Dispatches from the Creation Wars

I missed this case when it was originally decided. The 11th Circuit Court of Appeals upheld the constitutionality of a Florida law allowing schools to require all students to say the pledge of allegiance unless they get a permission slip from their parents and now the full panel has denied a request for an en banc rehearing. The announcement of that denial came with a passionate dissent from Judge Rosemary Barkett and that dissent is worth taking a look at.

An en banc rehearing is warranted because the panel’s holding that the State
of Florida can compel students to recite the Pledge of Allegiance in violation of their personal beliefs directly contravenes precedent that has been firmly entrenched for over 65 years, since West Virginia State Board of Education v. Barnette held that the State does not have the power to compel minor students to recite the Pledge to the flag.

The panel opinion finds facially constitutional a Florida statute that compels all students, including this 17-year-old plaintiff, to recite the Pledge unless they obtain written parental consent to exercise their First Amendment rights. The panel opinion ignores Barnette and fails to apply the strict scrutiny required when this most fundamental of rights is being violated by the State. Such a “permission” requirement is patently unconstitutional and this opinion puts us at odds not only with direct Supreme Court precedent, but with the decisions of other circuits addressing similar statutes.

To avoid the dictates of Barnette, the panel mischaracterizes the issue as one involving the resolution of conflicting constitutional rights between parents and children. This recharacterization is wholly unpersuasive, as it is undisputed that no such conflict exists in this case. It is also extremely unlikely that some hypothetical case would emerge where a minor student might sue the State through a non-parental next friend after his parents refused him permission to remain silent; in essence, such parents would be demanding that the State force their child to violate his conscience.

This is an elegant and persuasive argument. One can only hope that the Supreme Court will accept this case and overturn the law. Barnette is one of the most important and eloquently stated rulings in the history of this country.