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

No. 02-1624

In The

Supreme Court of the United States

ELK GROVE UNIFIED SCHOOL DISTRICT

DAVID W. GORDON, Superintendent,

Petitioners,

V.

MICHAEL A. NEWDOW,

Respondent.

On Writ of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

BRIEF AMICUS CURIAE OF HISTORIANS AND

LAW SCHOLARS IN SUPPORT OF RESPONDENT

STEVEN K. GREEN* STEVEN G. GEY

*Counsel of Record The Florida State University

Williamette University School of Law

College of Law 425 West Jefferson Street

245 Winter Street, S.E. Tallahassee, FL 32306-1601

Salem, OR 97301 (850) 644-3400

(503) 370-6732

TABLE OF CONTENTS

60 Sich eechbseeevctccconeeens i

TAREE GF ALTTIRUIE ED occ ccc cccccccscccccccs il

IDENTITY AND INTEREST OF AMICI CURIAE ...... l

INTRODUCTION AND SUMMARY OF ARGUMENT . |

The Founders of the Federal and State Governments

Viewed Religious Oaths and Pledges With Great

ree ee Pe ee rer eT errr rr rer 3

A. The Framers Were Intimately Familiar

with the Coercive Effect of Oaths and

PD PEE v ccecccteseseeecn 3

B. The Enactment and Ratification

of Article VI, Clause 3, Evinces

the Framers’ Intent to Do Away

with All Forms of Religious

Tests and Oaths ............... 11

sd The Pledge of Allegiance, Through its

Reference to a “Nation, under God,”

Contravenes the Principles that Underlie

Asticle VI, Clause 3. ........... 18

PENET 266s éccdccecedecccctescresasecves 26

APPENDIX

Names and Affiliations of Individual Amici

iets ea eT ER ES als

TABLE OF AUTHORITIES

Federal Cases

Abington Township v. Schempp, 374 U.S. 203 (1963) ... 24

Allegheny County v. ACLU, 492 U.S. 573 (1989) ....... 25

Cole v. Richardson, 405 U.S. 676 (1972) ..........45. 20

Cramp v. Bd. of Pub. Instruction, 368 U.S. 278 (1961) .. 20

Edwards v. Aguillard, 482 U.S. 578 (1987) ........... 23

Engel v. Vitale, 370 U.S. 421 (1962) ... 2... 06... e eae. 24

First Unitarian Church v. County of Los Angeles,

EES SSP PPTUTTTTET ELTA TE 20

Girouard v. United States, 328 U.S. 61 (1946) ...... 18, 19

Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)....... 20

Law Students Civil Rights Research Council

v. Wadmond, 401 U.S. 154 (1971)... 6. ee cee 20

Lee v. Weisman, 505 U.S. 577 (1992) .......... 23, 25, 26

Lynch v. Donnelly, 465 U.S. 668 (1984) ...........45. 18

Marbury v. Madison, 5 U.S. 137 (1803) ............45. 7

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

eee Chk sesccceccccccccccece 18, 25

IV

Speiser v. Randall, 357 U.S. 513 (1958) .............. 20

Stone v. Graham, 449 U.S. 39 (1980) ................ 24

Torcaso v. Watkins, 367 U.S. 488 (1961) ......... 4,5, 18

Wallace v. Jaffree, 472 U.S. 38 (1985) ............... 23

Weiman v. Updegraff, 344 U.S. 183 (1952) ........... 20

West Virginia State Bd. of Educ.

v. Barnette, 319 U.S.624 (1943) ............055.4. passim

State Cases

Arnold v. Arnold's Estate, 13 Vt. 362 (1841) .......... 17

Brock v. Milligan, 10 Ohio 121 (1840) ............... 17

Bush v. Commonwealth, 80 Ky. 244 (1882) ........... 17

City of Shreveport v. Levy, 26 La. Ann. 671 (1874) ..... 17

Commonwealth v. Burke, 82 Mass. 33 (1860) .......... 17

Curtiss v. Strong, 4 Day 51 (Conn. 1809) ............. 16

| Fuller v. Fuller, 17 Cal. 605 (1861) ...........0.04.. 17

Hroneck v. People, 24 N.E. 861 (Ill. 1890) ............ 17

Londener v. Lichtenheim, 11 Mo. App. 385 (1882) ..... 17

People v. Jenness, 5 Mich. 305 (1858) ............... 17

Vv

Perry v. Commonwealth, 44 Va. (3 Gratt.) 632 (1846) ... 17

Randolph v. Landwerlen, 92 Ind. 34 (1883) ........... 17

Stanbro v. Hopkins, 28 Barb. 265

OLY. Ame. Dov. UGSE) 2. ccccccccsccesccccccccceces 17

State v. Cooper, 2 Tenn. 96 (1807) .............. | —s

State v. Elliot, 45 lowa 486 (1877) .........-6-0-005- 17

State v. Floyd, 577 S.E.2d 215 (S.C. 2003) ............ 22

Other Authorities

CRS, Comet, GR. VEG Bcc ccccccccccsccsescces 2, 12, 15

Pub. L. No. 623, ch. 435, § 7, 56 Stat. 380 (1942)

(codified at 36 U.S.C. § 172) .... 6... cece eee e eee eee 21

BLL. Rew. No. S3-1693 .... cc ccccccccccccccces 21, 23

Annals of Cong. 102 (1789)... . 2... 2.6 eee eee eee eens 7

Arlin M. Adams & Charles J. Emmerich, A Nation

Dedicated to Religious Liberty: The Constitutional

Heritage of the Religion Clauses (1990) ............ 8, 16

Chester James Antieau et al., Religion Under

the State Constitutions (1965) ......... 666600 e ee eeee 16

John W. Baer, The Pledge of Allegiance:

A Centennial History, 1892-1992 (1992) ..........++- 19

vi

Gerald V. Bradley, The No Religious Test Clause

and the Constitution of Religious Liberty:

A Machine that Has Gone of Itself,

37 Case W. Res. L. Rev. 674 (1987) .............. 11,15

Brian Burrell, The Words We Live By:

The Creeds, Mottoes, and Pledges That

Have Shaped America (1997) ................ 5, 6, 7, 20

Thomas J. Curry, The First Freedoms:

