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

Supreme Court, 0.57

FILED

| JAN 23 2004

OFFICE OF THE CLERK

No. 02-1624

In The

Supreme Court of the United States

©

ELK GROVE UNIFIED SCHOOL DISTRICT AND

DAVID W. GORDON, SUPERINTENDENT,

Petitioners,

Vv.

MICHAEL A. NEwbow,

Respondent.

©

On Petition For Writ of Certiorari

To The United States Court of Appeals For The

Ninth Circuit

o

BRIEF OF AMICUS CURIAE

ATHEIST LAW CENTER

IN SUPPORT OF RESPONDENT

®

PAMELA L. SUMNERS* LARRY DARBY

528 N. Humphrey Ave. _—P.O.. Box 3905

Oak Park, IL 60302 Montgomery, AL 36109

708.763.9827 334.270.8223

* COUNSEL OF RECORD

TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE ........000 cee eeeees l

DOANE GP REITIE nc ccc cccnsccacceceses 2

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I. The First Principle of the Bill of Rights Is

Freedom of Heart and Mind, a Principle of

Heightened Importance in the Public

ED wa vbbeeoeebnbe5eekessdseneseses 2

II. Even If this Court Fails to Apply its School

Precedents, There Is No Principled Basis for

Sustaining the PleGge .......cccccccceses 18

i kas tr ne Re Aaa Pao ea ee 29

TABLE OF AUTHORITIES

Cases Pages

Abington Twp. Sch. Dist. v. Schempp,

0 ee passim

Capital Square Rev. Bd. v. Pinette,

StS UD. FasQeneee +s4033250 ee 12,27

Committee for Pub. Educ. & Religious Liberty

v. Nyquist, 413 U.S. 756 (1973) .......... 7,9

County of Allegheny v. ACLU,

G52 U.S. S79 CURGOP 0+ 04seveesaneere passim

Edwards v. Aguillard, 482 U.S. 578 (1987) ........ 8

Engel v. Vitale, 370 U.S. 421 (1962) .......... passim

Epperson v. Arkansas, 493 U.S. 907 (1968) ........ 7

Everson v. Board of Educ.,

SFO US. UCIRGID 200 cksecveesseeneeee 6

Karen B. v. Treen, 653 F.2d 897 (5" Cir.),

aff'd mem., 455 U.S. 913 (1982) ........... 12

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

Lemon v. Kurtzman, 411 U.S. 192 (1973) ....... 7, 25

Lynch v. Donnelly, 465 U.S. 668 (1984) ....... 7, 23

Marsh v. Chambers, 463 U.S. 783 (1983) ... 3,22, 23

Newdow v. United States Cong.,

328 F.3d 466 (9" Cir. 2003) ............ 3, 10

Santa Fe Indep. Sch. Dist. v. Doe,

FIO UB. SPO CARGO os cccensseeuun ec BGe ue

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ..... 3

Shelton v. Tucker, 364 U.S. 479 (1960) ............ 8

Stone v. Graham, 449 U.S. 39 (1980) ....... 8, 10, 11

oo Pee 7

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624, 637 (1943) .......65068. passim

Constitutional and Statutory Authorities

U.S. Const., Amend. 1 .........00eeeeeeeees passim

Other Authorities

Karl Llewellyn, The Bramble Bush (1960) .......-. 2

S. Rep. No. 83-1287 (1954) «0... 6 cece eee eee ee 26

ee

l

INTEREST OF THE AMICUS CURIAE'

The Atheist Law Center is a nonprofit corporation

whose mission is educational and legal advocacy on behalf

| of citizens who espouse no religious belief. The Center is

dedicated to securing and defending the constitutional

rights of atheists. Its primary focus is working to assure

governmental neutrality toward religion.

The Center has an interest in defending the principle

often articulated by this Court that the state may not favor

religion over irreligion. It believes that the Court would

deviate from this principle were it to apply a “ceremonial

deism” rationale in this case, for such reasoning

inescapably confers a place of privilege on religious

citizens ‘in our diverse polity and renders atheists

“outsiders” in the political community. The Center

believes that the words “under God” in the Pledge are

| manifestly religious and that under this Court’s principled

holdings, they cannot stand in the school context. It offers

this brief because this case presents a danger of deviation

from the cherished principle that atheists—-people who

espouse no religion and claim no sect at all-are

“constitutional people” entitled to First Amendment

protections.

. No counsel for any party had any role in authoring

this brief, and no persons other than the amicus curiae and its

counsel made any monetary contribution to its preparation or

submission. Written consents from the parties to the filing of this

brief are on file with the Clerk. Counsel of record is not affiliated

with the Atheist Law Center; secondary counsel is its executive

director.

2

SUMMARY OF THE ARGUMENT

This Court’s precedents are not apothegms and

counsel to be taken or ignored at the option of the polity or

lower courts. This Court has been particularly scrupulous

in protecting religious liberty and the right to dissent from

state attempts to prescribe orthodoxy in the public schools.

This Court has also been firm, clear, and true to the

principles animating the First Amendment in affirming

time and again that the state may not take action that makes

religion relevant to a citizen’s status in the political

community—including actions that telegraph the message

that religious citizens are privileged over irreligious ones.

No appeal to a rule of convenience, whether termed an

appeal to history, ubiquity, or “ceremonial deism,” and no

artfully crafted arguments based on distinctions, denials, or

textual construction, can justify departure from these

precedents and the principles on which they stand. No

principled distinction of this Court’s precedents could be

or has been offered that could immunize a pledge that

requires affirmation of belief in deity and symbolically

unites the state with religion.

