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

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FEB 13 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,

MICHAELA. NEWDOW,

Respondent.

On Writ oF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE NINTH CIRCUIT

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——— ——<$—<——— ———————$$————— en ——$—$—_—$_— —————

BRIEF AMICUS CURIAE OF ANTI-DEFAMATION

LEAGUE IN SUPPORT OF RESPONDENT

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— — —— — — —_—_———— — —__—__—_ —$$—$<$—

Martin S. LEDERMAN, Esq. MarrtIN E. Karinsky, Esq.

6027 Onondaga Road Counsel of Record

Bethesda, MD 20816 KaTTEN Mucuin Zavis ROSENMAN

(301) 229-3936 575 Madison Avenue

New York, NY 10022

(212) 940-8800

Attorneys for Amicus Curiae Anti-Defamation League

(Counsel Listing Continued on Inside Cover)

STEVEN M. FREEMAN, Esq. Howarp W. Go .psTEIN, Esa.

MICHAEL LIEBERMAN, Esq. One New York Plaza

Davip L. Barkey, Esq. New York, NY 10004

ANTI-DEFAMATION LEAGUE (212) 859-8502

823 United Nations Plaza

New York, NY 10017 ERWIN CHEMERINSKY, Esq.

(212) 490-2525 UNIVERSITY OF SOUTHERN

CALIFORNIA Law SCHOOL

FREDERICK M. Lawrence, Esq. 699 Exposition Boulevard

Boston UNiversity SCHOOL oF Law Los Angeles, CA 90089

765 Commonwealth Avenue (213) 740-2539

Boston, MA 02215

(617) 353-3103

Attorneys for Amicus Curiae Anti-Defamation League

te -—<—.-+-.

TABLE OF CONTENTS

a iii

ST encteeneternnncnenenconsnecesecsescscscscssesszesees 1

Ee 2

SUMMARY OF ARGUMENT ............:-0scssssssssrssevssssssssssssesesees 3

STITT cldeieccneatenicemnncenenneennccecesecescoseseccccencsccetscccoceets 7

I. PUBLIC SCHOOLS MAY NOT,

CONSISTENT WITH THE

CONSTITUTION, COERCE STUDENTS

TO PLEDGE ALLEGIANCE TO THE

CREDO THAT OUR “ONE NATION”

STD ssssnssnstssnsnscstmscpsenevsvessnsccevsescessssssses 7

A. School-Initiated Or School-Approved Religious

Activity In Formal School Settings Is Inevitably

Coercive And Therefore Effectively, And

Unconstitutionally, Compels Students To

Violate Their Religious Conscience..............:0:+:0++ 9

B. The Daily Practice Of Teacher-

Led Religious Affirmation In

This Case Poses Constitutional

Dangers Even Greater Than

Those Present In The Graduation

C. The Right To “Opt Out” Of

Reciting The Pledge Does

Not Cure The Constitutional

Violation Inherent In The

Il. RECITATION OF THE PLEDGE IN

PUBLIC SCHOOL CLASSROOMS

CANNOT BE DEFENDED ON

GROUNDS THAT HAVE SERVED TO

JUSTIFY OTHER GOVERNMENT

INVOCATIONS OF RELIGION ........ccccccssesseeseee. 19

A. The Words “Under God” In

The Pledge Are Not A Mere

Acknowledgement Of Historical Fact. ............... 19

B. Petitioners’ Other Justifications

For Their Practice Do Not Cure

The Constitutional Infirmity. .............ssseeesee 26

COIN LIUISIOIN cccccce0ceresecersesessessssnsssensesessssssssssnssssssnssseseseesenes 30

TABLE OF AUTHORITIES

CASES

Agostini v. Felton, 521 U.S. 203

GED OUD conasnensssenennmannsssssenncenassenenssasensnsnanesumepaesssmessnsnsnsssctsiis 1,12

Committee for Public Educ. and

Religious Liberty v. Nyquist,

GD A FTE cerennrsmnamcesrcemesememctemnemeeatnnememmmnnsnnees 2

County of Allegheny v. ACLU,

SE CD ccrnrsscnsicrnnsrnnscnnssensenccssmmmnsentmcsmmneammnatan 17

Edwards v. Aguillard, 482 US.

SO GD ccnsrensnssnencsnscennsssenasesancemensmnssmanamannasneneainntesseits 7, 12, 20

Engel v. Vitale, 370 U.S. 421

RTD cccsescsnsesnnnsesesunsenpansmmussnnasanscesiasesisnecassniasnscsnmnsnesisenset passim

Epperson v. Arkansas, 393 U.S

FF GERD cnsconssescnnscennssegiessssensansasnsnsenasstesseanssnaennennennesteaneeNnineeniens 7

Everson v. Board of Educ.,

SD TEE BTID ccrrnnsenssensnnsscnsncensevensecnsnssnanmememscssennnnsnsiamsnssesents 15

Lee v. Weisman, 505 U.S. 577 y

GED eccnszsnssennesssscoscnsemsesensssesnpnmnsenmsnnssenmunnssennsenssamsssssnsatienins passim

Lemon v. Kurtzman, 403 U.S.

ee 2

Locke v. Davey, No. 02-1315

A elt 1

Lynch v. Donnelly, 465 U.S. 668

GD ccccecesensconssssonsssnanssnsessennnemnmnemmsesensnassennsensnansenencennanennne 1, 11,17

|” EAGT NA coer ome ener 2

| SENSI e gee ee Lad eer onrae 1,12

Newdow v. United States Congress,

292 F.3d 597 (9% Cir. 2002),

amended by 328 F.3d 466

Ge, Fe ceececnennsnsescsssesecccseninenenenenenenssensesenmensnsssneennmnannemansesenees 3

Newdow v. United States Congress,

SEB PSG 466 CB Che. FBGBD cccececscscsesescsesssesesescsvecessscecscssossesecsss 3,11

Pierce v. Society of Sisters, 268 U.S.

FED CTD ccccnenscsesensssscrenssesescscanssenessanssansensnecsaneensnensesetsenseasenansenenes 8

Rosenberger v. Rector and Visitors

of the Univ. of Va., 515 U.S. 819

TIED cenessenssensnescesenecvesmessarcemssennssnnsctavesastssinnstissteanesnsesenenensenenansneanes 1

Santa Fe Indep. School Dist. v. Doe,

SD UD, FIO GED ccccsncensssscscscnnsssessensnsssscsvannsssesnsnssnsssnscssssnss passim

School Dist. of Abington Twnshp. v.