Church and State in America to the Passage

of the First Amendment (1986) .............. 5,9, 10, 15

Daniel L. Dreisbach, The Constitution's Forgotten

Religion Clause: Reflections on the Article VI Religious

Test Ban, 38 J. Church & State 261 (1996) ....... 9,10, 15

Oliver Ellsworth, A Landholder VII (published in the

Connecticut Courant, Dec. 17, 1787), in The Debate

on the Constitution (Bernard Bailyn ed., 1993) ...... 14, 15

Steven G. Gey, “Under God,” The Pledge of

Allegiance, and Other Constitutional Trivia,

De Dat Be. BU. CERO CUNO ccc cccccccccccccccccccs 21

Harold M. Hyman, To Try Men’s Souls:

Loyalty Tests in American History (1959) ....... 3, 5, 6, 21

Isaac Kramnick & R. Laurence Moore,

The Godless Constitution (1996) .............00.005.. 14

Sanford Levinson, Constitutional Faith (1988) ...... 3, 6,7

Vil

Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise of Religion,

103 Harv. L. Rev. 1410 (1990) ..............4-. 4,7, 11

James Madison, Notes of Debates in the

Federal Convention of 1787 (1840)... 2.2... 0. ee eee ees 7

James E. Pfander, So Help Me God:

Religion and Presidential Oath-Taking,

16 Const. Commentary 549 (1999) ............... passim

Richard H. Schneider, Stars & Stripes Forever:

The History, Stories, and Memories

of Our American Flag (2003) ... 2.266.066 e cece eeneee 3

Anson Phelps Stokes & Leo Pfeffer,

Church and State in the United States (1964) ........ 9,10

Noah Webster, On Test Oaths, Oaths of Allegiance,

& Partial Exclusions from Office, in 4 Philip B. Kurland

& Ralph Lerner, The Founders’ Constitution (1987) ..... 8

Church and State in American History (John F.

Wilson & Donald L. Drakeman eds., 1987) ........... 14

The Debates of the Several State Conventions on

the Adoption of the Federal Constitution

(Jonathan Elliot ed., rev. 2d ed. 1941) (1836) ...... passim

The Federal and State Constitutions, Colonia! Charters and

Other Organic Laws of the States, Territories, and Colonies

Now or Heretofore Forming the United States of America

(Francis Newton Thorpe ed., 1909) ............. 9, 10, 16

Vili

The Records of the Federal Convention

of 1787 (Max Farrand ed., 1937)

AO TERE capri gag She -;

l

IDENTITY AND INTEREST OF AMICI CURIAE'

Amici are legal and religious historians and law scholars

who have studied, taught and written in the area of

constitutional and religious history and the First Amendment in

colleges and law schools across America. Amici file this brief

in support of the Respondent in order to elucidate the Framers’

disdain for all types of religious tests, oaths and pledges. Our

names and institutional affiliations (listed for identification

purposes only) are contained in Appendix A.

INTRODUCTION AND SUMMARY OF ARGUMENT

The policy of Petitioner Elk Grove Unified School District

(Elk Grove) of having schoolchildren recite the Pledge of

Allegiance — taking an oath, in effect — forces not only non-

monotheists and atheists to choose between expressing love for

country or expressing belief in God, but also other citizens who,

because of religious scruples, may object to invoking God in

such a manner. See, e.g., Matthew 5:34: “Swear not at all.”

Such a policy would have been opposed by the Framers of the

Constitution, who generally viewed oath-taking as an inherently

religious expression and were familiar with royal abuses of

religious test oaths. Based on their intimate experience with

oaths and pledges, the Framers sought to end, or at least no

longer require, an obligation between religion and the (few)

' This brief is filed with the consent of the parties. No counsel for

either party to this matter authored this brief in whole or in part and no

person or entity, other than amici curiae or its counsel, made a monetary

contribution to the preparation or submission of this brief. Amici wish to

acknowledge Matthew Cloud for his contributions to this brief.

2

loyalty requirements that the new federal government imposed.

This is evidenced by Article VI, clause 3, of the Constitution,

with its prohibition that “no religious Test shall ever be

required as a Qualification to any Office or public Trust under

the United States” and its simultaneous requirement that all

government officials of the United States be bound by “Oath or

Affirmation.” The debates on the ratification of these provisions

are instructive in understanding the Framers’ conception of the

relationship between oath-taking and religion, and _ its

relationship to the ‘under God’ clause in the Pledge of

Allegiance.

tied aes A CO ee

3

ARGUMENT

The Founders of the Federal and State Governments

Viewed Religious Oaths and Pledges With Great

Disfavor.

A. The Framers Were Intimately Familiar with

the Coercive Effect of Oaths and Religious

Tests.

The Framers of the United States Constitution would have

opposed a religiously-based national oath or affirmation sworn

by citizens. On one level, the inhabitants of the newly-formed

United States considered themselves first as citizens of their

respective states who would only secondarily give allegiance to

the federal government.’ More significantly, however,

Americans from all regions and stations considered oath-taking

distasteful and “‘smak[ing] of royalism.”’ Apparently, several

of the nation’s founders viewed any oath as an “advertently

religious expression.“ Oliver Wolcott, a member of the

Connecticut ratifying convention, argued against the inclusion

of a specific religious pledge in the federal Constitution on the

ground that an oath generally constitutes “a direct appeal to that

? See Harold M. Hyman, To Try Men's Souls: Loyalty Tests in

American History 84 (1959) (describing how the early states were “jcalous

in their loyalty-oath prerogatives.”).

> Richard H. Schneider, Stars & Stripes Forever: The History,

Stories, and Memories of Our American Flag 86 (2003).

* James E. Pfander, So Help Me God: Religion and Presidential

Oath-Taking, 16 Const. Commentary 549 (1999); see also Sanford Levinson,

- Constitutional Faith 99-100 (1988).

4

God who is the avenger of perjury. Such an appeal to him is a

full acknowledgment of his being and providence.”’ This

universal objection to that form of coerced affirmation was

“well known to the [F]ramers of the Bill of Rights.”® As such,

the Founders viewed oaths and pledges as “serious matters,”

not to be imposed lightly.

It is not an overstatement that the British penchant for

oaths and affirmations was a leading catalyst in the founding of

the British-American colonies. As this Court observed in

Torcaso v. Watkins, “it was largely to escape religious test

oaths and declarations that a great many of the early colonists

left Europe and came here hoping to worship in their own

way.” * King Henry VIII instituted a test oath in the 1530s as

a means of enforcing the Act of Succession and identifying and

* 2 The Debates of the Several State Conventions on the Adoption

of the Federal Constitution 202 (Jonathan Elliot ed., rev. 2d ed. 1941) (1836)

[hereinafter Elliot's Debates}.