ARGUMENT

I. THE FIRST PRINCIPLE OF THE BILL OF

RIGHTS IS FREEDOM OF HEART AND

MIND, A PRINCIPLE OF HEIGHTENED

IMPORTANCE IN THE PUBLIC SCHOOLS.

Precedents are not mere outcomes in cases but

3

subsume the principles that animate those outcomes.

“[W Jhen an opinion issves for the Court, it is not only the

result but also those portions of the opinion necessary to

that result,” “its well-established rationale|s],” that bind

this Court, lower courts, and the polity. Seminole Tribe v.

Florida, 517 U.S. 44, 66, 67 (1996). Disregard of the

reasoning process that generates legal rules is a triumph of

reductionism which ultimately subverts the rule of law; if

each case is merely a set of unique and unrepeatable facts,

there can be no determinacy or continuity in the law.’ Any

other view of this Court’s precedents reduces them to

occasional dispensations of constitutional pablum,

platitudes that are invoked ritualistically by lower courts

even as they blithely disregard the command of those same

rulings. The Ninth Circuit’s decision in Newdow v. United

States Congress, 328 F.3d 466 (9" Cir. 2003), did not

distinguish controlling precedents out of existence in order

to reach a politically popular result, and did not reach for

scattered dicta in inapposite cases to justify deviation fron:

principles this Court has articulated for half a century. Its

faithful application of this Court’s precedents should be

. See K. Llewellyn, The Bramble Bush 72 (1960).

Restricting the compass of precedent to a radius so narrow that it

reaches only fact patterns in Case 2 that are identical to those of

Case | constricts the notion of “principle” upon which the notion

of “precedent” depends: “This rule holds only of redheaded

Walpoles in pale magenta Buick cars.” Since the Court's cases

generally involve transcendent principles, “redheaded Walpole”

cases are rare; amicus respectfully suggests that Marsh v.

Chambers, 463 U.S. 783 (1983), and ceremonial deism references,

discussed infra, might be just such rarities.

affirmed.

Petitioners, however, do not want this Court to be

faithful to precedents or to principle in deciding this case.

In its startlingly candid brief, Petitioners’ amicus The

Rutherford Institute explicitly urges the Court to repudiate

its precedents in order to embrace its dicta as controlling

law. (Br. of Amicus Curiae Rutherford Institute at 5, 9.)

The Rutherford Institute bluntly notes the “conflict

between the Court’s Establishment Clause dicta and its

holdings” (id. at 9), conceding that the Ninth Circuit

“straightforwardly” applied this Court’s precedents. (/d.).

Amicus Atheist Law Center here concurs in the

observation that there is plain conflict between the Court’s

holdings and its dicta on “ceremonial deism” but urges the

Court to affirm its clear precedents — and the Ninth Circuit

— rather than to elevate aphorisms in a few of its opinions

to the status of controlling authority. Indeed, amicus

agrees with the Rutherford Institute that, in order to reverse

the Ninth Circuit in its straightforward adherence to this

Court’s precedents, the Court would have to “resort to

definitional niceties.” (See id.) The Rutherford Institute

asks this Court to stand on principle, although the

principles it asks this Court to adopt it frankly

acknowledges to be ones the Court has never adopted; it

boldly asks the Court to “reconstitute its Establishment

tests” by “repudiat[ing]” its precedents in order to “permit

official recognition” of “the Divine origin of the rights of

humanity.” (/d. at 2, 10.) For, in the Rutherford Institute's

words, if this Court applies its actual precedents, “why

should state-sponsored recitation of the Pledge not be

struck down as an impermissible preference for religion

5

over nonreligion?” and “[o}n what principled ground, . . .

can it survive constitutional scrutiny, as long as such

scrutiny is defined” by this Court’s precedents? (/d. at 9.)

Amicus Atheist Law Center asks the Court to stand

on principles it has adopted as precedents — principles

governing compelled affirmations and state-endorsed

religious activity in public schools — as well as the

constitutional protection extended to nonbelievers.

Straightforward application of precedent will require

neither judicial fiat, nor reductionism, nor semantical

acrobatics.

None of this Court’s actual holdings, or the

reasoning animating them, accredits anything like the

compulsory religious affirmation at issue here. The

Rutherford Institute acknowledges that the Court cannot

“reconcile the Pledge with its understanding of the

Constitution,” and that to do so, it would be obliged to

“disavow” its school-setting and _ irreligion-protective

precedents. (See id. at 10.) Alone among the briefs urging

reversal, the Rutherford Institute’s can be credited with

eschewing artifice to pronounce the blunt truth: the phrase

“under God” is “undeniably religious in nature” if the

words have any meaning at all. (/d. at 9-10.)

Amicus Atheist Law Center agrees that the Pledge

cannot be sustained in the school context on a “principled

ground” if this Court’s words have meaning (id. at 9), and

that resort to “definitional niceties” (id.) is no substitute for

principle. This case brings starkly home a bedrock

principle which officials are often all too willing to

sacrifice for the comfort of perceived social cohesion, or in

service of some ideal homogeneous “way of life”:

6

The Fourteenth Amendment. . . protects the

citizen against the State itself and all of its

creatures—Boards of Education not excepted

.... That they are educating the young for

citizenship is reason for scrupulous

protection of Constitutional freedoms of the

individual, if we are not to strangle the free

mind at its source and teach youth to

discount important principles of our

government as mere platitudes.

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637

(1943).

