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

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No. 02-1624

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VOL 1 & co

OFFICE OF THE CLERK

ne Gees Wrweny =a

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IN THE

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Supreme Court of the United States

ELK GROVE UNITED SCHOOL DISTRICT

and DAVID W. GORDEN,

Petitioners,

Vv.

MICHAEL A. NEWDOW,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF LIBERTY COUNSEL, WALLBUILDERS

AND WILLIAM J. FEDERER AS

AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Rebecca O’ Dell Townsend

Haas, Dutton et al.

1901 N. 13" Sf, Ste. 300

Tampa, FL 33605

(813) 253-5333

Mathew D. Staver

(Counsel of Record)

Erik W. Stanley

Anita L. Staver

Joel L. Oster

Rena M. Lindevaldsen

LIBERTY COUNSEL

210 E. Palmetto Ave.

Longwood, FL 32750

(407) 875-2100

———————

A

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS ......--- eee ee reece eeeeeee -1-

TABLE OF AUTHORITIES .......---0- esses cere -i11-

INTEREST OF AMICI ......0 00 ce eee e reece erences 1

SUMMARY OF ARGUMENT .......--- 0+ ese seers 2

ARGUMENT .. cc ccccccccccccccccescvccscvcvsese 2

I. PUBLIC ACKNOWLEDGMENT OF GOD IS

DEEPLY EMBEDDED IN THE HISTORY

AND TRADITION OF THIS COUNTRY. .....-- 2

A. Our Founding Documents And Presidents

Publicly Acknowledge God. ......---+++++00+5 2

B. Our Founding Documents Acknowledge God. ... 13

Il. PUBLIC ACKNOWLEDGMENT OF GOD IS

AS NECESSARY, PROPER AND

CONSTITUTIONAL TODAY AS IT WAS IN

OUR NATION’S PAST. .....-- eee ee eeeeeee 16

A. Our Belief In God Is The Foundation Of Our

ee ng nc cnnneshoneeseeeseseenesens 16

B. Our Constitution Presupposes a Belief in God. ... 19

od Our Belief In God Is The Foundation Of Our

fl. PUBLIC ACKNOWLEDGMENT OF GOD IS

-jl-

NOT THE ESTABLISHMENT OF RELIGION.

MITT 23

A. The First Amendment Guarantees Freedom Of

Religion Not Freedom From Religion. ......... 24

B. Congress Did Not Attempt To Establish A

Religion When It Added The Word, “Under

Gee” on ccccccescveccceesscuuen seen 27

CONCLUSION on ccccccccvcccescccscsueeeeuneeen 29

-iii-

TABLE OF AUTHORITIES

CASES: Page(s)

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) ......--- eee eee 17, 21, 26, 27

Engel v. Vitale,

370 U.S. 421(1962) ........-. 8, 12, 17, 19, 24, 28

Everson v. Board of Educ.,

330 U.S. 1 (1947) 20... ce cee eee eee eee 3,4

Lee v. Weisman,

505 U.S. 577 (1992) . 0... cece cece cere eee eees 27

Lynch v. Donnelly,

465 U.S. 668 (1984) .........5- 3, 7, 24, 25, 26, 27

Marsh v. Chambers,

463 U.S. 783 (1983) .. 0... cee eee eee eres 17, 26

McCollum v. Board of Educ.,

333 U.S. 203(1962) ....... cece ee eeees 13-14, 21

Rector v. Holy Trinity Church,

143 U.S. 457 (1892) ... 0... cece eee 14, 15-16, 24

Wallace v. Jaffree,

472 U.S. 38 (1985)... 6. cece eee eee ees 3-7, 20-21

Walz v. Tax Comm'n. of New York City,

397 U.S. 664 (1970) . 0... cece eee ee eee 25

Stone v. Graham,

449 U.S. 39(1981) 2... cee cece eee ee eee 21

-jV-

Zorach v. Clauson,

343 U.S. 306(1952) ...... 0c eee eee eees 24, 25, 26

OTHER:

Annual Register of the Year, 1783 ......00+++++000055 15

John Quincy Adams, The Jubilee of the Constitution

(New York, Samuel Colman, 1839) ......-.--- 22

Paul M. Angle, By These Words

(New York, Rand, McNally & Co.)(1954) .... 8-13

Sir William Blackstone, Commentaries on the

Laws of England

(Philadelphia, Union Library, 1771) .......---- 22

President George W. Bush, State of the Union

Address, Jan. 28, 2003,

www.washingtonpost.com (Dec. 15, 2003)....... 8

Harry Alonzo Cushing, ed., The Writings

of Samuel Adams

(New York, G.P. Putnam’s Sons)(1904) ........ 15

Encarta Encyclopedia,

http://encarta.msn.com/encyclopedia (2003) ..... 25

William J. Federer, Three Secular Reasons

Why America Should be Under God,

Sept. 24, 2003, at http://www.townhall.com. .... 18

John Fiske, The Beginnings of New England

(Boston, Houghton, Mifflin & Co., 1898) ....... 14

-V-

First Charter of Massachusetts, 1629, available at,

http://www.nhinet.org/ccs/docs/mass-1.htm ..... 14

FLA. ConsT., Preamble (2003) .........- eee ee eeees 16

Benjamin Franklin, Maxims and Morals (1789) .......- 17

Inaugural Addresses of the Presidents of the

United States (1989) ......020e cece eeeeeee 8-13

William Jay, ed., The Life of John Jay

(New York, J& J Harper) (1833) .......-.-+++- 22

Thomas Jefferson, Notes on the State of Virginia

(1TB1) oc cccccccccccccccccccssccscccscces 17

Verne Paul Kaub, Collectivism Challenges Christianity

(1946) oc cccccccccccccccccccccccccccccces 18

~ Charles King, ed.,7he Life and Correspondence

of Rufus King,

(New, G.P. Putnam’s Sons)(1900).......---++-- 23

John Locke, Two Treatises .......20+- cece eeeeeeees 22

Governor Morris, A Diary of the French Revolution,

April 19, 1791

(Boston, Houghton Mifflin) (1939) .......-----. 20

Public Papers of the Presidents, Office of the Fed.

a OA) 13

James D. Richardson, A Compilation of the

Messages and Papers of the Presidents,

1789-1897 (U.S. Bureau of National

Literature and Art)(1910) ...........-+55: 6, 8, 19

-Vi-

Jared Sparks, The Life of Governeur Morris,

(Boston, Gray & Bowen) (1832) ....-...+--

Joseph Story, Commentaries on the Constitution

of the United States, (Boston, Hillard,

Gray & Co.) (1833) ......eeee cree ee eeees

Harold C. Syrett, ed., Papers of Alexander

Hamilton (New York, Columbia

Univ. Press 1961) .... 2.6.6.0 ee ee eee eeees

Bird Wilson, ed., The Works of the Honourable

James Wilson (Philadelphia, Lorenzo

Press, 1804) ........ 0 cee cee eee eeeeeeeee

John Witherspoon, The Works of John Witherspoon,

(Edinburgh, J. Ogle) (1815) ...........++-

l

INTEREST OF AMICI

Liberty Counsel is a non-profit civil liberties education

and legal defense organization. Liberty Counsel provides

education and legal representation regarding the Free Speech,

Free Exercise, and Establishment Clauses of the First

Amendment to the United States Constitution.