° West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 633

(1943). Justice Robert Jackson noted for the majority in Barnette:

Early Christians were frequently persecuted for the

refusal to participate in ceremonies before the statue of

the emperor or other symbol of imperial authority. The

story of William Tell’s sentence to shoot an apple off

his son’s head for refusal to salute a bailiff’s hat is an

ancient one. The Quakers, William Penn included,

suffered punishment rather than uncover their heads in

deference to any civil authority.

Id. at 633 n.13 (citations omitted).

” Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1410, 1475

(1990).

* Torcaso v. Watkins, 367 U.S. 488, 490 (1961).

A SPAS Sat Ma LOS wero mt

5

eliminating religious and political enemies. In addition to Sir

Thomas More, some fifty of the King’s subjects lost their heads

for refusing to take the oath.” Henry VIII subsequently

instituted four loyalty oaths, a practice that his successors

perpetuated, with the British love affair with religious test and

loyalty oaths coming to an end only in the nineteenth century

through the Parliamentary Oaths Act of 1868.'°

Even though many early colonialists were dissenters to the

British established order, once ensconced in the new world they

quickly replicated the practices of the mother country.'' In

1629, George Calvert, scouting a location for his new colony,

was forced from Virginia after its leaders sought to require him

to take an oath of allegiance and supremacy which, as a

Catholic, he was unable to take.'? Similarly, in 1634 the New

England Puritan leaders empowered local governments to

require citizens to take a loyalty oath pledging “by the great and

dreadful Name of the Everliving God” their “true and

faithfull[ness]” to the commonwealth, including their fealty to

“the wholesome Laws and Orders made and established by the

* Brian Burrell, The Words We Live By: The Creeds, Mottoes, and

Pledges That Have Shaped America 53-55 (1997).

0 Id at 55; Hyman, supra note 2, at 1-4.

'! Torcaso, 367 U.S. at 490 (noting that many who fled Great Britain

to escape the coercion of oaths instituted similar requirements on dissenters

and nonconformists).

' Hyman, supra note 2, at 19-20; Thomas J. Curry, The First

Freedoms: Church and State in America to the Passage of the First

Amendment 34 (1986).

6

same.”'’ Ironically, according to Professor Harold Hyman, the

first item printed on the first printing press in the English-

speaking colonies was this loyalty oath.'* All of the other

colonies followed this pattern, imposing religious test and

loyalty oaths, not solely for public office holding, but as marks

of citizenship as well.

Despite their ubiquity, loyalty oaths and pledges were

highly contentious matters during the colonial era, not solely

for Quakers and Mennonites who refused to swear based on

religious scruples, but also because colonists identified oaths

with British oppression and as being inconsistent with emerging

notions of freedom of conscience.'* Distrust of oath-taking

flowed in part from “the religiously inspired perception that an

oath might unfairly demand a promise that would send an oath-

taker to eternal damnation,” and also partly reflected “a

growing recognition that oath-taking might invade rights of

conscience of the increasingly [diverse] populace of the

country.”'® James Madison reported the remarks of future

Supreme Court justice James Wilson during the Constitutional

Convention as stating “he was never fond of oaths, considering

them as a left handed security only. A good Government did

not need them, and a bad one could not or ought not to be

'’ Hyman, supra note 2, at 15; Levinson, supra note 4, at 99-100.

'* Hyman, supra note 2, at 15.

'S Burrell, supra note 9, at 61.

'* Id.; Pfander, supra note 4, at 549.

7

supported.”'’ And Benjamin Franklin was reputed to have

remarked, “I have never regarded [oaths] otherwise than the last

recourse of liars.”"*

As a result, in those rare instances where the Founders

instituted loyalty oath requirements for officeholding, they

considered them to be indispensable to the establishment and

maintenance of the new political and legal institutions.'? Oaths

were such “serious matters,” that the Philadelphia Framers

included in the Constitution only two such requirements,

spelling out the Presidential oath of office in Article II, while

requiring in Article VI that all federal and state political and

judicial officials take an “Oath or Affirmation to support this

Constitution.””’ Even then, the Presidential oath conspicuously

omits the words, “So Help Me God,” which were prevalent in

“virtually every oath then current in the courts of law.””' Also,

'7 James Madison, Notes of Debates in the Federal Convention of

1787 345 (1840).

'S Burrell, supra note 9, at 61.

'? Levinson, supra note 4, at 93.

2° McConnell, supra note 7, at 1475; Levinson, sunra note 4, at 91-

92; Burrell, supra note 9, at 55-56. Professor Levinson argues that the

importance the Framers ascribed to oath-taking is demonstrated by Chief

Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. 137 (1803),

where the Court justified judicial review of congressional statutes in part on

the obligation of federal judges to swear an oath to uphold the Constitution.

Levinson, supra note 4, at 92.

2! Pfander, supra note 4, at 550. As Respondent addresses in his

merits brief at 27, the First Congress also rejected a proposed reference to

God in the language of the oath of office. See 1 Annals of Cong. 102

(1789).

8

with its provision for an oath or affirmation, “the presidential

promise in the Constitution reflects a concern for rights of

conscience that a simple oath requirement would have

ignored.”

In contrast to the Founders’ view of loyalty oaths as

necessary evils,” they were firmly opposed to religious test

oaths. To the Founders, religious tests and oaths were

qualitatively different and considered more troubling than their

secular counterparts. As Judge Arlin Adams has written,

“(perhaps the most powerful weapon for maintaining [a

religious] establishment was the religious test oath, which

proved effective in detecting dissenters and compelling

allegiance to orthodoxy.”* According to another scholar:

Religious tests had long been a favored instrument for

preserving the political power of established churches and

denying equal political opportunity to adherents of other

creeds. . . . For centuries a formal attestation of religious

belief or affiliation had been a prerequisite for holding

public office and exercising civic prerogatives. ... Thfey]

” Pfander, supra note 4, at 549 n.2 (emphasis added).

” Noah Webster believed that “[t]he time will come (and the day

may be near!) when all test laws, oaths of allegiances, abjuration, and partial

exclusions from civil offices will be proscribed from this land of freedom. .