This Court’s cases for the last half century have

recognized that governmental alliance with religion can

inject divisiveness detrimental to the social good and

antithetical to constitutional guarantees of freedom of

conscience. In Everson v. Board of Education, this Court

underpinned its holding with the observation, “The

centuries immediately before and contemporaneous with

the colonization of America had been filled with turmoil,

civil strife, and persecutions, generated in large part by

established sects determined to maintain their absolute

political power and religious superiority.” 330 U.S. 1, 8-9

(1947). It has since made plain that it is not only sectarian

alliance with government that the Establishment Clause

proscribes, but also governmental alliance with religion

generally. Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985)

(“| T]he individual’s freedom to choose his own creed is

the counterpart of his right to refrain from accepting the

creed established by the majority”); id. at 52 (“[T]he

individual freedom of conscience protected by the First

7

Amendment embraces the right to select any religious faith

or none at all”); Committee for Pub. Educ. & Religious

Liberty v. Nyquist, 413 U.S. 756, 771 (1973); Torcaso v.

Watkins, 367 U.S. 488, 491 (1961).

The Court has distilled various proscriptions on

majoritarian compulsion and religious promotion into a

central command: the state may not, through endorsement

of religion, “send[] a message to nonadherents that they are

outsiders, not full members of the political community, and

an accompanying message to adherents that they are

insiders, favored members of the political community.”

Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor,

J., concurring).’ Atheists cannot be made strangers to the

First Amendment’s protections.

In this case, the “political community” is the only

one known to schoolchildren: the schoolhouse. In this

venue, the Court has been particularly solicitous of the

principle of religious neutrality: “‘[T Jhe vigilant protection

of constitutional freedoms is nowhere more vital than in

the community of American schools.’” Epperson v.

Arkansas, 493 U.S. 907 (1968) (quoting Shelton v. Tucker,

364 U.S. 479, 487 (1960)). The Court has carefully

defined “willingnessness” to participate in a group

religious affirmation or exercise in this controlled and

prescriptive environment, recognizing that it affronts the

very idea of separation of church and state to enforce

’ As Justice Blackmun noted in County of

Allegheny v. ACLU, this now-familiar formulation refines and

amplifies, rather than suppiants, the tripartite test of Lemon v.

Kurtzman, 403 U.S. 621 (197!). See 492 U.S. 573, 592-97 (1989).

Oe

8

compulsory school-attendance laws and then subject

schoolchildren to religious indoctrination there. Edwards

v. Aguillard, 482 U.S. 578, 583-84 (1987).

This Court’s principles trump its dicta. Thus, even

if this Court has stated in dicta that prayer is part of “our

spiritual heritage,” a public school may not require or

encourage students to recite a prayer even if the recitation

is, in a formalistic sense, “voluntary.” Engel v. Vitale, 370

U.S. 421, 425 (1962). Even if this Court has stated in dicta

that the Bible has an “exalted” place in our society, it has

nonetheless held that the vocal reading of Bible passages

as an organized classroom activity—even if “voluntary” in

a formalistic sense—is unconstitutional. Abington Twp.

Sch. Dist. v. Schempp, 374 U.S. 203, 226 (1963). Even if

the Ten Commandments have been characterized as “the

fundamental legal code of Western Civilization,” this

Court has nonetheless held that their unadorned posting on

classroom walls, even if the expense is borne by private

parties, violates the Establishment Clause. Stone v.

Graham, 449 U.S. 39, 41 (1980) (per curiam).

The Court’s vigilance in the public-school context

is explained both by the susceptibility of young minds to

religious coercion and by the unique role the public

schools play in a country extraordinarily diverse in

religious perspectives:

It is implicit in the history and character of

American public education that the public

schools serve a uniquely public function: the

training of. American citizens in an

atmosphere free of parochial, divisive, or

separatist influences of any _ sort—an

9

atmosphere in which children may assimilate

a heritage common to all American groups

and religions. . . . [T ]his is a heritage neither

theistic nor atheistic, but simply civic and

patriotic.

Schempp, 374 U.S. at 241-42 (Brennan, J., concurring)

(internal citations omitted; emphasis in original).

The Court’s concern with the inherently coercive

environment in which schoolchildren find themselves has

been a hallmark of Establishment Clause jurisprudence. In

striking prayer at school-sponsored graduations even

though attendance at the commencement ceremony was not

required for conferral of the diploma, this Court found that

the prayers induced young objectors to conform and

concluded, “No holding by this Court suggests that a

school can persuade or compel a student to participate in

a religious exercise.” Lee v. Weisman, 505 U.S. 577, 599

(1992). The Court found the excuse that attendance at

commencement was voluntary “lack[ing] all persuasion”

and “formalistic in the extreme,” id. at 593, and concluded,

“The Constitution forbids the State to exact religious

conformity from a student as the price of attending her

own high school graduation.” /d. at 596. The Court has

likewise rejected the excuse that a dissenter may simply

absent himself for the duration of the exercise: “*[T he

availability of excusal or exemption simply has no

relevance to the establishment question.”” Nyquist, 413

U.S. at 786 (quoting Schempp, 374 U.S. at 288).

Regardless of Petitioners’ and some of their amici’s

attempts to distinguish or evade entirely these precedents,

10

these precedents control and already have defined the

nature of “willing” participation in religious rites. and

recitations in the public schools.

It cannot be the case, because it would be

unprincipled, that the state which may not post the Ten

Commandments in the classroom, a religious promotion

which requires no participation by students, may oblige

“willing” students to utter the creed that the n>tion exists

“under God.” Invoking “willingness” in that context would

be “formalistic in the extreme.” Stone v. Graham was

decided as it was not because the Ten Commandments are

sectarian in the iterations of various denominations, but

because they are religious: “The Ten Commandments are

undeniably a sacred text in the Jewish and Christian faiths,

and no legislative recitation of a supposed secular purpose

can blind us to that fact. The Commandments do not

confine themselves to arguably secular matters, such as

honoring one’s parents... .”” Stone, 449 U.S. at 41-42..

