Appendix — United States v. Newdow

supreme Court, US.

nh \) FILLED

021574 AR 30 2003

iQ

. ¥

No.

In the Supreme Court of the Bnited States.

UNITED STATES OF AMERICA, PETITIONER

Vv.

MICHAEL A. NEWDOW, ET AL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

ROBERT M. LOEB

LOWELL V. STURGILL

SUSHMA SONI

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Appendix A (court of appeals amended opinion on re-

hearing, filed: Feb. 28, 2003) ........cssesesseessersesenseseees

Appendix B (court of appeals original opinion,

filed: June 26, 2002)

Appendix C (court of appeals order on rehearing

en banc, filed: Feb. 28, 2003)

Appendix D (court of appeals opinion on standing,

filed: Dec. 4, 2002)

Appendix E (court of appeals order denying

intervention, filed: Dec. 4, 2000)

Appendix F (court of appeals miscellaneous order,

filed: Dec. 4, 2000)

Appendix G (district court order, filed: July 21,

2002) ,

Appendix H (magistrate judge’s findings and

recommendation, filed: May 25, 2000)

Appendix I (constitutional and statutory provisions) ..

(I)

Page

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-16423

D.C. No. CV 00-00495-MLS/PAN

MICHAEL A. NEWDOW, PLAINTIFF-APPELLANT

Vv.

U.S. CONGRESS; UNITED STATES OF AMERICA;

GEORGE W. BUSH,” PRESIDENT OF THE UNITED

STATES; STATE OF CALIFORNIA; ELK GROVE UNIFIED

SCHOOL DISTRICT; DAVID W. GORDON,

SUPERINTENDENT EGUSD; SACRAMENTO CITY

UNIFIED SCHOOL DISTRICT; JIM SWEENEY,

SUPERINTENDENT SCUSD, DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Eastern District of California, Milton L. Schwartz,

Senior Judge, Presiding

Argued and Submitted: March 14, 2002

Filed: June 26, 2002

Amended: February 28, 2003

* George W. Bush is substituted for his predecessor, William

Jefferson Clinton, as President of the United States. Fed. R. App.

P. 43(c)(2).

(la)

2a

AMENDED OPINION AND

AMENDED CONCURRENCE/DISSENT

Before: ALFRED T. GOODWIN, STEPHEN REINHARDT

and FERDINAND F.. FERNANDEZ, Circuit Judges.

Opinion by Judge Goodwin; Partial Concurrence and

Partial Dissent by Judge Fernandez

GOODWIN, Circuit Judge:

Michael Newdow appeals pro se a judgment dis-

missing his challenge to the constitutionality of the

words “under God” in the Pledge of Allegiance to the

Flag. Newdow argues that the addition of these words

by a 1954 federal statute to the previous version of the

Pledge of Allegiance (which made no reference to God)

and the daily recitation in the classroom of the Pledge

of Allegiance, with the added words included, by his

daughter’s public school teacher are violations of the

Establishment Clause of the First Amendment to the

United States Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

Newdow is an atheist whose daughter attends public

elementary school in the Elk Grove Unified School

District (“EGUSD”) in California. In accordance with

state law and a school district rule, EGUSD teachers

begin each school day by leading their students in a

recitation of the Pledge of Allegiance (“the Pledge”).

The California Education Code requires that public

schools begin each school day with “appropriate pat-

riotic exercises” and that “[t]he giving of the Pledge of

Allegiance to the Flag of the United States of America

shall satisfy” this requirement. Cal. Educ. Code § 52720

Pe

3a

(1989) (hereinafter “California statute”).’ To implement

the California statute, the school district that New-

dow’s daughter attends has promulgated a policy that

states, in pertinent part: “Each elementary school class

[shall] recite the pledge of allegiance to the flag once

each day.” The classmates of Newdow’s daughter in

the EGUSD are led by their teacher in reciting the

Pledge codified in federal law. On June 22, 1942,

Congress first codified the Pledge as “I pledge alle-

giance to the flag of the United States of America and

| to the Republic for which it stands, one Nation

indivisible, with liberty and justice for all.” Pub. L. No.

623, Ch. 435, § 7, 56 Stat. 380 (1942) (codified at 36

U.S.C. § 1972). On June 14, 1954, Congress amended

Section 1972 to add the words “under God” after the

word “Nation.” Pub. L. No. 396, Ch. 297, 68 Stat. 249

(1954) (“1954 Act”). The Pledge is currently codified as

“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) (Title 36 was revised and

recodified by Pub. L. No. 105-225, § 2(a), 112 Stat. 1494

(1998). Section 172 was abolished, and the Pledge is

now found in Title 4.)

1 The relevant portion of California Education Code § 52720

reads:

In every public elementary school each day during the school

year at the beginning of the first regularly scheduled class or

activity period at which the majority of the pupils of the school

normally begin the schoolday, there shall be conducted

appropriate patriotic exercises. The giving of the Pledge of

Allegiance to the Flag of the United States of America shall

satisfy the requirements of thus section.