WallBuilders is an organization dedicated to the

preservation of the constitutional, moral and religious

foundation on which America was built. The organization owns

a vast collection of thousands of original documents and

writings from early American history and was appointed by the

State Boards of Education in States such as California and

Texas to help write the American history and government

standards for students in those States. WallBuilders has

received numerous educational and legal awards and has

participated in cases at the U.S. Supreme Court as well as lower

federal and state courts.

William J. Federer is a nationally known speaker,

best-selling author, and president of Amerisearch, Inc., a

publishing company dedicated to research America’s noble

heritage. His book America’s God and Country Encyclopedia

of Quotations has sold over a quarter-of-a-million copies and

has been acclaimed by Congressmen, Senators and national

leaders.

Amici file this brief with the consent of all parties. The

letters granting consent are enclosed herewith.

' Counsel for a party did not author this brief in whole or in

part. No person or entity, other than Amicus Curiae, its

members, or its counsel made a monetary contribution to the

preparation and submission of this brief.

2

SUMMARY OF ARGUMENT

Ours is a great nation with a great religious heritage and

a great religious identity that persists to this day. It is not a

violation of the Establishment Clause for our school children to

acknowledge our religious heritage or to share in our religious

identity by reciting the Pledge o7 Allegiance with the words,

“under God.” To the contrary, the public and patnotic

affirmation of God is the best of our national traditions, dating

back to Christopher Columbus, continuing with our Founding

Fathers, and persisting today. Our school children do not need

to be shielded from our religious identity. Instead, they should

be encouraged to participate in the one common thread running

through our public life - belief and acknowledgment of

“nature’s God.”

Moreover, without our belief in God, there is no

foundation for our belief in the inalienable rights given by God.

If our inalienable rights are not given by God, then they are

given by our government and the government or even this Court

can take them away. Our forefathers risked their lives, honors

and fortunes to preserve what Americans believe to be the right

of every man and women - the right to life, liberty and the

moral pursuit of happiness. Our children have the constitutional

right to share in that belief - the belief that gave birth to our

great nation.

ARGUMENT

F PUBLIC ACKNOWLEDGMENT OF GOD

IS DEEPLY EMBEDDED IN THE

HISTORY AND TRADITION OF THIS

COUNTRY.

A. Our Founding Fathers And Presidents

Publicly Acknowledged God.

Justice Berger, writing for the majority in Lynch v.

3

Donnelly, observed that “{oJur history is replete with official

references to the value and invocation of Divine guidance... .”

Lynch v. Donnelly, 465 U.S. 668, 675 (U.S. 1984)(finding a

nativity scene display constitutional). Justice Berger then

announced that “{tJhis Court’s interpretation of the

Establishment Clause comports with the contemporaneous

understanding of the Framer’s intent. That neither the draftsmen

of the Constitution, who were Members of the First Congress,

nor the First Congress itself, saw any establishment problem in

employing Chaplains to offer daily prayers in the Congress is a

striking example of the accommodation of religious beliefs

intended by the Framers.” Lynch v. Donnelly, 465 U.S. at 668.

Justice Rehnquist, in his dissenting opinion in Wallace

v. Jaffree, noted that “It is impossible to build sound

constitutional doctrine upon a mistaken understanding of

constitutional history ....” Wallace v. Jaffree, 472 U.S. 38, 91

(1985). Indeed, the primary reason that any lawyer is

compelled to attend law school is to grasp the historical roots,

context, and progression of our common law system of justice.

This historical understanding not only aids lawyers and courts

in understanding how we arrived at our current state of the law,

but provides an understanding of why we arrived there.

Unfortunately, as Justice Rehnquist noted in his dissent, the

Establishment Clause has suffered under a mistaken

understanding of its constitutional history, rendering

Establishment Clause jurisprudence unsound. /d. at 91.

According to Justice Rehnquist, the Court’s mistaken

understanding of the constitutional history of the Establishment

Clause emanates from “Jefferson’s misleading metaphor” that _

the Establishment Clause was intended to erect a “wall of

separation between church and State.” /d., citing Everson v.

Board of Educ., 330 U.S. 1 (1947). After noting that Jefferson

was in France at the time that the Bill of Rights were passed by

Congress and ratified by the States, and that Jefferson's

4

statement was made in a “short note of courtesy,” Justice

Rehnquist gives a comprehensive history of the proposal,

debate, enactment and ratification of the Establishment (lause.

See Wallace, 472 U.S. at 92-98 (citations omitted).

Within his discussion, Justice Rehnquist noted that the

First Congress enacted the Northwest Ordinance to govern the

Northwest Territory on the same day that the Bill of Rights

were proposed. Jd. at 100. The Northwest Ordinance provided

that “{rJeligion, morality, and knowledge, being necessary to

good government and happiness of mankind, schools and means

of education shall forever be encouraged.” Jd. Justice

Rehnquist also noted that land grants for schools to the

Northwest Territory were not limited to public schools. Id.

(citation omitted). “It seems highly unlikely,” opined Justice

Rehnquist, “that the House of Representatives would

simultaneously consider proposed amendments to the

Constitution and enact an important piece of territorial

legislation which conflicted with the intent of those proposals.”

Id. (citation omitted).

Instead, concluded Justice Rehnquist, “[i]t would seem

from the evidence that the Establishment Clause of the First

Amendment had acquired a well-accepted meaning: it forbade

the establishment of a national religion, and forbade preference

among religious sects or denominations. ... The Establishment

Clause did not require government neutrality between religion

and irreligion nor did it prohibit the Federal Government from

providing nondiscriminatory aid to religion. There is simply no

historical foundation for the proposition that the Framers

intended to build the ‘wall of separation’ that was

constitutionalized in Everson. Id. (referring to Everson v.

Board of Educ., 330 U.S. 1 (1947)).

