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

. Supreme Court, U.S,

? FIQED

S| DEC 19 2003

No. 02-1624 | maton m Lue gLERK

IN THE

Supreme Court of the United States

ELK GROVE UNIFIED SCHOOL DISTRICT

AND DAVID W. GORDON, Superintendent,

Petitioners,

vs.

MICHAEL A. NEWDOW, et al.

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Brief of Amicus Curiae of

Focus on the Family, Family Research Council, and

Alliance Defense Fund Supporting Petitioners

Benjamin W. Bull Stephen W. Reid

Counsel of Record Reid & Brown, LLP

Jordan W. Lorence 35 N. Lake Ave., Suite 960

Kevin H. Theriot Pasadena, CA 91101

Gary S. McCaleb Phone: (626) 449-4521

Robert H. Tyler Fax: (626) 449-7453

Alliance Defense Fund Law Ctr.

15333 N. Pima Rd., Ste. 165 Patrick A. Trueman

Scottsdale, AZ 85260 Family Research Counsel

Phone: (480) 444-0020 801 G Street, NW

Fax: (480) 444-0025 Washington, D.C. 20001

Phone: (202) 624-3011

Fax: (703) 620-6700

Attorneys for Amici

,,,,,————————_———_—_——

TABLE OF AUTHORITIES

INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

I.

TABLE OF CONTENTS

ENCOURAGING STUDENTS TO

ACKNOWLEDGE OUR COUNTRY’S

RELIGIOUS HERITAGE PASSES ALL

THREE PRONGS OF THE

EPO CRIS cecnscccscenscesnsccccsnnsssnsncnscvescvesoomecnees

A. Recitation of the Pledge has a Secular

Purpose of Encouraging Patriotism and

Acknowledging Our Religious Heritage .........

B. The Primary Effect of Reciting the Pledge

I

C. Acknowledging the Historical Fact of Our

Religious Heritage Does Not Cause

Excessive Entanglement .................:s00e000 an

ENCOURAGING VOLUNTARY RECITATION

OF THE PLEDGE DOES NOT CREATE AN

ENDORSEMENT OF RELIGION .............:c00000008

ENCOURAGING STUDENTS TO

VOLUNTARILY RECITE THE PLEDGE DOES

NOT COERCE THEM TO PARTICIPATE IN

A RELIGIOUS EXERCISE .............ccccccsseesseeeees

POPP PPP eee E EEE EERE EEE

IV. HISTORY OF GOVERNMENT

ACKNOWLEDGING OUR RELIGIOUS

HERITAGE AVOIDS ESTABLISHING A

RELI cccccecccssecccsencocesonsvessoeseniionssensennlenenanninniin 13

COINCLAIIIN cccccssccccsccsccccoescnsonsoneneniennentansesinnnninnninn 17

ii

TABLE OF AUTHORITIES

Page

Abington School Dist. v. Schempp, 374 U.S. 203

Is cessnsnmnnes 11, 14,17

Agostini v. Felton, 521 U.S. 203 (1997) .........cccccccceseeeeeeeeees 2

Bd. of Education v. Mergens, 496 U.S. 226 (1990) ............. 6

Capital Square Review Bd. v. Pinette, 515 U.S. 753

EE LTE )