Schemepp, 374 U.S. 203 (1963) ......-ssccrererssneseseenenenenenenenensannens passim

Stone v. Graham, 449 US. 39

(RSET) Cpr CUERII) oncccecccccnececezcecesccescscseseccensssesscscessesssncenece 7, 12, 28

Wallace v. Jaffree, 472 U.S. 38

SUTTED ‘cnncvuttitenaseaideiednatenemsstineneaneneennsmmeseninesamneonmnumasnints 7,11, 26

West Virginia State Bd. of Educ. v.

SER, TEP es GOD cccnencssectncssscemansemersesenmemmane passim

Witters v. Washington Dept. of Servs.

for the Blind, 474 U.S. 481 (1986) ...........cccsscssssssssseseseesseessecneneesers 1

Zelman v. Simmons-Harris,

eS ED contenncsenssenrmnssemevenenennmenmmnemnmennnnes 1

Zobrest v. Catalina Foothills School

DT ne ne 1

CONSTITUTIONAL PROVISIONS,

STATUTES, LEGISLATIVE HISTORY,

AND RULES

U.S. CONST. Amend. I onesesssssssscccoccsccscsssssssssssssssssssessesesssssssees passim

ACT OF JUNE 22, 1942,PUB. L.

Be I I cicsccnssnsiininitacetinaineatpattnimmmanne 2

ACT OF JUNE 14, 1954, PUB. L.

NNO. G3-SOG, § 7, 6B SEAT. BOD ccccecnnnnnnnnnenncccccessccscssccscssssssscsesssssssene 2

OD a icrsitininiticitiessapeiensioiniisaiaiiiteiitiiaamaal 2,9

SUP. CT. R. 37.3(@) ssscocsscsscsssssssseseseee snidieindieidnabbnsintatcemiall 1

8 OTC TCE MMI ole BAe 1

H.R. REP. No. 83-1693,

ia i al

100 CONG. REC. 8618 (1954) ....sscsccsssssssssssseeeessseessssssseseneeeeeesnee

CAL. EDUC. CODE § 52720

EES eee eee

BOOKS AND LAW REVIEWS

John W. Baer, THE PLEDGE OF

ALLEGIANCE: A CENTENNIAL HISTORY,

Steven B. Epstein, Rethinking the

Constitutionality of Ceremonial Deism,

96 Colum. L. Rev. 2083 (1996).........sssssssessersesersesenseneeeeneneenenes

Steven G. Gey, “Under God,”

the Pledge of Allegiance, and Other

Constitutional Trivia, 81 N.C. L.

Baa. DGD CITY cxccecesescesssczessevevsssvesssvsnvcenvecsssssosonsensee

Kent Greenawalt, Teaching About

Religion In the Public Schools, 18 J.L. &

FRNA OIE eee

Jay D. Wexler, Preparing for the Clothed

Public Square: Teaching About Religion,

Civic Education, and the Constitution,

43 Wm. & Mary L. Rev. 1159 (2002) ...cooccsssssssssee

Vii

MISCELLANEOUS

ANTI-DEFAMATION LEAGUE CHARTER

(1913)

INTEREST OF AMICUS}!

Organized in 1913 to advance good will and mutual

understanding among Americans of all creeds and races and

to combat religious, ethnic, and racial prejudice in the

United States, the Anti-Defamation League (“ADL”) is today

one of the world’s leading organizations dedicated to

fighting hatred, bigotry, and discrimination. ADL’s mission

is “to stop . . . the defamation of the Jewish people[,] . . . to

secure justice and fair treatment to all citizens alike[,] and to

put an end forever to unjust and unfair discrimination

against . . . any sect or body of citizens.” ANTI-DEFAMATION

LEAGUE CHARTER (1913). ADL believes that the vigorous

defense of our Nation’s rights of religious liberty and

freedom of conscience are critical in achieving this mission.?

1 Amicus has obtained and lodges herewith the written consents

of the parties to the submission of this brief, and affirms that no

counsel for a party authored this brief in whole or in part, and that

no person, other than amicus and its counsel, made a monetary

contribution to its preparation or submission. SUP. CT. R. 37.3(a);

Sup. CT. R. 37.6.

2 ADL has accordingly participated as amicus in this Court's

major church-state cases over the last 56 years. See ADL briefs

amicus curiae filed in Locke v. Davey, No. 02-1315 (U.S. filed 2003);

Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Mitchell v. Helms, 530

U.S. 793 (2000); Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290

(2000); Agostini v. Felton, 521 U.S. 203 (1997); Rosenberger v. Rector

and Visitors of the Univ. of Va., 515 U.S. 819 (1995); Zobrest v. Catalina

Foothills School Dist., 509 U.S. 1 (1993); Lee v. Weisman, 505 U.S. 577

(1992); Witters v. Washington Dept. of Servs. for the Blind, 474 US.

481 (1986); Lynch v. Donnelly, 465 U.S. 668 (1984); Marsh v.

(Continued...)

In recent decades, our Nation’s public schools have

unfortunately become a principal battleground in the contest

over the meaning of religious establishment. In this contest,

ADL has iong believed, and has long argued, that

government-sponsored religious activity in our schools

poses a particular threat to the continued vitality of religious

liberty. It submits this brief in furtherance of that belief.

STATEMENT

The Pledge of Allegiance is a central patriotic declaration

of the American people. The original text of the Pledge,

promulgated by private citizens in 1892, carried a purely

patriotic, and secular, message. See John W. Baer, THE

PLEDGE OF ALLEGIANCE: A CENTENNIAL HISTORY, 1892-1992,

at 1-3. That version of the Pledge existed, essentially

unaltered, for 62 years, and Congress codified it in 1942. Act

of June 22, 1942,Pub. L. No. 77-623, §, 56 Stat. 380. In 1954,

the Knights of Columbus called on Congress to include a

religious message in the Pledge, and Congress amended the

Pledge to include in its text the words “under God” after its

reference to “one Nation.” Act of June 14, 1954, Pub. L. No.