Also within his dissent, Justice Rehnquist noted that the

joint houses of Congress proposed and ratified a resolution

5

asking President George Washington to issue a Thanksgiving

Day Proclamation as an opportunity for United States citizens

to return “to Almighty God their sincere thanks for the many

- blessings he had poured down upon them” the day after

enacting the Bill of Rights. Jd., citing 1 Annals of Cong. 914

(1789). Justice Rehnquist took particular note that the

Representatives that favored the proclamation also favored the

Bill of Rights, while one Representative on record as opposing

the proclamation also voted against the adoption of the Bill of

Rights. Wallace, 472 U.S. at 100. Within two weeks, as Justice

Rehnquist noted, George Washington recommended and

assigned November 26th,

“to be devoted by the people of these States to

the service of that great and glorious Being who

is the beneficent author of all the good that was,

that is, and that will be; that we may than all

unite in rendering unto Him our sincere and

humble thanks for His kind care and protection

of the people of this country precious to their

becoming a nation; for the signal and manifold

mercies and the favorable interpositions of His

providence in the course and conclusion of the

late war; for the great degree of tranquility,

union, and plenty which we have since enjoyed;

for the peaceable and rational manner in which

we have been enabled to establish constitutions

of government for our safety and happiness, and

particularly the nation one now lately instituted;

for the civil and religious liberty with which we

are blessed ... And also that we may unite in

most humbly offering our prayers and

supplications to the great Lord and Ruler of

Nations, and beseech Him to pardon our

national and other transgressions; ... to render

our National Government a blessing to all the

6

people by constantly being a Government of

wise, just, and constitutional laws, ... to protect

and guide all sovereigns and nations ... and to

bless them with good governments, peace, and

concord; to promote the knowledge and practice

of true religion and virtue, and the increase of

science among them and us, and generally, to

grant unto all mankind such a degree of

temporal prosperity as He alone knows to be

best.” Jd., citing James Richardson, Messages

and Papers of the Presidents, 1789-1897, p. 64

(Washington, 1897).

Similar proclamations have been made by our Presidents

throughout our history. John Adams declared in 1799, “As no

truth is more clearly taught in the Volume of Inspiration, nor

any more fully demonstrated by the experience of all ages, than

that a deep sense and due acknowledgment of the governing

providence of a Supreme Being and of the Accountableness of

men to Himas the searcher of heart and righteous distributor of

rewards and punishments are conducive equally to the

happiness and rectitude of individuals and to the well-being of

communities ... I do hereby recommend ... to be observed

throughout the United States as a day of solemn humiliation,

fasting, and prayer... .” Jd. James Monroe, on July 9, 1812

proclaimed that the third Thursday in August “be set apart for

the devout purposes of rendering the Sovereign of the Universe

and the Benefactor of Mankind the public homage due to His

holy attributes... .” Id. President James Madison, on March 4,

1815 declared a day of thanksgiving and “of devout

acknowledgments to Almighty God for His great goodness

manifested in restoring them the blessing of peace.” Id.

Madison declared that “No people ought to feel greater

obligations to celebrate the goodness of the Great Disposer of

Events and of the Destiny of Nations than the people of the

United States for His kind providence.” Jd. Andrew Johnson

7

proclaimed that “a special period be assigned for again

humbling ourselves before Almighty God ... on the occasion of

the “obsequies of Abraham Lincoln, late President of the United

States.” Jd. President Woodrow Wilson, on October 19, 1917,

proclaimed that “Whereas the Congress of the United States, ...

requested me to set apart by official proclamation a day upon

which our people should be called upon to offer concerted

prayer to Almighty God for His divine aid ... And whereas it

behooves a great free people, nurtured as we have been in

eternal principles of justice and of right, a nation which has

sought from the earliest days of its existence to be obedient to

the divine teachings which have inspired it in the exercise of its

liberties, to turn always to the supreme Master and place

themselves in faith at His feet, praying for His aid and succor...

.” I.

President Roosevelt’s 1944 Thanksgiving Proclamation

declared: “{I]t is fitting that we give thanks with special fervor

to our Heavenly Father for the mercies we have received

individually and as a nation and for the blessings He has

restored, through the victories of our arms and those of our

Allies, to His children in other land ... To the end that we may

bear more earnest witness to our gratitude to Almighty God, I

suggest a nationwide reading of the Holy Scriptures during the

period from Thanksgiving to Christmas.” Lynch v. Donnelly,

668 U.S. at 675 n. 3, citing 9 Fed. Reg. 13,099(1944).

Contrary to those who espouse the view that our Nation

is so changed that constitutional history is irrelevant or

anecdoctal - it appears from these Presidential proclamations

that little has, in fact, changed. They are as applicable today

and as likely to come from the lips of our present President as

they were over 200 years ago.

In President Bush’s 2003 State of the Union address, he

ended with these words:

Americans are a free people, who know that

freedom is the right of every person and the

future of every nation. The liberty we prize is

not America's gift to the world; itis God's gift to

humanity.

We Americans have faith in ourselves, but not

in ourselves alone. We do not claim to know all

the ways of Providence, yet we can trust in

them, placing our confidence in the loving God

behind all of life and all of history. May He

guide us now, and may God continue to bless

the United States of America.” President

George W. Bush, State of the Union Address,

January 28, 2003, www.washingtonpost.com

(Dec. 15, 2003).

Every President of the United States, since Washington,

has taken the Oath of Office with his hand placed upon the

Bible. Engle v. Vitale, 370 U.S. 421, 436 (1962). Every

President has ended his Oath with, “So help me, God.” /d. At

436. Every President, without exception, has acknowledged

God upon entering office:

George Washington, Ist, “... that Almighty Being who

rules over the universe...” Paul M. Angle, ed., By These Words,

Washington’s First Inaugural Address, April 30. 1789, p.185

(1954), citing James D. Richardson, A Compilation of the

Messages and Papers of the Presidents, 1789-1897

(Washington, 1899), VI, pp. 445-59;

John Adams, 2nd, “... that Being who is supreme over

all, the Patron of Order, the Fountain of Justice...” Inaugural

Addresses of the Presidents of the United States (1989);

a

9

Thomas Jefferson, 3rd, “And may that Infinite Power

which rules the destinies of the universe lead our councils to

what is best, and give them a favorable issue for your peace and

prosperity.” Angle, Jefferson’s First Inaugural Address, March

4, 1801, p.226 (1954); Lee v. Weisman, 505 U.S. 577, 634

(1992), citing Inaugural Addresses of the Presidents, S. Doc.

