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

Supreme Coun US.

FILED

| DEC 1 & 2603

No. 02-1604 3 ) CEFICE OFTHE CLERK |

In The

Supreme Court of the United States

®

ELK GROVE UNIFIED SCHOOL DISTRICT,

Petitioner,

Vv.

MICHAEL A. NEWDOW, ET AL.

Respondents.

»

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

4

BRIEF AMICUS CURIAE OF WALLBUILDERS, INC.

in support of the Petitioner,

4

Barry C. Hodge

Counsel of Record for Amicus Curiae

Steven W. Fitschen

The National Legal Foundation

2224 Virginia Beach Blvd., Suite 204

Virginia Beach, VA 23454

(757) 463-6133

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............cccccsssssssersssssesssseeseneses i

INTEREST OF AMICUS CURIAE.............cccccscscessessesseees 1

SUMMARY OF THE ARGUMENT .............ccccsssssserssseeees 1

ARGUMEEN T 200ccccccccccocsessscosssscssssssscssssssssessssccosescsioscsosceossees 2

I. THE NINTH CIRCUIT’S OPINION

SHOULD BE REVERSED BECAUSE IT

ERRED BY NOT GIVING DEFERENCE

TO THE DICTA OF THIS COURT

WHICH AS STATED THAT THE

PLEDGE OF ALLEGIANCE IS

CONSTITUTIONAL ...ccoccccoscocscoocssccscscesecsscocecs 3

Il. THE NINTH CIRCUIT’S OPINION

SHOULD BE REVERSED BECAUSE IT

MISAPPLIED THIS COURT’S RULING

IN LYNCH V. DONNELLY AND LEE V.

WEISMAN TO HOLD THE PLEDGE

UNCONSTITUTIONAL IN PUBLIC

SCHOOLS. cccccscccsscccssceccsccsccssccssccsssecsssssesssscoocsses 7

CONCLUSION acccccccccccceseccccccssscccccoscssccosssossssssssssssoossseesses 13

il

TABLE OF AUTHORITIES

CASES

Page(s)

Abington Sch. Dist. v. Schempp, '

376 UG. FEB (BD icccccessccinsonnsissumann 7

Cerro Metal Prods. v. Marshall,

620 F.26 S66 (36 Cie. SSID ccccccsinsnisiintensiaiimmammaan 5

County of Allegheny v. ACLU,

G2 UD. S73 (OGD ccceccsincrocctcntntainaiaamnnan 4,6,7,8

Lee v. Weisman,

$05 US. $7, S67 (00 nccocssstunsescciainimaaaan 1,7, 10-13

Lynch v. Donnelly,

46S U.S. SEB (IBC ccsccosssscsccnnitiiusnammeammniaa 1, 7-11, 13

Navajo Nation v. U.S. Dep't of Health and

Human Serv., 285 F.3d 864 (9th Cir. 2002)............... 6

Newdow v. United States Cong.,

292 F.3d 597 (9 Cir. 2002) ......sscessseccsnecessesssneeesneees 2

Newdow v. United States Cong.,

328 F. 3d 466 (9" Cir. 2002) ........scccsseeeee 2-4, 6-8, 10

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ...........0006 4

Sherman v. Cmty. Consol. Sch. Dist. 21,

980 F.2d 437 (7tha Cir. 1992) ...ccccccccrccccecesesccseceeses 3,4

United States v. Baird, 85 F.3d 450 (9th Cir. 1996) ......... 6,7

il

Wallace v. Jaffree, 472 U.S. 38 (1985) .......eeceeeceeeeeereteee 3,7

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)........ccccccsresrecserceecssseressessenanes 6,7

Zal v. Steppe, 968 F.2d 924 (9th Cir. 1992).........eceereereerereens 6

OTHER AUTHORITIES

Michael Sean Quinn, Argument and Authority in Common

Law Advocacy and Adjudication: An Irreducible

Pluralism of Principles, 74 Chi.-Kent L. Rev. 655

(1999) ....ccccccsessscsssssnsesssneenenenenensnnsnensnsnensnesesnenensnes 4,5

INTEREST OF AMICUS CURIAE'

WallBuilders, Inc. is a 501(c)(3) organization that is

dedicated to the restoration of the moral and religious

foundation on which America was built. As such, the

organization has a direct interest in seeing that students are

allowed to say the full and official version of the Pledge of

Allegiance in their schools. WallBuilders has a large base of

supporters who are equally concerned with this issue.