83-386, § 7, 68 Stat. 249. Thus, since 1954, the full text of the

Pledge reads, “I pledge allegiance to the Flag of the United

States of America, and to the Republic for which it stands,

one Nation under God, indivisible, with liberty and justice

for all.” 4 U.S.C. § 4 (1998).

Chambers, 463 U.S. 783 (1983); Committee for Public Educ. and

Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Lemon v. Kurtzman,

403 US. 602 (1971); Engel v. Vitale, 370 US. 421 (1962); and

McCollum v. Board of Educ., 333 U.S. 203 (1948).

California requires that public elementary schools

conduct patriotic exercises at the beginning of each school

day. CAL. EDUC. CODE § 52720 (West 1989). Schools may

satisfy the requirement by the giving of the Pledge. Id. In

furtherance of that state law, petitioners adopted a policy -

requiring their district's elementary school classes to recite

the Pledge each school day. Pet. App. 1.

Respondent, a parent of a child attending school in the

Elk Grove Unified School District, challenged this policy.

The district court dismissed his complaint. The court of

appeals reversed, holding that the policy violated the

Establishment Clause. The court noted that the “sole

purpose” of the 1954 Act of Congress adding the words

“under God” to the Pledge was to “advance religion,”

Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002),

amended by 328 F.3d 466 (9th Cir. 2003), and held that the

Pledge was a “profession of a religious belief, namely, a

belief in monotheism,” which “impermissibly takes a

position with respect to the purely religious question of the

existence and identity of God.” Id. at 607. The panel later

filed an amended opinion limiting its holding to invalidation

of the Pledge as daily recited in the classroom. Newdow v.

United States Congress, 328 F.3d 466, 487-90 (9% Cir. 2003).

The court found that daily recitation of the Pledge has a

“coercive effect,” and “places students in the untenable

position of choosing between participating in an exercise

with religious content or protesting.” Id. at 488.

SUMMARY OF ARGUMENT

1. For over four decades, in an unbroken line of cases,

this Court has invalidated various forms of state-prescribed

or state-approved religious expression and teaching in

_ primary and secondary public schools. Those controlling

precedents compel the invalidation of the state-prescribed

religious affirmation in this case as well. There is

accordingly no occasion for the Court to revisit or resolve

difficult Religion Clause questions that arise outside the

public-school context, including questions concerning other

forms of government-approved religious expression.

2. “The First Amendment's Religion Clauses mean that

religious beliefs and religious expression are too precious to

be either proscribed or prescribed by the State.” Lee v.

Weisman, 505 U.S. 577, 589 (1992). This principle has special

force in the public-school setting, where there is subtle

coercive pressure for primary and secondary school students

to embrace as truth the views, beliefs, and norms that they

learn from their teachers and peers. The school setting

places undue coercion on students to join their fellow

students in state-prescribed religious expression, or to

engage in silent protest that may well be misperceived as

silent approval. This places the objecting student in an

untenable position, and thereby exacts religious conformity

in a manner that the Constitution forbids.

3. Such constitutional concerns are even more

pronounced in this case than they were in Lee. Although the

Pledge does not involve prayer as such, it does include “an

essential and profound recognition of divine authority,” id.

at 594, namely, affirmation of a religious creed recognizing a

single God. Moreover, the Pledge is a regular patriotic ritual

of unique importance, recited with precisely the same

words, every morning, year after year, prescribed by school

authorities and led by students’ classroom teachers - thus

powerfully conveying to students that its recitation is the

norm to which they are expected to conform. When first

introduced to this daily rite, students are young and highly

impressionable, and are captive audiences. The vast

majority of students, therefore, either will feel compelled to

recite the Pledge, or will recite it as a matter of rote, in which

case it will become second nature before a student even has

the opportunity to reflect critically on its substance.

Coercion and inculcation in such a setting, with such an

audience, are unavoidable. In addition, daily recitation

conveys to dissenters and nonbelievers, and to polytheistic

and nontheistic religious students and their families the

unmistakable, but unconstitutional, message that those who

do not believe in the single God to which the Pledge refers

are outsiders, rather than full members of the political

community that otherwise consists of “one Nation. . .

indivisible.”

4. The right of students to “opt out” of reciting the

Pledge, although sufficient to ameliorate the problem of

compelled speech that this Court recognized in West Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), does not

suffice to satisfy the Establishment Clause. As this Court

explained in Lee, although a school may constitutionally

attempt to persuade even objecting students of the truth of

nonreligious precepts, the same is not true with respect to

matters of religious conscience: “[T]he Establishment Clause

is a specific prohibition on forms of state intervention in

religious affairs with no precise counterpart in the speech

provisions.” Lee, 505 U.S. at 591.

5. Contrary to the argument of the United States, the

words “under God” are not a mere acknowledgement of

historical fact. Indeed, such a characterization trivializes the

solemn nature of the Pledge. Instead, these words were

to induce children on a daily basis to proclaim “the

dedication of our Nation and our people to the Almighty,”

and to affirm “the transcendence of religious faith” in

America and a “belief in the sovereignty of God.” There is

no reason to think that schoolchildren understand those

words any differently than was contemplated by those who

designed them - namely, as an affirmation that our “one

Nation” is, indeed, “under God.”

6. The other justifications that petitioners and their

amici offer do not legitimize the practice of daily classroom

recitation of the words “under God.” Although these words

may serve to solemnize public functions, the remainder of

the Pledge is wholly adequate to that task, and this Court

has explained that there is no constitutional justification for

the State to prefer, let alone to prescribe, a religious means of

such solemnization. Recitation of the Pledge of Allegiance is

not analogous to the practice of legislative prayer that the

Court has approved. The words “under God” do not share

the “unique history” of the use of invocations to open

legislative sessions, and, more importan’ly, the coercive

potential of a religious recitation in the classroom is far

greater than that of legislative prayer. The constitutional

violation here is not “de minimis” - the words “under God”

are recited daily in a highly impressionable and coercive

setting. Finally, removal of the words “under God” from the

Pledge in the classroom would not bespeak any hostility to

religion nor undermine Establishment Clause values; it

would, instead, protect the essential postulates of religious

liberty that are the underpinnings of this Court's decisions in

cases involving religious expression in public schools.