101-10, p. 17;

James Madison, 4th, “... that Almighty Being whose

power regulates the destiny of nations, whose blessings have

been so conspicuously dispensed to this rising Republic, and to

whom we are bound to address our devout gratitude for the

past, as well as our fervent supplications and best hopes for the

future.” Lee v. Weisman, 505 U.S. at 634, citing Inaugural

Addresses at p. 28;

James Monroe, Sth, “... with a firm reliance on the

protection of Almighty God...” Inaugural Addresses,

John Quincy Adams, 6th, “... knowing that “Except the

Lord keep the city, the watchman waketh in vain’...” /d.;

Andrew Jackson, 7th, “... my fervent prayer to that

Almighty Being before whom I now stand...” /d.;

Martin Van Buren, 8th, “... that Divine Being whose

strengthening support I humbly solicit...” Jd.;

William Henry Harrison, 9th, “... the Beneficent Creator

has made no distinction amongst men...” Jd.;

John Tyler, 10th, “... the all-wise and all-powerful Being

who made me...” Jd.;

James Polk, 11th, “... in their worship of the Almighty

according to the dictates of their own conscience...” /d.;

10

Zachary Taylor, 12th, “... to which the goodness of

Divine Providence has conducted our common country...” /d.;

Millard Fillmore, 13th, “... it has pleased Almighty God

to remove from this life Zachary Taylor...” Jd.;

Franklin Pierce, 14th, “... humble, acknowledged

dependence upon God and His overruling providence...” Jd.;

James Buchanan, 15th, “In entering upon this great

office I must humbly invoke the God of our fathers...” /d.;

Abraham Lincoln, 16th, “Intelligence, patriotism,

Christianity, and a firm reliance on Him, who has never yet

forsaken this favored land, are still competent to adjust, in the

best way, all our present difficulty.” Angle, By These Words,

Lincoln’s First Inaugural Address, March 4, 1861 at 305.

Andrew Johnson, 17th, “... grief on earth which can only

be assuaged by communion with the Father in heaven...”

Inaugural Addresses;

Ulysses S. Grant, 18th, “I do believe that our Great

Maker is preparing the world, in His own good time...” Id.;

Rutherford B. Hayes, 19th, “... guidance of that Divine

Hand by which the destinies of nations and individuals are

shaped...”/d.;

James Garfield, 20th, “... their fathers’ God that the

Union was preserved, that slavery was overthrown...” /d.;

Chester Arthur, 21st, “I assume the trust imposed by the

Constitution, relying for aid on Divine Guidance...” /d.;

ll

Grover Cleveland, 22nd, “... the power and goodness of

Almighty God who presides over the destiny of nations...” /d.;

Benjamin Harrison, 23rd, “... invoke and confidently

extend the favor and help of Almighty God - that He will give

me wisdom...” /d.;

Grover Cleveland, 24th, “I know there is a Supreme

Being who rules the affairs of men and whose goodness and

mercy have...”

William McKinley, 25th, “Our faith teaches that there

is no safer reliance than upon the God of our fathers...” Id.;

Theodore Roosevelt, 26th, “... with gratitude to the

Giver of Good who has blessed us with the conditions which

have enabled us...” /d.;

Howard Taft, 27th, “... support of my fellow-citizens

and the aid of the Almighty God in the discharge of my

responsible duties...” Id.;

Woodrow Wilson, 28th, “I summon all honest men, all

patriotic men, all frowcrd-looking men, to my side. God

helping me, I will not fail them, if they will but counsel and

sustain me!” Angle, By These Words, Wilson’s First Inaugural

Address, March 4, 1913 at 423.

Warren G. Harding, 29th, “... that passage of Holy Writ

wherein it is asked: “What doth the Lord require of thee...”

Inaugural Addresses,

Calvin Coolidge, 30th, “[America] cherishes no purpose

save to merit the favor of Almighty God...” /d.;

Herbert Hoover, 31st, “I beg your tolerance, your aid,

12

and your cooperation. I ask the help of Almighty God...” Id.;

Franklin D. Roosevelt, 32nd, “In this dedication of a

nation we humbly ask the blessing of God...” «« ,

Harry S. Truman, 33rd, “... all men are created equal

because they are created in the image of God...” /d ;

Dwight D. Eisenhower, 34th, “At sucha time in history,

we who are free must proclaim anew our faith. This faith is the

abiding creed of our fathers. It is our faith in the deathless

dignity of man, governed by eternal moral and natural laws.

This faith defines our fill view of life. It establishes, beyond

debate, those gifts of the Creator that are man’s inalienable

rights, and that make all men equal in His sight ... The enemies

of this faith know no god but force, no devotion but its use...

Whatever defies them, they torture, especially the truth. Here,

then, is no argument between slightly differing philosophies.

This conflict strikes directly at the faith of our fathers and the

lives of our sons... This is the work that awaits us all, to be done

with bravery, with charity, and with prayer to Almighty God.”

Angle, By These Words, Eisenhower’s Inaugural Address,

January 20, 1953 at 532.

John F. Kennedy, 35th, “... the rights of man come not

from the generosity of the state but from the hand of God...”

Engle v. Vitale, 370 U.S. at 448.

Lyndon B. Johnson, 36th, “... the judgement of God is

harshest on those who are most favored...” Jnaugural

Addresses;

Richard M. Nixon, 37th, “... as all are bom equal in

dignity before God, all are born equal in dignity before

man...”"/d.;

13

Gerald Ford, 38th, “... to uphold the Constitution, to do

what is right as God gives me to see the right...” /d.;

Jimmy Carter, 39th, “...what does the Lord require of

thee, but to do justly, and to love mercy, and to walk humbly

with thy God...” Jd.;

Ronald Reagan, 40th, “... one people under God,

dedicated to the dream of freedom that He has placed in the

human heart...” /d.;

George Bush, 41st, “Heavenly Father, we bow our heads

and thank You for Your love...” Jd.;

Bill Clinton, 42nd, “... with God’s help, we must answer

the call...” /d.;

George W. Bush, 43rd, “... this story’s Author, Who fills

time and eternity with His purpose...” Jd.

It is constitutional for school children to read and hear

Presidents’ speeches, including their acknowledgment of God,

because the Constitution does not demand neutrality toward

religion. In fact, as demonstrated by our constitutional history,

our Founding Fathers intended our government to encourage

religion over non-religion. As President Franklin D. Roosevelt

said, “In teaching this democratic faith to American children,

we need the sustaining, buttressing aid of those great ethical

religious teachings which are the heritage of our modern

civilization. For ‘not upon strength nor upon power, but upon

the spirit of God” shall our democracy be founded.” Public

Papers of the Presidents, F.D. Roosevelt, 1940, Item 149,

Office of Fed. Reg. (2003). |

B. Our Founding Documents Acknowledge God.

Christopher Columbus set sail “by the Grace of God”

with the “hope that by God’s assistance some of the continents

14

and islands in the oceans will be discovered.” Rector v. Holy

Trinity Church, 143 U.S. 457, 465 (1892). Virginia’s first

charter granted by King James I commenced with the words:

“We, greatly commending, and graciously accepting of, their

Desires for the Furtherance of so noble a Work, which may, by

the Providence of Almighty God, hereafter tend to the Glory of

his Divine Majesty, in propagating of Christian Religion to such

People, as yet live in Darkness and miserable Ignorance of the

true knowledge and Worship of God, and may in time bring ...