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) ...........0.04. 2

County of Allegheny v. ACLU, 492 U.S. 573

an iccrercnenassecenccessessecees 11,12,14

Dale v. Boy Scouts of America, 530 U.S. 640

EEE EST 2

Engel v. Vitale, 370 U.S. 421 (1962) ........:cccccccceceeeeeees 6, 16

Good News Club v. Milford Central Schools,

I iictircnecrceensnsngsncnosensnseseocecees 2,7

Lee v. Weisman, 505 U.S. 577 (1992) ..........ccccccccceeeeeeeeeees 12

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

Lynch v. Donnelly, 465 U.S. 668 (1984) ..............006. passim

McDaniel v. Paty, 435 U.S. 618 (1978 ........cccccccccceeeeeeeeeeees 8

Marsh v. Chambers, 463 U.S. 783 (1983) ..............0.+. 11,14

Mitchell v. Helms, 530 U.S. 793 (2000) .0........cccccccccceeeeeeeees 2

National Endowment for the Arts v. Finley, 524

I itd ncrertirnenncnncnnscecnsecccsousececes 2

Newdow v. U.S. Congress, 328 F.3d 466

I satrsnrsensnsrnnsnennconee 4, 13

Sante Fe v. Doe, 530 U.S. 290 (2000) ..........ccccccceseeeeeereeees 13

Sherman v. Community Consolidated School District 21 of

Wheeling Township, 980 F.2d 437 (7 Cir. 1992) ......... 11

Troxel v. Granville, 530 U.S. 57 (2000) ............c.cccccccceeeeeees 2

Vacco v. Quill, 521 U.S. 793 (1997) ........ccccccseseseeeeseeeeeeeees 2

Wallace v. Jaffree, 472 U.S. 38 (1985) ....ccccccccceeeeeeeeeeeees 4

Waltz v. Tax Comm’n, 397 U.S. 664 (1970) ...............000006 14

Washington v. Glucksgerg, 521 U.S. 702 (1997) ...........0000++ 2

West Virginia Board of Education v. Barnette, 319 U.S.

GEG CGD cececccnsnansessnsnsscensenasnsesesssensnnemagapenemmannsntase 13

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ...........0: 9

Zorach v. Clauson, 343 U.S. 306 (1952) ........cccccceeeeeeeeeeees 17

STATUTES AND LEGISLATIVE MATERIALS

ARIZ. REV. STAT. § 15-203(26) (2003) ...........:ccccceeeeeeseeees 18

Cal. Béuc. Code § SZ720 (1DGD) .......ccrccccccorscocsccscoscoccessseees 3

ee i ee +

SOS. B Gu. B TP Gee cccrnsenescsnsssnssnssssssssnsrssessemssenesmnsnecenn

DO CEG. © FO GED cecsecccssesssssnsssssssssecenssvesnanescesvente 10

SOUL. § EGOS ccccecccccceseresscsesesensssessesessssrenssssnsense 10

OTHER AUTHORITIES

The Establishment Clause: a Constitutional Permission

Slip for Religion in Public Education, 60 BROOK. L.

EE er 15

Farewell Address, in 4 Annals of Cong. 2876 (1796) ........ 16

Michael W. McConnell, Religious Freedom at the

Crossroads, 59 U. CHI. L. REV. 115 (1992) ................. 7

FO en 15

SEED craceecinsinseniitninieniesitennesnnnsseniieiialeatieiaitiasaiiindiiaiaiaidiiniili 15

iv

—— ewe -

INTEREST OF AMICI IN THIS CASE’

FOCUS ON THE FAMILY is a nonprofit organization

founded by James C. Dobson, Ph.D, an internationally

recognized expert. on the family. Focus on the Family

broadcasts syndicated radio programs heard daily on more than

three thousand radio stations in twelve languages in more than

ninety-five countries. These programs are heard by more than

five million people. Focus on the Family actively promotes

freedom of speech and religious expression as part of its

ministry to families. Focus on the Family has participated as

amicus curiae in numerous cases before this Court.

FAMILY RESEARCH COUNCIL is a nonprofit research

and educational corporation headquartered in Washington, D.C.

It exists to affirm and promote the traditional family and the

Judeo-Christian principles upon which this country is built.

Family Research Council provides resources and guidance for

citizens concerned about national policy as it relates to cultural

morality.

ALLIANCE DEFENSE FUND (“ADF”) is a not-for-profit

public interest organization that provides strategic planning,

training, and funding to attorneys and organizations regarding

religious civil liberties. ADF and its allied organizations

represent hundreds of thousands of Americans who have a right

to religious and patriotic expression in public schools and

‘All parties have consented to the submission of this brief through

letters filed with the Clerk of the Court. No portion of this brief was

authored by counsel for a party, and no person or entity other than Amici or

their counsel made a monetary contribution to the preparation or submission

of this brief.