4a

Newdow does not allege that his daughter’s teacher

or school district requires his daughter to participate in

reciting the Pledge.” Rather, he claims that his

daughter is injured when she is compelled to “watch

and listen as her state-employed teacher in her state-

run school leads her classmates in a ritual proclaiming

that there is a God, and that our’s [sic] is ‘one nation

under God.’” Newdow’s complaint in the district court

challenged the constitutionality, under the First

Amendment, of the 1954 Act, the California statute, and

the school district’s policy requiring teachers to lead

willing students in recitation of the Pledge. He sought

declaratory and injunctive relief, but did not seek

damages.

The school districts and their superintendents (collec-

tively, “school district defendants”) filed a Federal Rule

of Civil Procedure 12(b)(6) motion to dismiss for failure

to state a claim. Magistrate Judge Peter A. Nowinski

held a hearing at which the school district defendants

requested that the court rule only on the consti-

tutionality of the Pledge, and defer any ruling on

sovereign immunity. The United States Congress, the

United States, and the President of the United States

(collectively, “the federal defendants”) joined in the

motion to dismiss filed by the school district defen-

dants. The magistrate judge reported findings and a

2 Compelling students to recite the Pledge was held to be a

First Amendment violation in West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 642 (1943) (“[TJhe action of

the local authorities in compelling the flag salute and pledge

transcends constitutional limitations on their power and invades

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

Amendment to our Constitution to reserve from all official con-

trol.”). Barnette was decided before the 1954 Act added the words

“under God” to the Pledge.

5a

recommendation that the district court hold that the

daily Pledge ceremony in the schools did not violate the

Establishment Clause. District Judge Edward J.

Schwartz approved the recommendation and entered a

judgment of dismissal. This appeal followed.

DISCUSSION

A. Jurisdiction

Newdow asks the district court to order the

President of the United States (“the President”) to

“alter, modify or repeal” the Pledge by removing the

words “under God”; and to order the United States

Congress (“Congress”) “immediately to act to remove

the words ‘under God’ from the Pledge.” The Pre-

sident, however, is not an appropriate defendant in an

action challenging the constitutionality of a federal

statute. See Franklin v. Massachusetts, 505 U.S. 788,

802-03 (1992) (plurality) (observing that a court of the

United States “ ‘has no jurisdiction of a bill to enjoin the

President in the performance of his official duties’ ”)

(quoting Mississippi v. Johnson, 71 U.S. 475 (1866)).

Similarly, in light of the Speech and Debate Clause of

the Constitution, Art. I, § 6, cl. 1, the federal courts lack

jurisdiction to issue orders directing Congress to enact

or amend legislation. See Eastland v. United States

Servicemen’s Fund, 421 U.S. 491, 503 (1975). Because

the words that amended the Pledge were enacted into

law by statute, the district court may not direct Con-

gress to delete those words any more than it may order

the President to take such action. All this, of course, is

aside from the fact that the President has no authority

to amend a statute or declare a law unconstitutional,

those functions being reserved to Congress and the

federal judiciary respectively.

6a

Newdow nevertheless argues that because the 1954

Act violates the Establishment Clause, Congress

should not be protected by the Speech and Debate

Clause. This argument misses the jurisdictional, or

separation of powers, point. As the Court held in

Eastland, in determining whether or not the acts of

members of Congress are protected by the Speech and

Debate Clause, the court looks solely to whether or not

the acts fall within the legitimate legislative sphere; if

they do, Congress is protected by the absolute pro-

hibition of the Clause against being “questioned in any

other Place.” Jd. at 501. “If the mere allegation that a

valid legislative act was undertaken for an unworthy

purpose would lift the protection of the Clause, then the

Clause simply would not provide the protection

historically undergirding it.” Id. at 508-09.

B. The State of California as a defendant

The State of California did not join in the motion to

dismiss or otherwise participate in the district court

proceedings. It did, however, sub silentio, receive the

benefit of the district court’s ruling dismissing the

complaint. Accordingly, a reversal of the order would

result in the reinstatement of the complaint against the

state. With respect to the validity of the California

statute, however, unlike in the case of the Congres-

sional enactment and the school district policy, no

arguments, legal or otherwise, were advanced by the

parties in the district court. Thus, we do not address

separately the validity of the California statute.

C. Standing

Article III standing is a jurisdictional issue. See

United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.

1997). Accordingly, it “may be raised at any stage of

Ta

the proceedings, including for the first time on appeal.”

See A-Z Intern. v. Phillips, 179 F.3d 1187, 1190-91 (9th

Cir. 1999). To satisfy standing requirements, a plaintiff

must prove that “(1) it has suffered an ‘injury in fact’

that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury

is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81

(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-561 (1992)).

Newdow has standing as a parent to challenge a

practice that interferes with his right to direct the

religious education of his daughter. “Parents have a

right to direct the religious upbringing of their children

and, on that basis, have standing to protect their right.”

Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 795

(9th Cir. 1999) (en banc); see also Grove v. Mead Sch.

Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir. 1985)

(“Appellants have standing to challenge alleged vio-

lations of the establishment clause of the First Amend-

ment if they are directly affected by use of [the

challenged book] in the English curriculum. [Appel-

lant] has standing as a parent whose right to direct the

religious training of her child is allegedly affected.”)

(citation omitted).

Newdow has standing to challenge the EGUSD’s

policy and practice regarding the recitation of the

Pledge because his daughter is currently e~roiled in

elementary school in the EGUSD. However Newdow

has no standing to challenge the SCUSD’s policy and

practice because his daughter is not currently a student

8a

there. The SCUSD and its superintendent have not

caused Newdow or his daughter an “injury in fact” that

is “actual or imminent, not conjectural or hypothetical.”

Laidlaw, 528 U.S. at 180 (citing Lujan, 504 U.S. at 560-

561).

D. Establishment Clause

The Establishment Clause of the First Amendment

states that “Congress shall make no law respecting an

establishment of religion,” U.S. Const. Amend. I, a

provision that “the Fourteenth Amendment makes

applicable with full force to the States and their school

districts.” Lee v. Weisman, 505 U.S. 577, 580 (1992).

Over the last three decades, the Supreme Court has

used three interrelated tests to analyze alleged vio-

lations of the Establishment Clause in the realm of

public education: the three-prong test set forth in

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); the

“endorsement” test, first articulated by Justice

O’Connor in her concurring opinion in Lynch v.

Donnelly, 465 U.S. 668 (1984), and later adopted by a

majority of the Court in County of Allegheny v. ACLU,

492 U.S. 573 (1989); and the “coercion” test first used by

the Court in Lee.

In 1971, in the context of unconstitutional state aid to

nonpublic schools, the Supreme Court in Lemon set

forth the following test for evaluating alleged Estab- ~

lishment Clause violations. To survive the “Lemon

test,” the government conduct in question (1) must

‘have a secular purpose, (2) must have a principal or

primary effect that neither advances nor inhibits

religion, and (3) must not foster an excessive govern-

ment entanglement with religion. Lemon, 403 U.S. at

612-13. The Supreme Court applied the Lemon test to

9a

every Establishment case it decided between 1971 and

1984, with the exception of Marsh v. Chambers, 463

U.S. 788 (1983), the case upholding legislative prayer.°

See Wallace, 472 U.S. at 63 (Powell, J., concurring).

In the 1984 Lynch case, which upheld the inclusion of

a nativity scene in a city’s Christmas display, Justice

O’Connor wrote a concurring opinion in order to

suggest a “clarification” of Establishment Clause juris-

prudence. 465 U.S. at 687 (O’Connor, J., concurring).

Justice O’Connor’s “endorsement” test effectively

collapsed the first two prongs of the Lemon test:

The Establishment Clause prohibits government

from making adherence to a religion relevant in any

way to a person’s standing in the political com-

munity. Government can run afoul of that pro-

hibition in two principal ways. One is excessive

entanglement with religious institutions . . . . The

second and more direct infringement is government

endorsement or disapproval of religion. Endorse-

ment sends a message to nonadherents that they are

outsiders, not full members of the political com-

munity, and an accompanying message to adherents

that they are insiders, favored members of the

political community.

Id. at 687-88 (O’Connor, J., concurring).

3 In Marsh, the Court “held that the Nebraska Legislature’s

practice of opening each day’s session with a prayer by a chaplain

paid by the State did not violate the Establishment Clause of the

First Amendment. [The] holding was based upon the historical

acceptance of the practice that had become ‘part of the fabric of our

society.’” Wallace, 472 U.S. at 63 n. 4 (Powell, J., concurring)

(quoting Marsh, 463 U.S. at 792).

10a

The Court formulated the “coercion test” when it

held unconstitutional the practice of including invoca-

tions and benedictions in the form of “nonsectarian”

prayers at public school graduation ceremonies. Lee,

505 U.S. at 599. Declining to reconsider the validity of

the Lemon test, the Court in Lee found it unnecessary

to apply the Lemon test to find the challenged practices

unconstitutional. Jd. at 587. Rather, it relied on the

principle that “at a minimum, the Constitution guaran-

tees that government may not coerce anyone to support

or participate in religion or its exercise, or otherwise to

act in a way which establishes a state religion or re-

ligious faith, or tends to do so.” Id. (citations and in-

ternal quotation marks omitted). The Court first

examined the degree of school involvement in the

prayer, and found that “the graduation prayers bore

the imprint of the State and thus put school-age

children who objected in an untenable position.” Id. at

590. The next issue the Court considered was “the

position of the students, both those who desired the

prayer and she who did not.” Id. Noting that “there

are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the elemen-

tary and secondary public schools,” id. at 592, the Court

held that the school district’s supervision and control of

the graduation ceremony put impermissible pressure on

students to participate in, or at least show respect

during, the prayer, id. at 593. The Court concluded that

primary and secondary school children may not be

placed in the dilemma of either participating in a

religious ceremony or protesting. Jd. at 594. —

Finally, in its most recent school prayer case, the

Supreme Court applied the Lemon test, the endorse-

ment test, and the coercion test to strike down a school

lla

district’s policy-of permitting student-led “invocations”

before high school football games. See Santa Fe, 530

U.S. at 310-16. Citing Lee, the Court held that “the

delivery of a pregame prayer has the improper effect of

coercing those present to participate in an act of

religious worship.” Jd. at 312. Applying the Lemon

test, the Court found that the school district policy was

facially unconstitutional because it did not have a

secular purpose. Jd. at 314-16. The Court also used

language associated with the endorsement test. Jd. at

315 (“[T]his policy was implemented with the purpose

of endorsing school prayer.”); id. at 317 (“Government

efforts to endorse religion cannot evade constitutional

reproach based solely on the remote possibility that

those attempts may fail.”).