. . They originated in savage ignorance, and they are the instruments of

slavery.” Noah Webster, On Test Oaths, Oaths of Allegiance, & Partial

Exclusions from Office, in 4 Philip B. Kurland & Ralph Lermer, The

Founders’ Constitution 636 (1987).

* Arlin M. Adams & Charles J. Emmerich, A Nation Dedicated to

Religious Liberty: The Constitutional Heritage of the Religion Clauses 55

(1990).

9

were viewed as vital instruments of social control and

unity, symbolically reminding the colonists of their

subjugation, obligations, and allegiance to the crown.”°

The Founders’ disdain for religious tests and oaths was

based on first-hand experience. Religious tests and oaths were

commonplace in pre-Revolutionary America. All of the

colonies, even religiously permissive Pennsylvania and

religiously indifferent Rhode Island, imposed affirmations of a

belief in God or Jesus upon office holders, voters, and court

participants, with most colonies requiring something closer to

the Westminster Confession.”® Initially, most colonies refused

to exempt religious dissenters such as Quakers, Mennonites,

and Dunkers from the oath requirements; only gradually (and

grudgingly) did colonial legislatures allow dissenters to affirm

rather than swear allegiances.”’ For example, in 1722 the New

Jersey legislature enacted a Protestant oath of allegiance for all

citizens, excluding Catholics but exempting Quakers, with

those refusing to take the oath being “deemed ‘Popish

*5 Daniel L. Dreisbach, The Constitution's Forgotten Religion

Clause: Reflections on the Article VI Religious Test Ban, 38 J. Church &

State 261, 262-63 (1996).

® See generally The Federal and State Constitutions, Colonial

Charters and Other Organic Laws of the States, Territories, and Colonies

Now or Heretofore Forming the United States of America (Francis Newton

Thorpe ed., 1909) [hereinafter Thorpe]; see also Curry, supra note 12, at 50,

64, 73, 75, 78-81; Anson Phelps Stokes & Leo Pfeffer, Church and State in

the United States 37 (1964).

”” See Curry, supra note 12, at 60 (noting that the 1704 North

Carolina legislature disenfranchised Quakers by requiring an oath of

allegiance instituted by Queen Anne).

10

Recusant’ convicts, subject to all the penal laws of England.”

Even by the end of the Revolutionary War, twelve of the

fourteen states imposed some type of religious test for public

officeholding, with many simply carrying over their colonial

practices.” Six states required public officeholders to be

Protestants; two others required officeholders to affirm a

belief in God and the divine inspiration of Christian scripture;*'

while Massachusetts required adherence to the Christian faith

and Maryland, based on its Catholic legacy, only a belief in

God.” All states continued to require religiously based oaths

for participating in court proceedings and legal transactions.

These various legal restrictions made many rights of citizenship

turn on an individual’s willingness to publicly proclaim a belief

in God and, in turn, affected the political and social standing of

8 Id. at 73.

** Dreisbach, supra note 25, at 265-67. Only the New York and

Virginia constitutions declined to mandate religious qualifications for public

office holders. Jd. While prohibiting a specific religious test, the New York

legislature in 1788 imposed a requirement that all elected officeholders -

renounce allegiance to all foreign powers, “ecclesiastical as well as civil,”

potentially excluding Catholics. Thorpe, supra note 26, at 5:2636-38; Curry,

supra note 12, at 162.

* Georgia, New Hampshire, New Jersey, North Carolina, South

Carolina, and Vermont. See Dreisbach, supra note 25, at 265-67; Stokes &

Pfeffer, supra note 26, at 37.

*' Pennsylvania and Delaware. North Carolina, South Carolina and

_ Vermont imposed this additional requirement. See Dreisbach, supra note 25,

at 265-67.

*? See Dreisbach, supra note 25, at 265-67. Connecticut and Rhode

Island did not draft constitutions until the nineteenth century, carrying over

their colonial religious tests: Connecticut (Christian); Rhode Island (belief

in God).

ee ee ee ee 2

11

religious dissenters.

Entering into the Constitutional Convention of 1787,

therefore, the Framers were intimately familiar with the legacy

and oppressive affect of religious tests and oaths. The decision

to enact and ratify Article VI, clause 3, must be considered in

light of this history.

B. The Enactment and Ratification of Article

VI, Clause 3, Evinces the Framers’ Intent to

Do Away with All Forms of Religious Tests

and Oaths.

When compared to the longstanding practice of religious

test oaths, the decision of the Constitution Framers to prohibit

religious tests for federal officeholding is highly significant and

represents a dramatic departure from the status quo. Without

question, the Framers were keenly aware they were breaking.

with precedent and consciously rejected the common practice.”

Governor Charles Pinckney of South Carolina proposed

what would become Article VI, clause 3, moving that “No

religious test or qualification shall ever be annexed to any oath

office under the authority of the United States.” Earlier, in May

1787, Pinckney had addressed the delegates, stating that “the

prevention of Religious Tests, as qualifications to Offices or

See Gerald V. Bradley, The No Religious Test Clause and the

Constitution of Religious Liberty: A Machine that Has Gone of Itself, 37

Case W. Res. L. Rev. 674, 680 (1987) (Article VI, clause 3 “was a

significant departure from existing legal practice and popular beliefs.”),

accord McConnell, supra note 7, at 1474 (describing the decision to ban

religious tests as a “dramatic departure from established British practice and

those of a majority of states.”).

12

Trusts of Emolument . . . [is] a provision the world will expect

from you, in the establishment of a System founded on

Republican Principles, and in an age so liberal and enlightened

as the present.” His proposal was later adopted with

apparently little debate or opposition, with Madison’s notes

recording only North Carolina as opposing the measure with

Maryland being divided.** Indeed, that the Constitution reflects

“a policy of ending the religious nature of oath-[taking] comes

through clearly in the rejection of a proposed amendment that

would have altered the general oath requirement in Article VI*°

to proclaim it, in essence, a religious test for office.”*’

The alacrity with which the test ban was considered and

enacted raised the ire of Maryland delegate Luther Martin who,

on reporting back to the Maryland legislature, stated:

* See 3 The Records of the Federal Convention of 1787 122 (Max

Farrand ed., 1937) [hereinafter Farrand].

