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

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No. 02-1624

IN THE

SUPREME COURT OF THE UNITED

STATES

ELK GROVE UNIFIED. SCHOOL DISTRICT AND

DAVID W. GORDON, SUPERINTENDENT,

PETITIONERS

Vv.

MICHAEL A. NEWDOW, ET AL.,

RESPONDENTS

On Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

Brief Amicus Curiae of American Atheists

In Support of Respondents

JAMES H. PYLE PAUL SANFORD

11975 El Camino Real Counsel of Record

Suite 200 6113 Jason Court

San Diego, CA 92130 Aptos, CA 95003

(858) 623-1111 (831) 588-0528

Counsel for Amicus Curiae American Atheists

AMERICAN ATHEISTS

P.O. Box 5733

Parsippany, NJ 07054-6733

(908) 276-7300

QUESTION PRESENTED

Whether a public school policy that requires teachers to

lead willing students in reciting the pledge of Allegiance,

which includes the words “under God,” violates the

Establishment Clause of the First Amendment, as applicable

through the Fourteenth Amendment.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .......0cseccccsesccssescees i

TABLE OF CONTEINTS.....ccccscssssecsoscsessunsenss il

TABLE OF AUTHORITIES. ..............sesseeseeee iv

INTEREST OF AMICUS CURIAE...........00000000 l

SUMMARY OF ARGUMENT..............0eeeeeees 2

ARGUMENT .......000000000000000000000000snnennennnnenne 3

I. THE PROTECTIONS GUARANTEED

UNDER THE RELIGION CLAUSES

OF THE FIRST AMENDMENT......... 3

A. The Drafters of the Bill of

Rights Intended to Separate

Government from Religion by

Broadly Protecting the “Rights

of Conscience” from

Government Intrusion............. 3

B. Atheists are Protected by the

First Amendment................4 1]

Il. THE ADDITION OF THE WORDS

“UNDER GOD” TO THE PLEDGE

OF ALLEGIANCE VIOLATES

THE ESTABLISHMENT CLAUSE

OF THE FIRST AMENDMENT......... 16

il ™

A. The Ninth Circuit Properly

Applied Existing

B. The Intent and Effect of the

1954 Act was to Denigrate and

Disparage those with Atheistic

Views as Part of a Political

Strategy to Distinguish “Us”

from the “Godless

iin cicceeinecooucber 16

+d “Under God” is an Unnecessary

D. The Sectarian Pledge Created

by the 1954 Act Prevents

Atheists From Pledging

Allegiance to Their Country...... 24

E. Public Law 107-293 Does Not

Rehabilitate the Unconstitutional

Nature of the Sectarian

ST iciiiddeteseneésescececers 26

Ill. CALIFORNIA EDUCATION CODE

SECTION 52720 IS

UNCONSTITUTIONAL.................... 27

ces 30

iV

TABLE OF AUTHORITIES

Page

CASES

Edwards v. Aguillard, 482 U.S. 578

ieee ccccsctacseenndbesnsentnnmapinintinndenstaemgendanannle 28

Everson v. Board of Education, 330 U.S. |

i a ctccscumancincesndsemieenieninctidiestadinennienenn 3

Newdow v. U.S. Congress, 292 F.3d 598

, Bet icecccessccccesccnscssencnsensetansinsenonnns 25

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

Ci Accossénecuntnssebennieabennnenniemenninctieusanaiaina 29

Sch. Dist. of Abington v. Schempp, 374 U.S. 203

GE cccicecndcosenesisncinenientsouiiebgueninnieueentes 24

Torcaso v. Watkins, 367 U.S. 488

ie sduccssstnccanednneqnccssoessnermccemaninnnnts 14, 15

Wallace v. Jaffree, 472 U.S. 38

CRD cvecsccccnncsessnncopnsccsessanecsesinmeoninan passim

W. Virginia State Board of Educ. v. Barnett,

SOP Ue Ge i icneskcodentcconssmsnncessonensnenin 24

FEDERAL AUTHORITIES

CD, CURIE. GUIDING, Bcccccsscccescsssesccssecssescceses 4,10

Pub. L. No. 83-1683, 1954 U.S.C.C.A.N. 2339....13, 18

rm

Pub. L. No. 107-293, 116 Stat. 2057 (2002)........... 26

H.J. Res. 303 (77th Cong.), 56 Stat. 377 (1942)...... 22

H.J. Res. 243 (83rd Congress), 68 Stat. 249 (1954).... 3

1 ANNALS OF CONG. 729. ..........0220cceeeeeeeeeecees 8,9, 10

100 CONG. REC. S 6231 (1954)................2020e: 17, 23

100 CONG. REC. S 8617 (1954)..............205 18, 19, 20

STATE AUTHORITIES

California Education Code § 52720 (1989).............. 27

OTHER AUTHORITIES

David Kravets, Judge Says His Ruling on Pledge Had

Supreme Court Precedents, PHILADELPHIA INQUIRER,

Juby $, 2002, at A1O..........ccccccssccccccsccccccsescsescess 25

Herb Silverman, The Story Behind Atheist's

Invocation and Aftermath of Walkout,

CHARLESTON NET, April 14, 2003, available at

http://charleston.net/stories/04 1403/

com 14silverman.shtml.................-.:.ce0ceeeeeeeeeees 28

James Madison, Detached Memoranda (1817), in

Elizabeth Fleet, Madison's “Detached Memoranda,”

3 WM & Mary Q. 534, 560 (3rd Series, 1946) ......... 3,7

James Madison, Letter from James Madison to

Edward Livingston (July 10, 1822), in

9 THE WRITINGS OF JAMES MADISON 98

(Gaillard Haart od., 1910)............c.ccccccscsccccccesesesees 6

vi

James Madison, Letter from James Madison to

Jesse Jones and Others (June 3, 1811) in

- 3 THE PAPERS OF JAMES MADISON,

PRESIDENTIAL SERIES 323

(J.C.A. Stagg, J. Kerr Cross, & S. Holbrook

| anieemiseaaisnianial 7

James Madison, Letter from James Madison to

Rev. Jasper Adams (1832) in

9 THE WRITINGS OF JAMES MADISON 484

I CI eaiennaseenaanen 7,14

James Madison, Memorial and Remonstrance

against Religious Assessments (June 20, 1785) in

8 THE PAPERS OF JAMES MADISON 295

(Robert A. Rutland & William M.E. Rachal eds.,

Madalyn Murray O’ Hair, Atheism, American

Athetists, af

http://www.atheists.org/Atheism/atheism.html

CS ee l

MERRIAM-WEBSTER ’S COLLEGIATE DICTIONARY

NII, UIT cconsntnccendtinsonededmbnaannientt 11, 24, 27

Michael J. Perry, Freedom of Religion in the

United States: Fin de Siecle Sketches,

I a ecietial 25

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

Allegiance, and Other Constitutional Trivia,

eR ee 16, 25, 29

Vii

Thomas Jefferson, Jefferson's Works:

