Amicus Curiae Brief — Elk Grove Unified School Dist. v. Newdow

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No. 02-1624

ees

IN THE

Supreme Court of the Gnited States

ELK GROVE UNIFIED SCHOOL DISTRICT AND

DAVID W. GORDON, SUPERINTENDENT, EGUSD,

Petitioners,

MICHAEL A. NEWDOW,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR UNITED STATES SENATORS

JOHN CORNYN, JON KYL, LINDSEY O. GRAHAM,

LARRY E. CRAIG, AND SAXBY CHAMBLISS,

CHAIRMAN AND MEMBERS OF THE SENATE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND PROPERTY RIGHTS, AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

JOHN CORNYN

Counsel of Record

Subcommittee on the

Constitution, Civil Rights

and Property Rights

United States Senate

Dirksen Senate Office

Building Room 139

Washington, DC 20510

(202) 224-7840

Counsel for Amicus Curiae

SO __ ee

QUESTION PRESENTED

This brief will address the following question:

Whether a public school district policy that requires

teachers to lead willing students in reciting the Pledge of

Allegiance, which includes the words “under God,” violates

the Establishment Clause of the First Amendment, as

applicable through the Fourteenth Amendment.

TABLE OF CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE .....0..00.........0000064 l

INTRODUCTION AND SUMMARY OF

Irs crerresrsnnmssrenensene 2

ET )

I. AS A PATRIOTIC RATHER THAN

RELIGIOUS EXERCISE, THE VOLUNTARY

RECITATION OF THE PLEDGE CANNOT

POSSIBLY FALL WITHIN THE

PROHIBITION OF THE ESTABLISHMENT

rr sc crteeescnnmnssenncsnccnees 9

Il. ANY DOUBT ABOUT THE PATRIOTIC,

RATHER THAN RELIGIOUS, NATURE OF

THE PLEDGE WAS REMOVED BY PUBLIC

EE LE 16

EE EEE 19

(ii)

TABLE OF AUTHORITIES

Page(s)

CASES

Aronow v. United States, 432 F.2d 242 (9th Cir.

STSTaTea versseeecrenhdeatiehihaliharadeeabeindamaaiebeiiaenamsatsiaiaaessitasinanaania 13

Committee for Public Ed. and Religious Liberty v.

SE, Ge Ce ee ccrencnantneriennenennenens 6

County of Allegheny v. ACLU, 492 U.S. 573 (1989)....... 8,15

Edwards v. Aguillard, 482 U.S. 578 (1987) ..........ccccccceeeceeeee 6

Engel v. Vitale, 370 U.S. 421 (1962) .....cccccccssseceseseene eal 7

Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947)........... 3

Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996)........ 13

Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274

EGG: UE ceeeentnsienvansticnntnnmamanmepiaieneipaiaaniniiemamatsiteia 6

Lee v. Weisman, 505 U.S. 577 (1992) ......ccccccccccceceeeeceeeeeeeee 15

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......ccccccccccccceeeeees 15

Lynch v. Donelly, 465 U.S. 668 (1984) .0..........ccccccceeeeeees 7,15

O’Hair v. Murray, 588 F.2d 1144 (Sth Cir. 1979) .............. 13

Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000)........... ]

Sch. Dist. of Abington v. Schempp, 374 U.S. 203

(SIE accceesiniensnecannndaidatinniabintapieinandasieusubepenmusateniadaneninadtetes 7

Sep. of Church and State Comm. v. City of Eugene,

RL ee 6

Sherman v. Community Consolidated Sch. Dist. 2],

he eee 8

Wallace v. Jaffree, 472 U.S. 38 (1985).................0. 7-8, 16-18

West Virginia State Board of Education v. Barnette,

as Ce cccnentenitrienninttaninnntapinanitaiianannnenee 2,9

Zorach v. Clauson, 343 U.S. 306 (1952) .......cccccccccccceeeeeeeeee 14

FEDERAL AUTHORITIES

DECLARATION OF INDEPENDENCE, | Stat. 1 ..................-. 12-13

a GARTER, GIR. VE cennnsnnesennsscsnnseneenemenemmnnenee 12

ee, GR, GIN, 6 cncensesenmemenmenemmmaenenmmninins 3

CO, GHUIE, GURNEE, FEY ccccccnsssssnnsscnsensesensarsncnsumemesenensssaesn 3

i 9 ccnmcccnteemmenreeenreiteianenninnsaiainiia 4-5, 10

fe ee 16

BO TE © BROS ccccsensvnnterintesnnsssmsssamennmninemenanennies 13

EE ol ee 13

EE el ee 13

EE ol 9

Pub. L. No. 623, Ch. 435, 56 Stat. 377 (1942) ........cccccccseeeees )