a settled and quiet Government... .” Jd. at 465. The Mayflower

Compact recites, “Having undertaken for the Glory of God, and

Advancement of the Christian Faith, and the Honour of King

and Country, a Voyage to plant the first Colony in the northern

parts of Virginia; Do by these Presents, solemnly and mutually,

in the Presence of God and one another, covenant and combine

ourselves together into a civil Body .. .” dd. The

Massachusetts 1629 charter declared, “{OJur said people ... be

so religiously, peaceable, and civilly governed their good life

and orderly conversation may win and incite the natives ... to

the knowledge and obedience of the only true God and Savior

of mankind, and the Christian faith, which ... is the principal

end of this plantation.” First Charter of Massachusetts, 1629,

available at http://www.nhinet.org/ccs/docs/mass-|.htm. In the

charter of privileges granted William Penn to Pennsylvania in

1701, it is recited, “Because no People can be truly happy,

though under the greatest Enjoyment of Civil Liberties, if

abridged of the Freedom of Conscience, as to their Religious

Profession and Worship; And Almighty God being the only

Lord of Conscience, Father of Lights and Spirits; and the

Author as well as Object of all divine Knowledge, Faith, and

Worship, who only doth enlighten the Minds, and persuade and

convince the Understandings of People, I do hereby grant and

declare ... .” Rector v. Holy Trinity Church, 143 U.S.457, 465

(1892). The Fundamental Orders of Connecticut explained that

the document had been created, “[W]ell knowing when a people

are gathered together, the word of God requires that to maintain

oe

15

the peace and union of such a people, there should be an orderly

and decent government established according to God.” John

Fiske, The Beginnings of New England, pp. 127-28 (Boston,

Houghton, Mifflin & Co., 1898).

Our Declaration of Independence recognizes the

presence of the Divine in human affairs in the words, “We hold

these truths to be self-evident, that all men are created equal,

that they are endowed by their Creator with certain inalienable

Rights, that among these are Life, Liberty, and the pursuit of

Happiness.” Holy Trinity, 143 U.S. at 465. “We, therefore, the

Representative of the united States of America, ... appealing to

the Supreme Judge of the world ... do, ... with firm reliance on

the Protection of Divine Providence, ... pledge to each other our

Lives, our Fortunes, and our sacred Honor.” Jd.

The Manifesto of the Continental Congress appealed,

“to the God who searcheth the hearts of men for the rectitude of

our intentions; and in His holy presence declare that, as we are

not moved by any light or hasty suggestions of anger or revenge

_. adhere to this our determination.” Samuel Adams,

“Manifesto of Continental Congress, October 1778, The

Writings of Samuel Adams, Vol. IV, p. 86, Harry Alonzo

Cushing, ed. (New York, G.P. Putnam’s Sons)(1904).

The formal peace treaty with Great Britain, signed by

John Adams, Benjamin Franklin, and John Jay on September 8,

1783, in its opening line invoked God with the words, “In the

name of the most holy and undivided Trinity.” Annual Register

for the Year 1783, p. 113.

Every constitution of the various states contains

language recognizing, either by directly or by clear implication,

a profound reverence for religion and an assumption of its

influence in all human affairs and as essential to the well-being

of the community. Holy Trinity, 143 U.S. at 468. Ilinois’

constitution, adopted in 1870, declares, “We, the people of the

state of Illinois, grateful to Almighty God for the civil, political,

and religious liberty which He hath so long permitted us to

16

enjoy, and looking to Him for a blessing upon our endeavors to

secure and transmit the same unimpaired to succeeding

generations ... .” Jd. Massachusetts’ Constitution, adopted

in1780, states that, “It is the right as well as the duty of all men

in society publicly, and at stated seasons, to worship the

Supreme Being, the great Creator and Preserver of the

universe... as the happiness of a people and the good order and

preservation of civil government essentially depend upon piety,

religion, morality, ... .” Id. at 469. Mississippi’s Constitution,

adopted in 1832, states that “Religion, morality, and knowledge

being necessary to good government, the preservation of liberty,

and the happiness of mankind, schools, and the means of

education shall forever be encouraged in this state.” Florida’s

Constitution, adopted in1885, recites, “We, the people of the

State of Florida, being grateful to Almighty God for our

constitutional liberty, in order to secure its benefits, perfect our

government, insure domestic tranquility, maintain public oder,

and guarantee equal civil and political rights to all, do ordain

and establish this constitution.” FLA. CONST., Preamble (2003).

“There is a universal language pervading them all,

having one meaning. They affirm and reaffirm that this is a

religious nation. These are not individual sayings, declarations

of private persons. They are organic utterances. They speak the

voice of the entire people. Holy Trinity, 143 U.S. at 470. Is it,

then, unconstitutional to require our children to read these

historic documents, these current constitutions, our President's

current speeches and proclamations, our currency, or to recite

our Pledge of Allegiance? Or as this Court phrased it, “In the

face of all these, shall it be believed that a congress of the

United States intended ... it to be unconstitutional for school

children to utter ‘under God?’” Jd. at 471.

Il. PUBLIC ACKNOWLEDGMENT OF GOD

IS AS NECESSARY, PROPER AND

CONSTITUTIONAL TODAY AS IT WAS

IN OUR NATION’S PAST

17

A. Our Belief in God Is The Foundation Of Our

Freedom.

Justices of this Court have expressed the opinion that

the constitutional history of the Establishment Clause no longer

dictates Establishment Clause jurisprudence because our Nation

has changed demographically. See Marsh v. Chambers, 463

U.S. 783, 817 (1983)(dissenting opinion)(citing Abington Sch.

Dist. v. Schempp, 374 U.S. 203, 240-41 (1963)(concurring

opinion)). This reasoning does not, however, negate the

importance of the public acknowledgment of God in the

preservation of our constitutional liberties. As our Founding

Fathers articulated in the Declaration of Independence,

inalienable individual rights come from a power higher than the

government. If they do not, then those rights are not inalienable

and the government can extinguish those rights. Our Nation

was founded upon the premise that God granted certain nights

to mankind and that government's rightful purpose is to protect

those rights.

As John F. Kennedy stated in his Inaugural Address,

“The rights of man come not from the generosity of the state,

but from the hand of God.” Engle v. Vitale, 370 U.S. at 446.

Benjamin Franklin wrote, “Freedom is not a gift bestowed upon

us by other men, but a right that belongs to us by the laws of

God.” Benjamin Franklin, Maxims and Morals (1789). Thomas

Jefferson, whom this Court has credited with the “separation of

church and state” metaphor, exhorted, “[It is] God who 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 a Gift of God?”

Thomas Jefferson, Notes on the State of Virginia (1781).

Alexander Hamilton explained, “Our government rests upon

religion. It is from that source that we derive our reverence for

truth and justice, for equality and liberty, and for the rights of

mankind. Unless the people believe in these principles they

cannot believe in our government.” Harold C. Syrett, ed.,

Papers of Alexander Hamilton (New York, Columbia Univ.