Nor can it be the case, because it would be

unprincipled, that the state which may not sponsor prayers

at school-sponsored events (let alone in the classroom)

may nevertheless oblige “willing” students to utter the

creed that the nation exists “under God.” Invoking

“willingness” in that context would be “formalistic in the

extreme.”

The school setting is decisive in these cases, just as

it was decisive in the Ninth Circuit’s decision. See

Newdow, 328 F.3d at 487, 490. Although individual

factual patterns differ among the Court’s school-religion

cases, the setting is immutable and ordains the outcome

whether the challenged practice is a Regent’s Prayer

1]

(Engel); one of Alabama’s successive school-prayer

statutes (Jaffree); teacher conscription of the “willing” to

offer Scriptural readings in the classroom (Schempp),

requiring passive display of the Decalogue on classroom

walls (Stone); or procuring or permitting the injection of

prayers into high school graduation exercises Or sporting

events (Lee and Santa Fe).’ All of these diverse religious

practices—not only prayer—are proscribed in the public

schools precisely because they are public schools, even

where the precise physical environment may be the civic

center or football field rather than the classroom.” The

setting

places public pressure, as well as peet

pressure, on attending students to stand as a

group or, at least, maintain respectful silence

_. .. This pressure, though subtle and

indirect, can be as real as any overt

compulsion ... [G]iven our social

conventions, a reasonable dissenter in this

milieu could believe that the group exercise

signified her own participation or approval

CS aes

. Santa Fe Indep. Sch. Dist. v. Doe, 530U.S.290

(2000).

, This is not only because we fear that young minds

will be coerced, but also because of endorsement concerns. See

Santa Fe, 530 U.S. 290. Because this Court has included

“willingness” in its certiorari question, amicus here focuses on the

meaning of that term even though endorsement concerns also

argue for affirmance.

12

Lee, 505 U.S. at 593.

Petitioners and their amici, despite all these

precedents which govern not only prayer but other

religious adoptions, distinguish prayer from the

compulsory affirmation of the Pledge. Through the

“prayer is different” tactic they hope not only to rob Engel,

Schempp, Lee and Santa Fe of controlling force by

divorcing their prayer-specific facts from their rationales,

but also to evade the command of another school case

(because it did not involve prayer but a pledge of

allegiance), West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943).° If only prayer is proscribed by this

? This is a startling turnabout for various of

Petitioners’ amici. For a decade, several organizations filing

briefs for Petitioners here have defended insertion of prayer into

school-sponsored activities, contending that such prayer in no way

differs from other religious speech or speech that is merely

“about” religion. Of course prayer is “different.” Legal

pronouncements that prayer is the same as any other religious

speech defy common sense, and, for religious people who pray,

cheapen prayer. This Court was correct in affirming the principle

that “the nature of ... prayer has always been religious.” Engel,

370 U.S. at 424-25. See also Karen B. v. Treen, 653 F.3d 897, 901

(5" Cir.), aff'd mem., 455 U.S. 913 (1982) (prayer, as uniquely

supplicatory, is a distinct genre). In fact, the Court would do a

great service if it reminded lower courts that prayer is “different”

than other religious speech or speech “about” religion or religious

figures—and thereby curtail machinations to develop “student-

initiated policies” of the sort the school board sought to rationalize

in Santa Fe. A reminder would embargo the importation of public

forum standards into the captive-audience setting on the dubious

justification that Hamlet requires a prince. See Capitol Sq. Rev.

Bd. v. Pinette, 515 U.S. 753, 760 (1995). This case is not the

13

Court’s holdings, so the reasoning goes, then cases that are

not explicitly about prayer need not be considered.

Distinguishing prayer from compulsory utterance of

the Pledge is simply a diversionary tactic. Precedents

subsume principles and not merely holdings, unless they

are plainly sui generis. The Court’s school cases,

including its school-prayer cases, are cases of transcendent

principle, not “redheaded Walpole” cases. The “prayer is

different” argument simply avoids the question in this case.

Barnette is of central importance.’ It is, in the

doctrinal lexicon, shorthand for rights of conscience,

particularly in the school setting; for protecting

minoritarian opinions, no matter how unpopular; for the

judicial obligation to apply principles, no matter how

unpopular; and for preventing the state from compelling

appropriate one in which to reiterate the difference between school

settings and public fora, and prayer and other speech. The .

importance of the prayer cases to this case is not whether prayer is

at issue, but rather, the principles involved in all the prayer cases.

Recognizing that prayer is “different” would not validate the

Pledge in any event, since religious activities other than prayer are

proscribed in the schools. Bes)des that, as explained here,

Barnette is instructive for this case. It is the compulsory utterance

in the school setting that matters, not whether the utterance is

prayer.

' Although the Court granted certiorari here on the

“Establishment Clause” question, and Barnette speaks generically

to the First Amendment, the case involved Jehovah’s Witnesses’

contention that the flag was a “graven image” within the tenets of

their beliefs, 319 U.S. at 629, and five of the Justices addressed

the religion as well as the compelled-speech issue.

14

adherence to an orthodoxy it would prescribe.

Barnette, like any other opinion, can be

distinguished on its facts, but this is merely an attempt to

whittle it into a redheaded Walpole. The question is

whether any principled distinction of “e»nette may be

made.