Pub. L. No. 396, Ch. 297, 68 Stat. 249 (1954) ...........c000++ 9-10

Pub. L. No. 140, Ch. 303, 69 Stat. 290 (1955) ..........cc:00e0 13

Pub. L. No. 851, Ch. 795, 70 Stat. 732 (1956) ..........cc-e000e0 13

Pub. L. No. 105-225, 112 Stat. 1253 (1998).............:cccccceeee 10

Pub. L. No. 107-293, 116 Stat. 2057 (2002).............+: passim

8 OY | err 18-19

Fe Ft Le) en 1,4, 18

S. Bhan. FE (IGRI CSIR, )occccccccscccccceseseccscssssensesesssssssssnesssess 1,5

STATE AUTHORITIES

Cal. Educ. Code § 52720 (1989) .oo..occccccccccccceeeeeeeeees 2-3, 15

ARTICLES

Jesse H. Choper, The Establishment Clause and Aid

to Parochial Schools — An Update, 75 Cal. L.

ra aa ciesrnsesensscinsnststniesennennnsioneseaientiaiiiainnedsiieniehasininientiniepainies 5

Ken Greenawalt, Quo Vadis: The Status and

Prospects of “Tests” Under the Religion Clauses,

Se SPE it indiniaesdanterincntenttaiatsitimeniartanintmiitieiainias 5

Marci A. Hamilton, Power, The Establishment

Clause, and Vouchers, 31 Conn. L. Rev. 807

Tony Mauro, The Man Behind the Pledge Case,

Legal Times, Nov. 10, 2003, available at

www.law.com/jsp/newswire_article.jsp?id=10673

Se TEITTTED witesncenitninvnsnsssinnssiiesiesiasintcpinbaiitiasimiaauisicitas 13-14

Tony Mauro, Newdow Says Civil Rights Groups of

Little Help in Case, Legal Times, Nov. 10, 2003,

available at

www.law.com/jsp/newswire_article.jsp?id=10673

SUSTEITITT <cecicciicieesititeahniiaeahanaaai i ihlahaamstnaatania 7

James Piereson, “Under God”: The history of a

phrase, Weekly Standard, Oct. 27, 2003, at 19-23........ 12

Geoffrey R. Stone, O.T. 1983 and the Era of

Aggressive Majoritarianism: A Court in

Transition, 19 Ga. L. Rev. 15 (1984) 20.0.0... eee eee 5

, ACLU Responds to Appeals Court Ruling

on Pledge of Allegiance, June 26, 2002, available

at archive.aclu.org/news/2002/n062602b.html............. 6-7

BRIEF FOR UNITED STATES SENATORS .

JOHN CORNYN, JON KYL, LINDSEY O. GRAHAM,

LARRY E. CRAIG, AND SAXBY CHAMBLISS,

CHAIRMAN AND MEMBERS OF THE SENATE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND PROPERTY RIGHTS, AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE’

John Cornyn, Jon Kyl, Lindsey O. Graham, Larry Craig,

and Saxby Chambliss are members of the United States

Senate currently serving in the One Hundred Eighth

Congress. Senator Cornyn is Chairman of the Senate

Judiciary Subcommittee on the Constitution, Civil Rights and

Property Rights. Senators Kyl, Graham, Craig, and

Chambliss are members of the subcommittee. The Senators

who join this brief possess a diversity of views on a variety

of subjects, including matters of constitutional law.” Yet all

have voted in support of the Pledge of Allegiance and the

voluntary recitation of the Pledge in public schools across the

nation as a commendable expression of patriotism and love

of country, consistent with the Constitution of the United

States. See, e.g., S. Res. 292 (107th Cong.); Pub. L. No. 107-

293, 116 Stat. 2057 (2002); S. Res. 71 (108th Cong.).

' Pursuant to Rule 37.6, amicus certifies that no counsel for a

party authored this brief in whole or in part, and that no person or

entity, other than the amicus, its members, or counsel, has made a

monetary contribution to this briefs preparation or submission.

This brief is filed with the consent of the parties, and letters

indicating such consent have been filed with the Court.

? For example, as Attorney General for the State of Texas, Cornyn

defended the exercise of voluntary, student-led prayer at public

football games as consistent with the requirements of the First and

Fourteenth Amendments, in Santa Fe Ind. Sch. Dist. v. Doe, 530

U.S. 290 (2000). That position did not ultimately prevail.

INTRODUCTION AND SUMMARY OF ARGUMENT

Respondent Michael Newdow is an atheist whose

daughter attends a public elementary school administered by

petitioners Elk Grove Unified School District, a public

school district in the state of California, and David W.

Gordon, the district’s superintendent. Pet. App. 3. Mr.

Newdow filed suit in federal district court to challenge the

constitutionality of the Pledge of Allegiance and a school

district policy that requires teachers to lead willing students

in reciting the Pledge.” The policy was promulgated pursuant

to the California Education Code, which states that public

schools shall begin each school day with “appropriate

patriotic exercises,” and that recitation of the Pledge shall

satisfy that requirement. Cal. Educ. Code § 52720 (1989).*

* That policy provides for the voluntary recitation of the Pledge.