2

elsewhere. Its membership includes hundreds of lawyers and

numerous public interest law firms. ADF has advocated for the

rights of Americans under the First Amendment in hundreds of

significant cases throughout the United States, having been

directly or indirectly involved in at least 500 cases and legal

matters, including cases before this Court such as Good News

Club v. Milford Central Schools, 533 U.S. 98 (2001), Mitchell

v. Helms, 530 U.S. 793 (2000), Troxel v. Granville, 530 U.S. 57

(2000), Agostini v. Felton, 521 U.S. 203 (1997), Dale v. Boy

Scouts of America, 530 U.S. 640 (2000), City of Erie v. Pap’s

A.M., 529 U.S. 277 (2000), National Endowment for the Arts v.

Finley, 524 U.S. 569 (1998), Vacco v. Quill, 521 U.S. 793

(1997), and Washington v. Glucksgerg, 521 U.S. 702 (1997).

SUMMARY OF ARGUMENT

Voluntary recitation of the Pledge of Allegiance by public

school students is a patriotic exercise that acknowledges the

religious principles upon which this country was founded.

Inclusion of the phrase “under God” in the Pledge, simply

recognizes the historical fact that our founders declared

independence and established this nation based on principles

that transcend man made laws. The Pledge is not a prayer or

any other type of religious exercise. A public school district

policy that requires teachers to lead willing students in reciting

the Pledge of Allegiance is therefore constitutional under all of

the tests this Court uses to analyze Establishment Clause

claims.

ARGUMENT

The question in this case is whether a teacher can lead

willing students in a pledge that acknowledges the historical

role of religion in our country without violating the

Establishment Clause. The answer is “yes,” whether this Court

utilizes the Lemon test, the Endorsement test, the Coercion test,

3

or the historic 1 test. The Ninth Circuit Court of Appeals

opinion finding an Establishment Clause violation must

therefore be vacated.

I. ENCOURAGING STUDENTS TO ACKNOWLEDGE

OUR COUNTRY’S RELIGIOUS HERITAGE PASSES

ALL THREE PRONGS OF THE LEMON TEST.

This Court most often uses the Establishment Clause

analysis set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971),

which states that government conduct (1) must have a secular

purpose, (2) must have a principal or primary effect that neither

advances or inhibits religion, and (3) must not foster excessive

government entanglement with religion. Jd. at 612-13. The

government conduct in this case passes every prong of the

Lemon test.

A. Recitation of the Pledge has a Secular Purpose of

Encouraging Patriotism and Acknowledging Our

Religious Heritage.

Recitation of the Pledge of Allegiance has a manifestly

secular purpose of encouraging patriotism among California

public school students.

The California Education Code requires that public

schools begin each school day with “appropriate

patriotic exercises" and that "[t}he giving of the

Pledge of Allegiance to the Flag of the United States

of America shall satisfy" this requirement. Cal.

Educ.Code § 52720 (1989) (hereinafter “California

statute"). To implement the California statute, the

school district that Newdow's daughter attends has

promulgated a policy that states, in pertinent part:

"Each elementary school class [shall] recite the

pledge of allegiance to the flag once each day.”

4

Newdow v. U.S. Congress, 328 F.3d 466, 482-83 (9" Cir. 2003)

(footnote omitted).

The two words “under God” within the Pledge do not alter

this fundamental purpose. This Court has already observed that

these words constitutionally acknowledge our nation’s religious

heritage in Lynch v. Donnelly, 465 U.S. 668 (1984).

The majority in Lynch (authored by then Chief Justice

Burger and joined by Justices White, Powell, Rehnquist, and

O'Connor) found that a city’s display of a creche had the

secular purpose of depicting the historical origins of Christmas.

“The display is sponsored by the city to celebrate the Holiday

and to depict the origins of that Holiday. These are legitimate

secular purposes.” Jd. at 681. In so holding, this Court

specifically referred to the Pledge as a constitutional

acknowledgment of our country’s religious heritage.

Other examples of reference to our religious heritage

are found in the statutorily prescribed national motto

"In God We Trust," 36 U. S. C. § 186, which

Congress and the President mandated for our

currency, see 31 U.S.C. § 5112(d)(1) (1982 ed.), and

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.