Autobiography (January 6, 1821), in

| THE WRITINGS OF THOMAS JEFFERSON |

(Andrew A. Lipscomb & Albert Ellery Bergh eds.,

Thomas Jefferson, Jefferson's Works: Notes

on Virginia, Query XVII (1782) in

2 THE WRITINGS OF THOMAS JEFFERSON 217

(Andrew A. Lipscomb & Albert Ellery Bergh eds.,

Thomas Jefferson, Letter from Thomas Jefferson

to Benjamin Rush( April 21, 1803), in

10 THE WRITINGS OF THOMAS JEFFERSON 379

(Andrew A. Lipscomb & Albert Ellery Bergh eds.,

Thomas Jefferson, Letter from Thomas Jefferson

to Edward Dowse, (April 19, 1803), in

10 THE WRITINGS OF THOMAS JEFFERSON 376

(Andrew A. Lipscomb & Albert Ellery Bergh eds.,

Thomas Jefferson, Letter from Thomas Jefferson

to Peter Carr (August 10, 1787), in

6 THE WRITINGS OF THOMAS JEFFERSON 256

(Andrew A. Lipscomb & Albert Ellery Bergh eds.,

Unknown, Petition Online, The Warning: God

and Prayer is the topic(read and sign or ignore)

Petition, available at

http://www. petitiononline.com/KeepGod/petition. htm!

(last visited January 25, 2004)..............20ceeeeeeeeee eens 24

INTEREST OF AMICUS CURIAE'

American Atheists is a volunteer organization active

in protecting the rights of Atheists and promoting tolerance

and understanding of the Atheist viewpoint. Founded in

1963 by Madalyn Murray O’ Hair, for over thirty years

American Atheists has been dedicated to the separation of

church and state and a tireless advocate of the Atheist cause.

American Atheists’ perspective is rooted in the philosophy

of materialism, “which holds that nothing exists but natural

phenomenon.” No gods, spirits, fairies, or other imagined

entities pull at the strings of humanity. The materialist

philosophy of Atheism promotes a positive viewpoint and

provides the impetus to effect change. In the words of Ms.

O’ Hair,

Materialism compels faith in the human

intellect, in the power of knowledge of man’s

ability to fathom all the secrets of nature and

to create a social system based upon reason

and justice. Materialism’s faith is in man and

his ability to transform the world by his own

efforts. It is a philosophy in every essence

optimistic, life-asserting, and radiant. It

considers the struggle for progress as a moral

obligation, and impossible without noble

ideals that inspire men to struggle, to perform

bold, creative work.’

' The parties have consented to the filing of this brief. Copies of the

letters of consent are on file with the Clerk of the Court. Counsel for

American Atheists authored this brief in its entirety. No person or entity,

other than American Atheists, its supporters or its counsel, made a

monetary contribution to the preparation or submission of this brief.

? Madalyn Murray O’Hair, Atheism, American Athetists, af

http://www.atheists.org/Atheism/atheism.html (last visited February 3,

2004).

* Id.

Given American Atheists’ unswerving dedication to the

Atheist cause for over three decades, and the undisguised

attack on Atheism and its materialist philosophy launched by

the engrafting of the words “under God” into the Pledge of

Allegiance in 1954, American Atheists submits this brief in

support of Respondent and urges the Court to affirm the

decision of the Ninth Circuit Court of Appeals.

SUMMARY OF ARGUMENT

Torrents of blood have been spilt in the old

world, by vain attempts of the secular arm to

extinguish Religious discord, by proscribing

all difference in Religious opinions. Time has

at length revealed the true remedy. Every

relaxation of narrow and rigorous policy,

wherever it has been tried, has been found to

assuage the disease. The American Theatre

has exhibited proofs, that equal and complete

liberty, if it does not wholly eradicate it,

sufficiently destroys its malignant influence

on the health and prosperity of the State. If

with the salutary effects of this system under

our own eyes, we begin to contract the bonds

of Religious freedom, we know no name that

will too severely reproach our folly. At least

let warning be taken at the first fruits of the

threatened innovation.’

Though these words were penned by James Madison over

two hundred years ago, they resonate with equal clarity

today. The locations may have changed, but the religious

* Memorial and Remonstrance against Religious Assessments (June 20,

1785) in 8 THE PAPERS OF JAMES MADISON, 295, 300 (Robert A. Rutland

& William M.E. Rachal eds., 1973) (citations omitted).

bloodshed continues. Madison's cure for this disease was

simple: the greatest protection against religious strife and

bloodshed is to guarantee equal and complete liberty for all

with regard to religious opinions. It is this guiding principle

that serves as the foundation of the Religion Clauses of the

First Amendment. The insertion of the words “under God”

by the “Joint Resolution to codify and emphasize existing

rules and customs pertaining * « the display and use of the

flag of the United States of America” (the “1954 Act”),° and

the continued governmental “suggestion” that these words

be repeated daily in our children’s classrooms, is an

unconstitutional infringement upon the rights of conscience

of every Atheist.

ARGUMENT

I. THE PROTECTIONS GUARANTEED UNDER

THE RELIGION CLAUSES OF THE FIRST

AMENDMENT

A. The Drafters of the Bill of Rights Intended to

Separate Government from fteligion by

Broadly Protecting the “Rights of Conscience”

from Government Intrusion

As this Court has consistently stated over the past 50

years, the First Amendment was intended to erect “a wall of

separation between church and State.”’ Admittedly the

record is spotty with regard to the precise meaning each and

every representative attributed to the phrase that ultimately

became the Religion Clauses of the First Amendment.

* HJ. Res. 243, 83rd Congress, 68 Stat. 249 (1954).

° As James Madison noted in his Detached Memoranda, “An advisory

Govt is a coniradiction in terms.” Elizabeth Fleet, Madison's “Detached

Memoranda,” 3 WM & MARY Q. 534, 560 (3rd Series, 1946).

’ Everson v. Board of Education, 330 U.S. 1, 16 (1947)).