By contrast, this Court held in West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943), that compelling

students to recite the Pledge violates the First and Fourteenth

Amendments.

* Specifically, the California Education Code provides in pertinent

part:

§ 52720. Daily performance of patriotic exercises in public

schools

In every public elementary school each day during the

school year at the beginning of the first regularly

scheduled class or activity period at which the majority of

the pupils of the school normally begin the schoolday,

there shall be conducted appropriate patriotic exercises.

The giving of the Pledge of Allegiance to the Flag of the

United States of America shall satisfy the requirements of

this section.

In every public secondary school there shall be

conducted daily appropriate patriotic exercises. The giving

of the Pledge of Allegiance to the Flag of the United States

of America shall satisfy such requirement. Such patriotic

a a

Notwithstanding the state’s characterization of the Pledge

of Allegiance as an appropriate patriotic exercise, Mr.

Newdow maintains that the district’s Pledge policy violates

the Establishment Clause of the First Amendment, as applied

to the states through the Fourteenth Amendment. U.S. Const.

amends. I, XIV. The Establishment Clause provides that

“Congress shall make no law respecting an establishment of

religion.” U.S. Const. amend. I (emphasis added). The

Fourteenth Amendment, in turn, has been construed by this

Court to extend the substantive requirements of the

Establishment Clause to the states.” Central to respondent's

claim that the school district’s policy of voluntary recitation

of the Pledge violates the Establishment Clause is the fact

that, in 1954, Congress added the words “under God” to the

Pledge.

The district court dismissed the case on the merits. But

on June 26, 2002, a three-judge panel of the U.S. Court of

Appeals for the Ninth Circuit, by a 2-1 vote, reversed the

district court, and found the school district’s policy

unconstitutional under the Establishment Clause.°

The response of the United States Senate was

unequivocal and unanimous, extraordinarily swift, and

profoundly critical. On the very same day the Ninth Circuit

exercises for secondary schools shall be conducted in

accordance with the regulations which shall be adopted by

the governing board of the district maintaining the

secondary school.

> See, e.g., Everson v. Board of Ed. of Ewing, 330 U.S. 1, 14-15

(1947).

° The panel also struck down as unconstitutional the Pledge itself —

‘by invalidating the 1954 act of Congress that added the words

“under God” to the Pledge. That particular holding, however, was

withdrawn when the Ninth Circuit issued its amended opinion on

February 28, 2003.

issued its first panel opinion, all 100 Senators co-sponsored

Senate Resolution 292 to express strong support for the

Pledge of Allegiance and “strong[] disapprov(al]” of the

Ninth Circuit ruling. The resolution expressly recognized

that the United States “was founded on religious freedom by

founders, many of whom were deeply religious,” and that our

nation was indeed “established as a union ‘under God,’” as

the Pledge makes clear.

The resolution noted that “the First Amendment to the

Constitution embodies principles intended to guarantee

freedom of religion both through the free exercise thereof

and by prohibiting the government establishing a religion.”

The resolution then reconciled the requirements of the First

Amendment with Congress’s earlier codification of the

Pledge of Allegiance, by characterizing the Pledge as a

“constitutional[] . . . expression of patriotism” — and not as an

impermissible establishment of religion. |The Senate

unanimously approved the resolution that same day.

In addition, the Senate unanimously approved legislation

later that year to reaffirm and recodify the entirety of the

Pledge of Allegiance — including the 1954 addition of the

words “under God.” See Pub. L. No. 107-293, § 2, 116 Stat.

2057, 2060 (2002).’ That action should have removed any

’ Section 4 of title 4 of the United States Code thus continues to

read as follows:

§ 4. Pledge of allegiance to the flag; manner of delivery

The Pledge of Allegiance to the Flag: “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.”, should be

rendered by standing at attention facing the flag with the

right hand over the heart. When not in uniform men should

remove any non-religious headdress with their mght hand

and hold it at the left shoulder, the hand being over the

mt vit

and all doubt that the Pledge of Allegiance is an expression

of patriotism and love of country, and not a prayer or other

exercise of religious faith.

Yet, notwithstanding these Senate actions — indeed,

without even acknowledging these Senate actions — the Ninth

Circuit denied en banc reconsideration on February 28, 2003.

That denial of reconsideration was particularly remarkable in

light of the Senate’s unanimous view that nothing in the

Pledge of Allegiance, or in the school district’s policy,

violates the Establishment Clause or any other provision of

the Constitution. And on March 4, 2003, the Senate

approved yet another unanimous resolution, Senate

Resolution 71, again supporting the Pledge and re-registering

its “‘strong[] disapprov[al]” of the Ninth Circuit’s ruling.

The Establishment Clause jurisprudence of this Court, to

be sure, has come into sharp and frequent criticism over the

years for its notorious failure to provide lower courts with the

guidance and the clear, stable, and administrable rules

necessary to deal with the burgeoning caseload in this thorny

area of law.® The Senators who join this brief have at various -

heart. Persons in uniform should remain silent, face the

flag, and render the military salute.