We are free to apply any or all of the three tests, and

to invalidate any measure that fails any one of them.

Because we conclude that the school district policy

impermissibly coerces a religious act and accordingly

hold the policy unconstitutional, we need not consider

whether the policy fails the endorsement test or the

Lemon test as well.

In the context of the Pledge, the statement that the

United States is a nation “under God” is a profession of

a religious belief, namely, a belief in monotheism. The

recitation that ours is a nation “under God” is not a

mere acknowledgment that many Americans believe in

a deity. Nor is it merely descriptive of the undeniable

historical significance of religion in the founding of the

Republic. Rather, the phrase “one nation under God” in

the context of the Pledge is normative. To recite the

Pledge is not to describe the United States; instead, it

is to swear allegiance to the values for which the flag

stands: unity, indivisibility, liberty, justice, and—since

|

12a

1954—monotheism. A profession that we are a nation

“under God” is identical, for Establishment Clause

purposes, to a profession that we are a nation “under

Jesus,” a nation “under Vishnu,” a nation “under Zeus,”

or a nation “under no god,” because none of these

professions can be neutral with respect to religion.. The

school district’s practice of teacher-led recitation of the

Pledge aims to inculcate in students a respect for the

ideals set forth in the Pledge, including the religious

values it incorporates.

The Supreme Court recognized the normative and

ideological nature of the Pledge in Barnette, 319 U.S.

624. There, the Court held unconstitutional a school

district’s wartime policy of punishing students who

refused to recite the Pledge and salute the flag. Jd. at

642. The Court noted that the school district was

compelling the students “to declare a belief,” id. at 631,

and “requir[ing] the individual to communicate by word

and sign his acceptance of the political ideas [the flag]

. . . bespeaks,” id. at 633. “(T]he compulsory flag

salute and pledge requires affirmation of a belief and an

attitude of mind.” Jd. The Court emphasized that the

political concepts articulated in the Pledge* were

idealistic, not descriptive: “‘[L]iberty and justice for

all,’ if it must be accepted as descriptive of the present

order rather than an ideal, might to some seem an

overstatement.” Jd. at 634 n.14. The Court concluded

that: “If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, national-

ism, religion, or other matters of opinion or force

4 Barnette was decided before “ “under God” was added, and

thus the Court’s discussion was limited to the political ideals

contained in the Pledge.

13a

citizens to confess by word or act their faith therein.”

Id. at 642.

- The school district’s policy here, like the school’s

action in Lee, places students in the untenable position

of choosing between participating in an exercise with

religious content or protesting. The defendants argue

that the religious content of “one nation under God” is

minimal. To an atheist or a believer in non-Judeo-

Christian religions or philosophies, however, this

phrase may reasonably appear to be an attempt to

enforce a “religious orthodoxy” of monotheism, and is

therefore impermissible. As the Court observed with

respect to the graduation prayer in Lee: “What to most

believers may seem nothing more than a reasonable

request that the nonbeliever respect their religious

practices, in a school context may appear to the non-

believer or dissenter to be an attempt to employ the

machinery of the State to enforce a religious ortho-

doxy.” Lee, 505 U.S. at 592.

The coercive effect of the policy here is particularly

pronounced in the school setting given the age and

impressionability of schoolchildren, and their under-

standing that they are required to adhere to the norms

set by their school, their teacher and their fellow

students.© Furthermore, under Lee, non-compulsory

participation is no basis for distinguishing Barnette

[sic] from the case at bar because, even without a

5 The “subtle and indirect” social pressure which permeates

the classroom also renders more acute the message sent to non-

believing school-children that they are outsiders. See Lee, 505 U.S.

at 592-93 (stating that “the risk of indirect coercion” from prayer

exercises is particularly “pronounced” in elementary and secon-

dary public school because students are subjected to peer pressure

and public pressure which is “as real as any overt compulsion”).

a

14a

recitation requirement for each child, the mere

presence in the classroom every day as peers recite the

statement “one nation under God” has a coercive

effect. The coercive effect of the Pledge is also made

even more apparent when we consider the legislative

history of the Act that introduced the phrase “under

God.” These words were designed to be recited daily in

school classrooms. President Eisenhower, during the

Act’s signing ceremony, stated: “From this day

forward, the millions of our school children will daily

proclaim in every city and town, every village and rural

schoolhouse, the dedication of our Nation and our

people to the Almighty.” 100 Cong. Rec. 8618 (1954)

(statement of Sen. Ferguson incorporating signing

statement of President Eisenhower).’ All in all, there

can be little doubt that under the controlling Supreme

6 The objection to the Pledge in Barnette, like in the case at

bar, was based upon a religious ground. The Pledge in the

classroom context imposes upon schoolchildren the constitutionally

unacceptable choice between participating and protesting. Recog-

nizing the severity of the effect of this form of coercion on children,

the Supreme Court in Lee stated, “the State may not, consistent

with the Establishment Clause, place primary and secondary

school children in this position.” 505 U.S. at 593.