18

Press 1961)

Centuries later, Calvin Coolidge stated, “Natural liberty

is a gift of the beneficient Creator, to the whole human race;

and that civil liberty is founded in that; and cannot be wrested

from any people, without the most manifest violation of

injustice.” President Calvin Coolidge, Washington D.C.,

October 15, 1924. President Herbert Hoover agreed, when he

stated, “Our founding fathers did not invent the priceless boon

of individual freedom and respect for the dignity of men. That

great gift to mankind sprang from the Creator and not from

governments.” More recently, President Reagan exhorted,

“History comes and goes, but principles endure and ensure

future generations to defend liberty - not a gift of government,

but a blessing from our Creator.” Ronald Reagan, Presidential

Medal of Freedom Ceremony (1993). Most recently, President

Bush agreed with his predecessors by proclaiming, “Liberty is

not America’s gift to the world, it is God’s gift to humanity.”

George W. Bush, State of the Union Address (Jan. 28, 2003).

One contemporary commentator has observed, “if there

is no God, were can the rights come from except from the

‘generosity of the State?’ The State, then, becomes the new

god. And what the State ‘giveth,’ the State can ‘taketh

awayeth.’” William J. Federer, Three Secular Reasons Why

America Should be Under God, Sept. 24, 2003, at

http://www.townhall.com. Another modern commentator

wrote, “Look closely at these self-evident truths, these

imperishable articles of American Faith upon which our

government is firmly based. First and foremost is the existence

of God. Next comes the truth that all men are equal in the sight

of God. Third is the fact of God’s great gift of unalienable

rights to every person on earth. Then follows the true and

single purpose of all American Government, namely, to

preserve and protect these God-made rights of God-made man.”

Id., Clarence E. Manion, Notre Dame College of Law Professor

of Constitutional Law and Dean, quoted by Verne Paul Kaub,

Collectivism Challenges Christianity (1946).

19

In this Nation, the irreligious enjoy the same God-given,

inalienable rights as the religious. That is the true meaning of

the Establishment and Equal Protection Clauses. What these

clauses do not grant is freedom from religion or from the

religious. It is the fabric of our Constitution and of our society.

To attempt to strip all vestiges of religion and religious

affirmation from public, political or educational fora is to strip

our Constitution and our society of its foundation. As President

Kennedy exhorted, “The world is very different now. ... And yet

the same revolutionary beliefs for which our forebears fought

are still at issue around the globe - the belief that the rights of

man come not from the generosity of the state but from the hand

of God. With good conscience as our only sure reward, with

history the final judge of our deeds, let us go forth to lead the

land we love, asking His blessing and His help, but knowing

that here on earth God’s work must truly be our own.” Engel

v. Vitale, 370 U.S. at 448 (dissenting opinion)(discussing quotes

from Presidents Washington, Adams, Jefferson, Madison,

Lincoln, Cleveland, Wilson, Roosevelt, Eisenhower and

Kennedy).

It cannot be unconstitutional for America’s children to

be reminded of the divine source of America’s Rights, Laws

and Nation. If it is, then God help us.

B. Our Constitution Presupposes A Belief In

God.

President John Adams stated in a letter to the Third

Division of the Militia of Massachusetts on October 11, 1798:

“Our Constitution was made only for a moral and religious

people. It is wholly inadequate to the government of any

other.” Richardson, A Compilation of the Messages and Papers

of the Presidents, 1789-1897. Robert Winthrop, U.S. Speaker

of the House in 1849 stated: “All societies of men must be

governed in some way or other. ... Men, in a word, must

necessarily be controlled either by a power within them, or a

power without them; either by the word of God, or by the strong

20

arm of man.” It should be axiomatic that the “strong arm of

man,” in a civilized society, would equal the strong arm of the

government.

“For avoiding the extremes of despotism or anarchy ...

the only ground of hope must be on the morals of the people.”

Governor Morris, Penman and Signer of the Constitution, A

Diary of the French Revolution, Vol Il, p. 172, April 19, 1791

(Boston, Houghton Mifflin)(1939) “I believe that religion is the

only solid base of morals and that morals are the only possible

support of free governments.” Morris, Diary, Vol II, p. 452 to

Lord George Gordon, June 12, 1792. “Religion is the only

solid basis for good morals; therefore education should teach

the precepts of religion and the duties of man towards God.”

Jared Sparks, The Life of Governeur Morris, Vol. II, p. 483

from Morris’ “Notes on the Form of the Constitution of France”

(Boston, Gray & Bowen)(1832).

“The promulgation of the great doctrines of religion;

the being and attributes and providence of one Almighty God;

the responsibility to Him for all actions; founded upon moral

freedom and accountability; a future state of rewards and

punishments; the cultivation of personal, social, and benevolent

virtues; - these can never be a matter of indifference in any

well-ordered community. It is, indeed, difficult to conceive

how any civilized society can well exist without them.” Joseph

Story, U.S. Supreme Court Justice, “Father of American

Jurisprudence,” Commentaries on the Constitution of the

United States, Vol. Il, pp. 722-723 (Boston, Hillard, Gray &

Co.)(1833). “It yet remains a problem to be solved in human

affairs whether any free government can be permanent where no

public worship of God and the support of religion constitute no

part of the policy or duty of the state in any assignable shape.”

Id. at 727. “God grant that in America true religion and civil

liberty may be inseparable and that the unjust attempts to

destroy the one may in the issue tend to the support and

establishment of both.” John Witherspoon, Signer of the

Declaration, The Works of John Witherspoon, Vol IX, p. 231

21

(Edinburgh, J. Ogle)(1815).

Chief Justice Burger, in his dissenting opinion in

Wallace v. Jaffree noted Justice Goldberg’s previous

observation that the “untutored devotion to the concept of

neutrality” can lead to results which are not simply

“noninterference” with the religious, which the Constitution

demands, “but of a brooding and pervasive dedication to the

secular and a passive, or even active, hostility to the religious.”

Wallace v. Jaffree, 472 U.S. at 86(finding Alabama’s school

prayer statute unconstitutional)(dissenting opinion), quoting

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 306

(1963)(concurring opinion). According to Justices Burger and

Goldberg, “Such results are not only not compelled by the

Constitution, but, ... are prohibited by it.” Wallace, 472 U.S. at

86 (emphasis added), quoting Schempp, 374 U.S. at 306.

Justice Burger then asks and answers the question before this

Court today.

“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? ... Any such holding would of course make a

mockery of our decisionmaking in Establishment Clause cases.”

Wallace, 472 U.S. at 88, citing Act of June 14, 1954, Pub.L.

396, 68 Stat. 249. The Court, according to Justice Berger, “has

ignored the wise admonition of Justice Goldberg that “the

measure of constitutional adjudication is the ability and

willingness to distinguish between the real threat and mere

shadow.” Wallace, 472 U.S. at 89, citing Schempp, 374 U.S. at

308.

As Justice Rehnquist wrote in this dissent in Stone v.