* a *

- a

ARGUMENT

I. PUBLIC SCHOOLS MAY NOT, CONSISTENT

WITH THE CONSTITUTION, COERCE STUDENTS

TO PLEDGE ALLEGIANCE TO THE CREDO THAT

OUR “ONE NATION” IS “UNDER GOD”

In a series of cases spanning almost a half-century, this

Court has considered the constitutionality of various forms

of state-initiated, or state-approved, religious expression and

teaching in primary and secondary public schools. See, e.g.,

Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington

Township v. Schempp, 374 U.S. 203 (1963); Epperson v.

Arkansas, 393 U.S. 97 (1968); Stone v. Graham, 449 U.S. 39

(1980) (per curiam); Wallace v. Jaffree, 472 U.S. 38 (1985);

Edwards v. Aguillard, 482 U.S. 578 (1987); Lee v. Weisman, 505

U.S. 577 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

(2000). Im each of those cases, the Court has held that the

Religion Clauses of the First Amendment prohibited the

public schools from teaching students religious precepts, or

inducing students to engage in prayer.

The explanation for this unbroken line of decisions

involving state-initiated religious expression in public

schools is straightforward - namely, that young students are

impressionable, and are susceptible to embracing the views,

beliefs, and norms that their schools (and their teachers)

prescribe. Outside the context of religious expression and

teaching, the likelihood that students will embrace much of

what they are taught is constitutionally tolerable, and

generally does not call into question the State’s attempt to

persuade its charges to learn certain truths, or to adopt

certain values or lessons - at least as long as the students are

not required to affirm the State’s preferred beliefs and ideas,

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

642 (1943), and are permitted to seek their education outside

the public schools, see Pierce v. Society of Sisters, 268 U.S. 510

(1925). Indeed, it is one of the principal functions of public

schools to inculcate in students certain knowledge, skills,

and civic values. Thus, “[b]y the time they are seniors, high

school students no doubt have been required to attend

classes and assemblies and to complete assignments

exposing them to ideas they find distasteful or immoral or

absurd or all of these.” Lee, 505 U.S. at 590-91.

The constitutional problem is fundamentally different,

however, and the possibility of constitutional harm more

pronounced, when it comes to a school’s inculcation of

religious beliefs and values, for, as this Court explained in

Lee, “[t]he First Amendment's Religion Clauses mean that

religious beliefs and religious expression are too precious to

be either proscribed or prescribed by the State.” Id. at 589.

For that reason, it is a “timeless lesson” of the Religion

Clauses “that if citizens are subjected to state-sponsored

religious exercises, the State disavows its own duty to guard

and respect that sphere of inviolable conscience and belief

which is the mark of a free people.” Id. at 592. Just as in Lee,

the present case implicates state-prescribed religious

affirmation in public primary and secondary schools.

Accordingly, as in Lee, the “controlling precedents” of this

Court's public-school cases lead inexorably to the conclusion

that the religious affirmation that the Elk Grove School

District prescribes, as an integral part of a daily patriotic

exercise, violates the Religion Clauses - and such a holding

follows straightforwardly from the Court's school cases

“without reference to [the Court's Religion Clause]

principles in other contexts.” Id. at 586.

Therefore, this case, like Lee, “does not require [the

Court] to revisit the difficult questions dividing [the Justices]

in recent cases” involving Religion Clause questions outside

the public-school context. Id. Thus, for example - and

contrary to what the United States implies, see Brief for the

United States as Respondent Supporting Petitioners (“U.S.

Br.”) at 26-31 - this case does not require the Court to resolve

difficult issues concerning other official governmental

invocations of God or religion outside the school context

(such as the currency notation “In God We Trust” or this

Court's tradition of beginning each session with the words

“God Save the United States and this Honorable Court”), let

alone official acknowledgments of the role of religion in the

Nation’s history, or other historical facts. Indeed, this case

does not even present any broader questions concerning the

Pledge itself, such as whether it is constitutional when

recited by government officials with an adult audience

outside the public schools; nor does the case require the

Court to opine on the constitutionality of the federal statute,

4 US.C. § 4, codifying (but not requiring anyone to recite) a

particular version of the Pledge.

A. School-Initiated Or School-Approved Religious

Activity In Formal School Settings Is Inevitably Coercive

And Therefore Effectively, And Unconstitutionally,

Compels Students To Violate Their Religious Conscience.

In Lee, this Court emphasized the “central principle” that

“at a minimum, the Constitution guarantees that

government may not coerce anyone to support or participate

in religion or its exercise.” 505 U.S. at 587. The Court

reiterated what it had “observed before,” namely, “that there

are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the elementary

and secondary public schools.” Id. at 592. Applying these

time-honored principles in the context of a secondary-school

setting, the Court in Lee held that a policy of prayer by

invited religious personnel at high school graduation

ceremonies was unconstitutional.

Those defending the graduation prayer policy in Lee

argued that no religious coercion was present because

recitation of the prayers at the ceremony would do no more

than “offer a choice,” id., that a high school student was free

to accept or reject. The Court rejected that “freedom of

choice” argument in no uncertain terms:

The undeniable fact is that the school district's

supervision and control of a high school graduation

ceremony places public pressure, as well as peer

pressure, on attending students to stand as a group

or, at least, maintain respectful silence during the

invocation and benediction. This pressure, though

subtle and indirect, can be as real as any overt

compulsion.

Id. at 593.

The Court described the constitutional dangers present

where the State is responsible for such_pressure with respect

to matters of religious conscience. A student who does not

believe in the religious sentiments of the graduation prayer,

or who for any other reason does not wish to engage in that

particular religious expression in that setting, has three

choices: (i) she can join the assemblage in prayer, against the

dictates of her conscience, in order to avoid conflict and peer

pressure; (ii) she can visibly protest or dissent, such as by

sitting; or (iii) she can stand in respectful silence. Although

the latter two options would not involve any direct violation

of the student's conscience regarding religious matters, the

Court explained that in those cases “the injury is no less

real” because, absent a conspicuous objection on her part,

and “given our social conventions, a reasonable dissenter in

this milieu could believe that the group exercise signified

her own participation or approval of it.” Id. The “dilemma”

of choosing among these options placed an objecting student

“in an untenable position,” id..at 590, “in effect requir[ing]

participation in a religious exercise.” Id. at 594. “The

Constitution,” the Court concluded, “forbids the State to

exact religious conformity from a student as the price of

attending her own high school graduation.” Id. at 596.