However, it is beyond doubt that the broad edict that

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof” was

intended to keep the meddling hands of government out of

the inherently personal realm of religion.®

James Madison, Jefferson’s ally in advancing Virginia's

Statute of Religious Liberty,” played “as large a part as

anyone in the drafting of the Bill of Rights.”"° “The

language Madison proposed for what ultimately became the

Religion Clauses of the First Amendment was this: “The

civil rights of none shall be abridged on account of religious

belief or worship, nor shall any national religion be

established, nor shall the full and equal rights of conscience

be in any manner, or on any pretext, infringed.””'' Though

this precise wording was not ultimately adopted, it is

illustrative of the scope of freedom this key actor sought to

guarantee, and is in complete harmony with his efforts in

securing and promoting feligious freedom in Virginia prior

to the first Congress. Notably, Madison’s Memorial and

Remonstrance against Religious Assessment to the General

Assembly of the Commonwealth of Virginia gives a fair

assessment of his views on where the line of demarcation

between church and state should lie. In a part representative

of the whole, Madison said:

If “all men are by nature equally free and

independent,” all men are to be considered as

entering into Society on equal conditions; as

relinquishing no more, and therefore retaining

no less, one than another, of their natural

rights. Above all they are to be considered as

* U.S. CONST. amend. I.

* Wallace v. Jaffree, 472 U.S. 38, 92 (1985) (Rehnquist, J. dissenting).

Id.

'! Id. at 94 (citing | ANNALS OF CONG. 434 (Joseph Gales ed., 1789)).

retaining an “equal title to the free exercise of

Religion according to the dictates of

conscience.” Whilst we assert for ourselves a

freedom to embrace, to profess and to observe

the Religion which we believe to be of divine

origin, we cannot deny an equal freedom to

those whose minds have not yet yielded to the

evidence which has convinced us. If this

freedom be abused, it is an offence against

God, not against man: To God, therefore, not

to men, must an account of it be rendered.'”

This unabashed statement of broad and unequivocal religious

freedom, embracing all forms of belief or disbelief, made in

the context of opposition to a proposed governmental

religious enactment, suggests that Madison would agree with

Jefferson’s “wall of separation” précis. Though Madison

may have subscribed to the contemporary school of thought

that federal governmental powers were so limited as to

render the Bill of Rights unnecessary, it is unlikely that

Madison would have voted for a Bill of Rights that would

allow civil authority to trample the very rights he found so

precious. Regardless, there is no need to speculate as to

whether Madison believed that there should be a “wall of

separation” between church and state. In a letter to Edward

Livingston dated July 10, 1822, written some thirty-three

years after he participated in the drafting of the Religion

clauses. Madison wrote:

Notwithstanding the general progress made

within the two last centuries in favour of this

branch of liberty, & the full establishment of

it, in some parts of our Country, there remains

'? Memorial and Remonstrance against Religious Assessments (June 20,

1785) in 8 THE PAPERS OF JAMES MADISON, 295, 300 (Robert A. Rutland

& William M.E. Rachal eds., 1973) (citations omitted).

in others a strong bias towards the old error,

that without some sort of aHiance or coalition

between Govt. & Religion neither can be duly

supported. Such indeed is the tendency to

such a coalition, and such its corrupting

influence on both the parties, that the danger

cannot be too carefully guarded agst. And in

a Govt. of opinion, like ours, the only

effectual guard must be found in the

soundness and stability of the general opinion

on the subject. Every new & successful

example therefore of a perfect separation

between ecclesiastical and civil matters, is of

importance. And | have no doubt that every

new example, will succeed, as every past one

has done, in shewing that religion & Govt.

will both exist in greater purity, the less they

are mixed together. ”

Further, in a letter to the Rev. Jasper Adams written in 1832,

Madison provided some guidance to be used in tracing the

appropriate line of demarcation between church and state.

Here Madison unequivocally stated:

[I]t may not be easy, in every possible case, to

trace the line of separation between the rights

of religion and the Civil authority with such

distinctness as to avoid collision and doubts

on unessential points. The tendency to

unsurpastion on one side or the other, or to a

corrupting coalition or alliance between them,

will be best guarded agst. by an entire

abstinence of the Gov’t from interference in

'3 Letter from John Madison to Edward Livingston (July 10, 1822), in 9

THE WRITINGS OF JAMES MADISON 98, 101—102 (Gaillard Hunt ed.,

1910) (emphasis added).

any way whatsoever, beyond the necessity of

preserving public order, and protecting each

sect agst. trespasses on its legal rights by

others."

From these writings, it is clear that Madison viewed “perfect

separation” between god and government as an appropriate

goal, and that any doubts as to where the line should be

drawn are best resolved by pursuing a policy of complete

government abstinence from religious debate. This view is

no different from Jefferson’s “wall of separation.”

It is obvious that Madison viewed the complete

separation of church and state as a necessity, both in his

work in Virginia prior to the drafting of the Bill of Rights,

and in his writings thereafter. Some of Madison’s other

writings also make it clear that he believed that this type of

strong separation was guaranteed by the Constitution. For

example, Madison declared in his Detached Memoranda,

written in 1817, that “[s]trongly guarded is the separation

between Religion & Govt in the Constitution of the United

States....”'° Further, in a letter explaining his objection to

a bill containing a grant of public land to the Baptist Church,

Madison told the church in 1811 “[h]aving always regarded

the practical distinction between Religious and Civil Govt as

essential to the purity of both, and as guaranteed by the

Const: of the U. S. | could not have otherwise discharged my

duty on the occasion which presented itself.”'® Any

argument that Madison, “undoubtedly the most important

'* Letter from James Madison to Rev. Jasper Adams (1832) in 9 THE

WRITINGS OF JAMES MADISON 484, 487 (Gaillard Hunt ed., 1910).

'S Blizabeth Fleet, Madison's “Detached Memoranda,” 3 WM & MARY

Q. 534, 555 (3rd Series, 1946).

'° Letter from James Madison to Jesse Jones and Others (June 3, 1811) in

3 THE PAPERS OF JAMES MADISON, PRESIDENTIAL SERIES 323, 323

(J.C.A. Stagg, Jeanne Kerr Cross, & Susan Holbrook Perdue eds., 1996).

architect .. .”'’ of the Bill of Rights, did not buy into

Jefferson’s “wall of separation” doctrine would ignore

Madison’s own words and pervert his clearly expressed view

of the rights guaranteed under the Constitution.

Though Madison was arguably the single most

important participant in the drafting of the Bill of Rights, and

his intent with regard to religious freedom is clear, he did not

act alone. The words of others that helped shape the

Religion Clauses of the First Amendment also shed light on

this discussion. In discussing the proposed amendment,

Senators Sylvester and Huntington indicated that they feared

that the proposed form “no religion shall be established by

law, nor shall equal rights of conscience be infringed” could

have a tendency to abolish or do violence to religion.'®

Others quibbled with the verbiage or thought the provision

unnecessary.'” However, the only view stated with regard to

the intent of the amendment was that it was to protect the

rights of conscience as pertaining to the inherently personal

subject of religion.” -

Senator Carroll noted that “As the rights of

conscience are, in their nature, of peculiar delicacy, and will

little bear the gentlest touch of governmental hands; and as-

many sects have concurred in opinion that they are not well

'? Wallace v. Jaffree, 472 U.S. 38, 97 (1985) (Rehnquist, J., dissenting).