*® The only recorded comment being that of Connecticut’s Roger

Sherman who stated that he “thought it [the ban] unnecessary, the prevailing

liberality being a sufficient security agnst. such tests.” 5 Elliot's Debates,

supra note 5, at 498. Gouverneur Morris of Pennsylvania and General

Charles Cotesworth Pinckney of South Carolina (the former Pinckney’s

second cousin) both voiced approval in unreported speeches. /d.; 2 Farrand,

supra note 35, at 468.

* U.S. Const. art. VI, cl. 3: “The Senators and representatives

before mentioned, and the Members of the Several State Legislatures, and all

executive and judicial Officers, both of the United States and of the several

States, shall be bound by Oath or Affirmation, to support this Constitution;

but no religious Test shall ever be required as a Qualification to any Office

or public Trust under the United States.”

*” Pfander, supra note 4, at 550-51. The amendment would have

inserted the word “other” before “religious” in Article VI and “would thus

have converted the oath into a religious test.” /d. at 551 n.6.

13

The part of the system, which provides that no religious

test shall ever be required as a qualification to any office

or public trust under the United States was adopted by a

great majority of the Convention, and without much

debate. However, there were some members so

unfashionable as to think that a belief in the existence of a

Deity, and of a state of future rewards and punishments,

would be some security for the good conduct of our rulers,

and that, in a Christian country, it would be at least decent

to hold out some distinction between the professors of

Christianity and downright infidelity or paganism.”

But Pinckney’s proposal was not “so unfashionable,” as it

reflected a growing sentiment that religious oaths were

inconsistent with notions of religious liberty, rights of

conscience and equal citizenry. In fact, a second, if not co-

equal, aim of Thomas Jefferson’s Statute for Establishing

Religious Freedom (1786), championed by James Madison in

his Memorial and Remonstrance in 1785, had been to abolish

Virginia’s religious test for officeholding:

that our civil rights have no dependence on our religious

opinions . . . and therefore the proscribing any citizen as

unworthy the public confidence by laying upon him an

incapacity of being called to offices of trust and

emolument, unless he profess or renounce this or that

religious opinion, is depriving him injuriously of those

privileges and advantages to which in common with his

* | Elliot's Debates, supra note 5, 385-86.

14

~fellow citizens he has a natural right.””

The religious test ban, therefore, was not some novel invention

but drew on the same principles of liberty and equality that

were informing the Framers in the creation of the nascent

democratic governments.”

Once the Philadelphia Convention concluded, the Framers

and their supporters in the state ratifying conventions

committed themselves to rooting out a practice that, according

to future Supreme Court Chief Justice Oliver Ellsworth, was

“the parent of hypocrisy, and the offspring of error and the

spirit of persecution.”*' The ban on religious tests in the federal

Constitution ran into opposition in a handful of state ratifying

conventions. Many anti-federalists, particularly in Connecticut,

Massachusetts, and North Carolina, raised concerns that

without a religious test, “Pagans, Deists and Mahometans might

obtain offices among us.” They were countered by a chorus

of voices, including those of future justices Ellsworth and

* Church and State in American History 73 (John F. Wilson &

Donald L. Drakeman eds., 1987). The operative section of the statute states:

“all men shall be free to profess, and by argument maintain, their opinion in

matters of religion, and that the same shall in no wise diminish, enlarge, or

affect their civil capacities.” /d. at 74.

” See Isaac Kramnick & R. Laurence Moore, The Godless

Constitution 37, 143 (1996).

*' Oliver Ellsworth, A Landholder VII (published in the Connecticut

Courant, Dec. 17, 1787), in The Debate an the Constitution 1:525 (Bernard

Bailyn ed., 1993) [hereinafter Bailyn].

” 4 Elliot's Debates, supra note 5, at 191-92 (comments of Henry

Abbot).

15

James Iredell, who tied the purpose of the test ban to enhancing

religious liberty and rights of conscience.” “{H]ow is it

possible to exclude any sect of men [from officeholding],”

asked Iredell, “without taking away that principle of religious

freedom which we ourselves so warmly contend for? This is

the foundation on which persecution has been raised in every

part of the world." The proponents of religious test ban

prevailed, and Art. VI, clause 3, has become an enduring

symbol of freedom of conscience and equality of belief in this

nation.”

” Ellsworth (Connecticut): “[T]he sole purpose and effect of [the

test ban] is to exclude persecution, and to secure to you the important right

of religious liberty.” Bailyn, supra note 41, at 1:522.

Iredell (North Carolina): “I consider the clause under consideration

as one of the strongest proofs that could be adduced, that it was the intention

of those who formed this system to establish a general religious liberty in

America.” 4 Elliot's Debates, supra note 5, 193.

Rev. Shute (Massachusetts): “To establish a religious test as a

qualification for offices .. . would be attended with injurious consequences

to some individuals and with no advantage to the whole.” 2 id. at 118.

“ 4 Elliot's Debates, supra note 5, at 194.

“ Professors Bradley and Dreisbach argue that neither proponents

nor opponents of Art. VI, clause 3, viewed religious tests as inconsistent with

religious liberty or rights of conscience, based on the proponents’ reliance on

pragmatic arguments and their support for religious tests at the state level.

Rather, Bradley and Dreisbach view the ratification debate as centering on

issues of federalism and the preservation of state autonomy over religious

matters. See Bradley, supra note 33, at 689-90; Dreisbach, supra note 25, at

274-79, 286. However, the fact that proponents used all arguments at their

disposal does not negate the sincerity their claims about the inconsistency of

religious oaths with notions of religious liberty and freedom of conscience.

Also, as discussed below, most states quickly followed the federal example

by abolishing their own religious tests, indicating the growing antipathy

toward such oaths.

16

Article VI, clause 3, also instituted a liberalizing trend in

the states.*° Several states — South Carolina (1790), Delaware

(1792), Vermont (1793), Georgia (1798) — quickly abolished or

modified their own religious tests in response to the sentiments

expressed in the ratifying conventions.*’ Other states followed

suit in the early nineteenth century.“ Also, those state

constitutions adopted after 1787 followed the federal model,”

such that by the time of Torcaso v. Watkins, only a handful of

state constitutions contained test clauses, with several of them

having already been found unenforceable.*°

To be sure, most state courts continued to uphold

religiously based oath requirements for testifying in court,

serving on juries, or participating in other legal transactions.*'

But even within this bastion of legal tradition, nineteenth

* See Adams & Emmerich, supra note 24, at 16.

