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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 1

## Text

No. 02-1624

ees
IN THE

Supreme Court of the Gnited States

ELK GROVE UNIFIED SCHOOL DISTRICT AND

DAVID W. GORDON, SUPERINTENDENT, EGUSD,
Petitioners,

v.
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)

iv
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

Vv

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

vi
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 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.

4

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

5

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

6

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,

7

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

8

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).

9

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

10

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.

=

1]

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

12

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).

"|

13

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.

14

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.”

15

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

af
/

16

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

17

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).

18

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

19

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.

20

Respectfully submitted.

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

NOVEMBER 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0659%3A19. Public record. Not legal advice.