'8 See | ANNALS OF CONG. 729-30 (Joseph Gales ed., 1789). Senator

Sylvester stated that he feared this clause would have “a tendency to

abolish to abolish religion altogether.” /d. at 729. Senator Huntington

feared that this language “might be taken in such latitude as to be

extremely hurtful to the cause of religion.” /d. at 730.

' Id. at 730. Senator Gerry felt the clause should be changed to say “that

no religious doctrine shall be established by law.” /d. Senator Sherman

believed that “Congress had no authority whatever delegated to them by

the Constitution to make religious establishments” and therefore would

have the Amendment “struck out.” /d.

° See id. at 729-31.

secured under the present Constitution, he said he was much

in favor of adopting the words.””'. Senator Madison stated

that he believed that the words suggested were intended to

protect the “rights of conscience,” and that the intent was “as

well expressed as the nature of the language would admit.” =

Senators Huntington and Livermore also stated their

understanding that the amendment was to broadly protect the

“rights of conscience.””? No senator expressed a different

understanding of the intent of the amendment."

Though there were no long-winded debates recorded

in this scant record, it seems fair to state that “the most

important architect” of the Bill of Rights and the others that

chose to speak on the intended meaning of the proposed

amendment believed that they were broadly securing

protection for “rights of conscience” as pertaining to

religion. Given that no senator stated a contrary

understanding of the meaning of the proposed amendment, it

seems reasonable to say that the general consensus was that

the intent was to broadly protect the “rights of conscience”

from government intrusion.

21 Id. (emphasis added).

? Id.

** Senator Huntington stated that “[h]e understood the amendment to

mean what had been expressed by the gentleman from Virginia; but that

others might find it convenient to put a different construction upon it.”

He also said “He hoped, therefore, the amendment would be made in

such a way as to secure the rights of conscience ... .” /d. at 730. Senator

Livermore stated that he “was not satisfied with that amendment; but he

did not wish them to dwell long on the subject. He thought it would be

better if it were altered, and made it to read in this manner, that Congress

shall make no laws touching religion, or infringing the rights of

conscience.” /d. at 731.

** See id. at 729-31.

*® Wallace v. Jaffree, 472 U.S. 38, 97 (1985) (Rehnquist, J., dissenting).

~ 10

In addition to showing a consensus understanding of

the intent of the amendment, the record also shows that many

were loathe to quibble with the exact wording of the

provision, so long as it secured protection for the “rights of

conscience.” Senator Carroll indicated that “[h]e would not

contend with gentlemen about the phraseology, his object

was to secure the substance [of protection for the rights of

conscience]. . . © Senator Livermore was not satisfied by

the chosen wording, preferring the form “Congress shall

make no laws touching religion, or infringing the rights of

conscience,” but did not wish to dwell on the matter.”’

Senator Madison, though satisfied with the wording, offered

a minor revision to satisfy the minds of others.”* The early

version of the First Amendment discussed in the

congressional record, commanding that “no religion shall be

established by law, nor shall equal rights of conscience be

infringed,” passed the Senate by a vote of thirty one for,

twenty against.”” Subsequent revision of the precise wording

was done with little fanfare.°’ Ultimately, both the House

and Senate settled on “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof.””' Adoption of this broadly phrased

amendment in the Senate sparked no outcry from those

believing that the intent was to protect the “rights of

conscience.” The lack of objection to the broadly worded

phrase ultimately adopted, and Madison’s own words later

describing the Constitutional protection from government

intervention into religion, leads to the reasonable corclusion

that the people responsible for the Religion Clauses of the

First Amendment believed that they had been successful in

2° | ANNALS OF CONG. at 730.

” Id at 731.

8 Id

” Id

® See Wallace, 472 U.S. at 91-114 (Rehnquist, J., dissenting).

*" US. CONST. amend. I.

securing strong protection for the “rights of conscience”

from the meddling hand of government.

B. Atheists are Protected by the First

Amendment

This section, though it should seem unnecessary, is

directed to the erroneous belief that the drafters of the

Religion Clauses, with their inherent biases rooted in their

personal religious beliefs, never intended to include

“irreligion” among the “sects” protected from discrimination.

This is pure nonsense. The drafters of the Religion Clauses

could have chosen, but did not, to adopt phrasing narrowly

protecting the rights of all to worship their respective god,

while excluding protection for those professing no such

belief. Instead, they chose to offer broad protection for the

“rights of conscience” of all.

The term “conscience” referred to the same concept

then as it does now, the internal moral compass that guides

human beings in their choices between right and wrong.”

The concept of “freedom of conscience” as pertaining to

religion simply meant that given the inherently personal

nature of religion, citizens should be free to look to their own

conscience in making these deeply personal choices.*> What

*? Merriam-Webster’s Collegiate Dictionary defines “conscience” as “the

sense or consciousness of the moral goodness or blameworthiness of

one's own conduct, intentions, or character .. . .” MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 245 (10th ed. 1997). Jefferson described

“conscience” as “a sense of right and wrong... .” Letter from Thomas

Jefferson to Peter Carr (August 10, 1787), in 6 THE WRITINGS OF

THOMAS JEFFERSON 256, 257 (Andrew A. Lipscomb & Albert Ellery

Bergh eds., 1905).

* In the words of Madison: “The Religion then of every man must be left

to the conviction and conscience of every man, and it is the right of every

man to exercise it as these may dictate. This right is in its nature an

unalienable right. It is unalienable; because the opinions of men,

1?

—

~

a strange world it would be if the freedom to follow your

conscience in religious matters were suddenly cut off if your

conscience directed you to step beyond the palate of

offerings of recognized theology. Fortunately the drafters

imposed no such limitation. Madison’s view, as expressed in

Virginia, was that in matters of religion, freedom of

conscience had no bounds. If one chose to “abuse” that

freedom, it was between them and god, not man.”* Jefferson

put it this way:

The error seems not sufficiently eradicated

that the operations of the mind as well as the

acts of the body are subject to the coercion of

the laws. But our rulers can have authority

over such natural rights only as we have

submitted to them. The rights of conscience

we never submitted, we could not submit. We

are answerable for them to our God. The

legitimate powers of government extend to

such acts only as are injurious to others. But it

does me no injury for my neighbor to say

depending only on the evidence contemplated by their own minds,

cannot follow the dictates of other men .. . .”. Memorial and

Remonstrance against Religious Assessments (June 20, 1785) in 8 THE

PAPERS OF JAMES MADISON, 295, 300 (Robert A. Rutland & William

M.E. Rachal eds., 1973) (citations omitted).