Moreover - and especially in the case of a rare student

who could voluntarily and effectively dissent from the

school’s religious exercise - the prayer would violate the

Establishment Clause for yet another reason, namely, that it

would send an “ancillary” message from the State that

nonadherents and other dissenters “are outsiders, not full

members of the political community,” as well as “an

accompanying message to adherents that they are insiders,

favored members of the political community.” Santa Fe

Indep. School Dist., 530 U.S. at 309-10 (quoting Lynch v.

Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)).

The Establishment Clause forbids the government from

conveying to students these messages of insider and

outsider status on the basis of religion. See also Lee, 505 U.S.

at 606 n.9 (Blackmun, J.) (citing Wallace v. Jaffree, 472 U.S. 38,

69 (O’Connor, J., concurring in judgment)).

B. The Daily Practice of Teacher-Led Religious

Affirmation In This Case Poses Constitutional Dangers

Even Greater Than Those Present In The Graduation

Setting In Lee.

The Court's holding and rationale in Lee - and in the

Court’s long line of cases involving state-prescribed

religious expression in public schools - are directly apposite

here, and suffice to explain why Petitioners’ instruction to

students to affirm daily that we are “one Nation under God”

is unconstitutional. Indeed, some aspects of the petitioners’

practice make it more objectionable from the perspective of

the Religion Clauses than was the policy at issue in Lee itself.

To be sure, Lee involved formal prayer, such as religious

invocations and benedictions, see Lee, 505 U.S. at 581-82, and

this case does not involve prayer, as such. But in the context

of public schools, this Court has not limited its Religion

Clause scrutiny to expression that takes the form of prayer.

The Court has “repeatedly recognized,” for instance, that

“government inculcation of religious beliefs [in public schools]

has the impermissible effect of advancing religion.” Agostini

v. Felton, 521 U.S. 203, 223 (1997) (emphasis added); see also

Mitchell v. Helms, 530 U.S 793, 840-43 (2000) (O’Connor, J.,

concurring in the judgment) (direct government aid may not

be used for “religious indoctrination,” to “inculcate

religion,” or for “religious teaching”); Edwards v. Aguillard,

482 U.S. at 614. In this case, as in Lee, and as in the Court's

per curiam decision concerning the Ten Commandments in

Stone v. Graham, 449 U.S. 39 (1980), the expression in

question is “an essential and profound recognition of divine

authority.” Lee, 505 U.S. at 594. Surely, such a core religious

creed is as worthy of the protections of the Religion Clauses

as is formal prayer.*

3 Presumably, for example, public school teachers could not

instruct students, as part of the standard curriculum, that we are,

in fact, “one Nation under God.” Conversely, a private

individual's own affirmation to the same effect would be entitled

to the fullest protection of the Free Exercise Clause, whether or not

in the form of prayer.

What is more, petitioners’ practice of daily recitation of

the Pledge raises concerns about the coercion of religious

belief and expression that are much more acute than when a

school official expresses a religious view or instructs

students on a matter of faith. We must not forget, after all,

that it is a pledge we are considering here - indeed, a pledge

of allegiance. Those who recite the Pledge are swearing, or

promising (“pledging”), fealty to a specific, particularized

conception of our Flag and to “the Republic for which it

stands.” For instance, a student reciting the Pledge is

affirming the credo that “liberty and justice” are, and ought

to be, “for all.” Similarly, one reciting the Pledge, with hand

on heart, standing at attention, is most reasonably viewed as

professing fealty to the conviction that we are “one Nation

under God.” Thus, in order to be able to affirm allegiance to

Flag and Republic in the manner prescribed by the state,

elementary school children must, in effect, profess that we

are “one Nation under God,” a commitment of belief

concerning important questions of faith. In simplest terms, a

schoolchild’s recital of the government-prescribed Pledge

affirms a belief in the existence of God, indeed, of a single

God, and of that single God’s superintendence over our one,

indivisible, Nation. This affirmation is elicited, not only

from nonreligious students, but also from countless students

whose religions do not recognize a god, from those who

believe in more than one god, and even from many students

who believe in a single god but who do not think it proper to

affirm publicly a religious creed.

There are other important distinctions, as well, that make

this case more constitutionally troubling than Lee. The

policy in Lee was for prayer to be recited by a person from

outside the school, on a single occasion at the conclusion of

the students’ many years in public school. The content of

those graduation prayers would vary, and was subject to

some individual discretion. The Pledge, by contrast, is

recited, with precisely the same words, first thing every

morning, year after year - for a typical student, more than

2000 times over the course of her tenure in public school. It

is, in other words, a ritual of unique importance and

regularity, having a manifest pride of place in the classroom,

no matter what else might be on a particular day's

curriculum. See Lee, 505 U.S. at 596 (risk of compulsion in

the classroom setting “is especially high”). Indeed, the Elk

Grove School District requires that each elementary school class

recite the Pledge each day. Petitioners’ Brief on the Merits

(“Pet. Br.”) at 3. And it is the students’ classroom teachers -

their principal mentors and role models - who ordinari'y

lead the assembled class in the Pledge. The school district's

requirement that each class recite the Pledge, and the fact

that teachers lead its recital, convey to the students that this

is the norm to which they are expected to conform their

conduct. Moreover, whereas attendance at high-school

graduation in Lee was mandatory only in a practical sense

(because few students would want to miss it), see 505 U.S. at

589, the students reciting the Pledge in the Elk Grove School

District are captive audiences in a literal sense: They are

required by law to attend class.

Finally, students affected by the policy in Lee were

graduating high school seniors whose views and beliefs had

already been formed over many years, and whose

intellectual fortitude and capacity for mnonconformity

presumably were substantially developed. By contrast, the

Pledge in the Elk Grove School District is recited daily by

highly impressionable children beginning as early as

kindergarten. It ought to go without saying that the vast

majority of students, from a very young age, either will feel

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compelled to recite the Pledge, or recite it as a matter of rote,

in the manner learned from one’s teachers and fellow

students - in which case its recitation will become second

nature before a student even has the opportunity to reflect

critically on its substance. The coercion, the inculcation, in

such a setting with such a young and impressionable

audience is unavoidable. As Judge Goodwin, writing for the

court of appeals panel, noted, “[t]he coercive effect of the

policy here is particularly pronounced in the school setting

given the age and impressionability of schoolchildren, and

their understanding that they are required to adhere to the

norms set by their schools, their teacher and their fellow

students.” Newdow v. United States Congress, 328 F.3d 466,

488 (9% Cir. 2003).