Id. at 676 (emphasis added).

*Justice O'Connor has noted that the Pledge also has the following

secular purpose: “[T]he 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.’ "

Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (quoting Lynch, 465 U.S. at

693 (O'Connor, J., concurring)).

” -* aa

5

Thus, recitation of the Pledge by public school students

clearly has a secular purpose of encouraging patriotism and

acknowledging our country’s religious heritage.

B. The Primary Effect of Reciting the Pledge is

Patriotism.

The primary effect of reciting the Pledge of Allegiance is

reinforcing the students’ allegiance to the United States of

America. Adding the phrase “under God” to the Pledge

recognizes the historical fact that our founders thought it

important to refer to God when forming the nation.

This Court recognized the significance of religion in the

history of this country in Lynch.

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. .. .Our history is replete with official

references to the value and invocation of Divine

guidance in deliberations and pronouncements of the

Founding Fathers and contemporary leaders.

Beginning in the early colonial period long before

Independence, a day of Thanksgiving was celebrated

as a religious holiday to give thanks for the bounties

of Nature as gifts from God. President Washington

and his successors proclaimed Thanksgiving, with all

its religious overtones, a day of national celebration

and Congress made it a National Holiday more than

a century ago. Ch. 167, 16 Stat. 168. That holiday

has not lost its theme of expressing thanks for Divine

aid any more than has Christmas lost its religious

significance.

6

at 674-75 (footnotes omitted).

Encouraging students to recite the Pledge or other official

documents that acknowledge our religious heritage does not

have the principle or primary effect of advancing religion. This

Court long ago recognized the distinction between state-

ordained prayer and patriotic exercises that simply

acknowledge God in Engel v. Vitale, 370 U.S. 421 (1962).

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.

Id. at 435 n.21. Therefore, encouraging voluntary recitation of

the Pledge by public students does not have the primary effect

of advancing religion.

However, prohibiting teachers from leading students in

reciting the Pledge could very well have the opposite effect.

The second prong of the Lemon test also prohibits government

acts that have the primary effect of inhibiting religion.

Censoring our religious heritage from public schools “would

demonstrate not neutrality but hostility toward religion.” Bd.

of Education v. Mergens, 496 U.S. 226, 248 (1990).

7

For instance, in Good News Club v. Milford Central

School, 533 U.S. 98 (2001), this Court found that allowing a

student Bible Club to meet at an elementary school did not

violate the Establishment Clause.

[W]e cannot say the danger that children would

misperceive the endorsement of religion is any greater

than the danger that they would perceive a hostility

toward the religious viewpoint if the Club were

excluded from the public forum.

Id. at 119. Judge O’Scannlain’s dissent from denial of

rehearing en banc in this case aptly summarizes this concern

with regard to the Pledge.

[Prohibiting the Pledge in schools] confers a favored

status on atheism in our public life. In a society with

a pervasive public sector, our public schools are a

most important means for transmitting ideas and

values to future generations. The silence the [panel]

majority commands is not neutral--it itself conveys a

powerful message, and creates a distorted impression

about the place of religion in our national life. The

absolute prohibition on any mention of God in our

schools creates a bias against religion. The panel

majority cannot credibly advance the notion that

Newdow II is neutral with respect to belief versus

non-belief; it affirmatively favors the latter to the

former. One wonders, then, does atheism become the

default religion protected by the Establishment

Ciause?

328 F.3d at 481-82 (citing Michaei W. McConnell, Religious

Freedom at the Crossroads, 59 U. CuI. L. REV. 115, 189

(1992)). In short, "[t]he Establishment Clause does not license

government to treat religion and those who teach or practice it,

8

simply by virtue of their status as such, as subversive of

American ideals and therefore subject to unique disabilities."

McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J.,

concurring).

C. Acknowledging the Historical Fact of Our Religious

Heritage Does Not Cause Excessive Entanglement.