*’ See Thorpe, supra note 26, at 2:568; 3:1690; 6:3258; Curry, supra

note 12, at 162.

* Connecticut (1818); Maryland (1826); Rhode Island (1842); New

Jersey (1844) Thorpe, supra note 26, at 2:544; see also Chester James

Antieau et al., Religion Under the State Constitutions 102-04 (1965).

* Kentucky (1792); Tennessee (1796); Ohio (1802); Indiana (1816);

Mississippi (1817); Illinois (1818); Alabama (1819); Maine (1819);

Michigan (1835); lowa (1846); Wisconsin (1848). See Antieau, supra note

48, at 102-04.

© See id.

*' See Curtiss v. Strong, 4 Day 51 (Conn. 1809) (requiring that

witnesses be able to affirm a belief in God and a future state of rewards and

punishments after death); State v. Cooper, 2 Tenn. 96 (1807) (same).

17

century state courts began to lessen the exclusionary

requirements of swearing a belief in God and the future state of

punishments and rewards as a prerequisite for participating in

legal proceedings.* Several states abolished entirely all

religious prerequisites to oath-taking,” with an increasing

number of courts agreeing with the lowa Supreme Court that

“fe]very human being of sufficient capacity to understand the

obligation of an oath is a competent witness in this State.”** The

® See Brock v. Milligan, 10 Ohio 121, 125-26 (1840) (“We think,

then, . . . that whoever believes in the moral influence and control of an

overruling Providence in this life, and that an oath is binding on his

conscience, is competent to testify. . . . And it is worthy of consideration,

whether the great ends of justice, the object of all law, would not be

prometed, even if this requisition were swept away, and no inquiry permitted

as to what concerns the duties of the creature to his Creator only, in order to

determine the competency of witnesses.”) (emphases omitted); see also

Arnoid v. Arnold's Estate, 13 Vt. 362, 365, 367-68 (1841) (“Almost all sober,

and especially religious men, have . . . sincerely regretted the frequency of

oaths; and not a few men of that same class have even questioned the

necessity of resorting to the sanction of an oath, in any department of civil

administration. . . . Indeed no man could look at the form of an oath, and not

feel that it was regarded as a religious ceremony. . . . It is obvious that a

sincere deist, a mahometan, or a pagan of any name, if he believe in the

existence of God . . . may feel the sanction of an oath as binding upon his

conscience, as the most devout christian. And all that is now required is that

the oath should bind the conscience of the witness.”).

*® See Perry v. Commonwealth, 44 Va. (3 Gratt.) 632 (1846); People

v. Jenness, 5 Mich. 305 (1858); Stanbro v. Hopkins, 28 Barb. 265 (N.Y. App.

Div. 1858); Commonwealth v. Burke, 82 Mass. 33 (1860); Fuller v. Fuller,

17 Cal. 605 (1861); City of Shreveport v. Levy, 26 La. Ann. 671 (1874); Bush

v. Commonwealth, 80 Ky. 244 (1882); Londener v. Lichtenheim, 11 Mo.

App. 385 (1882); Randolph v. Landwerlen, 92 Ind. 34 (1883); Hroneck v.

People, 24 N.E. 861 (Ill. 1890).

* State v. Elliot, 45 lowa 486, 489 (1877).

18

trend was as obvious as was the consensus it announced: that

government should not assign benefits of citizenship based on

an individual’s willingness to affirm or pledge a belief in God.

Accordingly, when this Court in Torcaso struck down

Maryland s modest requirement that officeholders declare a

belief in God, it did so based on rights of freedom of conscience

and religion.** In so doing, it equated the declaration to a

religious test.°° But equally important, Torcaso is consistent

with the Court’s more recent admonitions that the government

is prohibited from “making adherence to a religion relevant in

any way to a person’s standing in the political community.”*’

c. The Pledge of Allegiance, Through its

Reference to a “Nation, under God,”

Contravenes the Principles that Underlie

Article VI, Clause 3.

This Court has recognized the similarities between

religious tests, loyalty oaths, pledges, and affirmations and has

treated them as having near or equivalent effect. In Girouard

v. United States, the Court considered the exclusionary effect

*S Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (“We repeat and

again reaffirm that neither a State nor the Federal Government can

constitutionally force a person to profess a belief or disbelief in any

religion.”’) (quotations omitted).

© Id. at 489-90.

*? Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J.,

concurring); see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10

(2000) (reaffirming that the government should avoid sending messages to

religious nonadherents “that they are outsiders, and not full members of the

political community.”).

19.

of a naturalization oath of allegiance on a pacifist Seventh-day

Adventist to be identical to a religious test.* “It is hard to

believe that one need forsake his religious scruples to become

a citizen but not to sit in the high councils of state.” Also, in

West Virginia Board of Education v. Barnette, the Court

equated the Pledge of Allegiance with a loyalty oath. The

“compulsory flag salute and pledge requires affirmation of a

belief and an attitude of mind,” Justice Jackson wrote for the

Court.’ And in his Barnette concurrence, Justice Black

described the Pledge as “‘a form of a test oath,and the test oath

has always been abhorrent in the United States.”

Two factors in particular direct that the Pledge of

Allegiance, as used in this context, contravenes rights of

conscience and religious liberty as are enshrined in Article VI,

** 328 U.S. 61 (1946).

* Id. at 66.

® Barnette, 319 U.S. at 632-33.

*! Id. at 633.

® Id. at 644 (Black, J., concurring). Accord id. at 645 (Murphy, J.,

concurring) (noting the purpose of the Pledge of Allegiance as “to inculcate

sentiments of loyalty and patriotism”). But see id. at 663-64 (Frankfurter, J.,

dissenting) (“The flag salute exercise has no kinship whatever to the oath

tests so odious in history. For the oath test was one of the instruments for

suppressing heretical beliefs. Saluting the flag suppresses no belief nor curbs

it.”).

Significantly, the author of the Pledge of Allegiance, Francis M.

Bellamy, favored the description of “pledge” rather than “oath” only as a

matter of semantics. Bellamy feared that the title, “Oath of Allegiance,”

would engender resentment by Southerners still familiar with the “Ironclad

Test Oath” imposed during the Civil War. See John W. Baer, The Pledge of

Allegiance: A Centennial History, 1892-1992 9 (1992).

20

clause 3, and the First Amendment to the Constitution: 1.