® See, e.g., Geoffrey R. Stone, O.T. 1983 and the Era of Aggressive

Majoritarianism: A Court in Transition, 19 Ga. L. Rev. 15, 24

(1984) (criticizing the Court’s failure “to articulate a clear, precise,

or predictable rule” in its Establishment Clause cases); Jesse H.

Choper, The Establishment Clause and Aid to Parochial Schools -

An Update, 75 Cal. L. Rev. 5, 6 (1987) (describing Court's

Establishment Clause jurisprudence as “a conceptual disaster

area”); Ken Greenawalt, Quo Vadis: The Status anc Prospects of

“Tests” Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 361

(characterizing the Court’s Establishment Clause jurisprudence as

a “morass”); Marci A. Hamilton, Power, The Establishment

Clause, and Vouchers, 31 Conn. L. Rev. 807, 824-25 (1999) (“The

Supreme Court’s doctrine in the Establishment Clause arena has

times spoken favorable or unfavorably of various Supreme

Court decisions in the Establishment Clause area.

That said, the Senators who join this brief are united in

their belief that the Pledge of Allegiance, as well as the

school district’s policy providing for voluntary recitation of

the Pledge, are perfectly permissible expressions of

patriotism, and are not exercises of religious faith

whatsoever. Whatever one might say about the Court’s

existing Establishment Clause jurisprudence with respect to

the private exercise of religious faith in the public square,

that controversial body of judicial precedent simply has

nothing to do with the particulars of this case, which simply

involves patriotic expressions of support for this nation and

its religious heritage.

been treated to more internal and external criticism for its lack of

consistency, perhaps, than any other constitutional doctrine.’’).

Federal appellate judges have similarly bemoaned the Court’s

steadfast refusal to issue clear rules and guidance in this area. See,

e.g., Sep. of Church and State Comm. v. City of Eugene, 93 F.3d

617, 622 (9th Cir. 1996) (O’Scannlain, J., concurring) (noting the

Court’s “fractured and incoherent doctrinal path” in the

Establishment Clause area); Ingebretsen v. Jackson Pub. Sch.

Dist., 88 F.3d 274, 282 (Sth Cir. 1996) (Jones, J., dissenting from

denial of rehearing en banc) (complaining that this Court's

Establishment Clause jurisprudence “more closely resemble ad hoc

Delphic pronouncements than models of euiding legal principles”).

Indeed, this Court itself has recognized that its Establishment

Clause jurisprudence at times “sacrifices clarity and predictability

for flexibility.” Committee for Public Ed. and Religious Liberty v.

Regan, 444 U.S. 646, 662 (1980). See also Edwards v. Aguillard,

482 U.S. 578, 639 (1987) (Scalia, J., dissenting) (bemoaning the

Court’s “embarrassing Establishment Clause jurisprudence”).

* Accordingly, we disagree with organizations like the American

Civil Liberties Union and Americans United for Church and State,

which have expressed agreement with the court below. See, e.g.,

ACLU Responds to Appeals Court Ruling on Pledge of Allegiance,

Accordingly, this Court should reverse the decision of the

Ninth Circuit and uphold both the Pledge of Allegiance and

the school district’s policy providing for the voluntary

recitation of the Pledge. Petitioners’ brief, as well as the

briefs of other amici, will amply demonstrate the

constitutionality of the Pledge under the variety of tests,

standards, and passages that can be found in this Court’s

numerous precedents. ° This brief will therefore instead

June 26, 2002, available at

archive.aclu.org/news/2002/n062602b.html (“[W]e believe the

court’s finding was correct and is consistent with recent Supreme

Court rulings invalidating prayer at school events.”); Tony Mauro,

Newdow Says Civil Rights Groups of Little Help in Case, Legal

Times, Nov. 10, 2003, available at

www.law.com/jsp/newswire_article.jsp?id=106735 1006147

(“Barry Lynn, executive director of Americans United, . . . says his

organization is foursquare behind Newdow’s effort.”).

10 See, e.g., Engel v. Vitale, 370 U.S. 421, 440 n.5 (1962)

(Douglas, J., concurring) (“The Pledge of Allegiance . . . in no way

run{s] contrary to the First Amendment but recognize[s] only the

guidance of God in our national affairs.””) (quotations and citations

omitted); Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 304

(1963) (Brennan, J., concurring) (“The reference to divinity in the

revised pledge of allegiance . . . may merely recognize the

historical fact that our Nation was believed to have been founded

‘under God.’ Thus reciting the pledge may be no more of a

religious exercise than the reading aloud of Lincoln’s Gettysburg

Address, which contains an allusion to the same historical fact.””);

Lynch v. Donelly, 465 U.S. 668, 676 (1984) (“There is an

unbroken history of official acknowledgment by all three branches

of government of the role of religion in American life from at least

1789 . . . [E]xamples of reference to our religious heritage are

found . . . in the language ‘One Nation under God,’ as part of the

Pledge of Allegiance to the American flag. That pledge is recited

by many thousands of public school children — and adults — every

year.”); Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (O’Connor,

J., concurring) (“In my view, the words ‘under God’ in the Pledge .