In the mine run of cases, therefore, the school’s daily

recitation of the Pledge will, in fact, violate the central

constitutional precept that a state may not “force [an

individual] to profess a belief or disbelief in any religion.”

Everson v. Board of Educ., 330 U.S. 1, 15 (1947). If, as this

Court held in Lee, the Constitution “forbids the State to exact

religious conformity from a student as the price of attending

her own high school graduation,” Lee, 505 U.S. at 596, then it

follows a fortiori that the Constitution also forbids the State

to invite and, in effect, to exact a profession of religious

belief from a child in order for the child to be present in the

classroom each day of his K-12 education.

Perhaps, as in Barnette, a school district on rare occasion

will be met with an exceptional student - presumably of

older years - who has the breadth of understanding and the

courage to dissent from the district's daily ritual. But Lee

teaches that the options of the dissenting student to stand in

silence, or to sit, are themselves constitutionally

unacceptable. All the more so in the primary-school setting

involving the Pledge: A child who elects not to participate

would, as a practical matter, be required to dissent from the

norm each and every day, in the crucible of a social setting

in which virtually all of his or her peers willingly conform to

a collective patriotic affirmation. Compelled to explain her

principled disobedience to teachers, school authorities, and

peers, the nonconforming student can expect to pay a high

price of opprobrium and ostracism for this exercise of

conscience.

Thus, for children “who do not wish to participate for

any reason based upon the dictates of conscience,” the

option of opting out “in its operation subjects them to a cruel

dilemma. In consequence, even devout children may well

avoid claiming their right and simply continue to participate

in exercises distasteful to them because of an understandable

reluctance to be stigmatized as atheists or nonconformists

simply on the basis of their request.” Schempp, 374 U.S. at

289-90 (Brennan, J., concurring). As this Court held in Lee,

505 U.S. at 590, 593, the State may not, consistent with the

Religion Clauses, place public school students in such an

untenable position with respect to matters of religious

conviction, belief, and expression.

Finally, the daily recital of the Pledge in public schools

also conveys an unconstitutional government message to

dissenters and nonbelievers, and to polytheistic and

nontheistic religious students and their families. For by

declaring, in a solemn, daily oath of “allegiance,” that our

“one Nation” - and an “indivisible” one, at that - is “under

God,” the state-prescribed Pledge sends the unmistakable

message that those who do not publicly affirm belief in the

single God to which the Pledge refers are “outsiders,” rather

than full members of the “political community” - a

community that otherwise consists of “one Nation .. .

indivisible.” See Santa Fe Indep. School Dist., 530 U.S. at 309-

10 (quoting Lynch, 465 US. at 688 (O'Connor, J.,

concurring)).

This message of exclusion - with respect not only to

nonbelievers who feel obliged or coerced to recite the Pledge

in order to participate as full members in their community's

central, and daily, patriotic exercise, but also (indeed,

especially) to those rare students who dissent conspicuously

from that patriotic exercise - could not be plainer: As Justice

Kennedy has noted, notwithstanding that no one is

technically obligated to recite the words “under God” in the

Pledge, nevertheless “it borders on sophistry to suggest that

the ‘reasonable’ atheist would not feel less than a “full

membe[r] of the political community” every time his fellow

Americans recited, as part of their expression of patriotism

and love for country, a phrase he believed to be false.”

County of Allegheny v. ACLU, 492 U.S. 573, 673 (1989)

(Kennedy, J., concurring in judgment in part and dissenting

in part) (quoting id. at 595, 620 (majority opinion) (internal

citations omitted)).

C. The Right To “Opt Out” Of Reciting The Pledge Does

Not Cure The Constitutional Violation Inherent In The

Classroom Setting.

Responding to the undue coercion rationale that the

court of appeals properly adopted from this Court's decision

in Lee, petitioners contend that any coercion present in this

case is sufficiently allayed by the ability of students to opt

out of reciting the Pledge - a freedom to refrain from

speaking that the First Amendment protects. Pet. Br. at 23-

24 (citing West Virginia State Bd. of Educ. v. Barnette, 319 US.

624 (1943)). Petitioners argue that, because the Court in

Barnette “implicitly authorized the voluntary recitation of

the Pledge by students in public schools,” the “logical

result” is that the ability to opt out of such recitation

sufficiently addresses any constitutionally troubling

coercion: “There is simply no logical reason to differentiate

between the rights at stake in this case and those in

Barnette.” Id. at 24.

The Court rejected this very argument in Lee, explaining

that it “overlooks a fundamental dynamic of the

Constitution.” 505 U.S. at 591. Of course, even if the Pledge

did not include the words “under God” (as, at the time of

Barnette, it did not), Barnette holds that a student must be

provided a right to decline to recite the Pledge, in order to

prevent the state from impermissibly compelling verbal

assent to its orthodoxy. Id., 319 U.S. at 642. But simply

because such an opt-out is required in order to cure what

would otherwise be a compelled-speech violation does not

mean that a school may, consistent with the stablishment

Clause, have teachers lead students in recitation of the phrase

“under God” daily in primary and secondary school

classrooms, as an integral part of a collective patriotic pledge

of allegiance.

Justice Kennedy, speaking for the Court in Lee, explained

that the type of “coercion” that the Free Speech Clause

enjoins is fundamentally distinct from the coercion the

Establishment Clause forbids. 505 U.S. at 590-92. This is

because the Speech Clause permits government, especially

in the public school setting, to participate as a speaker and to

attempt to persuade young hearts and minds. See Barnette,

319 US. at 640 (“National unity as an end which officials

may foster by persuasion and example is not in question”).