7 In addition, the legislative history of the 1954 Act makes it

plain that the sponsors of the amendment knew about and

capitalized on the state laws and school district rules that mandate

recitation of the Pledge. The legislation’s House sponsor, Repre-

sentative Louis C. Rabaut, testified at the Congressional hearing

that “the children of our land, in the daily recitation of the pledge

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

way of life and its origins.” This statement was incorporated into

the report of the House Judiciary Committee. H.R. Rep. No. 83-

1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N 2339, 2341.

15a

Court cases the school district’s policy fails the coercion

test.®

The Supreme Court has addressed the Pledge in

passing, and we owe due deference to its dicta. See

United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996).

Our opinion, however, is not inconsistent with this

dicta. In Allegheny, the Court noted that it had “con-

sidered in dicta the motto and the pledge, characteriz-

ing them as consistent with the proposition that

government may not communicate an endorsement of

religious belief.” 492 U.S. at 602-03. And in Lynch, the

Court observed that students recited the pledge daily,

but only to support its point that there is a long

tradition of “official acknowledgment” of religion. 465

U.S. at 674, 676. Neither of these two references

speaks to the issue here. We may assume arguendo

that public officials do not unconstitutionally endorse

religion when they recite the Pledge, yet it does not

follow that schools may coerce impressionable young

schoolchildren to recite it, or even to stand mute while

it is being recited by their classmates.

Our decision is not inconsistent with Engel, which

approved of encouraging students to “recit[e] historical

documents such as the Declaration of Independence

8 In Aronow v. United States, 432 F.2d 242 (9th Cir. 1970), this

court, without reaching the question of standing, upheld the

inscription of the phrase “In God We Trust” on our coins and

currency. But cf. Wooley v. Maynard, 430 U.S. 705, 722 (1977)

(Rehnquist, J., dissenting) (stating that the majority’s holding

leads logically to the conclusion that “In God We Trust” is an

unconstitutional affirmation of belief). In any event, Aronow is

distinguishable in many ways from the present case. The most

important distinction is that school children are not coerced into

reciting or otherwise actively led to participating in an endorse-

ment of the markings on the money in circulation.

16a

which contain references to the Deity or . . . sing{ ]

officially espoused anthems which include the com-

poser’s professions of faith in a Supreme Being.” 370

U.S. at 435 n.21. The Pledge differs from the Declara-

tion and the anthem in that its reference to God, in

textual and historical context, is not merely a reflection

of the author’s profession of faith. It is, by design, an

affirmation by the person reciting it. “I pledge” is a

performative statement. See J.L. Austin, How to Do

Things with Words (J.0. Urmsson & Marina Sbisa eds.,

Harvard Univ. Press 1975) (1962). To pledge allegiance

to something is to alter one’s moral relationship to it,

and not merely to repeat the words of an historical

document or anthem.

The only other United States Court of Appeals to

consider the issue is the Seventh Circuit, which held in

Sherman v. Community Consolidated School District

21, 980 F.2d 487 (7th Cir. 1992), that a policy similar to_

the one before us regarding the recitation of the Plage’

of Allegiance containing the words “one nation under

God” was constitutional. The Sherman court first

stated that:

If as Barnette holds no state may require anyone to

recite the Pledge, and if as the prayer cases hold the

recitation by a teacher or rabbi of unwelcome words

is coercion, then the Pledge of Allegiance becomes

unconstitutional under all circumstances, just as no

school may read from a holy scripture at the start of

class.

980 F.2d at 444. It then concludes, however, that this

reasoning is flawed because the First Amendment

“Cdoes] not establish general rules about speech or

schools; [it] call[s] for religion to be treated differently.”

17a

Id. We have some difficulty understanding this state-

ment; we do not believe that the Constitution prohibits

compulsory patriotism as in Barnette, but permits

compulsory religion as in this case. If government-

endorsed religion is to be treated differently from

government-endorsed patriotism, the treatment must

be less favorable, not more.

The Seventh Circuit makes an even more serious

error, however. It not only refuses to apply the Lemon

test because of the Supreme Court’s criticism of that

test in Lee, but it also fails to apply the coercion test

from Lee. Circuit courts are not free to ignore Supreme

Court precedent in this manner. Rodriguez de Quijas

v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If

a precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”).

Instead of applying any of the tests announced by the

Supreme Court, the Seventh Circuit simply frames the

question as follows: “Must ceremonial references in

civic life to a deity be understood as prayer, or support

for all monotheistic religions, to the exclusion of

atheists and those who worship multiple gods?” 980

F.2d at 445. For the reasons we have already ex-

slained, this question is simply not dispositive of

whether the school district policy impermissibly coerces

a religious act.