‘4 “Whilst we assert for ourselves a freedom to embrace, to profess and to

observe the Religion which we believe to be of divine origin, we cannot

deny an equal freedom to those whose minds have not yet yielded to the

evidence which has convinced us. If this freedom be abused, it is an

offence against God, not against man: To God, therefore, not to men,

must an account of it be rendered.” Memorial and Remonstrance against

Religious Assessments (June 20, 1785) in 8 THE PAPERS OF JAMES

MADISON, 295, 300 (Robert A. Rutland & William M.E. Rachal eds.,

1973).

13

there are twenty gods, or no God. It neither

picks my pocket nor breaks my leg. -

Regardless of the slant contemporaries may choose to

put on the enactments of people operating during a deeply

religious period, when belief in god was an assumed norm, it

is indisputable that the drafters of the Bill of Rights intended

that all should have the equal right to follow their

conscience, wherever it leads them, with regard to the

intensely personal matter of religion. The oft-repeated

mantra that “our Nation was founded on a fundamental belief

in god,””* is as misleading today as it was the first time it

was uttered. A far more accurate statement is that our

Nation was founded by people who generally believed in

god, but who also had the wisdom to recognize the potential

for mischief in mixing religion and government. In the

words of Madison:

What influence in fact have ecclesiastical

establishments had on Civil Society? In some

instances they have been seen to erect a

spiritual tyranny on the ruins of Civil

authority; in many instances they have been

seen upholding the thrones of political

tyranny: in no instance have they been seen

the guardians of the liberties of the people.

Rulers who wished to subvert the public

liberty, may have found an established Clergy

convenient auxiliaries. A just Government,

instituted to secure & perpetuate it needs them

not. Such a Government will be best

© Jefferson's Works: Notes on Virginia, Query XVII (1782) in 2 THE

WRITINGS OF THOMAS JEFFERSON 217, 221 (Andrew A. Lipscomb &

Albert Ellery Bergh eds., 1905) (emphasis added).

© Act of May 28, 1954, Pub. L. No. 83-1683, 1954 U.S.C.C_A.N. 2339,

2340.

14

supported by protecting every Citizen in the

enjoyment of his Religion with the same

equal hand which protects his person and his

property; by neither invading the equal rights

of any Sect, nor suffering any Sect to invade

those of another.”’

The drafters of the Bill of Rights saw fit to draw a practical

distinction between holding a belief in god, and directing

others to believe in god. The former was the lens through

which they saw the world; the latter was the mischief they

sought to prevent. They recognized that people’s minds “can

be directed only by reason and conviction, not by force or

violence,”** and that a just government has no need to try.

Accordingly, they limited the legitimate domain of

government with respect to religion to “the necessity of

preserving public order, & protecting each sect agst.

trespasses on its legal rights by others.”

The plain language of the Establishment Clause

unequivocally secures the right of all to follow their

conscience with regard to the personal matters of religion.

Though some may weakly argue that it did not include

Atheists under its umbrella at the time the Bill of Rights was

drafted, there can be no doubt that it certainly does today.

This court has repeatedly acknowledged as much. In

Torcaso v. Watkins, 367 U.S. 488 (1961), the majority

unequivocally stated:

>” Memorial and Remonstrance against Religious Assessments (June 20,

1785) in 8 THE PAPERS OF JAMES MADISON, 295, 300 (Robert A. Rutland

& William M.E. Rachal eds., 1973).

** Id. at 302.

»° Letter from James Madison to Rev. Jasper Adams (1832) in 9 THE

WRITINGS OF JAMES MADISON 484, 487 (Gaillard Hunt ed., 1910)

(emphasis added).

15

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.” Neither

can constitutionally pass laws or impose

requirements which aid all religions as against

non-believers, and neither can aid those

religions based on a belief in the existence of

God as against those religions founded on

different beliefs.”

Far from an isolated minority view, this statement finds

broad support in the words and actions of this Court and its

various members through the decades, and has been

reiterated in more recent decisions of this Court.*' To

paraphrase Jefferson, the Constitution of the United States

includes within the mantle of its protection the Jew and the

Gentile, the Muslim and the Hindu, and the infidel of every

denomination.”

” Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (citations omitted).

*' For example: “At one time it was thought that this right merely

proscribed the preference of one Christian sect over another, but would

not require equal respect for the conscience of the infidel, the Atheist, or

the adherent of a non-Christian faith such as Islam or Judaism. But when

the underlying principle has been examined in the crucible of litigation,

the Court has unambiguously concluded that the individual freedom of

conscience protected by the First Amendr..:nt embraces the right to

select any religious faith or none at all.” Wallace v. Jaffree, 472 U.S. 38,

52-53 (1985) (footnotes omitted).

** Jefferson made essentially the same statement referring to the Virginia

Statute for Religious Libery. See Jefferson’s Works: Autobiography

(January 6, 1821), in | THE WRITINGS OF THOMAS JEFFERSON |, 67

(Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).

16

Il

THE ADDITION OF THE WORDS “UNDER GOD” TO

THE PLEDGE OF ALLEGIANCE VIOLATES THE

ESTABLISHMENT CLAUSE OF THE FIRST

AMENDMENT

A. The Ninth Circuit Properly Applied Existing

Establishment Clause Doctrine

This brief does not review the Ninth Circuit's

analysis of the 1954 Act in the context of this Court's

previous guidance because it is part of the record, and

“funder any fair reading of the relevant precedents, the

Ninth Circuit . . . correctly applied [the authoritative]

Establishment Clause doctrine.”*’ Rather, the focus of this

section will be on the facts surrounding the 1954 Act and the

gross infringement of the sectarian Pledge on the Atheist’s

freedom of conscience.

B. The Intent and Effect of the 1954 Act was to

Denigrate and Disparage those with Acheistic

Views as Part of a Political Strategy to Distinguish

“Us” from the “Godless Communists”

To understand the magnitude of affront the sectarian

Pledge imposes on this Nation’s Atheist community, one

only needs to look to the record documenting the 1954

insertion of the words “under God” into the previously

secular Pledge of Allegiance. The record unabashedly paints

the picture of a government taking a stand on an inherently

personal religious matter: the belief or disbelief in god.

Further, the government purposefully takes this stand at the

express expense of the Atheist.

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

Constitutional Trivia, 81 N.C. L. REV. 1865, 1870 (2003).

17

The affront begins with the words Senator Ferguson

suggested to be added to the Pledge. “under God.” The

plainly read meaning and intended import of the Pledge after

revision is that our Nation is subservient to and draws its

power from a deity. The Committe: on the Judiciary, to

which the resolution to add the offending words was

referred, acknowledged (or perhaps more accurately,

declared) as much. In pertinent part, Senator Ferguson’s

letter to the Chairman asserted that “a government deriving

its powers from the consent of the governed must look to

God for divine leadership,” that “[n]o nation can be strong

except in the strength of God or safe except in His defense,”

that “one of the greatest differences between the free world

and the Communists [is] a belief in God,” and that

Communists suffer from “spiritual bankruptcy” because they

lack such a belief in god, and that “[t]he phrase ‘under God’

recognizes . . . the guidance of God in our national affairs . . .