Graham, “nearly everything in our culture worth transmitting,

everything which gives meaning to life, is saturated with

religious influences ... .” Stone v. Graham, 449 U.S. 39, 46

(1981), quoting McCollum v. Board of Educ., 333 U.S. 203,

235-36 (1962)(concurring opinion). As this Court has noted

22

repeatedly, “religion has been closely identified with our history

and government.” Jd. at 46, citing Schempp, 374 U.S. at 212.

“The Establishment Clause does not require that the public

sector be insulated from all things which may have a religious

significance or origin.” Jd. at 45-46.

It is clear that our Founding Fathers and those who

drafted, debated, ratified and interpreted our Constitution, saw

the Constitution fit only to govern a religious people. If this

Court is determined to strip the American people of their great

religious heritage and identity, how then shall we stand? And

what is the benefit of this great religious inheritance and

religious identity if we are forbidden from passing the blessing

onto our children through our public educational institutions?

Is it permissible to compel school children to read our great

historical documents with their lengthy expositions on the

attributes and blessings of God, but impermissible to have our

children utter, “under God” in our Pledge of Allegiance?

Cc, Our Belief In God Is The Basis Of Our Laws.

“Man, considered as a creature, must necessarily be

subject to the laws of his Creator ... Upon these two

foundations, the law of nature and the law of revelation, depend

all human laws; that is to say, no human laws should be

suffered to contradict these.” Sir William Blackstone,

Commentaries on the Laws of England, Vol. I, pp. 42

(Philadephia, Union Library)( 1771). “The Law of Nature as an

eternal rule to all men, legislators, as well as others. The rules

that they make for other men’s actions must ... be conformable

to the Law of Nature, i.e. to the will of God. Laws human must

be made according to the general laws of Nature, and without

contradiction to any positive law of Scripture, otherwise they

are ill made.” John Locke, Two Treatises, Book IL, p. 285.

“The laws of nature and of nature’s God’ ... of course

presupposes the existence of God, the moral ruler of the

universe, and a rule of right and wrong, of just and unjust,

binding upon man, preceding all institutions of human society

23

and of government.” John Quincy Adams, The Jubilee of the

Constitution, pp. 13-14 (New York, Samuel Colman, 1839).

“The ... natural law was given by the Sovereign of the Universe

to all mankind.” John Jay, First Chief Justice, The Life of John

Jay, Vol IL, p. 385, William Jay, editor (New York, J& J

Harper, 1833). “The ... law established by the Creator, which

has existed from the beginning, extends over the whole globe,

is everywhere and at all times binding upon mankind ... [This]

law is the law of God by which he makes his way known to

man and is paramount to all human control.” Rufus King,

Signer of the Constitution, The Life and Correspondence of

Rufus King, Charles King, editor, Vol. VI, p. 276 (New, G.P.

Putnam’s Sons 1900). “God... is the promulgator as well as the

author of natural law.” James Wilson, signer of the

Constitution, U.S. Supreme Court Justice, The Works of the

Honourable James Wilson, Bird Wilson, editor, Vol I, p.

64(Philadelphia, Lorenzo Press, 1804).

“All [laws], however, may be arranged in two different

classes: (1) Divine. (2) Human ... But it should always be

remembered that this law, natural and revealed, made for men

or for nations, flows from the same Divine source: it is the law

of God ... Human law must rest its authority ultimately upon the

authority of that law which is Divine.” James Wilson, The

Works of the Honourable James Wilson at Vol. I, pp. 103-105.

“No human laws are of any validity if contrary to [the law

dictated by God Himself].” Alexander Hamilton, Signer of the

Constitution, Papers of Alexander Hamilton, Harold C. Syrett,

editor, Vol. I, pp. 87 (New York, Columbia Univ. Press 1961),

quoting William Blackstone, Commentaries on the Laws of

England at Vol I, p. 41.

The founders of our legal system and of our political

system undeniably set this great nation on its course with the

firm conviction that it could succeed only with God’s help and

with a belief in and an acknowledgment of that help. Both our

legal system and our Constitution were established to govern a

religious people. To detach our Constitution from its moorings

24

is to set it adrift on a course not unknown. Many nations have

put their confidence in human wisdom and secularism - only to

lose their freedom and dignity. Cuba comes to mind

immediately.

Il, PUBLIC ACKNOWLEDGMENT OF GOD

IS NOT THE ESTABLISHMENT OF

RELIGION.

A. The First Amendment Guarantees Freedom

of Religion Not Freedom from Religion.

We are a religious, not secular, people and our

institutions, as instruments of democracy and an extension of

the people, reflect that element of public life. See Rector v.

Holy Trinity Church, 143 U.S. at 465 (stating that “no purpose

of action against religion can be imputed by any legislation,

state or national, because this is a religious people.”); Lynch v.

Donnelly, 465 U.S. at 675, quoting Zorach v. Clauson, 343 U.S.

306, 313 (1952). This Court opens each session with “God

save the United States and this Honorable Court.” Zorach v.

Clauson, 343 U.S. at 313. Our U.S. Legislature opens each

daily session with prayer. Jd. The very chamber in which oral

arguments are heard before this Court “is decorated with a

notable and permanent - not seasonal - symbol of religion:

Moses with Ten Commandments.” Lynch v. Donnelly, 465

U.S. at 1361.

Our national monuments and government buildings are

equally adorned with religious texts and references to God. Our

National holidays (“holy days”) include Christmas (Christ

Mass), Thanksgiving and the National Day of Prayer. Lynch v.

Donnelly, 465 U.S. at 1361, citing 36 U.S.C. § 169h. Our cities

bear religious names, such as St. Petersburg, San Francisco, Los

Angeles, St. Paul, St. Augustine, Santa Barbara, Santa Clara,

San Diego, Santa Fe (“Holy Faith”). Our national motto is “In

25

God We Trust, ” which Congress mandated for our currency.

Lynch v. Donnelly, 465 U.S. at 1361, citing 36 U.S.C. §§ 186,

324; Engel v. Vitale, 370 U.S. 421, 440-41 n.5 (1962). Our

national anthem resounds, “Blest with victory and peace may

the heaven rescued land, Praise the power hath made and

preserved us a nation! Then conqurer we must when our cause

it is just, And this be our motto - ‘In God is our trust.’” Jd. at

441. Our most beloved and poignant patriotic songs, such as

“God Bless America” affirm our belief in God. Our most

prestigious universities and colleges were founded by Christian

denominations, for the propagation of the Gospel. Art galleries

subsidized by public revenues display religious paintings. Lynch

v. Donnelly, 465 U.S. at 1361.

Our president takes an oath of office with one hand

placed upon the Bible. Our courtrooms include the oath, “so

help me God.” Zorach v. Clauson, 343 U.S. at 313. Our

churches and clergymen enjoy tax exemptions and favor. Walz

v. Tax Comm'n of New York City, 397 U.S. 664 (1970). Our

religious donations are tax deductible.

Our children celebrate St. Valentine’s Day and St.