In light of Supreme Court precedent, we hold that

the school district’s policy and practice of teacher-led

recitation of the Pledge, with the inclusion of the added

words “under God,” violates the Establishment Clause.

18a

In addition to the relief that Newdow seeks against

the school district—relief to which he is entitled—

Newdow seeks a declaration as to the constitutionality

of the 1954 Act. The district court did not discuss that

question because it dismissed Newdow’s complaint on

the basis of its holding that the school district’s policy

did not violate the First Amendment. Given our

contrary holding, we must consider whether to grant

Newdow’s claim for declaratory relief as to the Act.

Normally, whether to decide a claim for declaratory

judgment is left to the discretion of the district court.

28 U.S.C. § 2201(a); see also Government Employees

Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998).

We doubt that, given the relief to which we decide

Newdow is entitled, the district court would have

exercised its discretionary power to resolve, in the

present case, the additional issue as to which Newdow

seeks declaratory relief. Accordingly, we decline to

reach that issue here.

The judgment of dismissal is vacated with respect to

Newdow’s claim that the school district’s Pledge policy

violates the Establishment Clause and the cause is

remanded for further proceedings consistent with our

holding. Plaintiff is to recover costs on this appeal.

REVERSED and REMANDED.

19a

FERNANDEZ, Circuit Judge, concurring and dis-

senting:

I concur in parts A, B and C of the majority opinion,

but dissent as to part D.

We are asked to hold that inclusion of the phrase _

“ander God” in this nation’s Pledge of Allegiance vio-

lates the religion clauses of the Constitution of the

United States. We should do no such thing. We should,

instead, recognize that those clauses were not designed

to drive religious expression out of public thought; they

were written to avoid discrimination.’

We can run through some or all of the tests and con-

cepts which have floated to the surface from time to

time. Were we to do so, the one that appeals most to

me, the one I think to be correct, is the concept that

what the religion clauses of the First Amendment

require is neutrality; that those clauses are, in effect, an

early kind of equal protection provision and assure that

government will neither discriminate for nor discri-

minate against a religion or religions. See Gentala v.

City of Tucson, 244 F.3d 1065, 1083-86 (9th Cir.) (en

banc) (Fernandez, J., dissenting), cert. granted and

judgment vacated by 534, U.S. 946, 122 S. Ct. 340, 151

L. Ed. 2d 256 (2001); Goehring v. Brophy, 94 F.3d 1294,

1306-07 (9th Cir. 1996) (Fernandez, J., concurring). But,

legal world abstractions and ruminations aside, when all

is said and done, the danger that “under God” in our

1 Although the majority now formally limits itself to holding

that it is unconstitutional to recite the Pledge in public classrooms,

its message that something is constitutionally infirm about the

Pledge itself abides and remains a clear and present danger to all

similar public expressions of reverence. At the very least, it de-

prives children in public schools of the benefits derived from those -

expressions. ii

20a

Pledge of Allegiance will tend to bring about a theo-

cracy or suppress somebody’s beliefs is so minuscule as

to be de minimis. The danger that phrase presents to

our First Amendment freedoms is picayune at most.

Judges, including Supreme Court Justices, have

recognized the lack of danger in that and similar

expressions for decades, if not for centuries, as have

presidents” and members of our Congress. See, ¢.g.,

County of Allegheny v. ACLU, 492 U.S. 573, 602-03,

672-73, 109 S. Ct. 3086, 3106, 3143, 106 L. Ed. 2d 472

(1989); Wallace v. Jaffree, 472 U.S. 38, 78 n.5, 105 S. Ct.

2479, 2501 n.5, 86 L. Ed. 2d 29 (1985); Lynch v.

Donnelly, 465 U.S. 668, 676, 698, 716, 104 S. Ct. 1355,

1361, 1369, 13882, 79 L. Ed. 2d 604 (1984); Abington Sch.

Dist. v. Schempp, 374 U.S. 208, 306-08, 83 S. Ct. 1560,

1615-16, 10 L. Ed. 2d 844 (1963);? Separation of Church

& State Comm. v. City of Eugene, 93 F.3d 617, 622 (9th

Cir. 1996) (O’Scannlain, J., concurring); Gaylor v.

United States, 74 F.3d 214, 217-18 (10th Cir. 1996);

Sherman v. Cmty Consol. Sch. Dist. 21, 980 F.2d 437,

445-48 (7th Cir. 1992); O’Hair v. Murray, 588 F.2d 1144,

1144 (5th Cir. 1978) (per curiam); Aronow v. United

States, 432 F.2d 242, 243-44 (9th Cir. 1970); cf: Marsh v.

2 See, e.g., Lee v. Weisman, 505 U.S. 577, 632-35, 112 S. Ct.

2649, 2679-80, 120 L. Ed. 2d 467 (1992) (Scalia, J., dissenting).