The Court has understood the irresistible allure of

compulsory rites as preceptorial tools, writing in Barnette:

There is no doubt that, in connection with

the pledges, the flag salute is a form of

utterance. Symbolism is a primitive but

effective way of communicating ideas. The

use of an emblem or flag to symbolize some

system, idea, institution, or personality is a

shortcut from mind to mind. Causes and

nations, political parties, lodges and

ecclesiastical groups seek to knit the loyalty

of their followings to a flag or banner, a

color or design. The State announces rank,

function, and authority through crowns and

maces, uniforms and black robes; the

Church speaks through the Cross, the

Crucifix, the altar and shrine, and clerical

raiment. Symbols of State often convey

political ideas just as religious symbols

come to convey theological ones.

Associated with many of these symbols are

appropriate gestures of acceptance and

respect: a bowed or barred head, a bended

knee. A person gets from a symbol the

meaning he puts into it, and what is one

15

man’s comfort and inspiration is another's

jest and scorn.

319 U.S. at 632-33.

The Court went on to pronounce that the Pledge

required “compulsion of students to declare a belief,” id.

at 631, and coerced them to “communicate by word and

sign [their] acceptance of the political ideas it thus

bespeaks.” Jd. at 633. Barnette made a global

pronouncement about compulsory participation im the

Pledge: “We think the action of the local authorities in

compelling the flag salute and pledge transcends

constitutional limitations on their power and invades the

sphere of intellect and spirit which it is the purpose of the

First Amendment to reserve from all official control.” /d.

at 642. The state exceeded constitutional limitations

because “(t]he right of freedom of thought and of religion

as guaranteed by the Constitution against State action

includes both the right to speak freely and the right to

refrain from speaking at all.” 319 U.S. at 645 (Murphy, J.,

concurring) (emphasis added).

The insertion of the words “under God” into the

Pledge more than a decade after Barnette can only render

the compulsory affirmation more of a constitutional

affront, and not only for 'ehovah’s Witnesses. It was not

necessary to the decision in Barnette that the objections

there were religiously based, as the Court explicitly stated:

Nor does [the constitutionality of the

compulsory flag salute and pledge] turn on

one’s possession of particular religious

views or the sincerity with which they are

held. While religion supplies [the Jehovah's

16

Witness] appellees’ motive for enduring the

discomforts of making the issue in this case,

many citizens who do not share these

religious views hold such a compulsory rite

to infringe constitutional liberty of the

individual. It is not necessary to inquire

whether nonconformist beliefs will exempt

from the duty to salute unless we first find

power to make the salute a legal duty.

319 U.S. at 634-35.

Petitioners and their amici argue that Barnette does

not proscribe a student’s “willing” utterance, and assume

that a “willing” utterance is one that is not enforced by

penalties such as expulsion. (See, e.g., Pet. Br. at 20-21.)

Barnette unquestionably proscribes coercion of

affirmations through punishments, see 319 U.S. at 630-31,

but the existence of punishments was hardly the only

ground of decision. State compulsion, not direct

punishment for nonconformity, was the overriding issue:

“[T]he compulsory flag salute and pledge requires

affirmation of a belief and an attitude of mind. It is not

clear whether [the state] contemplates that pupils forego

any contrary convictions of their own and become

unwilling converts to the prescribed ceremony or whether

it will be acceptable if they simulate assent by words

without belief and by a gesture barren of meaning.” 319

U.S. at 633. The fact that the school board offered the

Jehovah's Witnesses an alternative version of the rite so

that they would not be expelled for refusing to engage in

the group ritual did not cure the constitutional defect. See

319 U.S. at 627.

17

Barnette is suffused with the realization that

“willingness” is an odd construct in a setting in which

compulsory rites are structured into the school day.

Moreover, in the many years since Barnette, this Court has

recognized that it is not necessary that the state impose

direct, tangible detriments on schoolchildren in order for

an Establishment Clause violation to have occurred. Lee

is an exegesis on why “willingness” cannot rationalize

away State intrusion on the sphere of conscience: the state

may not “persuade or compel a student to participate in a

religious exercise,” 505 U.S. at 599; the state may not

“exact religious conformity from a student as the price of

attending her own [noncompulsory] high school

graduation,” id. at 596; the argument that lack of penalty or

direct coercion excuses an Establishment Clause violation

in the school setting “lacks all persuasion” and is

“formalistic in the extreme,” id. at 593; the state may not

“place public pressure, as well as peer pressure” on

students to induce them to “stand as a group or, at least,

maintain respectful silence” as a religious rite proceeds

because such pressure, “though subtle and indirect, can be

as real as any overt compulsion,” and because, “given our

social conventions, a reasonable dissenter in this milieu

could believe that the group exercise signifies her own

participation or approval of it.” /d. at 593. See also Engel,

370 U.S. at 423-24 (direct coercion not necessary for

Establishment Clause violation). Likewise, Schempp,

Jaffree, and Santa Fe struck religious practices that were

not enforced by punishments for noncompliance.

Finally, lack of direct coercion can never alone

legitimate an Establishment Clause violation, because “an

18

Establishment Clause standard that prohibits only

‘coercive’ practices or overt efforts at government

proselytism, but fails to take account of the numerous more

subtle ways that government can show favoritism to

particular beliefs or convey a message of disapproval of

others, would not adequately protect the religious liberty or

respect the religious diversity of the members of our

pluralistic political community.” Allegheny County, 492

U.S. at 627-28 (O’Connor, J., concurring) (internal

citations omitted).* Barnette and the other school cases

thus cannot be distinguished from this case on the issue of

“willingness” or lack of punishments for refusal any more

than they can be distinguished on the “prayer is different”

rationale.

Il. EVENIFTHISCOURT FAILS TOAPPLY ITS

SCHOOL PRECEDENTS, THERE IS NO

PRINCIPLED BASIS FOR SUSTAINING THE

PLEDGE.