By contrast, “[t]he method for protecting freedom of

worship and freedom of conscience in religious matters is

quite the reverse. In religious debate or expression the

government is not a prime participant, for the Framers

deemed religious establishment antithetical to the freedom

of all... . [T]he Establishment Clause is a specific

prohibition on forms of state intervention in religious affairs

with no precise counterpart in the speech provisions.” Lee,

505 U.S. at 591.

Thus, just as in this Court’s school prayer cases, the fact

that a school permits students to be voluntarily excused

from attendance or participation in the religious

proclamations “d[oes] not shield those practices from

invalidation.” Id. at 596 (citing Engel, 370 U.S. at 430, and

Schempp, 374 U.S. at 224-25). The fact that participation “is

voluntary in a legal sense does not save the religious

exercise.” Id.

II. RECITATION OF THE PLEDGE IN PUBLIC

SCHOOL CLASSROOMS CANNOT BE

DEFENDED ON GROUNDS THAT HAVE

SERVED TO JUSTIFY OTHER GOVERNMENT

INVOCATIONS OF RELIGION

Petitioners and their amici attempt in several ways to

distinguish this Court's unbroken line of cases invalidating

school-initiated religious activity and expression. None of

those purported distinctions withstands ana_ysis.

A. The Words “Under God” In The Pledge Are Not A

Mere Acknowledgement Of Historical Fact.

The United States, acknowledging that the Court “has

been particularly vigilant in monitoring compliance with the

Establishment Clause in [public] elementary and secondary

schools,” U.S. Br. at 33-34 (quoting Edwards, 482 US. at 583-

84), appears to concede that if recitation of the words “under

God” in the daily Pledge were a “religious exercise” akin to

the prayers in Lee, or the “profession of a religious belief,”

then the practice would be unconstitutional in the primary

and secondary school setting. See, e.g., id. at 41-45. The

Government argues at great length, however, that the

Pledge’s reference to “under God” is a mere “historical” or

“factual” statement, akin to a teacher's history lesson, that

serves only to acknowledge the religious heritage of our

Nation and the religious inspiration for the Founders’

democratic ideals. See id. at 32-33, 40-48. Petitioners

likewise assert that that is how a “reasonable” observer

(presumably including a first-grade student expected daily

to recite the Pledge, led by her teacher, in a classroom, with

her peers) would understand the words “under God.” See

Pet. Br. at 28. This argument has its origin in Justice

Brennan's concurrence in Schempp, 374 U.S. at 304, in which

he surmised that “[t]he reference to divinity in the revised

pledge of allegiance, for example, may merely recognize the

historical fact that our Nation was believed to have been

founded ‘under God.”

If the United States’ and petitioners’ contention about the

meaning of “under God” were correct, or even reasonable, it

might have some force. Certainly, our public schools may

teach students of the religious, as well as the non-religious,

sources of our Nation’s ideals and beliefs, and of the role of

religion in American (and world) history. See generally Kent

Greenawalt, Teaching About Religion in the Public Schools, 18

J.L. & Pol. 329 (2003); Jay D. Wexler, Preparing for the Clothed

Public Square: Teaching About Religion, Civic Education, and the

Constitution, 43 Wm. & Mary L. Rev. 1159 (2002). No one

would dispute the United States’ argument that the

Constitution does not require this Court to-“sweep away all

government recognition and acknowledgement of the role of

religion in the lives of our citizens,” U.S. Br. at 27, citing

County of Allegheny, 492 US. at 623 (O'Connor, J.,

concurring), or to hold that public schools “must studiously

ignore” a significant aspect of our Nation’s history,” U.S. Br.

at 31. Obviously, public schools need not and should not

fail to teach students “that there are many manifestations in

our public life of belief in God,” Engel, 370 U.S. at 435 n.21,

such as in the Declaration of Independence, the Gettysburg

Address, and Madison’s Memorial and Remonstrance; nor

should schools pretend as though religious faith has not

played an influential role in the Nation’s founding and in

other epochal events in our history.

It does not follow, however, that schools may instruct

students, in an inherently coercive setting, to recite a daily

“pledge” that includes a profession of religious belief. It is

neither the office nor the effect of “under God” in the Pledge

to teach anything. To be sure, the Pledge as a whole may

inculcate patriotic values, but that only underscores that the

addition of “under God” cannot reasonably be understood

as anything other than a required profession of allegiance to

a belief in a monotheistic conception of God superintending

our “one Nation” - to a notion of patriotism dependent

upon belief in divine provenance and supremacy.

In this connection, the United States strains to argue (as

do other amici) that the words “under God” have no such

religious function or effect. “A reasonable observer,” the

Government asserts,

reading the text of the Pledge as a whole, cognizant

of its purpose, and familiar with (even if not

personally subscribing to) the Nation's religious

heritage, would understand that the reference to God

is not an approbation of monotheism, but a patriotic and

unifying acknowledgment of the role of religious faith in

forming and defining the unique political and social

character of the Nation.

U.S. Br. at 43 (emphasis added). With all respect, this

characterization misconstrues, indeed trivializes, the solemn

nature of the Pledge. It is difficult to imagine that anyone,

let alone the average primary-school student, would

conclude that the final three clauses of the Pledge are merely

“descriptive,” rather than normative. U.S. Br. at 40. It

would, to say the least, be unnatural to construe the Pledge

as though the first 20 words are the substance of the pledge

to Flag and Republic, with (as the Government would have

it) the eleven words thereafter merely identifying the

“Republic” in question by certain of its particular

characteristics, namely, “one Nation, composed of

individual States yet indivisible as a Nation, established for

the purposes of promoting liberty and justice for all, and

founded by individuals whose belief in God gave rise to the

governmental institutions and political order they adopted

and continues to inspire the quest for ‘liberty and justice’ for

each individual.” Id.

To the contrary, a reasonable person - particularly a

reasonable young student - would understand the second

half of the Pledge to be enumerating the ideals, the

characteristics of the Republic, to which allegiance is being

pledged. As the Court itself stated in Barnette, the Pledge

“requires affirmation, of a belief and an attitude of mind.”

319 US. at 633. And, as to the words “under God” in

particular, there can be little if any doubt that a person

reciting those words is thereby affirming a belief that our

“one Nation” is, indeed, “under God” - “an essential and

profound recognition of divine authority.” Lee, 505 U.S. at

594.

Although the United States now denies this manifest

truth, it was clearly President Eisenhower's understanding,

and intent, when he signed the bill adding the words “under

God” to the Pledge: “From this day forward,” he declared,

the millions of our schoolchildren will daily proclaim

in every city and town, every village and rural

schoolhouse, the dedication of our Nation and our people

to the Almighty. ... To anyone who truly loves

America, nothing could be more inspiring than to

contemplate this rededication of our youth, on each

school morning, to our country’s true meaning. . . .