_ serve as an acknowledgment of religion with ‘the legitimate

focus on two separate arguments. First, as a patriotic rather

than religious exercise, the voluntary recitation of the Pledge

cannot possibly fall within the prohibition of the

Establishment Clause, however that provision might be

construed in the precedents of this Court. After all,

references to God can be found in every one of our founding

documents, in our National Anthem and National Motto, and

on our public buildings and official currency. Appeals to our

Creator can be heard at the commencement of every daily

session of the Senate and the House of Representatives, and

in state and federal courts across this great land. Logic and

reason dictate that these commonplace and customary

references to the Almighty, found in the basic civic

documents and institutions of our nation, do not establish an

official state religion in violation of the First Amendment,

any more or less than does the reference to God that is

contained in the Pledge of Allegiance. Second, any doubt

about the patriotic nature of the Pledge as a nonreligious

expression of love of country was eliminated when Congress

reaffirmed and recodified the Pledge in its entirety, with the

unanimous support of the Senate, in the months following the

original Ninth Circuit panel decision invalidating the Pledge.

See Pub. L. No. 107-293, 116 Stat. 2057 (2002). That act

established beyond cavil that the voluntary recitation of the

Pledge of Allegiance in public schools across the nation is a

patriotic and not a religious act.

secular purposes of solemnizing public occasions, [and] expressing

confidence in the future.”); County of Allegheny v. ACLU, 492

U.S. 573, 602-3 (1989) (“Our previous opinions have considered

in dicta the motto and the pledge, characterizing them as consistent

with the proposition that government may not communicate an

endorsement of religious belief.”); see also Sherman v. Community

Consolidated Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992)

(upholding constitutionality of school district policy providing for

voluntary recitation of the Pledge).

ARGUMENT

I. AS A PATRIOTIC RATHER THAN RELIGIOUS

EXERCISE, THE VOLUNTARY RECITATION OF

THE PLEDGE CANNOT POSSIBLY FALL

WITHIN THE PROHIBITION OF THE

ESTABLISHMENT CLAUSE.

In West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943), a case involving the compulsory

recitation of the Pledge of Allegiance, this Court noted that

“the State may require teaching by instruction and study of

all in our history and in the structure and organization of our

government, including the guarantees of civil liberty which

tend to inspire patriotism and love of country.” Jd. at 631

(quotations and citations omitted). Drawing a “sharp[]”

contrast between voluntary and compulsory recitations of the

Pledge, this Court recognized “[nJational unity as an end

which officials may foster by persuasion and example.” Jd.

at 638, 640. See also id. at 641 (endorsing “patriotic

ceremonies” so long as they are “voluntary”). Accordingly,

it has long seemed clear — at least until the ruling of the Ninth

Circuit below — that the voluntary recitation of the Pledge of

Allegiance by public school children across this land is a

patriotic, worthy, and beneficial activity, and in no way

constitutionally objectionable.

Respondent Newdow objects on the basis of the two

words that distinguish the Pledge at issue in the Barnette case

and the Pledge at issue today. On June 22, 1942, Congress

first codified the Pledge as “I pledge allegiance to the flag of

the United States of America and to the Republic for which it

stands, one Nation indivisible, with liberty and justice for

all.” Pub. L. No. 623, Ch. 435, § 7, 56 Stat. 377, 380 (1942)

(codified at 36 U.S.C. § 1972). Twelve years later — and

eleven years after this Court decided Barnette — Congress

amended section 1972 to add the words “under God” after

the words “one Nation.” Pub. L. No. 396, Ch. 297, 68 Stat.

249 (1954),."!

The addition of the words “under God” to the Pledge of

Allegiance created no new constitutional infirmities. As

modified — dare we say, improved — in 1954, the Pledge

simply acknowledges various fundamental principles upon

which our nation was founded over two centuries ago:

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. § 4 (emphasis added). In thirty-one elegant words,

the Pledge reiterates and reinforces certain foundational

principles that have become essential to the American

character: national unity (at first, against an oppressive

British regime; and then later, against seccessionist

inclinations successfully put down during the Civil War),

liberty and justice for all Americans, and the importance of

religious faith in our nation’s heritage.

The inclusion of this third element -— recognizing the

foundational importance of faith to the birth, development,

and on-going prosperity of our nation — is hardly unique to

the Pledge of Allegiance. As Congress noted in findings

unanimously approved by the Senate in 2002:

(1) On November 11, 1620, prior to embarking

for the shores of America, the Pilgrims signed the

Mayflower Compact that declared: “Having

undertaken, for the Glory of God and the

advancement of the Christian Faith and honor of our

'! Title 36 was later revised and recodified by Pub. L. No. 105-225,

§ 2(a), 112 Stat. 1253, 1494 (1998). The Pledge now appears in

title 4 of the United States Code. See 4 U.S.C. § 4.

