation.”

The First Circuit flatly rejected FFRF’s assumption that children who decline to participate in the Pledge become “outsiders based on their beliefs about religion” for one simple reason: “Under the New Hampshire Act, both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”

Dr. Newdow appealed to the Supreme Court. In June 2011, the Supreme Court refused to hear the case. Perhaps it’s time for Newdow to find a different haunt.

Living Waters Bible Church v. Town of Enfield

Becket has joined the battle being waged by the Living Waters Bible Church against the Town of Enfield, New Hampshire over the right to broadcast Christian programming over a 7 watt FM radio station in the area.

Becket, a nonpartisan and nonprofit public interest law firm, represents a number of churches and other religious institutions throughout the United States in cases filed under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Enfield officials relied on their land use regulation authority in denying the church’s request for a zoning variance that would allow it to operate a radio studio. The church’s lawsuit charges the town with violations of RLUIPA and the U.S. and New Hampshire Constitutions.

The Living Waters Bible Church is a small nondenominational church which meets in a modest little house located on a 50 acre property in Enfield. About a year ago, it agreed to work with another group, the Green Mountain Educational Fellowship, to bring Christian radio programs to residents in the area around Enfield. The Federal Communications Commission granted a Construction Permit for the station (WVFA – 90.5 MHz FM) on February 9, 2001.

In June 2001, Pastor Elmer Murray informally approached town officials about his plan to build a very small radio studio on church property (the transmitter and antenna are located miles away, on Shakers Mountain), and was told it was an “accessory use” to the permitted church and residential uses already in place. But in July, the Town Planning Commission decided that a radio studio was not an accessory use, and would require a variance from the Board of Adjustment. The Board, yielding to pressure from a few neighbors, denied the variance and a later motion for rehearing. The church, left with no choice, sued in state court in November.

The Town of Enfield removed the case to federal court on November 30. Becket, which won the first case litigated under RLUIPA just over a year ago, now represents churches and other religious groups in similar suits in half a dozen states stretching from Pennsylvania to Hawaii.


The Pledge of Allegiance Cases

For over a decade, Becket has successfully defended the words “one nation under God” in the Pledge of Allegiance.

Why? Because the phrase “under God” answers one of the most important questions any community can ask: Where do our rights come from?

Although it may seem abstract, that question is one of great practical importance in law and politics, because your answer explains how you will treat the rights of others. Kings and emperors throughout history answered the question by claiming that individual rights were theirs to give and theirs to take away. If you offended the emperor, you could be executed on the spot, no matter who you were.

In more recent history, totalitarian systems such as Nazi Germany and the Soviet Union said that they had the ability to take away human rights from “enemies of the State”. They could even reclassify some people as “unpersons” without any rights at all. The State gives, and the State takes away.

But the American tradition—and the English system it descends from—has always been different. In England, titans of legal history like Sir Edward Coke and William Blackstone asserted that no king could take away the rights of an Englishman because those rights did not come from the king: they come, instead, from the laws of nature and nature’s God. That same idea inspired American revolutionaries to defend their rights against the ever-encroaching powers of a tyrannical king.

That’s why it is so important to defend the Pledge of Allegiance. People in power tend to abuse the rights of the very citizens they are supposed to protect. By grounding human rights in a source higher than the State, every American’s rights are secured; those in power are checked and restrained; and we have a justifiable reason to stand up for people who are oppressed by dehumanizing, unjust laws.

Courts across the country agree. Many recognize that the phrase “under God,” instead of acting like a prayer or religious creed, communicates timeless American values:

  • On June 14, 2004, the Supreme Court rejected a challenge to the Pledge, holding that the plaintiff, atheist activist Dr. Michael Newdow, did not have proper standing to challenge the Pledge.
  • On March 11, 2010, a second challenge from Dr. Newdow in California was rebuffed by the federal appeals court for the 9th Circuit, which held “that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism.”
  • On November 12, 2010, a third challenge by Dr. Newdow, this time in New Hampshire, was flatly rejected by the federal appeals court for the First Circuit because “both the choice to engage in the recitation of the Pledge and the choice not to do so are entirely voluntary.”
  • On May 9, 2014, Massachusetts’ highest state court unanimously rejected the American Humanist Association’s attack on the Pledge, finding that “the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”
  • And on February 4, 2015, a New Jersey teenager and her family successfully protected the right of all her fellow students to continue reciting the Pledge of Allegiance in its entirety from the American Humanist Association’s latest effort to take “under God” out of the Pledge.

The courts are on right side of history. American history is filled with references to “God,” “Creator,” “Author,” and “Nature’s God;” such references honor America’s values and religious heritage.

Congress first officially adopted the Pledge of Allegiance in 1942, during World War II, to encourage patriotism. In 1951, the Knights of Columbus, a Catholic fraternal organization, first began the practice of saying “one nation under God” as a part of the Pledge. They encouraged many others including Congress to follow the same practice. In 1954, Congress passed and President Eisenhower signed an amendment adding the words “under God” to the Pledge.

One of Congress’s reasons for adding “under God” to the Pledge was to explain America’s disagreement with the Soviet Union about the nature of human rights. The Soviets claimed that people receive their rights from the State, and therefore the State can take those rights away.

In contrast, Congress said it was using the phrase “under God” to make clear that basic human rights are beyond the reach of the State.

In so doing, it was following a centuries-old tradition:

  1. Washington’s General Orders to his troops (July 2, 1776): “The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army.
  2. The Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
  3. Lincoln’s Gettysburg Address (November 19, 1863): “this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

To avoid saying the “offensive” word “God,” as the secularists attacking the Pledge want, teachers would have to remain silent about the values embraced by the American Revolutionaries, the Constitution, abolitionism, and the civil rights movement.

References to “God,” which remind every American that their rights cannot be seized by the State, are the cherished legacy of a free society; each reminds future generations that their rights come not from the State, but a Source beyond the State’s control.

As President Dwight D. Eisenhower said when signing the amendment adding “under God” to the Pledge on Flag Day, June 14, 1954:

“[The words under God] will help us to keep constantly in our minds and hearts the spiritual and moral principles which alone give dignity to man, and upon which our way of life is founded.”


For more information, or to arrange an interview with one of the attorneys, please contact Ryan Colby, Communications Director, at or call 202.349.7219.