Patrick’s Day in school. St. Valentine was a Christian martyr.

St. Patrick was a Catholic bishop. St. Patrick, Encarta

Encyclopedia, http://encarta.msn.com/encyclopedia (2003).

The three leaf clover represents the Holy Trinity. Jd. “Santa

Claus” is derived from St. Nicholas ( “Santa” means “saint” and

“Claus” is short for “Nicolaus), the archbishop of Myra, known

.for distributing his inherited wealth to the needy by

anonymously throwing bags of gold coins through windows.

Santa Claus, Encarta Encyclopedia,

http://encarta.msn.com/encyclopedia (2003).

“Government has long recognized, even subsidized,

holidays with religious significance.” Lynch v. Donnelly, 465

U.S. at 674. None of these public affirmations or governmental

26

favors granted to religion and to religious people have led to an

Establishment of Religion in violation of the Establishment

Clause. To the contrary, our Nation has enjoyed a long history

of religious freedom and diversity.

Having our children recite the Pledge of Allegiance, .

with its public affirmation of God, does not violate the

Establishment Clause anymore than having our children hear or

sing the National Anthem before sporting events. Instead, it

includes our children in our national identity and heritage, an

identity and heritage that includes acknowledgment of God as

the author and the One who bestows our inalienable rights and

freedoms.

The mention of God is not a danger from which we need

to shield our children. Neither is it a part of our heritage from

which we need to guard our children. To the contrary, it is a

proud and vibrant part of our Nation, past and present. “When

the state encourages religious instruction or cooperates with

religious authorities ... it follows the best of our traditions. For

it then respects the religious nature of our people and

accommodates the public service of their spiritual needs. To

hold that it may not would be to find in the Constitution a

requirement that government show callous indifference to

religious groups. That would be preferring those who believe

in no religion over those who do believe.” Zorach v. Clauson,

343 US. at 313-14.

To attempt to eliminate public acknowledgment of God

in our Nation and in our schools would require the extremes

taken by Marxist nations. We would need to rename our cities,

our institutions, our holidays, change our currency, change our

pledge of allegiance, deface our public buildings. But we are

not a Marxist people, although we certainly have Marxist

citizens. And we are not a secular people, although we have

secular citizens. “We are a religious people whose institutions

27

presuppose a Supreme Being.” Lynch v. Donnelly, 465 U.S. at

674, quoting Zorach v. Clauson, 343 U.S. at 313; Schempp, 374

U.S. at 213. “Our history is replete with official references to

the value and invocation of Divine guidance ... .” Lynch v.

Donnelly, 465 U.S. at 674.

Some Justices of this honorable Court have suggested

that these public acknowledgments of God are acceptable

because they have been secularized. See Marsh v. Chambers,

463 U.S. at 818 (dissenting opinion), citing Schempp, 374 U.S.

at 203-04. This reasoning, however, ignores that these religious

acknowledgments only acquired a secondary secular meaning

because of their long history of official public acknowledgment.

Christmas, Thanksgiving, oaths, and mottos such as “One

Nation under God” did not begin their public life as secular

events. Only through the “unbroken history of official

acknowledgment by all three branches of government" has

secular secondary meaning had an opportunity to evolve.

(quoting Lynch v. Donrelly, 465 U.S. at 674).

Moreover, these Justices assert that these mottos and

expressions have lost any true religious significance. Marsh,

463 U.S. at 818, citing Schempp, 374 U.S. at 203-04. The

Lynch majority disagreed when it wrote, “[Thanksgiving] has

not lost its theme of expressing thanks for Divine aid any more

than has Christmas lost its religious significance.” Lynch v.

Donnelly, 465 U.S. at 675.

Official announcements proclaiming Christmas,

Thanksgiving, and other national holidays are, to this day, made

in religious terms. President Bush, in his 2002 Thanksgiving

Day Proclamation, declared that, “During these extraordinary

times, we find particular assurance from our Thanksgiving

tradition, which reminds us that we, as a people and

individually, always have reason to hope and trust in God, ... As

we recover from the terrible tragedies of September 11,

28

Americans of every belief and heritage give thanks to God for

the many blessings we enjoy as a free, faithful, and fair-minded

land... May Almighty God, who is our refuge and our strength

in this time of trouble, watch over our homeland, protect us, and

grant us patience, resolve, and wisdom in all that is to come.”

Weare areligious nation. It is our identity. “To deprive

our society of that important unifying mechanism, in order to

spare the nonbeliever what seems to me the minimal

inconvenience of ... respectful nonparticipation, is as senseless

in policy as it is unsupported in law.” Lee v. Weisman, 505 U.S.

at 646 (Scalia dissenting, Rehnquist, White, Thomas joining).

B. Congress Did Not Attempt To Establish A

Religion When It Added The Word, “Under

God” To The Piedge.

When Congress passed the bill adding the words “under

God,” Congress stated its belief that “those words in no way run

contrary to the First Amendment but recognize ‘only the

guidance of God in our national affairs.’” Engel v. Vitale, 370

U.S. at 440 n.5 (concurring opinion), citing U.S. Code Cong.

And Adm. News, 1954, p. 2341. “It is true,” Congress

acknowledged, “that under the Constitution no power is lodged

anywhere to establish a religion. This is not an attempt to

establish a religion; it has nothing to do with anything of the

kind. It relates to belief in God, in whom we sincerely repose

our trust. We know that America cannot be defended by guns,

planes, and ships alone. Appropriations and expenditures for

defense will be of value only if the God under whom we live

believes that we are in the right. We should at all times

recognize God’s province over the lives of our people and over

this great Nation.” Engel v. Vitale, 370 U.S. at 440 n.5, citing

U.S. Code Cong. and Adm. News, p. 2341 (1954).

28 an Oh

29

This Court mirrored Congress’ reasoning when it stated

in Engel v. Vitale, “There is of course nothing in the decision

reached here that is inconsistent with the fact that school

children and others are officially encouraged to express love for

our country by reciting historical documents such as the

Declaration of Independence which contain references to the

Deity or by singing officially espoused anthems which include

the composer’s professions of faith in a Supreme Being, or with

the fact that there are many manifestations in our public life of

belief in God. Such patriotic or ceremonial occasions bear no

true resemblance to the unquestioned religious exercise that the

State of New York has sponsored in this instance.” Engel v.

Vitale, 370 U.S. at 435-36 n. 21.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals for the Ninth Circuit should be reversed.

Respectfully submitted,

Rebecca O’Dell Townsend Mathew D. Staver

Haas, Dutton et al. (Counsel of Record)

1901 N. 13" St., Ste. 300 Erik W. Stanley

Tampa, FL 33605 Anita L. Staver

(813) 253-5333 Joel L. Oster

Rena M. Lindevaldsen

LIBERTY COUNSEL

210 E. Palmetto Ave.

Longwood, FL 32750

(407) 875-2100