This brief is filed pursuant to the consent of the

counsel of record of all parties.

SUMMARY OF THE ARGUMENT

The Court of Appeals for the Ninth Circuit erred in

ruling that the Elk Grove Unified School District’s policy of

having elementary aged school children recite the Pledge of

Allegiance is unconstitutional. In ruling the Pledge

unconstitutional, the Ninth Circuit overlooked this Court’s

dicta concerning the constitutionality of the Pledge. This

brief will show that certain types of dicta_should be viewed

as binding authority or nearly binding authority. The Ninth

Circuit has itself decided that this Court’s dicta are on the

upper end of the precedential continuum. The Ninth Circuit

should have been guided by this Court’s dicta and ruled the

policy of the school district constitutionally sound.

The Ninth Circuit also misapplied this Court’s rulings

in Lynch v. Donnelly, 465 U.S. 668, 676, 693, 716, (1984),

and Lee v. Weisman, 505 U.S. 577 (1992), when it ruled that

the Pledge of Allegiance was unconstitutional when reciied

in public schools. A proper understanding of Lynch shows

that the use of the Pledge in public schools is constitutional.

‘No counsel for any party has authored this brief in whole or in

part. No person or entity has made any monetary contribution to

the preparation or submission of this brief, other than the Amicus

Curiae, its members, and its Counsel.

The Ninth Circuit also failed to recognize Lee's self-

limiting principles and misapplied the effect of its ruling on

the present case. There are several significant factual

differences between Lee and the present case that the Ninth

Circuit ignored.

ARGUMENT

The second question certified by this Court asks

“fw]hether 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.” A negative

answer could be arrived at two ways. Either the inclusion of

the phrase “under God” could be declared unconstitutional in

all settings including the one examined here or the use of the

phrase could be declared unconstitutional only in the specific

context being examined by the certified question.

Interestingly, the Ninth Circuit originally held both the

former and the latter, Newdow v. United States Cong., 292

F.3d 597, 612 (9" Cir. 2002) (withdrawn), then modified its

opinion to limit it to the latter, Newdow v. United States

Cong., 328 F.3d 466, 490 (9" Cir. 2002).

While numerous reasons could be advanced as to why

“under God” does not violate the Establishment Clause, only

one will be advanced here, namely the numerous

pronouncements from this Court as to the Pledge’s

constitutionality. Indeed, one could speculate that becoming

convinced of this fact too late, the Ninth Circuit modified its

opinion in hopes that the new opinion might survive review

by this Court. Therefore, after demonstrating why the Pledge

per se is constitutional, this brief will go on to show why

using the Pledge in the public school setting is also

constitutional.

> This brief will only addvess issues related to this question.

I. THE NINTH CIRCUIT’S OPINION SHOULD

BE REVERSED BECAUSE IT ERRED BY NOT

GIVING DEFERENCE TO THE DICTA OF

THIS COURT WHICH HAS STATED THAT

THE PLEDGE OF ALLEGIANCE IS

CONSTITUTIONAL.

The debate between the majority and minority

opinions below, as well as Judge O’Scannlain’s dissent from

denial of rehearing was very largely over whether to decide

the issuc of the constitutionality of the Pledge of Allegiance

by trying te extend the logic of this Court’s Establishment

Clause precedent or by using this Court’s dicta regarding the

Pledge of Allegiance. Newdow v. United States Cong., 328

F.3d 466, 471-82 (9th Cir. 2003) (O’Scanniain, J., dissenting

from denial of rehearing en banc); id. at 482-90 (majority

opinion); id. at 490-93 (minority opinion).”

The problem with trying to apply this Court's

precedent in a new context is that this Court’s Establishment

Clause jurisprudence has often been unpredictable, as various

Justices of this Court have acknowledged. See, e.g., Wallace

v. Jaffree, 472 U.S. 38, 107-12 (1985) (Rehnquist, J.,

dissenting) (stating that the application of the Establishment

Clause since the late 1940s has little value because it has no

basis in history and “‘is difficult to apply and yields

unprincipled results.”). With this type of unpredictable

Establishment Clause jurisprudence, this Court should adopt

the approach of the dissent below, which has also been

employed in the Seventh Circuit’s decision in Sherman v.