Reciting a Pledge that acknowledges our country’s

religious heritage does not foster an excessive governmental

entanglement with religion. This prong arises out of a concern

that government could inhibit the free exercise of religion by

becoming involved in the inner workings of religious

organizations. Lemon, 403 U.S. at 615 (warning against

“programs, whose very nature is apt to entangle the state in

details of administration”). No such concern can even be

articulated in this case. Recitation of the Pledge has absolutely

nothing to do with the administration of a particular religion, or

religions in general.

Encouraging students to recite a patriotic Pledge that

acknowledges our religious heritage does not result in excessive

entanglement. Moreover, it has a secular purpose, and does not

have the primary effect of advancing or inhibiting religion. The

Lemon test is satisfied in this case. This Court noted in Lemon

that “[oJur prior holdings do not call for total separation

between church and state; total separation is not possible in an

absolute sense. Some relationship between government and

religious organizations is inevitable.” Jd. at 614. Recitation of

the Pledge by public school students is a constitutional

recognition of this inevitable relationship between government

and religion in our society.

Il. ENCOURAGING VOLUNTARY RECITATION OF

THE PLEDGE DOES NOT CREATE AN

ENDORSEMENT OF RELIGION.

_—-

9

As articulated by Justice O’ Connor, the Endorsement Test

modifies the first and second prongs of the Lemon test.

The purpose prong of the Lemon test asks whether

government's actual purpose is to endorse or

disapprove of religion. The effect prong asks

whether, irrespective of government's actual

purpose, the practice under review in fact conveys

a message of endorsement or disapproval.

Lynch at 690 (O’Connor, J., concurring). It has already been

demonstrated that the purpose of teachers leading students in

recitation of the Pledge is to encourage patriotism. The fact

that the Pledge acknowledges our religious heritage does not

change this purpose. Recitation of the pledge does not have the

purpose of endorsing or disapproving of religion.

Under the Endorsement analysis, Lemon's primary effect

prong is slightly modified to ask whether the government action

(e.g., leading students in recitation of the Pledge), conveys a

message of endorsement or disapproval of religion.

Endorsement of religion is conveyed if a “reasonably informed

observer” of the governmental action would perceive it as such.

Capital Square Review Bad. v. Pinette, 515 U.S. 753, 773 (1995)

(O’Connor, J., concurring). It is well established that the mere

presence of some religious element cannot reasonably be

considered an endorsement of religion. As this Court has

stated, “[f]ocus exclusively on the religious component of any

activity would inevitably lead to its invalidation under the

Establishment Clause.” Lynch, 465 U.S. at 680.

It is vital to remember that a reasonably informed

observer “must be deemed aware of the history and context” of

he government action in question. Zelman v. Simmons-Harris,

536 U.S. 639, 655 (2002) (quotation marks omitted). In this

case, that means that the reasonable observer must be deemed

10

aware that our foundational and other official government

documents, songs, mottos, etc., are replete with references to

God.

For example, the Constitution itself refers to the "Year of

our Lord." U.S. Const. art. VI. The Declaration of

Independence opens with an appeal to "the laws of Nature and

of Nature's God," before affirming that "all men are created

equal, that they are endowed by their Creator with certain

unalienable Rights." In the Gettysburg Address, President

Lincoln declared "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." Our

National Motto, is “In God we trust.” 36 U.S.C. § 302.

We also have adopted the Star-Spangled Banner as our

national anthem, 36 U.S.C. § 301(a), which states:

Blest with victory and peace, may the

heaven-rescued land, Praise the Power that hath

made and preserved us a nation. Then conquer we

must, when our cause is just, And this be our motto:

“In God is our trust.”

None of these governmental references to God have ever been

held to be unconstitutional endorsements of religion. In Lynch,

Justice O’ Connor observed that government acknowledgments

of religion such as printing “In God We Trust” on coins, and

opening court sessions with “God Save The United States,”

could not be reasonably perceived as a government

endorsement of religion. Lynch, 465 U.S. at 693 (O’Connor, J.,

concurring).