”“ Suffice it to say that these statements trample the beliefs

of those who view “god” as an imagined creation of man.

The statement issued by the House of Representatives

was no less offensive.

Our American Government is founded on the

concept of the individuality and the dignity of

the human being. Underlying this concept is

the belief that the human person is important

because he was created by God and endowed

by him with certain inalienable rights which

no civil authority may usurp. The inclusion

of God in our pledge therefore would further

acknowledge the dependence of our people

and our Government upon the moral

** 100 CONG. REC. 6231 (1954).

18

directions of the Creator. Af the same time it

would serve to deny the atheistic and

materialistic concepts of communism with its

attendant subservience of the individual.”

In addition to this ignorant and intolerant attack on Atheism,

the House went on to state that the intent of the revision was

to ensure that schoolchildren were “daily impressed” with

this “true understanding of our way of life.”“* As in the

Senate, the House also disregarded the conscience of the

Atheist in its stampede to use religion to distinguish “us”

from the “godless communists.”

The Congressional record documenting the

celebration after the insertion of the words “under God” into

the Pledge presents an even greater insult. Senator Ferguson,

seemingly pleased that the Pledge of Allegiance now

recognizes that “we are a people who do believe in and want

our Government to operate under divine guidance,” and that

these “words which forever . . . will be on the lips of

Americans,” saw it fitting to include in the Congressional

record two contemporary descriptions of the first Flag Day

celebration utilizing the newly sectarian Pledge.*’ Of

particular note is the bombastic account by Dr. Harris, the

Senate’s Chaplain. Apparently capturing the spirit of the

newly sectarian Pledge, upon unanimous consent Dr. Harris’

column documenting the ceremony was added to the

record.** The religious message of the sectarian Pledge was

not lost on Dr. Harris, nor likely missed by those watching

the ceremony broadcast on the CBS Television Morning

Show. In the words of Dr. Harris,

*° Act of May 28, 1954, Pub. L. No. 83-1683, 1954 U.S.C.C.A.N. 2339,

2340 (emphasis added).

*° See id. at 2341. :

*? 100 CONG. REC 8617 (1954).

48 Id

19

To put the words “under God” on

million of lips is like running up the

believer's flag as the witness of a great

nation’s faith. /t is also displayed to the gaze

of those who deny the sacred sanctities which

it symbolizes.

On that June day . . . as the radio

carried their voices to listening thousands,

together these lawmakers [Senator Ferguson

and others] repeated the pledge which is now

the Nation’s. Then, appropriately, as the flag

was raised a bugle rang out with the familiar

strains of “Onward, Christian Soldiers!”

Dr. Harris proceeded to quote in part “the magnificent words

of President Eisenhower” as expressed in his Flag Day

speech. President Eisenhower’s speech in pertinent part

reads as follows:

From this day forward, 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.

Especially is this meaningful as we

regard today’s world. Over the globe,

mankind has been cruelly torn by violence

and brutality and, by the millions, deadened

* Id. (emphasis added.)

*° Id.

20

in mind and soul by a materialistic philosophy

of life.

* * *

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 will be our country’s most

powerful resource, in peace or war.”

After quoting from President Eisenhower's speech,

Dr. Harris launched into a tirade that at best would be

described an indictment of every Atheist’s personal choice of

conscience. Dr. Harris preached, inter alia, that “[t}he

results of blasphemous denials of God on a tremendous scale

already are being shudderingly shown by the baneful social

pattern of Atheistic materialism,” that those who do not"

believe in god should be “called before the bar of reason . .

..” that Atheism is “absurd,” that “[m]an will either choose to

be governed by God or condemn himself to be ruled by

tyrants,” and that “[a]ny so-called freedom, if it is not under

God, is under the sentence of death.”

In incorporating, as Senator Ferguson described, the

“eloquent” * words of Dr. Harris into the Congressional

record by unanimous consent, the 100th Senate adopted

these words as their own, to forever reflect the ignorance and

intolerance of those subverting a fundamental constitutional

right. Speaking with one voice, the 100th Senate denigrated

and disparaged the personal choice of conscience of Atheists

everywhere, including those peacefully residing within

America’s borders and faithfully serving her ideals of

freedom.

*! Id. at 8618 (emphasis added).

*? Id. (emphasis added).

*° Id. at 8617.

Cc. “Under God” is an Unnecessary Part of an

Otherwise Patriotic Exercise

There is a view that the words “under God” could

“serve as an acknowledgment of religion with ‘the legitimate

secular purposes of solemnizing public occasions, [and]

expressing confidence in the future.’”°* However, the

unspoken assumption underpinning this view is that there

was at least some need for solemnity that went unserved

prior to the 1954 Act. Given t’:2 serious implications of

mixing religion and government, and the repeated warnings

against such an alliance by Jefferson and Madison,”° there

should at least be some cognizable need for solemnity served

by such a religious enactment.

Francis Bellamy put pen to paper in 1892 and crafted

a simple, honest expression of patriotism that substantially

endures to this day. He wrote “I pledge allegiance to my flag

and to the Republic for which it stands, one Nation

indivisible, with liberty and justice for all.”°° These brief

words were intended to capture the essence of America, and

to serve as an appropriate means to commemorate the raising

of the flag over our Nation’s schools on Columbus Day,

1892.°’ The words “one Nation indivisible” referenced the

continued vitality of the United States following the Civil

War, and “liberty and justice for all” sought to sum up the

American dream. ** Though various revisions were made to

** Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (O’Connor, J.,

concurrence) (citing Lynch v. Donnelly, 465 U.S. 668, 693 (1984)).

*° See, e.g, Memorial and Remonstrance against Religious Assessments

(June 20, 1785) in 8 THE PAPERS OF JAMES MADISON, 295, 300 (Robert

A. Rutland & William M.E. Rachal eds., 1973).

*© 100 CONG. REC. 8618 (1954).

*” Id.

8 Id.

the Pledge over the years to clarify it’s meaning, it survived

until 1954 without asserting this Nation’s subservience to a

god.

In drafting the Pledge, it is significant that Mr.

Bellamy chose to allude to the Civil War, the bloodiest

conflict in our Nation’s history. Such a reference could not

be taken lightly, and in fact it was received as a positive

message of national unity to a country still healing.’ Given

that the Civil War was still fresh in the memories of

Americans at the time Francis Bellamy’s secular Pledge was

introduced, it is unlikely that this earliest version was recited

with anything but solemn reverence and hope for the future.