Community Consolidated School District 21, 980 F.2d 437, -

439 (7th Cir. 1992). Following this Court’s dicta would have

been the best alternative for the Ninth Circuit. As the

Seventh Circuit aptly stated, “[{a}n inferior court had best

respect what the majority (of the United States Supreme

Court] says rather than read between the lines. If the Court

’ This was also true of the original, now withdrawn opimion, Newdow v.

United States Cong., 292 F.3d 597 (2002).

proclaims that a practice is consistent with the establishment

clause, we take its assurances seriously. If the Justices are

just pulling our leg, let them say so.” /d. at 448.

Below, the majority opinion recognized that this

Court has stated in dicta that the words “one nation under

God” in the Pledge of Allegiance are constitutional.

Newdow, 328 F.3d at 489. However, the majority did not

give deference to this Court’s dicta, as it stated it would. /d.

The question for this Court to resolve is whether the Ninth

Circuit gave inadequate deference to this Court’s dicta. For

the reasons stated in the discussion below, the Ninth Circuit

should have been guided, if not bound, by this Court’s dicta

regarding the constitutionality of the Pledge.

Dictum is “{ajn opinion expressed by a court, but

which, not being necessarily involved in the case, lacks the

force of atiiuilication....” Michael Sean Quinn, Argument

and Authority in Common Law Advocacy and Adjudication:

An Irreduecible Pluralism of Principles, 74 Chi.-Kent L. Rev.

655, 710(1999). Judges and attorneys often divide dicta into

obiter dicta and judicial dicta to determine the precedential

value of individwal dictum. Id. at 712-13. Obiter, or mere,

dicta is an opinion expressed in passing and has less

persuasive value. /d. at 713. Judicial dicta are “court's

reasoned consideration and elaboration upon a legal norm”

and have much more persuasive authority. /d. at 713-14.

In fact some courts, including this Court, give judicial

dicta great weight. In Seminole Tribe v. Florida, 517 U.S. 44

(1996), this Court adhered to judicial dicta which was

regarded as a “well-established rationale upon which the

Court based the results of its earlier decisions.” /d. at 67.

Similarly, this Court has stated that the “principle of stare

decisis directs us to adhere not only to the holdings of. . .

prior cases, but also to . . . explications of the governing rules

of law.” County of Allegheny v. ACLU, 492 U.S. 573, 668

(1989) (emphasis added).

Likewise, the Third Circuit Court of Appeals has ——

noted that “[a] . . . distinction has been drawn between

‘judicial dictum ' and ‘obiter dictum’: Judicial dicta are

conclusions that have been briefed, argued, and given full

consideration even though admittedly unnecessary to

decision. A judicial dictum may have great weight.” Cerro

Metal Prods. v. Marshall, 620 F.2d 964, 978 n.39 (3d Cir.

1980). Indeed, judicial dicta are of such serious consequence

that some courts consider judicial dicta issued by supreme

courts to be binding precedent: “A Wisconsin court has

stated it thus: ‘When a court of last resort intentionally takes

up, discusses, and decides a question germane to, though not

necessarily decisive of, the controversy, such decision is not

a dictum but is a judicial act of the court which it will

thereafter recognize as a binding decision.’” /d. (citation

omitted).

Furthermore, the distinction between obiter dictum

and judicial dictum is not a bright line. Michael Sean Quinn,

Argument and Authority in Common Law Advocacy and

Adjudication: An Irreducible Pluralism of Principles, 74

Chi.-Kent L. Rev. 655, 717-18 (1999). Hard and fast

divisions “are probably wrong” and can lead to “intellectual

chicanery.” Jd. at 730, 776. It is not easy to determine what

constitutes judicial dictum. Id. at 735. In fact, dicta are

better thought of as being on a continuum. /d. at 740. Under

this view, obiter dicta, in which a court has not deliberated

over what it has said, see id., rest at the lower end of the

continuum; judicial dicta rest at the upper end of the

spectrum and should guide future litigation, id. at 730; but

other “shades” of dicta exist between the two extremes and

should be given various degrees of weight. Therefore, it is

important under this view to realize that dicta, even dicta

other than that which is technically judicial dicta, can lie very

close to that end of the continuum and can be worthy of

receiving precedential or near-precedential value. Certainly,

the Seventh Circuit, unlike the Ninth Circuit, considered this

Court's Pledge dicta either to be judicial dicta or to be

sufficiently close to that end of the spectrum to guide the

litigation before it. See infra.