Justice Brennan, one of the Court’s most noted

separationists, stated:

11

[GJovernment cannot be completely prohibited from

recognizing in its public actions the religious beliefs

and practices of the American people as an aspect of

our national history and culture. [S]uch practices as

the designation of “In God We Trust” as our national

motto, or the references to God contained in the

Pledge of Allegiance to the flag can best be

understood . . . as a form of “ceremonial deism”

protected from Establishment Clause scrutiny... .

The practices by which the government has long

acknowledged religion are therefore probably

necessary to serve certain secular functions. . . .

Lynch, 465 U.S. at 716-717 (Brennan, J., dissenting) (citations

omitted); see also Abington School Dist. v. Schempp, 374 U.S.

203, 303 (1963) (Justice Brennan opined that the national motto

was “deeply interwoven into the fabric of our civil polity”);

County of Allegheny v. ACLU, 492 U.S. 573, 674 (1989)

(Kennedy, J., White, J., Scalia, J., Rehnquist, J., dissenting)

(arguing that the national motto is perfectly compatible with the

Establishment Clause).

Armed with this information, a reasonable observer would

know that encouraging students to recite the Pledge, cannot be

deemed an endorsement of religion.’ Its reference to “one

> “If legislative prayer based upon the Judeo-Christian tradition is

permissible under Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77

L.Ed.2d 1019 (1983), and a Christmas nativity scene erected by a city

government is permissible under Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct.

1355, 79 L.Ed.2d 604 (1984), then certainly the less specific reference to

God in the Pledge of Allegiance cannot amount to an establishment of

religion.” Sherman v. Community Consolidated School District 21 of

Wheeling Township, 980 F.2d 437, 448 (7" Cir. 1992).

12

nation under God” does the same thing the examples referenced

above do: acknowledge the fact that religion is an important

‘part of our country’s history and culture.

Il ENCOURAGING STUDENTS TO VOLUNTARILY

RECITE THE PLEDGE DOES NOT COERCE THEM TO

PARTICIPATE IN A RELIGIOUS EXERCISE.

Permitting teachers to lead students in recitation of the

Pledge does not coerce the students to participate in a religious

exercise. In Lee v. Weisman, 505 U.S. 577, 598-99 (1992), this

Court held that a prayer at a middle school graduation was a

violation ot the Establishrnent Clause because students were

coerced into participating in an “explicit religious exercise.”

In Lee, Justice Kennedy stated that “the sole question

presented is whether a religious exercise may be conducted at -

a graduation ceremony in circumstances where, as we have

found, young graduates who object are induced to conform.”

505 U.S. at 599. The majority in Lee clearly limited its holding

to the context of public school prayer and other religious

exercises.

Time and again the Court went out of its way to stress

the nature of the exercise, writing that prayer was "an

overt religious exercise," id. at 588, and that "prayer

exercises in public schools carry a particular risk of

indirect coercion." Jd. at 592. The practice was

unconstitutional because "the State has in every

practical sense compelled attendance and

participation in an explicit religious exercise at an

event of singular importance to every student.” Jd. at

598... . [T]he Court in Lee took pains to stress the

confines of its holding, concluding that "[wJe do not

hold that every state action implicating religion is

invalid if one or a few citizens find it offensive," id.

13

at 597, and that “[a] relentless and all-pervasive

attempt to exclude religion from every aspect of

public life could itself become inconsistent with the

Constitution." Jd. at 598.

Newdow, 328 F.3d at 476-77 (O’ Scanniain, J., dissenting from

denial of rehearing en banc). Furthermore, “[n]o court state or

federal, has ever held, even now, that the Supreme Court’s

school prayer cases apply outside a context of state-sanctioned

formal religious observances.” Jd. For example, this Court

applied the Lee Coercion Test to prayer at high school football

games in Sante Fe v. Doe, 530 U.S. 290, (2000), and held that

“the delivery of a pregame prayer has the improper effect of

coercing those present to participate in an act of religious

worship.” Id. at 312 (emphasis added).