3 The citations to the four preceding Supreme Court opinions

are to majority opinions, concurring opinions, and dissents. Be-

cause my point is that a number of Justices have recognized the

lack of danger and because I hope to avoid untoward complication

in the setting out of the citations, I have not designated which

Justices have joined in which opinion. All in all, however, perusing

those opinions indicates that Chief Justice Burger, Chief Justice

Rehnquist, and Justices Harlan, Brennan, White, Goidberg, Mar-

shall, Blackmun, Powell, Stevens, O’Connor, Scalia, and Kennedy

have so recognized.

2la

Chambers, 463 U.S. 783, 795, 103 S. Ct. 3330, 3338, 77 L.

Ed. 2d 1019 (1983) (legislative prayer). I think it is

worth stating a little more about two of the cases which

I have just cited. In County of Allegheny, 492 U.S. at

602-03, 109 S. Ct. at 3106, the Supreme Court had this

to say: “Our previous opinions have considered in dicta

the motto and the pledge, characterizing them as

consistent with the proposition that government may

not communicate an endorsement of religious belief.”

The Seventh Circuit, reacting in part to that statement,

has wisely expressed the following thought:

Plaintiffs observe that the Court sometimes changes

its tune when it confronts a subject directly. True

enough, but an inferior court had best respect what

the majority says rather than read between the

lines. If the Court proclaims that a practice is con-

sistent with the establishment clause, we take its

assurances seriously. If the Justices are just pulling

our leg, let them say so.

Sherman, 980 F.2d at 448.

Some, who rather choke on the notion of de minimis,

have resorted to the euphemism “ceremonial deism.”

See, e.g., Lynch, 465 U.S. at 716, 104 S. Ct. at 1382

(Brennan, J., dissenting). But whatever it is called (I

care not), it comes to this: such phrases as “In God We

Trust,” or “under God” have no tendency to establish a

religion in this country or to suppress anyone’s exer-

cise, or non-exercise, of religion, except in the fevered

eye of persons who most fervently would like to drive

all tincture of religion out of the public life of our polity.

Those expressions have not caused any real harm of

that sort over the years since 1791, and are not likely to

22a

do so in the future.’ As I see it, that is not because they

are drained of meaning.® Rather, as I have already

indicated, it is because their tendency to establish

religion (or affect its exercise) is exiguous. I recognize

that some people may not feel good about hearing the

phrases recited in their presence, but, then, others

might not feel good if they are omitted. At any rate, the

Constitution is a practical and balanced charter for the

just governance of a free people in a vast territory.

Thus, although we do feel good when we contemplate

the effects of its inspiring phrasing and majestic

promises, it is not primarily a feel-good prescription.°

In West Virginia Board of Education v. Barnette, 319

U.S. 624, 630, 642, 63 S. Ct. 1178, 1181, 1187, 87 L. Ed.

1628 (1943), for example, the Supreme Court did not

say that the Pledge could not be recited in the presence

of Jehovah’s Witness children; it merely said that they

did not have to recite it.’ That fully protected their con-

4 They have not led us down the long path to kulturkampf or

worse. Those who are somehow beset by residual doubts and fears

should find comfort in the reflection that no baleful religious effects

have been generated by the existence of similar references to a

deity throughout our history. More specifically, it is difficult to de-

tect any signs of incipient theocracy springing up since the Pledge

was amended in 1954.

5 See also Sherman, 980 F.2d at 448 (Manion, J., concurring)

(“A civic reference to God does not become permissible . . . only

when . . . it is sapped of religious significance.” The Pledge is

constitutional and “[w]e need not drain the meaning from the

reference [to God] to reach this conclusion.”

6 We, by the way, indicated as much in American Family

Ass’n, Inc. v. City and County of San Francisco, 277 F.3d 1114,

1125-26 (9th Cir. 2002), which involved governmental conduct that

was much more questionable than adoption of the phrase “under

God.” See id. at 1126-28 (Noonan, J., dissenting).

7 I recognize that the Pledge did not then contain the phrase

“under God.”

23a

stitutional rights by precluding the government from

trenching upon “the sphere of intellect and spirit.” Jd.

at 642, 63 S. Ct. at 1187. As the Court pointed out, their

religiously based refusal “to participate in the cere-

mony [would] not interfere with or deny rights of

others to do so.” Jd. at 630, 68 S. Ct. at 1181. We

should not permit Newdow’s feel-good concept to

change that balance.

My reading of the stelliscript suggests that upon

Newdow’s theory of our Constitution, accepted by my

colleagues today, we will soon find ourselves prohibited

from using our album of patriotic songs in many public

settings. “God Bless America” and “America The —

Beautiful” will be gone for sure, and while use of the

first three stanzas of “The Star Spangled Banner” will

still be permissible, we will be precluded from straying

into the fourth.® And currency beware! Judges can

accept those results if they limit themselves to

elements and tests, while failing to look at the good

sense and principles that animated those tests in the

first place. But they do so at the price of removing a

vestige of the awe all of us, including our children, must

feel at the immenseness of the universe and our own

small place within it, as well as the wonder we must feel

at the good fortune of our country. That will cool the

febrile nerves of a few at the cost of removing the

healthy glow conferred upon many citizens when the

forbidden verses, or phrases, are uttered, read, or seen.