Ironically, the Ninth Circuit itself has placed dicta

issued by this Court on the upper end of the continuum. See

United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996).

According to the Ninth Circuit, Supreme Court dicta is to be

treated “with due deference.” /d. One Ninth Circuit judge

has stated that this Court’s dicta must not be discarded

lightly. Navajo Nation v. U.S. Dept. of Health and Human

Services, 285 F.3d 864, 877 (9th Cir. 2002) (Fletcher, J.,

dissenting). Another stated, “/d/icta of the Supreme Court

have a weight that is greater than ordinary judicial dicta as

prophecy of what the Court might hold. We should not

blandly shrug it off because they were not a holding.” Zal v.

Steppe, 968 F.2d 924, 935 (9th Cir. 1992) (Noonan, J.,

concurring in part and dissenting in part). The Ninth Circuit,

therefore, has placed Supreme Court dicta high on the

continuum giving it great weight—even when that the dictum

is not judicial dictum. For example, this Court’s dicta at

issue in Zal must be considered obiter dicta, yet Judge

Noonan pointed out the weight they deserved. See id.

Certainly, this Court’s dicta regarding the Pledge of

Allegiance are worthy of even more weight since they are

much closer to the judicial dicta end of the continuum.

While the constitutionality of the Pledge may not have been

extensively briefed and argued, the pertinent Establishment

Clause test and principles were briefed and argued in all the

cases in which the Pledge was used as an illustration. For

example, this Court has stated, “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.”

County of Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989).

This Court also stated that one’s “religious y based refusal”

to recite the Pledge should not interfere with the right of

others to recite it. See Newdow, 328 F.3d at 492 (Fernandez,

J., concurring in part and dissenting in part) (citing West

Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).

In fact, five current Justices of this Court, as well as eight

prior Justices, have recognized that including “under God” in

the Pledge of Allegiance does not impose a danger to society

by establishing a theocracy or inhibiting one’s religious

beliefs. Jd. at 491 (citing County of Allegheny v. ACLU, 492

U.S. 573, 602-03, 672-73 (1989); Wallace v. Jaffree, 472

U.S. 38, 78 n.5 (1985); Lynch v. Donnelly, 465 U.S. 668,

676, 693, 716, (1984); Abington Sch. Dist. v. Schempp, 374

U.S. 203, 306-08 (1963).

The majority opinion below dismissed this Court’s

dicta because this Court has never directly addressed the

issue and has not applied the Establishment Clause tests to it.

Newdow, 328 F.3d at 489. Based on the Ninth Circuit’s own

precedent, Supreme Court dicta should be given great

deference. Baird, 85 F.3d at 453. This Court has stated

multiple times that the Pledge does not violate the

Establishment Clause. See Newdow, 328 F.3d at 491

(Fernandez, J., concurring in part and dissenting in part)

(noting cases cited in the previous paragraph). Because this

Court has declared the Pledge to he constitutional on multiple

occasions, and because each of the cases addressed basic

First Amendment principles, this Court did not make those

statements regarding the Pledge without due consideration.

Therefore, the Ninth Circuit erred by not being guided by the

applicable dicta from this Court. Had it been so guided, it

would have upheld the constitutionality of the Pledge.

Indeed, this Court has already decided the issue.

Il. THE NINTH CIRCUIT’S OPINION SHOULD BE

REVERSED BECAUSE IT MISAPPLIED THIS

COURT’S RULINGS IN LYNCH V. DONNELLY

AND LEE V. WEISMAN TO HOLD THE PLEDGE

UNCONSTITUTIONAL IN PUBLIC SCHOOLS.

Just as this Court’s dicta indicates the

constitutionality of the Pledge per se, so it indicates the

constitutionality of the Pledge in the public school setting.