Secular versions of the Pledge served this Nation

through both World Wars. The formal codification of the

Pledge in 1942 brought with it official direction with regard

to the appropriate decorum when reciting the Pledge. In

pertinent part, H.J. Res. 303, 56 Stat. 377 directs that “the

pledge of allegiance to the flag . . . be rendered by standing

with the right hand over the heart . . . standing at attention,

men removing the headdress. Persons in uniform shall

render the military salute. The intent of this official

direction, consistent with history and practice, was to make

uniform the already unmistakably solemn event of public

recitation of the Pledge of Allegiance. This official

direction, and the decades of solemn recitation of the Pledge

prior to the addition of the words “under God” in 1954, cut

against any argument that there was any need for solemnity

to be served by the addition of the words “under God” in

1954.

59

Id.

H.J. Res. 303, 77th Congress, 56 Stat. 377 (1942).

23

The solemn nature of the secular Pledge was also

acknowledged by Senator Homer Ferguson when he sought

to introduce the words “under God” into the Pledge. In an

attempt to show the need to introduce religion into our

Pledge to distinguish “us” from the “godless communists,”

Senator Ferguson quoted a sermon by Reverend George M.

Docherty, in which Rev. Docherty preached: “[i]ndeed, apart

from the mention of the phrase, “the United States of

America,’ it could be the pledge of any republic. In fact, I

could hear little Moscovites repeat a similar pledge to their

hammer-and-sickle flag in Moscow with equal solemnity.”

Are we to now believe that some important need for

solemnity existed and was only adequately served by the

addition of the purely religious words “under God” to the

Pledge? Prior to the sectarian revision of the Pledge, was

there a great outcry about the lack of solemnity of the secular

Pledge? Of course not. The secular Pledge solemnly stood

through two World Wars without the taint of religion.

Reciting the Pledge of Allegiance, whether with hand on

heart or while rendering a military salute, has always been a

uniquely solemn event. It is an affirmation of commitment

to America’s promise of liberty and equality, and a

recognition that these precious freedoms have been

maintained only through the great sacrifice of those that have

come before us. This is not a situation where civil authority

was required to choose between alternative means to lend

solemnity to an otherwise lighthearted occasion. This is a

situation where the ecclesiastical establishment adds

absolutely nothing to an already solemn event. No reasoned

“solemnity” justification exists where, as here, wholly

secular means fully achieve that goal.°

*' 100 CONG. REC. 6231 (1954) (emphasis added).

** As Justice Douglas aptly noted: “What the Framers meant to

foreclose . . . are those involvements of religious with secular institutions

which . . . use essentially religious means to serve governmental ends,

D. The Sectarian Pledge Created by the 1954 Act

Prevents Atheists From Pledging Allegiance to

Their Country

There is a temptation among many to discount the

indignation felt by members of this Nation’s Atheist

community when standing with silent respect while others

pledge allegiance to their country. After all, since West

Virginia State Board of Education v. Barnett, 319 U.S. 624

(1943), they can no longer be commanded to verbally

acknowledge that their Nation is subservient to a deity in

which they do not believe. How much of an imposition can

it be to simply “sit down and shut up!’®’ while people who

believe in god pledge allegiance to their nation with favored

reverence? The only proper answer to such a question is to

put yourself in the shoes of the disfavored minority, whose

views on religion are generally treated with utter disrespect

by the theistic majority.

“Pledge” as relevant to this discussion means “a

binding promise or agreement . . . ,"°* whereas “allegiance”

in this context refers to “the fidelity owed by a subject or

citizen to a sovereign or government.” Like an oath, the

Pledge of Allegiance is an affirmation of loyalty and fidelity

to ones country while serving a tenured term as a citizen of

where secular means would suffice.” Sch. Dist. of Abington Township

v. Schempp, 374 U.S. 203, 295 (1963) (Douglas, J., concurring).

However, here it is oo merely that secular means suffice, but rather a

situation where the secular means fully achieved the goal for over fifty

years prior to the offending ecclesiastical establishment.

* Petition Online, The Warning: God and Prayer is the topic (read and

sign or ignore) Petition, available at

http://www .petitiononline.com/KeepGod petition. html (last visited

January 25, 2004) (directing Atheists to “sit down and shut up” while the

majority enjoys governmental support of their religious preference).

* MERRIAM-WEBSTER ’S COLLEGIATE DICTIONARY 893 (10th ed. 1997).

Id. at 30.

25

this great Nation. This is the setting in which the Atheist is

told to step off the bus. To any patriotic American, the

Pleége of Allegiance should be a public affirmation of

loyalty to the noble ideals of equality and freedom for which

our country has struggled. Instead it is “an unavoidable slap

in the face” to the patriotic Atheist.

Engrafting the v is “under God” into the Pledge of

Allegiance has turned weuids that were meant to unite into

words destined to divide. An Atheist cannot be expected to

“seamlessly and without fanfare or even notice . . . omit the

‘under God’ from her own recital of the Pledge,”®’ as the

continued inclusion of these words is a recurrent reminder of

her Nation’s disdain for her. These words call for recitation

by the favored or silent protest by the disfavored. There is

no middle ground. Why should an Atheist even bother to

pledge allegiance to a nation that rejects him? This is not a

minor trespass on an insignificant corner of the Atheist’s

ideological backyard; this is a daily message of disfavor.

The words “under God” have more than a “de

minimus” tendency to promote religion,” and have not been

sanitized of their religious meaning by the sands of time.”

If the words “under God” no longer evoke a religious

meaning, or their ability to promote religion is de minimus,

then it would seem to be of little consequence to restore the

Pledge to its previous secular state. Are we to believe that

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

Constitutional Trivia, 81 N.C. L. REV. 1865, 1893 (2003).

*’ Michael J. Perry, Freedom of Religion in the United States: Fin de

Siecle Sketches, 75 IND. L.J. 295, 316 n.71 (2000).

“* Newdow v. U.S. Congress, 292 F.3d 598, 613-615 (9th Cir. 2002).

“The insertion of God into the pledge may have been for religious

reasons ... but five decades later, the phrase under God no longer evokes

a religious experience." David Kravets, Judge Says His Ruling on Pledge

Had Supreme Court Precedents, PHILADELPHIA INQUIRER, July 5, 2002,

at Al0.

26

those seeking to retain the words “under God” are merely

devoted historians nostalgic for those good old Cold War

days? Before dismissing as “de minimus” the religious

message sent by the sectarian Pledge, I respectfully ask the

Court to at least consider the perspective of those whose

beliefs are trampled by this governmental endorsement. It is

the Atheist’s view that is most relevant to this analysis, and

not the view of the favored class. The theist, who benefits

daily and would never find such an endorsement offensive,

may not even notice the words. It is the opinion of the

Atheist that carries the most authority, because it is the

Atheist that is singled out for the daily “slap in the face.”