King and country, a voyage to plant the first colony in

the northern parts of Virginia,”.

* * *

(3) In 1781, Thomas Jefferson, the author of the

Declaration of Independence and later the Nation’s

third President, in his work titled “Notes on the State

of Virginia” wrote: “God who gave us life gave us

liberty. And can the liberties of a nation be thought

secure when we have removed their only firm basis, a

conviction in the minds of the people that these

liberties are of the Gift of God. That they are not to be

violated but with His wrath? Indeed, I tremble for my

country when I reflect that God is just; that his justice

cannot sleep forever.”.

(4) On May 14, 1787, George Washington, as

President of the Constitutional Convention, rose to

admonish and exhort the delegates and declared: “If

to please the people we offer what we ourselves

disapprove, how can we afterward defend our work?

Let us raise a standard to which the wise and the

honest can repair; the event is in the hand of God!”.

(5) On July 21, 1789, on the same day that it

approved the Establishment Clause concerning

religion, the First Congress of the United States also

passed the Northwest Ordinance, providing for a

territorial government for lands northwest of the Ohio

River, which declared: “Religion, morality, and

knowledge, being necessary to good government and

the happiness of mankind, schools and the means of

education shall forever be encouraged.”.

(6) On September 25, 1789, the First Congress

unanimously approved a resolution calling on

President George Washington to proclaim a National

Day of Thanksgiving for the people of the United

States by declaring, “a day of public thanksgiving and

prayer, to be observed by acknowledging, with

grateful hearts, the many signal favors of Almighty

God, especially by affording them an opportunity

peaceably to establish a constitution of government

for their safety and happiness.”.

(7) On November 19, 1863, President Abraham

Lincoln delivered his Gettysburg Address on the site

of the battle and declared: “It is rather for us to be

here dedicated to the great task remaining before us--

that from these honored dead we take increased

devotion to that cause for which they gave the last full

measure of devotion--that we here highly resolve that

these dead shall not have died in vain--that 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.”.

Pub. L. No. 107-293, § 1, 116 Stat. 2057-58 (2002).'*

References to the Almighty can also be found in the

Declaration of Independence and the Constitution of the

United States, the two documents that have historically

marked us as a separate people, distinct from other nations on

this Earth, and the two documents upon which our nation was

founded. The Constitution explicitly refers to “the Year of

our Lord.” U.S. Const. art. VII. The Declaration of

Independence cites “the Laws of Nature and of Nature’s

God” as authority for “dissolv[ing] the political bands”

between the American colonies and the British empire, and

'? It has been noted that the words “under God” found in the

Pledge were actually derived from President Lincoln’s Gettysburg

Address. See also James Piereson, “Under God”: The history of a

phrase, Weekly Standard, Oct. 27, 2003, at 19-23 (outlining the

historical lineage of the phrase “under God” and tracing it back

ultimately to George Washington).

famously recognizes as “self-evident” truths “that all men are

created equal, that they are endowed by their Creator with

certain unalienable Rights.”

Congress required the U.S. Mint to place the words “In

God We Trust” on all currency, 31 U.S.C. § 5114(b), in 1955

— the year after it added the words “under God” to the Pledge

of Allegiance. Pub. L. No. 140, Ch. 303, 69 Stat. 290 (1955).

In 1956, Congress codified our National Motto, Pub. L. No.

851, Ch. 795, 70 Stat. 732 (1956), which contains four simple

words: “In God we trust.” 36 U.S.C. § 302." And our

National Anthem, the Star-Spangled Banner, 36 U.S.C. §

301(a), paraphrases our national motto in its fourth stanza:

“In God is our trust.”

References to God can also be found on numerous public

buildings — including the U.S. Supreme Court building. And

appeals to our Creator can be heard at the commencement of

every daily session of the Senate and the House of

Representatives, and in courts across this great land.

According to press accounts, respondent Newdow objects on

constitutional grounds to all of these civic statements,

including the recitations that open sessions of this very Court,

because they include a reference to “God.”"* Yet this Court

' See also Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996)

(rejecting constitutional challenge to National Motto and US.

currency on Establishment Clause grounds); O’Hair v. Murray,

588 F.2d 1144 (Sth Cir. 1979) (same); Aronow v. United States,

432 F.2d 242 (9th Cir. 1970) (same).

'* See Tony Mauro, The Man Behind the Pledge Case, Legal

Times, Nov. 10, 2003, available at

www .law.com/jsp/newswire_article.jsp?id= 106735 1005985:

[Newdow] says that the day after he wins, he will launch a

challenge against other everyday government-sponsored

mentions of God as well. He already has challenges

pending against congressional chaplains and the Rev.

has already found that such references to God - like that

contained in the Pledge’? - do not establish a national

religion."®

Accordingly, the inclusion of the words “under God”

need not, and do not, detract from our long-held

understanding of the Pledge of Allegiance as an expression

of patriotism and love of country, and not as an exercise of

Franklin Graham's invocation, full of Christian references,

at President George W. Bush’s 2001 inauguration.