Congress’s 1954 amendment adding the phrase “under God” to

the Pledge of Allegiance; and 2. the subtle coercive

environment of the public schools.

First, the federal and state governments have over the years

imposed limited loyalty oath requirements on public

officeholding and employment and simple oath requirements

for participating in judicial proceedings or engaging in legal

transactions.® Even then, governmental attempts at expanding

loyalty oath requirements to the general citizenry have

frequently met with resistence by this Court, based on free

speech and due process concerns.™ Significantly, absent a short

* Congress has also instituted oaths for induction into the military,

naturalization and for passport applications. Burrell, supra note 9, at 55-56.

“ See, e.g., Law Students Civil Rights Research Council v.

Wadmond, 401 U.S. 154 (1971); Keyishian v. Bd. of Regents, 385 U.S. 589

(1967); Cramp v. Bd. of Pub. Instruction, 368 U.S. 278 (1961); Speiser v.

Randall, 357 U.S. 513 (1958); First Unitarian Church v. County of Los

Angeles, 357 U.S. 545 (1958); Weiman v. Updegraff, 344 U.S. 183 (1952).

In Cole v. Richardson, 405 U.S. 676 (1972), while upholding a

Massachusetts requirement that public employees swear an oath to uphold

and defend the federal and state constitutions, the Court reaffirmed earlier

holdings imposing restrictions on oath requirements: “that neither the federal

nor state government may condition employment on taking oaths that

impinge on rights guaranteed by the First and Fourteenth Amendments, . . .

[nor condition employment] on an oath that one has not engaged, or will not

engage, in protected speech activities . . [or not engage in] associational

activities within constitutional protection. . . . An underlying, seldom

articulated concer running throughout these cases is that the oaths . . . put

the government into the censorial business of investigating, scrutinizing,

interpreting, and then penalizing or approving the political viewpoints and

past activities of individuals.” /d. at 680-81.

21

period during the Civil War,” the nation has resisted instituting

citizen loyalty oaths, with the possible exception being the

Pledge of Allegiance.©

Congress’ 1954 amendment to the 1942 law adopting the

Pledge of Allegiance had the effect of transforming the Pledge

from a simple loyalty oath to an impermissible religious test

oath.” Prior to 1954, to recite the Pledge was “to swear

allegiance to the values for which the flag stands: unity,

indivisibility, liberty, [and] justice.” Since 1954, however, to

recite the Pledge is also to swear allegiance to belief in

monotheism. It cannot be gainsaid that the overriding purpose

if the 1954 amendment was to incorporate a religious

affirmation into the Pledge — to acknowledge that “our Nation

was founded on a fundamental belief in God.” The former

version of the Pledge was permissible under Barnette, only

°° See generally Hyman, supra note 2, at 139-266.

* See Pub. L. No. 623, ch. 435, § 7, 56 Stat. 380 (1942) (codified

at 36 U.S.C. § 172). 7

* See Barnette, 319 U.S. at 632-33 (equating the Pledge of

Allegiance with a loyalty oath). As noted above, two of the justices in

Barnette equated the unamended version of the Pledge with at religious test

oath, based on its effect on the religious scruples of the Jehovah’s Witnesses

litigants. See id. at 644 (Black, J., concurring) (describing the Pledge of

Allegiance as “a form of a test oath, and the test oath has always been

abhorrent in the United States.”).

* See App. at Ila.

® See H.R. Rep. No. 83-1693; 1954 U.S.C.C.A.N. 2339, 2340; see

also Steven G. Gey, “Under God,” The Pledge of Allegiance, and Other

Constitutional Trivia, 81 N.C. L. Rev. 1865, 1873-80 (2003).

22

insofar as it was not compulsory so as not to infringe on rights

of conscience or the free exercise of religion; the latter version,

on the other hand, as the Framers’ experience demonstrates, and

as the Ninth Circuit recognized, is not permissible.”” The

Pledge now requires a speaker to make an affirmation of

religious belief -— it “requires the individual to communicate by

word and sign his acceptance of the [religious] ideas it thus

bespeaks.””!

Also, unlike the loyalty requirements in the Constitution,

there is no equivalent substitute, no “affirmation” alternative,

for taking the Pledge.” The explicit mention of God in the

Pledge inherently infringes on an individual’s freedom of

conscience.” It places a citizen who would otherwise willingly

participate in reciting the Pledge in the untenable position of

choosing between expressing patriotism and expressing

religious belief.

Second, even though the Elk Grove policy does not

” See App. at 17a (“[W]e do not believe that the Constitutia

prohibits compulsory patriotism as in Barnette, but permits compisory

religion as in this case.”).

”" Barnette, 319 U.S. at 633.

” Cf. State v. Floyd, 577 S.E.2d 215 (S.C. 204) (holding that trial

judge erred in refusing to permit jury candidate frm taking affirmation as

alternative to religious oath requirement contaimg the phrase, “So help me

God”).

” See Barnette, 319 U.S. at €2 (“If there is any fixed star in our

constitutional constellation, it is thano official, high or petty, can prescribe

what shall be orthodox in politis, nationalism, religion, or other matters of

opinion or force citizens to cafess by word or act their faith therein.”).

23

mandate participation in the Pledge, its recitation in the public

school environment places impermissible coercive pressure on

students to participate in an exercise with religious content or

protest.” It is uncontested that Congress, in amending the 1942

act, intended that the Pledge, with its “under God” clause, be

recited by public schoolchildren.”* In so doing, Congress hoped

that this daily recitation by schoolchildren would lead them to

“deny the atheistic and materialistic concepts of communism”

and embrace “the moral directions of the Creator.””® The

religious nature of this affirmation is unmistakable.

The Court has consistently recognized the uniquely

coercive environment of the public school setting and has

zealously protected the rights of students to be free from even

subtle religious indoctrination.”’ Also, within the public school

™ See Lee v. Weisman, 505 U.S. 577, 593 (1992).

*$ “(T}he children of our land, in daily recitation of the pledge in

school, will be daily impressed with a true understanding of our way of life

and its origins. As they grow and advance in this understanding, they will

assume the responsibilities of self-government equipped to carry on the

traditions that have been given to us. Fortify our youth in their allegiance to

the flag by their declaration to ‘one Nation, under God.”” H.R. Rep. No. 83-

1693; 1954 U.S.C.C_AN. at 2341.

