In the aftermath of the terrorist attacks on September 11th, the New Hampshire state legislature passed the New Hampshire Patriot Act. While the Act provides for a daily recitation of the pledge in all of the state’s schools, the statute makes student participation voluntary by providing an opt-out clause. Students who choose not to recite the pledge may stand silently or remain seated.

In its ruling, the 1st Circuit affirmed the opinion of a U.S. District judge in New Hampshire, who ruled in October 2009 that the law was constitutional. The 1st Circuit began its scrutiny with the question of whether the law violates the Establishment Clause, by applying the three-prong test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971) and held that the law (1) has a secular legislative purpose, having been enacted for patriotic, rather than religious reasons; (2) is not coercive because student participation is voluntary; and (3) there was no endorsement of religion because the phrase “under God” is not accompanied by other religious symbolism and therefore a reasonable observer would view the pledge as secular in nature. The Court further noted that a “student who remains silent during the saying of the Pledge engages in overt non-participation by doing so, and this non-participation is not an expression of either religious or non-religious belief.” Thus, the court concluded that the voluntary recitation of the pledge of allegiance is not a formal religious exercise.