Indeed, the Ninth Circuit admitted as much and attempted,

albeit feebly, to deal with this fact. The Ninth Circuit wrote,

Our opinion, however, is not inconsistent with

this dicta. In Allegheny, the Court noted that it

had “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.” 492 U.S. at 602-03. And in Lynch,

the Court observed that students recited the

pledge daily, but only to support its point that

there is a long tradition of “official

acknowledgment” of religion. 465 U.S. at

674, 676. Neither of these two references

speaks to the issue here. We may assume

arguendo that public officials do not

unconstitutionally endorse religion when they

recite the Pledge, yet it does not follow that

schools may coerce impressionable young

school children to recite it, or even to stand

mute while it is being recited by their

classmates.

Newdow v. United States Cong., 328 F.3d at 489.

Even on the face of this assertion, one might believe

that the Ninth Circuit had come to the exact opposite

conclusion from the one justified by this Court’s

pronouncement in Lynch. One might logically conclude that

this Court had given the Pledge’s use in public schools a

clean bill of health and that the Ninth Circuit’s use of the

word “coerce” was gratuitous—especially in light of the

record in this case (which clearly indicates that the student

participants are willing participants).

However, were one inclined not to come to this

conclusion merely on the face of the Ninth Circuit’s

assertion, one need merely look at the larger context of the

Lynch quotation to see that the Ninth Circuit’s

characterization of it is not accurate. It is true that this Court

in Lynch noted the recitation of the Pledge “by many

thousands of school children every vear,” as an example of

official acknowledgement of religion.” 465 U.S. at 676.

However, this Court said much more that is germane to the

present analysis—things that the Ninth Circuit ignored.

This Court went on to characterize school children’s

recitation of the Pledge as one of the “illustrations of the

Government's acknowledgment of our religious heritage and

governmental sponsorship of graphic manifestations of that

heritage” that it had summarized. /d. at 677. The Pledge

would constitute the latter—‘a governmental sponsorship of

graphic manifestations of that heritage.” /d. Furthermore,

this Court also used the Pledge and the other examples to

explain why actions, which explicitly recognize or benefit

religion do not always violate the Establishment Clause:

This history may help explain why the

Court consistently has declined to take a rigid,

absolutist view of the Establishment Clause.

We have refused “to construe the Religion

Clauses with a literalness that would

undermine the ultimate constitutional

objective as illuminated by history.” In our

modern, complex society, whose traditions

and constitutional underpinnings rest on and

encourage diversity and pluralism in all areas,

an absolutist approach in applying the

Establishment Clause is simplistic and has

been uniformly rejected by the Court.

Rather than mechanically invalidating

all governmental conduct or statutes that

confer benefits or give special recognition to

religion in general or to one faith—as an

absolutist approach would dictate—the Court

has scrutinized challenged legislation or

official conduct to determine whether, in

-

10

reality, it establishes a religion or religious

faith, or tends to do so. Joseph Story wrote a

century and a half ago: “The real object of the

[First] Amendment was. . . to prevent any

national ecclesiastical establishment, which

should give to an hierarchy the exclusive

patronage of the national government.”

Id. at 678 (citations omitted).

Thus, had the Ninth Circuit read Lynch

correctly, it would have understood that this Court

has characterized the recitation of the Pledge by

school children as a “governmental sponsorship of

graphic manifestations of [our religious] heritage”

that “confer[s] benefits or give[s] special recognition

to religion,” but that nonetheless does not violate the

Establishment Clause. /d. at 677-78. Had the Ninth

Circuit so understood Lynch, it could have (and

Amicus argues should have) rejected the School

District’s argument that the religious content of the

Pledge is minimal,* Newdow, 328 F.3d at 488, and yet

upheld its use under the test from Lee v. Weisman,

505 U.S. 577 (1992), which Ninth Circuit employed.

Indeed, Lynch and Lee are in complete

agreement that each Establishment Clause case must

be decided based upon its own unique characteristics.

Immediately after the passages quoted above, the

Lynch Court noted that

[ijn each case, the inquiry calls for line-

drawing; no fixed, per se rule can be framed.

The Establishment Clause like the Due

Process Clause is not a precise, detailed

provision in a legal code capable of ready

* Similarly, this Court need not rely upon “ceremonial deism” or

“civil religion” arguments.