Barnette and all of the school cases should control

the outcome here if they are to be regarded as embodying

“important principles of our government [rather than] as

mere platitudes.” Barnette, 319 U.S. at 637. Amici on both

sides of the case believe that only by “disavowing” them

and “reconstituting” Establishment Clause jurisprudence

can a pledge that affirms theistic allegiance be found

constitutional. (See Rutherford Institute Br. at 10.) Since

the Pledge cannot be sustained under existing precedents,

° Amicus does not believe that the “under God”

language of the Pledge is subtle. :

19

there are few remaining justifications for “invad[ing] the

sphere of intellect and spirit which it is the purpose of the

First Amendment to our Constitution to reserve from all

official control.” Barnette, 319 U.S. at 642. Petitioners’

several alternative arguments do not articulate a principled

ground on which the Pledge can be upheld consistent with

this Court’s precedents.

First, Petitioners and their amici urge the Court to

regard the Pledge with its “under God” appendage as

trivial either because it is textually or temporally brief or

because its recitation is ubiquitous. (See Pet. Br. at 27-29;

Brief of Amicus U.S. Senators at 10; Br. of Amicus

American Legion at! 1-12.) Second, they urge the Court to

ratify majoritarian religious preference in the name of

national unity or patriotism even as they explicitly marry

religiosity to patriotism. Most of all, they urge the Court

to trivialize the issue through obfuscation, either by

pronouncing a compulsory theistic affirmation by

schoolchildren innocuous “ceremonial deism,” the

pedigree of which is not reason but “history,” or by finding

a secular purpose when the text and legislative history

plainly defy the existence of one, or by making a confused

doctrinal stew of endorsement precedents by importing

display cases into the school setting. Any of these proposed

justifications flouts precedent.

As to temporal brevity, this Court has rejected the

notion that the state has a constitutional “pass” on

signaling its preference for piety wherever the exercise is

of short duration. It is “no defense to urge that the

religious practices... may be relatively minor

encroachments on the First Amendment.” Schempp, 374

20

U.S. at 224-25 (internal quotations omitted); Lee, 505 U.S.

at 594 (intrusion of the prayer was “greater than the two

minutes or so of time consumed”); Jaffree, 472 U.S. at 60

(“The importance of the [neutrality] principle does not

permit us to treat [a one-minute prayer or prayer-substitute

meditation] as an inconsequential case involving nothing

more than a few words of symbolic speech on behalf of the

political majority.”).

As to majoritarian preference, this Court has

rejected the notion that 50 bishops or 50 state attorneys

general may determine that, if public piety is the choice of

a majority of the political community, that choice is to be

enshrined as law. See Lee, 505 U.S. at 596 (“While in

some societies the wishes of the majority might prevail, the

Establishment Clause of the First Amendment is addressed

to this contingency”); id. at 593 (prayers may not be

incorporated into commencement ceremony even if “many,

if not most” students want them); id. at 592 (“What to most

believers may seem like a reasonable request that the

nonbeliever respect their religious practices may appear to

the nonbeliever or dissenter to be an attempt to employ the

machinery of the State to enforce a religious orthodoxy.”).

The rights secured by the Establishment Clause “may not

be submitted to vote, Barnette, 319 U.S. at 638, because

“the very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political

controversy, to place them beyond the reach of majorities

and officials and to establish them as legal principles to be

applied by the courts.” /d. at 638.

Barnette is again entitled to the last word on the

judicial role in arresting the juggernaut of “majority rule,”

21

compulsory gestures of “national unity,” and state

overreaching under the rubric of patriotic exercise. The

Court was not insensible of the public opprobrium its

decision in Barnette would meet, writing:

This case is made difficult not because the

principles of its decision are obscure but

because the flag involved is our. own.

Nevertheless, we apply the limitations of the

Constitution with no fear that freedom to be

intellectually and spiritually diverse or even

contrary will disintegrate the social

organization. To believe that patriotism will

not flourish if patriotic ceremonies are

voluntary and spontaneous instead of a

compulsory routine is to make an

unflattering estimate of the appeal of our

institutions to free minds. We can have

intellectual individualism and the rich

cultural diversities that we owe to

exceptional minds only at the price of

occasional eccentricity and abnormal

attitudes... . [F]reedom to differ is not

limited to things that do not matter much.

That would be a mere shadow of freedom.

The test of its substance is the right to differ

’ It is worth mention that two Justices

characterized a compulsory flag salute and pledge recitation as a

test (loyalty) oath, a compulsion that “has always been abhorrent

in the United States.” 319 U.S. at 644 (Black and Douglas, JJ.,

concurring).

22

as to things that touch the heart of the

existing order.

319 U.S. at 641-42. See also id. at 640-41.

As to history and ubiquity, Petitioners rely on

Marsh v. Chambers, 463 U.S. 783 (1983). (See Pet. Br. at

35-37.) Marsh, however, has been regarded by the Court

itself as a “redheaded Walpole,” having been distinguished

as inapplicable outside its context. See Lee, 505 U.S. at

603 n.4 (Blackmun, J., concurring) (noting that of 31

Establishment Clause cases decided from 1971-92, only

Marsh failed to apply the Lemon test); Allegheny County,

492 US. at 598 & n.52 (the legislative prayer in Marsh is

permissible because, unlike National Day of Prayer

proclamations, it does not exhort citizens to engage in

religious conduct but rather, is confined to legislators); id.

at 630 (O’Connor, J., concurring) (whatever Marsh may

have said about the longevity of legislative prayer

specifically, longevity alone cannot validate a practice that

is at odds with the Establishment Clause).