To truly understand the impact of the sectarian

Pledge on the Atheist, the reasonable jurist must consider an

edit of the sectarian Pledge to reflect the appropriate degree

of favor to a religious concept opposed to his or her own. To

the theoretical “nondenominational” Deist or to the

Christian, I suggest considering a sectarian Pledge

containing the words “one Nation, freed from the shackles of

‘god’... .” To the Jew, I suggest “one Nation, under Jesus

Christ our Savior. .. .” Only after seriously contemplating

the daily message of disfavor can one begin to understand an

Atheist’s offense to words barely noticed by the believer.

E. Public Law 107-293 Does Not Rehabilitate the

Unconstitutional Nature of the Sectarian Pledge

Immediately following the Ninth Circuit's decision in

this case, Congyess attempted to scrub the unconstitutional

intent from the sectarian Pledge by codifying the Pledge

anew.” Ironically, this politically expedient effort only

underscored the constitutional infirmity of the sectarian

Pledge and did nothing to shore it. Even if this attempted

” See Act of Nev. 13 2002, Pub. L. 107-293 § 2, 116 Stat. 2057, 2060.

historical revision of the intent underlying the 1954 addition

of “under God” to the Pledge were successful, the sectarian

Pledge still fails constitutional muster. A plain reading of

the “new” sectarian Pledge reveals the untouched cracks

beneath its shiny new paint.

“| 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.””'

Notably, the words “under God” remain in the Pledge.

“Under” in this context means “in or into a position below or

beneath something,”’* whereas “God” here means “the

Being perfect in power, wisdom, and goodness who is

worshiped as creator and ruler of the universe.””’ The

message sent by this “new” sectarian Pledge is precisely the

same as the old: our government is subservient to a deity.

The Pledge continues to cast its eye of disfavor on those who

view god as figment of man’s imagination. For all the

reasons described previously above, this second codification

of the sectarian Pledge remains unconstitutional.

Ill.

CALIFORNIA EDUCATION CODE SECTION 52720

IS UNCONSTITUTIONAL

Regardless of the State of California’s intent in

enacting Education Code section 52720, it is impossible to

divorce the intent and effect of the sectarian Pledge from the

action of the State Government in promoting its daily recital.

Further, as this Court has repeatedly acknowledged, the

71

Id

% MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1287 (10th ed. 1997).

™ Id. at 500.

28

school setting in which this statute has its effect merits

heightened concern.’

Religious views are inherently personal in nature.

Although some see fit to share them freely, others are more

comfortable keeping such views to themselves. Jefferson

was against sharing his religious views with the public,

“because it would countenance the presumption of those who

have endeavored to draw them before that tribunal, and to

seduce public opinion to erect itself into that inquisition over

the rights of conscience which the laws have so justly

proscribed.’ This perspective resounds in the heart of the

Atheist, whose minority view usually meets with disdain or

outrage. ”°

™ For example: “The Court has been particularly vigilant in monitoring

compliance with the Establishment Clause in elementary and secondary

schools. 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.

The State exerts great authority and coercive power through mandatory

attendance requirements, and because of the students’ emulation of

teachers as role models and the children's susceptibility to peer pressure.

Furthermore, ‘the public school is at once the symbol of our democracy

and the most pervasive means for promoting our common destiny. In no

activity of the State is it more vital to keep out divisive forces than in its

schools ...."” Edwards v. Aguillard, 482 U.S. 578, 583-584 (1987)

citations omitted.)

Letter from Thomas Jefferson to Benjamin Rush (April 21, 1803), in

10 THE WRITINGS OF THOMAS JEFFERSON 379, 380-81 (Andrew A.

Lipscomb & Albert Ellery Bergh eds., 1905).

”© Consider this recent attempt by a non-theist to give an invocation at the

opening of a city council meeting. In a measure calculated to show their

contempt for his views, a significant number of the council members

staged a walkout. In the words of Councilman George, “He can worship

a chicken if he wants to, but I'm not going to be around when he does it.”

Herb Silverman, The Story Behind Atheist's Invocation and Afiermath of

29

Children, embroiled in the process of socialization,

are particularly sensitive to peer pressure.’ To offer a child

the alternative of acknowledging her country’s subservience

to a deity of which she doubts or rejects, or sitting in silent

protest, is to offer no choice at all. Children have the

unfortunate ability and tendency to be cruel and insensitive.

If Jefferson, drafter of the Declaration of Independence and a

man of indubitable moral courage, was loathe to share his

personal religious views, it is unconscionable that we should

require it of a child. By forcing a child to sit in silent protest

while the majority comfortably stands and recites the

sectarian Pledge is to put the child’s religious views before

the harsh court of juvenile public opinion. That child is

marked as a non-believer and set up for proselytization and

harassment. The child will likely be stigmatized and

subjected to the cruelest verbal and physical assaults. *

Further, given that allegiance to one’s country is also

implicated by the Pledge, “[a] student who refuses to recite

the Pledge will be tainted as both unreligious and unpatriotic

{as well.]””” To knowingly condone such a choice is

unbefitting a Nation that purports to guarantee freedom for

the “rights of conscience” of all.

-~

Walkout, CHARLESTON NET, April 14, 2003, available at

http://charleston.net/stories/04 1403/com_14silverman.shtml.

” “We stressed in Lee the obvious observation that ‘adolescents are often

susceptible to pressure from their peers towards conformity, and that the

influence is strongest in matters of social convention.”” Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 311-312 (2000).

™ This is precisely what happens. The attacks range from merely

annoying (bible verses and other religious artifacts mysteriously

appearing in books, on desks, etc.) to violent (beatings and other physical

attacks). Affidavits describing specific instances of abuse in detail can

be furnished upon request.

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

Constitutional Trivia, 81 N.C. L. REV. 1865, 1895 (2003).

30

CONCLUSION

This Court offers the last bastion of protection for the

sometimes unpopular application of constitutionally

guaranteed freedoms. You will undoubtedly face a

maelstrom of outrage in remaining faithful in this case to the

constitutional ideal of freedom of conscience for all. This

should not deter protection of this precious freedom. This

Court should speak with one voice and hew down the daring

and dangerous efforts of those who have sought to seduce

the public opinion to substitute itself into that tyranny over

the rights of conscience that the laws have so justly

abdicated.*’ This Court should affirm the opinion of the

Ninth Circuit Court of Appeals.

Respectfully Submitted,

JAMES H. PYLE PAUL SANFORD

11975 El Camino Real Counsel of Record

Suite 200 6113 Jason Court

San Diego, CA 92130 Aptos, CA 95003

(858) 623-1111 (831) 588-0528

*° Paraphrasing Jefferson. See Letter from Thomas Jefferson to Edward

Dowse, (April 19, 1803), in 10 THE WRITINGS OF THOMAS JEFFERSON

376, 378 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).