“Remember, when I argue this case, I will be walking into

a Court where the marshal says, “God save this honorable

Court,’” he notes. “I should challenge that.”

'S See note 10.

'® See, e.g., Zorach v. Clauson, 343 U.S. 306, 312-13 (1952):

The First Amendment, however, does not say that in every

and all respects there shall be a separation of Church and

State. Rather, it studiously defines the manner, the

specific ways, in which there shall be no concert or union

or dependency one on the other. That is the common sense

of the matter. Otherwise the state and religion would be

aliens to each other--hostile, suspicious, and even

unfriendly. Churches could not be required to pay even

property taxes. Municipalities would not be permitted to

render police or fire protection to religious groups.

Policemen who helped parishioners into their places of

worship would violate the Constitution. Prayers in our

legislative halls; the appeals to the Almighty in the

messages of the Chief Executive; the proclamations

making Thanksgiving Day a holiday; “so help me God” in

our courtroom oaths--these and all other references to the

Almighty that run through our laws, our public rituals, our

ceremonies would be flouting the First Amendment. A

fastidious atheist or agnostic could even object to the

supplication with which the Court opens each session:

“God save the United States and this Honorable Court.”

religious faith. See also Cal. Educ. Code § 52720 (1989)

(noting that recitation of the Pledge of Allegiance is an

“appropriate patriotic exercise”). The Ninth Circuit thus

plainly erred when it described the Pledge, as amended in

1954, as a “profession of a religious belief, namely, a belief

in monotheism.” Pet. App. 11-12.

The court below began its substantive analysis by

summarizing the three tests that this Court has heretofore

developed for determining whether a violation of the

Establishment Clause has occurred. As the Ninth Circuit

explained, this Court has intermittently employed three

interrelated tests over the past three decades: (1) the three-

prong test set forth in Lemon v. Kurtzman, 403 U.S. 602,

612-13 (1971); (2) the “endorsement” test first articulated by

Justice O’Connor in Lynch v. Donnelly, 465 U.S. 668 (1984),

and later adopted by the Court in County of Allegheny v.

ACLU, 492 U.S. 573 (1989); and (3) the “coercion” test first

used by this Court in Lee v. Weisman, 505 U.S. 577 (1992).

None of those tests are violated by the school district’s policy

providing for the voluntary recitation of the Pledge of

Allegiance, because those tests apply to government actions

with respect to exercises of religious faith, and not with

respect to expressions of patriotism.

It is emphatically an act of patriotism, and not an act of

religious faith, to pledge one’s allegiance to the United

States, and to the flag that represents this nation. Perhaps the

most striking example: The Pledge of Allegiance customarily

plays an important role in naturalization ceremonies, as a

symbolic expression of the allegiance to the United States

that is newly pledged by individuals who were at one time

foreigners to this country - individuals who come from

religious devotions and faiths as diverse as this world has to

offer. See also Pet. App. 78 (“The Pledge is recited not just

in schools but also at various official events and public

ceremonies, including perhaps the most patriotic of

occasions—naturalization ceremonies.”). Likewise, failure

of allegiance to the United States has long constituted legal

grounds for expatriation, regardless of the nature of the

expatriate’s religious faith. See 8 U.S.C. § 1481.

In short, it is no exercise of religious faith simply to

recognize that this nation was founded on the basis of a

number of principi.s, among which include an

acknowledgement of the fundamental importance of faith. It

is simply a recognition of what it means to be an American.

Il. ANY DOUBT ABOUT THE PATRIOTIC, RATHER

THAN RELIGIOUS, NATURE OF THE PLEDGE

WAS REMOVED BY PUBLIC LAW 107-293.

Various passages in the lower court opinion at least

suggest that it was specifically the 1954 decision by

Congress to add the words “under God” to the Pledge -

rather than the mere fact that those words are included in the

Pledge today — that gave rise to the constitutional infirmity

identified by the Ninth Circuit.

The opening paragraph of the court’s opinion

characterizes respondent’s argument as follows: “the addition

of these words [“under God”] by a 1954 federal statute to the

previous version of the Pledge of Allegiance (which made no

reference to God) and the daily recitation in the classroom of

the Pledge of Allegiance, with the added word's included, by

his daughter’s public school teacher are violations of the

Establishment Clause.” Pet. App. 2-3 (emphasis added).

And the opinion concludes that “the school district’s policy

and practice of teacher-led recitation of the Pledge, with the

inclusion of the added words ‘under God,’ violates the

Establishment Clause.” Pet. App. 17 (emphasis added).

These passages might have been crafted reminiscent of

this Court’s ruling in Wallace v. Jaffree, 472 U.S. 38 (1985).