Even if Marsh could be decoupled from the

legislative-prayer context, it could not legitimate practices

in the public schools that were “traditional” or

“ubiquitous” at the precise time this Court decades ago

struck them despite their pervasiveness. They were struck,

despite ubiquity or longevity, because of our particular

scruples about indoctrinating schoolchildren. Moreover,

the Pledge has endured various incarnations, and was

amended to include the phrase “under God” only 50 years

ago; thus, unlike the legislative prayer in Marsh, it cannot

claim to be an “unbroken practice” of “two centuries.” See

23

Marsh, 463 U.S. at 795."°

If Marsh cannot be imported to the public schools,

then Petitioners suggest that its close relation, “ceremonial

deism,” validates the Pledge. Individual Justices in

concurrence or the Court in dicta have in five cases (three

of them school cases) so suggested.'' Regardless,

- Since the actual history of the Pledge is unavailing

(both because it fails to satisfy Marsh and because it belies a

secular purpose), Petitioners resort to extrinsic historical sources,

such as a reference to the Creator in the Declaration of

Independence. However, this Court has specifically rejected the

idea that the Establishment Clause can be “interpreted in light of

any favoritism for Christianity that may have existed among the

Founders of the Republic.” Allegheny County, 492 U.S. at 598 &

n.55 (citing Jaffree, 472 U.S. at 52). Given Jaffree’s holding, the

word “God” can be substituted for “Christianity.” See also

Schempp, 374 U.S. at 241 (Brennan, J., concurring) (Court’s “use

of history” from the founding era must be limited to “broad

purposes, not specific practices”).

= See Allegheny County, 492 U.S. at 602-03; Lynch,

465 U.S. at 676 (O'Connor, J., concurring); Jaffree, 472 U.S. at 78

n.5 (O’Connor, J., concurring); Schempp, 374 U.S. at 303-04

(Brennan, J., concurring); Engel, 370 U.S. at 435. Even so, if

“ceremonial deism” could legitimate a compulsory affirmation,

then posting the Ten Commandments in schools—which this Court

has forbidden—could be so legitimated. “Ceremonial deism,” if it

is a rationale that should ever be applied (and atheists obviously

think not) should at least be reserved for passive transfer of

currency with “In God We Trust” stamped on it. This Court has

suggested that there may be a distinction between gestures that

require citizen participation, such as a National Day of Prayer, and

those that do not. See 492 U.S. at 598 & n.52. Such a distinction

in the school setting could not be reconciled with Stone.

24

constitutionally sanctioned “ceremonial deism” cannot be

reconciled with the Court’s holdings that the state may not

favor religion over irreligion. It is either obtuse or an act

of palatable obfuscation, if we believe that words have

meaning, to pretend that an affirmation that the nation

exists “under God” does not favor believers over

nonbelievers. (See Br. of Amicus Rutherford Inst. at 9.)

The inconsistency of “ceremonial deism” with precedents

such as Jaffree provokes the question of what the Court

actually means by its “ceremonial deism” dicta. If what

the Court means is that some constitutional violations are

deemed de minimis, that, too, renders its precedents to the

contrary meaningless.'’ It is likewise willfully blind to

ignore that the ostensible tool of national unity, which

divides citizens along religious lines, does make religion

relevant to a schoolchild’s standing in the political

community, even if the Pledge is rationalized as

“ceremonial deism.” If the Court sustains the Pledge, the

atheist’s “jest and scorn,” it vitiates its precedents.

Finally, since no other rationalization withstands

principled scrutiny, Petitioners and their amici resort to

Orwellian sophistry on the secular purpose inquiry. They

argue that the secular purpose demanded by Lemon is

served by the plainly religious words “under God,” that

i

7

= See infra at 19-20. Justice Brennan, in his

Schempp concurrence, indicated that the Pledge’s affirmation

“may” be merely ceremonial deism, 374 U.S. at 303-04, but

Brennan noted that one reason to reject a de minimis

rationalization is that a practice can hardly be considered

unimportant if its abandonment would provoke “intense

opposition.” Jd. at 303.

25

ular purpose being making clear that the nation “was

pesto come who believed in God and believed the

nation’s growth and development was tied to God. (Pet.

Br. at 27.)" They argue that the legislative history

bespeaking religious motivation proves this secular

purpose” (id. at 27-28); that a report of the Legislative

Research Service concluding that the phrase “under God

modifies the phrase “one nation” and hence is consistent

with secular purpose because the addition was merely

“intended to affirm that the United States was founded

upon a fundamental belief in God, and not, therefore

“intended to promote a belief in God” secularizes the

Pledge (Pet. Br. at 28); that the religious language of Ge

Pledge is merely patriotic because it was appended as an

acknowledgment of the fundamental importance of faith

[and therefore] simply a recognition of what it means to be

an American” (Br. of U.S. Senators at 16); and contend

that the 1954 insertion of “under God” has a secular

purpose because it is religiously motivated. (See Br. of

United States at 36-37.) Indeed, amicus American Legion

purports to find a secular purpose in the very fact that

3 The “founded under God” justification of Petitioners’ and

their amici is drawn from Justice Brennan’s Schempp concurrence.

See 374 US. at 304 (“The reference to divinity in the revised

[post-Barnette] pledge of allegiance . . . may merely recognize the

historical fact that our Nation was believed to have been founded

“under God.’”) (Emphasis added). But see supra note 12 (noting

some inconsistencies in the various observations made in that

concurrence). Justice Brennan’s overall view of what the

Establishment Clause requires, however, is neither tentative

(“may”) nor equivocal.