The Pledge’s acknowledgment of the historical importance

of religion in our country can hardly amount to a religious

exercise or observance. This case is not about school prayer, an

overtly religious activity; it is about reciting the Pledge of

Allegiance, an expressly patriotic activity. Students objecting

to this patriotic exercise are not required to participate. West

Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

But nothing »» Barnette requires teachers to refrain from

leading students in the Pledge merely because there may be

those present who object to reciting it themselves.

The coercion test found suitable by this Court for the

expressly limited facts of the school prayer and other religious

exercise cases simply does not apply here. Reciting the Pledge

is not a religious exercise like the prayers in Lee and Sante Fe.

IV. HISTORY OF GOVERNMENT ACKNOWLEDGING

OUR RELIGIOUS HERITAGE AVOIDS

ESTABLISHING A RELIGION.

14

In Marsh v. Chambers, 463 U.S. 783 (1983), this Court

held that recitation of nondenominational prayers by a

Presbyterian minister at the opening of the Nebraska state

legislature did not violate the Es.a»iishment Clause. Writing

for the majority, Chief Justice burger emphasized that the

practice was not unconstitutional because it was well grounded

in United States history. “The opening of sessions of

legislative and other deliberative public bodies with prayer is

deeply embedded in the history and tradition of this country.”

Id. at 786. “Clearly the men who wrote the First Amendment

Religion Clauses did not view paid legislative chaplains and

opening prayers as a violation of that Amendment, for the

practice of opening sessions with prayer has continued without

interruption ever since that early session of Congress.” /d. at

788.

In Lynch v. Donnelly, after a lengthy discussion of this

country’s religious heritage, Chief Justice Burger noted that

“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.’” 465 U.S. at

678 (joined by Rehnquist, J., O’Connor, J. concurring), citing

Waltz v. Tax Comm'n, 397 U.S. 664, 671 (1970).

In County of Allegheny v. ACLU, 492 U.S. 573, 655-656

(1989), Justice Kennedy, joined in his concurring and dissenting

opinion by Justices Rehnquist, White, and Scalia, explained that

certain government practices that advance religion have not been

found to violate the Establishment Clause because they are

“ensconced in the safety of national tradition.” Jd. at 662.

“Noncoercive government action within the realm of flexible

accommodation or passive acknowledgment of existing symbols

does not violate the Establishment Clause unless it benefits religion

in a way more direct and more substantial than practices that are

accepted in our national heritage.” Jd. at 662-663.

15

Under the historical analysis set forth Marsh, Lynch, and

Allegheny, teacher-led recitation of the Pledge in public schools

does not violate the Establishment Clause. The phrase “under

God” reflects the historical fact that this country was founded

upon principles derived from our religious heritage.

For instance, our Declaration of Independence claims the

right to “dissolve the political bands" with England based on

“the Laws of Nature and of Nature's God.” It also states that "all

men are created equal, that they are endowed by their Creator

with certain unalienable Rights." Those signing the document

“appeal[ed] to the Supreme Judge of the world to rectify their

intentions.”

Early legislation indicates that the same legislators who

voted to add the Establishment Clause to the Constitution,

acknowledged the importance of religion to our way of life.

[O]n the same day that Madison proposed his wording

for the First Amendment, Congress re-enacted the

Northwest Territory Ordinance, which provided that

religion, morality and knowledge were necessary for

"good government and the happiness of mankind." 1

Stat. 50 (1789). In addition, the day the House of

Representatives adopted the First Amendment, a

resolution passed later that day asked President

Washington to issue a Thanksgiving Day proclamation

that would offer an opportunity to all citizens to give

God their sincere thanks for their many blessings. 1

Annals of Cong. 914 (1789).

Rena M. Bila, Note, The Establishment Clause: a Constitutional

Permission Slip for Religion in Public Education, 60 BROOK. L.

REV. 1535, 1547 (1995) (footnotes omitted and citations

inserted). As previously shown, our government also

16

acknowledges our religious heritage in the Constitution, our

National Motto, and our National Anthem. /nfra at 10.