In 1978, the state of Alabama had enacted a statute

authorizing a one-minute period of silence in all public

schools “for meditation.” In 1981, however, the Alabama

legislature crafted a new statute which authorized a period of

silence “for meditation or voluntary prayer” (emphasis

added). This Court concluded that the addition of the words

“or voluntary prayer” violated the Establishment Clause

because it impermissibly gave specific endorsement to

religious activity, above other activities. As the Court

explained, “[t}he addition of ‘or voluntary prayer’ indicates

that the State intended to characterize prayer as a favored

practice. Such an endorsement is not consistent with the

established principle that the government must pursue a

course of complete neutrality toward religion.” /d. at 60.

Writing in dissent, Chief Justice Burger noted that the

Court’s analysis in Jaffree threatened to invalidate the Pledge

of Allegiance. As he explained:

Congress amended the statutory Pledge of Allegiance

31 years ago to add the words “under God.” Do the

several opinions in support of the judgment today

render the Pledge unconstitutional? That would be

the consequence of their method.

Id. at 88 (Burger, C.J., dissenting) (citation omitted).

Of course, Justice O’Connor responded to this concern in

Jaffree itself. As she stated in her concurring opinion:

THE CHIEF JUSTICE suggests that one consequence

of the Court’s emphasis on [the addition of the words

“or voluntary prayer’’] might be to render the Pledge

of Allegiance unconstitutional because Congress

amended it in 1954 to add the words “under God.” I

disagree. In my view, the words “under God” in the

Pledge . . . serve as an acknowledgment of religion

with the legitimate secular purposes of solemnizing§ -

public occasions, and expressing confidence in the

future.

Id. at 78 n.5 (O’Connor, J., concurring) (quotations, citations,

and alterations omitted).

If nothing else, however, Congress took a series of

actions in 2002 which clearly renders the Jaffree analysis

inapplicable to the instant case. On the same cay that the

three-judge panel of the Ninth Circuit issued its firs! opinion

invalidating the school district’s policy providing for the

voluntary recitation of the Pledge of Allegiance, all 100

Senators co-sponsored Senate Resolution 292 to express

strong support for the Pledge and “strong[] disapprov[al]” of

the Ninth Circuit decision. The terms of that resolution make

clear that the inclusion of the words “under God” was not

intended to endorse religious activity per se, but rather to

bolster and strengthen the original purpose of the Pledge — to

express patriotism and love of country, and to recognize the

importance of faith as one of the fundamental principles upon

which this nation was founded.

First, the resolution expressly recognized that the United

States “was founded on religious freedom by founders, many

of whom were deeply religious,” and that our nation was

indeed “established as a union ‘under God,’” as the Pledge

makes clear. Second, the resolution noted that “the First

Amendment to the Constitution embodies principles intended

to guarantee freedom of religion both through the free

exercise thereof and by prohibiting the government

establishing a religion.” Finally, the resolution reconciled the

requirements of the First Amendment with the reference to

the Almighty in the Pledge, by characterizing the Pledge as a

“constitutional[] . . . expression of patriotism” — and not as an

unconstitutional establishment of religion. The Senate

unanimously approved the resolution that same day.

The very next day, the House of Representatives adopted

language similar to the Senate resolution, when it approved

House Resolution 459. That resolution stated that “the

Pledge of Allegiance is the verbal expression of support for

the United States of America” — and “is not a prayer or a

religious practice.” The Pledge “is not a religious service or

a prayer, but it is a statement of historical beliefs. The

Pledge of Allegiance is a recognition of the fact that many

people believe in God and the value that our culture has

traditionally placed on the role of religion in our founding

and our culture... . [T]he Pledge . . . reflects the historical

fact that a belief in God permeated the founding and

development of our Nation.” The House approved the

resolution by an overwhelming 416-3 vote.

It was against this backdrop that, a few months later,

Congress enacted, with the unanimous approval of the

Senate,'’ legislation to “reaffirm[{]” and recodify the entirety

of the Pledge of Allegiance — including the 1954 addition of

the words “under God.” See Pub. L. No. 107-293, § 2, 116

Stat. 2057, 2060 (2002). That same act also directed the

Office of the Law Revision Counsel to “show in the

historical and statutory notes that the 107th Congress

reaffirmed the exact language that has appeared in the Pledge

for decades.” Jd.'* This act thus removed any and all doubt

that the Pledge has always served as an expression of

patriotism, love, and support for this country, and not as a

prayer or other form of religious exercise, even after the

words “under God” were added to the Pledge in 1954.

By enacting this legislation, Congress confirmed what

Americans know instinctively: that the Pledge of Allegiance

was designed for all Americans, regardless of religious faith,

to express their devotion and allegiance to this great nation,

founded upon a commitment:-to religious liberty and justice

for all.

-CONCLUSION

The judgment of the United States Court of Appeals for

the Ninth Circuit should be reversed.

'’ The House approved the act by an overwhelming vote of 401-5.

'§ Congress took similar action to protect the National Motto from

constitutional attack. See id., § 3.

Respectfully submitted.