11

application. The purpose of the Establishment

Clause “was to state an objective, not to write

a statute.” The line between permissible

relationships and those barred by the Clause

can no more be straight and unwavering than

due process can be defined in a single stroke

or phrase or test. The Clause erects a “blurred,

indistinct, and variable barrier depending on

all the circumstances of a particular

relationship.”

Lynch, 465 U.S. at 613 (citations omitted).

Similarly, the Lee Court wrote that “our jurisprudence

in this area is of necessity one of line-drawing... .” 505

U.S. at 598. It both distinguished its case from other

Establishment Clause cases, id. at 596-96, and emphasized

the unique features of its case, noting that

{t]}hese dominant facts mark and control the

confines of our decision: State officials direct

the performance of a formal religious exercise

at promotional and graduation ceremonies for

secondary schools. Even for those students

who object to the religious exercise, their

attendance and participation in the state-

sponsored religious activity are in a fair and

real sense obligatory, though the school

district does not require attendance as a

condition for receipt of the diploma.

Id. at 586. Thus, Lee is self-limiting. The Lee Court went on

to stress that “[e]veryone knows that in our society and in our

culture high school graduation is one of life's most significant

occasions.” /d. at 594. The Court also explicitly pointed out

that its holding did not apply to all state action involving

religion:

12

We do not hold that every state action

implicating religion is invalid if one or a few

citizens find it offensive. People may take

offense at all manner of religious as well as

nonreligious messages, but offense alone does

not in every case show a violation. We know

too that sometimes to endure social isolation

or even anger may be the price of conscience

or nonconformity.

Id. at 597-98.

Because significant differences exist between the

daily recitation of the Pledge of Allegiance and a “formal

religious exercise” at one’s once-in-a-lifetime high school

graduation ceremony, there is no incompatibility between

Lynch's strong support for the constitutionality of the daily

recitation of the Pledge and Lee’s holding of

unconstitutionality of graduation prayers.” First, there is a

difference between the Pledge which retains some religious

content— indeed, as argued above, it retains significant

religious content—and a formal religious ceremony including

corporate prayer to the God that the Pledge merely

acknowledges. Second, while the Lee Court believed that in

a “fair and real sense” the graduation ceremony was

obligatory, the daily recitation of the Pledge is voluntary,

Newdow, 328 F.3d at 483.

This latter point deserves some clarification. At first

blush, one might think the opposite is true. As the Lee Court

pointed out, at least in some sense, participation in the

graduation ceremony was voluntary, 505 U.S. at 583,

whereas attendance at school is compulsory (and for many

students, public schools are the only option). However, such

an analysis would miss the point. What made the Lee

> Amicus does not believe that Lee was rightly decided but

recognizes it as a binding precedent of this Court. Therefore,

Amicus believes that its reconciliation of Lee and Lynch is both

valid and important to the proper resolution of the instant case.

13

graduation ceremony obligatory “in a fair and real sense”

was that it was a stand-alone ceremony of great significance

in the life of the graduates. They did not have to attend the

ceremony to .eceive their diploma, but to fail to do so would

have deprived themselves and their families of participation

in a significant “rite of passage.”

On the other hand, while the public school students of

the Defendant School] District are obligated to attend school,

they are freely permitted to decline to participate in the

Pledge. Thus, there is no obligatory ceremony at all,

religious or otherwise. At worst, non-participating students

might suffer “social isolation or. . . anger,” which the Lee

Court declared to be “the price of conscience or non-

conformity.” Jd. at 598.

Because Lynch has so clearly spoken to the

constitutionality of the use of the Pledge in public

schools and because Lynch and Lee can re reconciled,

the Pledge’s religious content doe not render its use

unconstitutional.

CONCLUSION

For the foregoing reasons, Amicus respectfully

requests this Court to reverse the Court of Appeals for

Ninth Circuit and hold that the School District’s

policy is constitutional.

Respectfully submitted,

This 19th day of December 2003

Barry C. ge

Counsel of Record for Amicus Curiae

The National Legal Foundation

2224 Virginia Beach Blvd., Ste. 204

Virginia Beach, VA 23454

(757) 463-6133