United States Presidents have a long tradition of

acknowledging religion in public speeches. For instance George

Washington chose the occasion of his farewell to public life to

address the importance of religion to American society:

Of all the dispositions and habits which lead to

political prosperity, [rjeligion and [mlJorality are

indispensable supports. .. . Whatever may be

conceded to the influence of refined education on

minds of peculiar structure, reason and experience both

forbid us to expect that national morality can prevail in

exclusion of religious principle.

George Washington, Farewell Address, in 4 Annals of Cong.

2876 (1796). Indeed, during our presidential inauguration

ceremonies, Presidents customarily take the oath of office with

their hand on the Bible. Virtually every President in the past

thirty years has closed his speeches to the ration with the words

"God bless America.”

Perhaps most compelling is the fact that the phrase “under

God” is a direct quote from Abraham Lincoln’s Gettysburg

Address, delivered in his official capacity as the President:

“{T}hat 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.” Gettysburg Address

(1863).

Removing the phrase “under God” would constitute an

absurd repudiation of America’s heritage. This is especially true

when religious references are combined with patriotic or

ceremonial expressions long recognized and respected in our

nation’s history. Engel v. Vitale,, 370 U.S. at 435 n.21

— ‘

-~w

17

(distinguishing between the Regents’ Prayer, which was held

unconstitutional, and patriotic or ceremonial expressions, which

are constitutionally permissible). As Justice Douglas succinctly

observed in Zorach v. Clauson, 343 U.S. 306, 313-314 (1952):

“We are a religious people whose institutions presuppose a

Supreme Being.”

“Marsh stands for the proposition, not that specific

practices common in 1791 are an exception to the otherwise

broad sweep of the Establishment Clause, but rather that the

meaning of the Clause is to be determined by reference to

historical practices and understandings.” Allegheny, 492 U.S.

at 670 (Kennedy, J., concurring opinion). Historical practice

indicates that the words “under God” in the Pledge are an

acknowledgment of our religious heritage - not an act of

worship or the establishment of a religion. Therefore, it is

constitutionally permissible and entirely appropriate for public

school teachers to lead willing students in the recitation of the

Pledge, including the words “under God.”

CONCLUSION.

This Court has already said that public school students

may be taught about religion and its relationship to our

civilization without violating the Establishment Clause.

Abington, 374 U.S. at 225 (“one's education is not complete

without a study of comparative religion or the history of

religion and its relationship to the advancement of

civilization”). Leading students in a voluntary Pledge that

acknowledges religion’s place in our country’s heritage is

simply one way of teaching this information.

If it is unconstitutional to encourage students to recite the

Pledge, then reciting the Gettysburg Address, the Declaration

of Independence, or numerous other important historical

If it is unconstitutional to encourage students to recite the

Pledge, then reciting the Gettysburg Address, the Declaration

of Independence, or numerous other important historical

documents,

is illegal.* The authors of the Establishment Clause never

intended such a resu!t, and none of the Establishment Clause

tests this Court has created require this conclusion.

A public school policy requiring teachers to lead willing

students in reciting the Pledge of Allegiance, which includes

the words ‘under God,’ does not violate the Establishment

Clause of the First Amendment. The Court of Appeals opinion

finding that it does should therefore be reversed and vacated.

Respectfully Submitted,

Benjamin W. Bull Stephen W. Reid

Counsel of Record Reid & Brown, LLP

Jordan W. Lawrence 35 N. Lake Ave., Suite 960

Kevin H. Theriot Pasadena, CA 91101

Gary S. McCaleb Phone: (626) 449-4521

Robert H. Tyler Fax: (626) 449-7453

Alliance Defense Fund

Law Center Patrick A. Trueman

1533 N. Pima Road Family Research Counsel

Suite 165 801 G Street, NW

Scottsdale, AZ 85260 Washington, D.C. 20001

Phone: (480) 444-0020 Phone: (202) 624-3011

Fax: (480) 444-0025 Fax: (703) 620-6700

“The prospect of students reciting the Declaration of

Independence is not hypothetical. Arizona specifically requires

daily recitation of the portion of the Declaration of Independence

stating: “We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their creator with certain

unalienable rights, that among these are life, liberty and the

pursuit of happiness.” ARIZ. REV. STAT. § 15-203(26) (2003).