26

“Congress’ addition of ‘under God’. . . distinguish{ed] the

United States—a religious nation — ... from its communist

political adversaries.” (Br. of Amicus American Legion at

9.) The Senators’ amicus brief makes the same argument.

(See Br. of U.S. Senators at 4 (quoting S. Rep. No. 83-

1287 (1954) (“under God” was added to “illuminate a key

distinction between our government and those of

Communist nations,” whom 1954 legislators termed

“spiritually bankrupt”).) Petitioners’ and amici’s

argument, by any uncontorted reading, admits that the

addition of the words “under God” were not only

religiously motivated, but were also plainly crafted to

communicate a message of governmental disapproval of

atheism, proscribed by this Court. See Lynch, 465 U.S. at

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

The affirmation “under God” speaks for itself even

without Petitioners’ acknowledgment that it is religious.

The contention that a religious purpose is secular makes

casuistry seem the highest form of reasoning by

comparison. Even if the Pledge could be said to serve a

secular purpose that has surface credibility, such as

fostering national unity or inculcating patriotism, it served

these purposes before the words “under God” were added.

This Court has been very clear about choice of means to

achieve ends. “Where the government’s secular message

can be conveyed by two [means], only one of which

conveys a religious meaning, an-observer might reasonably

infer from the fact that the government has chosen to use

the religious [means] that the government [intends] to

promote religious faith.” Allegheny County, 492 U.S. at

618 (citing Schempp, 374 U.S. at 295 (Brennan, J.,

27

concurring)).'*

The last conceivable ground on which this Court

could sustain compulsory classroom recitation of the

Pledge is to proclaim that it simply is not an endorsement

of religion as measured against its precedents, even if the

quantum of offense necessary to state an endorsement has

not been specified except to say that a “reasonable

observer” measures it.'° On this point, Petitioners and their

amici offer even more curious and illogical reasoning.

They equate verbal, compulsory schoolhouse affirmations

with public displays in which religious symbols’ messages

are diluted by their proximity to reindeer. (See, e.g., Br. of

Amicus American Legion at 10.) The importation of

public-forum display standards into the school setting is

problematic of itself, but the argument grows even more

attenuated as Petitioners attempt to actually apply the

- Relatedly, and equally bizarrely, amicus United

States Senators even purport to discern a secular purpose in the

fact that, after the Ninth Circuit issued its ruling, Congress “re-

legislated” the 1954 language of the Pledge. The Senators then

note, without irony, that this legislative gesture is eerily similar to

the amendatory machinations of the Alabama Legislature after the

defects of its “voluntary prayer” statute were exposed as Jaffree

progressed through the courts. (See Br. of United States Senators

at 16-17.) The parallel hardly commends the existence of a

secular purpose.

- The Court has disagreed internally about the

credentials of the reasonable observer, provoking Justice Scalia to

observe that the malleability of the construct is “invited chaos.”

See Pinette, 515 U.S. at 768 n.3.

28

display cases’ reindeer-to-creche formula to a textual

analysis of the Pledge. Lost in the esoterica is what

impression a schoolchild would reasonably form.

Petitioners and various amici contend that as a

matter of grammar, schoolchildren reciting the Pledge

swear allegiance only to the flag and the Republic, and not

to God in particular, because the references to the flag and

the Republic appear in “the beginning of the Pledge.” (See,

e.g., Pet. Br. at 27-28; Br. of United States at 39-40.) The

references to God in “the second half of the Pledge,” as a

grammatical matter, are “merely descriptive’—albeit

descriptive of the founding of the nation “by persons who

believed in God.” (Pet. Br. at 27.) Accordingly, they

contend that there can be no religious endorsement in the

affirmation. The argument is spurious. While this Court

has demanded a contextual inquiry in Establishment

Clause cases, this has never extended to diagramming

sentences. Diagramming sentences cannot tell us whether

compelling schoolchildren to recite a Pledge affirming that

the nation exists “under God” is constitutional.

Petitioners’ arguments for secular purpose and

nonendorsement dissemble, conflate discrete tests, and

amuse with their novelty all at once. In order to avoid an

endorsement problem while adopting Petitioners’

argument, the Court would have to assume that

schoolchildren are hermeneutics scholars or have perhaps

studied deconstruction of texts with Jacques Derrida.

Whatever various Justices may believe a reasonable

observer to be, certainly Lee’s “reasonable dissenter in this

milieu” cannot be expected to possess such an abstruse and

recondite knowledge as to enable him to divine a hidden

29

meaning from a text that is facially plain.

CONCLUSION

“[F jreedom to differ is not limited to things that do not

matter much. That would be a mere shadow of freedom.

The test of its substance is the right to differ as to things

that touch the heart of the existing order.” Barnette, 319

U.S. at 642. No rationalization, be it shunning precedent

and principle in order to embrace desired results, or finding

a practice that violates those precedents and principles

innocuous because the majority prefers the practice, or

“ceremonial deism” that is neutral only in that it offends

both the devout and the irreligious alike, the former by

pronouncing religious affirmations so common as to be

devoid of religious meaning and the latter by ordaining

manifestly religious practices, or protestations that rote is

only rote and the exercise is brief, or appeals to American

or legislative history, or a convoluted attempt at textual

deconstruction, suffices to rebut the truth embodied in

those words, which have echoed from Barnette forward.

This Court has set the constitutional polestar, and must be

guided by it in this case.

Respectfully submitted,

PAMELA L. SUMNERS* LARRY DARBY

528 N. Humphrey Ave. _— P.O... Box 3905

Oak Park, IL 60302 Montgomery, AL 36109

708.763.9827 334.270.8223

* COUNSEL OF RECORD