In this way, we are reaffirming the transcendence of

religious faith in America’s heritage and future, in this

way we shall constantly strengthen those spiritual

weapons which forever shall be our country’s most

powerful resource, in peace or in war.

100 Cong. Rec. 8618 (1954) (statement of Sen. Ferguson

incorporating President's signing statement).

The congressional sponsors of the amendment to the

Pledge shared this understanding of the meaning, and the

desired and inevitable impact, of the additional phrase. The

Senate sponsor, for instance, thought that “under God”

would “remind” the “young people of America” that it is “a

pledge not only of words, but also of belief.” Id. at 6348

(statement of Sen. Ferguson). The House sponsor, likewise,

envisioned that recitation of the additional words would

“affirm our belief in the existence of God and His creator-

creature relation to man.” Id. at A1115 (statement of Rep.

Rebaut). According to the House Report, addition of “under

God” would convey “a belief in the sovereignty of God:”

“The phrase ‘under God’ recognizes only the guidance of

God in our national affairs.” H.R. Rep. No. 83-1693, at 3

(1954).4 There is simply no reason to think that the

schoolchildren who daily recite “under God” understand

the meaning of that phrase any differently than was

contemplated by those who designed the phrase precisely in

order to induce students to affirm (in the President's words)

the “dedication” of the Nation “to the Almighty.”5

Indeed, the United States’ view that a reasonable

observer would understand “under God” as merely

descriptive of historical fact is belied by many of petitioners’

own amici, who insist in their briefs to this Court that the

function of “under God” is to affirm belief in God, and to

teach children of the Nation’s divine provenance and

superintendence. And Petitioners themselves argue, Pet.

* For further examples of the effect that the Legislature expected

“under God” would have, see generally Steven B. Epstein,

Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L.

Rev. 2083, 2118-22 (1996); Steven G. Gey, “Under God,” the Pledge of

Allegiance, and Other Constitutional Trivia, 81 N.C. L. Rev. 1865,

1876-81 (2003) )

5 If Congress had intended merely that the Pledge describe the

place of religion in our Nation's history, surely it would have

amended the Pledge to say that in so many words, rather than to

prescribe that our “one Nation” is “under” God.

6 See, e.g., Claremont Institute Center for Constitutional

Jurisprudence Br. at 25 (Pledge “[a]cknowledges [a] [bjelief In

God” and “[floster[s] an [a]ppreciation of God as the [s]ource of

[aJll [ojur [r]ights”); Common Good Foundation, et al. Br. at 9-10

(“addition of the phrase ‘under God’ to the Pledge was an

affirmation by the American public of a unique monotheistic

doctrine” ; “the inclusion of God in our pledge of allegiance rightly

(Continued...)

Br. at 37-38, that the phrase “solemniz[es] public occasions”

- an assertion in considerable tension with the notion that

“under God” merely recites historical fact. If this is how the

phrase is understood by learned adult observers, can there

be any serious argument that young and impressionable

students would not think likewise? Petitioners and the

United States may not simply define away the constitutional

problem by denying the manifest religious function and

effect of reciting the phrase “one Nation under God,” or by

pretending as though those words do not mean what they

plainly say.’

and most appropriately acknowledges the dependence of our

people and our Government upon that divinity that rules over the

destinies of nations as well as individuals”); National Jewish

Commission on Law and Public Affairs Br. at 5-6 (declining to

“dismiss the reference in the Pledge of Allegiance to ‘one nation

under God’ as de minimis or as devoid of its literal meaning”;

phrase reflects the “guiding principle that “the Nation has

prospered . . . because it has been blessed by the Almighty”;

declaration that we are “one nation under God” is “the expression

of what has always been. acknowledged by humankind - that

man’s destiny is shaped by a Supreme Being”); Christian Legal

Society Br. at 4 (inclusion of “under God” “asserts that

government is not the highest authority in human affairs”);

National Lawyers Association Foundation Br. at 2-3 (“Congress

may express our country’s theistic philosophy in the Pledge of

Allegiance”; “the First Amendment does not deny any public

school the ability to recognize and honor the existence of God”).

7 Recital of the Pledge thus is in no way comparable to curricular

requirements that students recite other famous works that contain

(Continued...)

B. Petitioners’ Other Justifications For Their Practice Do

Not Cure The Constitutional Infirmity.

Petitioners also argue that the words “under God” are

constitutionally permissible because they serve the

“legitimate secular purpose of solemnizing public

occasions.” Pet. Br. at 37-38 (citing Wallace, 472 US. at 78 n.5

(O’Connor, J., concurring) (internal citation omitted)). This

Court has never held that a “solemnization” function can

serve to sustain state religious expression that otherwise

violates the First Amendment. Indeed, such a holding

would prove too much, because in theory it would serve to

justify most cases of religious expression that this Court has

invalidated in the public-school setting. As the Court

recently noted, Santa Fe Indep. Sch. Dist., 530 U.S. at 306-07,

n.18, there is nothing suspect about a state interest in

solemnizing a school function; but secular means are wholly

adequate to that task - as they were in the Pledge itself in the

references to the Deity, such as the Declaration of Independence or

the Gettysburg Address. See Engel, 370 U.S. at 435 n.21; US. Br. at

42. In such curricular contexts, the recital is required in order to

teach students historical facts (and rhetorical skills). No one

would think that a student reciting the Gettysburg Address is

professing allegiance to all of Lincoln’s sentiments or ideas. The

Pledge, however, is an affirmation of allegiance to the Republic as

it is described therein, not a learning exercise. Similarly, the

coercion problem is not raised by other instances of so-called

“ceremonial” religion in our public lives. No one is asked to

affirm “In God We Trust” in order to spend money. Nor is

counsel encouraged, let alone required, to intone “God Save this

Honorable Court” in order to argue before it.

62 years before insertion of “under God” in its text - and

there is no constitutional justification for the state to prefer,

let alone prescribe, a religious means of solemnization. See

also id. at 309 (“regardless of whether one considers a

sporting event an appropriate occasion for solemnity, the

use of an invocation to foster such solemnity is

impermissible when, in actuality, it constitutes prayer