"Id

” See Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (“Families

entrust public schools with the education of their children, but condition their

trust on the understanding that the classroom will not purposely be used to

advance religious views that may conflict with the private beliefs of the

student and his or her family. Students in such institutions are

impressionable and their attendance is involuntary.”); see also Lee, 50S U.S. -

at 593 (striking down prayer given by an invited religious official at a high

school graduation); Wallace v. Jaffree, 472 U.S. 38, 60 (1985) (striking down

amended state statute endorsing “voluntary” prayers for one minute at the

24

context, this Court has never required evidence of direct

compulsion for the Establishment Clause to have affect. For

instance, in the school prayer cases, Engel v. Vitale” and

Abington Township v. Schempp,” the Court struck down prayer

recital in public schools even though neither of the prayers at

issue was required to be recited by students. In Engel, the New

York Court of Appeals had upheld the STATE-endorsed

Regents’ prayer “so long as the schools did not compel any

pupil to join in the prayer over his or her parents’ objection.”

Yet the Court struck down the practice, noting that the

Establishment Clause “does not depend upon any showing of

direct governmental compulsion.”*' Likewise in Schempp, “the

students and parents [were] advised that the student may absent

himself from the classroom or, should he elect to remain, not

participate in the exercises.’ This religious exercise, too, was

invalidated. The Court’s more recent cases are to the same

effect. Neither the graduation prayer in Lee v. Weisman, nor

the football game prayer in Santa Fe Independent School

District v. Doe, involved mandatory participation in the

beginning of each schoolday); Stone v. Graham, 449 U.S. 39, 42 (1980)

(striking down state statute requiring the posting of the Ten Commandments

in public school classrooms).

370 U.S. 421 (1962).

* 374 U.S. 203 (1963).

” Engel, 370 U.S. at 423.

™ Id. at 430.

® Schempp, 374 U.S. at 207.

. 25

religious exercises at issue.”

Here, Elk Grove’s policy requires its elementary school

teachers to lead “willing”students in the recitation of the

Pledge. Although in theory that may permit “unwilling”

students to opt-out of the exercise, as applied the policy is

unquestionably frustrated amidst the “subtle coercive pressure”

of the elementary school context." Even assuming that Elk

Grove’s teachers and administrators remind their students each

day of their freedom not to participate in reciting the Pledge

before the start of classes, there can be no doubt that while

watching classmates rise to recite “one Nation, under God,” a

child would feel less than fully able to exercise that nght or, at

a minimum, that her standing in the school community turned

on her willingness to recite the Pledge.“ A child who would

refuse to recite the Pledge on religious grounds risks being

labeled irreligious as well as unpatriotic. This situation is fully

analogous to the concerns that motivated the Framers in

enacting Article VI, clause 3, and have informed this Court’s

school prayer holdings. As in Lee, “[flinding no violation

under these circumstances would place objectors in the

dilemma of participating, with all that implies, or protesting. .

.. [T]he State may not . . . place primary and secondary school

© Lee, 505 U.S. at 592-93; Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 310-12 (2000).

™ Lee, 505 U.S. at 592.

* See, e.g., Allegheny County v. ACLU, 492 U.S. 573, 673 (1989)

(Kennedy, J., concurring part and dissenting in part) (“[I}t borders on

sophistry to suggest that the reasonable atheist would not feel less than a ful!

as part of their expression of patriotism and love for country, a phrase he

believed to be false."”) (quotations omitted).

26

children in this position.”

Therefore, the claim that because Elk Grove’s policy does

not, on its face, require unwilling students to recite the Pledge

and that it comports with Barnette can be to no avail. The Ninth

Circuit correctly -understood this: “(Ujnder Lee, non-

compulsory participation is no basis for distinguishing

Barnette’

CONCLUSION

For the foregoing reasons, the judgment of the U.S. Court

of Appeals for the Ninth Circuit should be affirmed.

* Lee, 505 U.S. at 593.

” App. at 13a.

27

Respectfully submitted,

STEVEN K. GREEN*

*Counsel of Record

Willamette University College of Law

245 Winter Street, S.E.

Salem, Oregon 97301

(503) 370-6732

STEVEN G. GEY

Florida State University School of Law

425 W. Jefferson Street

Tallahassee, FL 32306

(850) 644-3400

Dated: February 13, 2004

A-l

Joyce Appleby, Ph.D.

Professor of History Emerita

University of California at Los Angeles

David Burner, Ph.D.

Professor of History

SUNY, Stony Brook

Norman Dorsen, LL.B, LL.D.

Stokes Professor of Law

New York University

Melvyn Dubofsky, Ph.D.

Bartle Distinguished Professor of History and Sociology

Binghamton University, SUNY

James M. Dunn, Ph.D.

Professor of Christianity and Public Policy

Wake Forest University Divinity School

Richard J. Ellis, Ph.D.

Hatfield Professor of Politics

Willamette University

Paul Finkelman, Ph.D.

Chapman Distinguished Professor of Law

University of Tulsa

Eric M. Freedman, J.D.

Professor of Law

Hofstra University

Steven G. Gey, J.D.

Fonville and Hinkle Professor of Litigation

Florida State University

A-2

Mark A. Graber, Ph.D.

Professor of Government &

Adjunct Professor of Law

University of Maryland

Steven K. Green, J.D., Ph.D.

Associate Professor of Law

Williamette University

David Gutterman, Ph.D.

Assistant Professor of Politics

Linfield College

Isaac Kramnick, Ph.D.

Richard J. Schwartz Professor of

Government and Vice Provost

Cornell Universit,

Arnold H. Lowey, J.D., LL.M.

Graham Keenan Professor of Law

University of North Carolina

R. Laurence Moore, Ph.D.

Howard A. Newman Professor of American Studies/History

Cornell University

Robert M. O’Neil, LL.B.

University Professor of Law

University of Virginia

Frank S. Ravitch, J.D., LL.M.

Associate Professor of Law

Michigan State University, Detroit College of Law

A-3

Nadine Strossen, J.D.

Professor of Law

New York Law School

William W. Van Alstyne, J.D.

William R. Perkins Professor of Law

Duke University

Samuel Webb, J.D., Ph.D.

Associate Professor of History

University of Alabama, Birmingham

Stephen Wermiel, J.D.

Associate Professor of Law

American University

Donald E. Wilkes, Jr., J.D.

Professor of Law .

University of Georgia