In short, I cannot accept the eliding of the simple

phrase “under God” from our Pledge of Allegiance in

any setting, when it is obvious that its tendency to

8 Nor will we be able to stray into the fourth stanza of “My

Country ‘Tis of Thee” for that matter.

24a

establish religion in this country or to interfere with the

free exercise (or non-exercise) of religion is de minimis.’

Thus, I respectfully concur in part and dissent in

part.

9 Lest I be misunderstood, I must emphasize that to decide

this case it is not necessary to say, and I do not say, that there is

such a thing as a de minimis constitutional violation. What I do say

is that the de minimis tendency of the Pledge to establish a religion

or to interfere with its free exercise is no constitutional violation at

all. By the way, I am not the first to apply the de minimis concept

to this area of the law. See, e.g., Mitchell v. Helms, 530 U.S. 793,

861, 120 S. Ct. 2530, 2569, 147 L. Ed. 2d 660 (2000) (O’Connor, J.,

concurring) (evidence of improper use of funds was de minimis and

did not affect constitutional inquiry); Lee v. Weisman, 505 U.S. 577,

630-31, 112 S. Ct. 2649, 2678, 120 L. Ed. 2d 467 (1992) (Souter, J.

concurring) (establishment case; Madison recognized there is a

difference between trivial and serious in constitutional practice,

and pointed to the legal aphorism de minimis); Lynch v. Donnelly,

465 U.S. 668, 678, 104 S. Ct. 1355, 1361-62, 79 L. Ed. 2d 604 (1984)

(not all government conduct which gives special recognition to

religion is unconstitutional; where the benefit is indirect or remote,

it is not unconstitutional); School District of Abington v. Schempp,

374 U.S. 203, 308, 83 S. Ct. 1560, 1616, 10 L. Ed. 2d 844 (1963)

(Goldburg, J., concurring) (“the measure of constitutional adjudi-

cation is the ability and willingness to distinguish between real

threat and mere shadow.”); Rapier v. Harris, 172 F.3d 999, 1006

n.4 (7th Cir. 1999) (“De minimis burdens on free exercise are not of

constitutional dimension); Van Zandt v. Thompson, 839 F.2d 1215,

1222 (7th Cir. 1988) (legislative prayer room would have a de

minimis effect on advancement of religion); Walsh v. La. High Sch.

Athletic Ass’n, 616 F.2d 152, 158 (5th Cir. 1980) (de minimis burden

on free exercise results in rejection of First Amendment

challenge); Marsa v. Wernik, 430 A.2d 888, 899 (N.J. 1981) (in an

establishment case where impact of practice de minimis, it is

unobjectionable); see also Peck v. Upshur County Bd. of Educ.,

155 F.3d 274, 288-89 (4th Cir. 1998) (if a genuine threat of

establishing religion becomes apparent, it is soon enough to

address the issue).

25a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-16423

D.C. No. CV 00-00495-MLS/PAN

MICHAEL A. NEWDOW, PLAINTIFF-APPELLANT

Vv.

U.S. CONGRESS; UNITED STATES OF AMERICA;

WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE

UNITED STATES; STATE OF CALIFORNIA; ELK GROVE

UNIFIED SCHOOL DISTRICT; DAVID W. GORDON,

SUPERINTENDENT EGUSD; SACRAMENTO CITY

UNIFIED SCHOOL DISTRICT; JIM SWEENEY,

SUPERINTENDENT SCUSD, DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Eastern District of California, Milton J. Schwartz,

Senior Judge, Presiding

Argued and Submitted: March 14, 2002

Filed: June 26, 2002

Before: GOODWIN, REINHARDT and FERNANDEZ,

Circuit Judges.

26a

Partial Concurrence and Partial Dissent by Judge

FERNANDEZ. i

OPINION

GOODWIN, Circuit Judge:

Michael Newdow appeals a judgment dismissing his

challenge to the constitutionality of the words “under

God” in the Pledge of Allegiance to the Flag. Newdow

argues that the addition of these words by a 1954

federal statute to the previous version of the Pledge of

Allegiance (which made no reference to God) and the

daily recitation in the classroom of the Pledge of Alle-

giance, with the added words included, by his

daughter’s public school teacher are violations of the

Establishment Clause of the First Amendment to the

United States Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

Newdow is an atheist whose daughter attends public

elementary school in the Elk Grove Unified School

District (‘“EGUSD”) in California. In accordance with

state law and a school district rule, EGUSD teachers

begin each school day by leading their students in a

recitation of the Pledge of Allegiance (“the Pledge”).

The California Education Code requires that public

schools begin each school day with “appropriate patri-

otic exercises” and that “(t]he giving of the Pledge of

Allegiance to the Flag of the United States of America

shall satisfy” this requirement. Cal. Educ. Code § 52720

27a

(1989) (hereinafter “California statute”).' To implement

the California statute, the school district that New-

dow’s daughter attends has promulgated a policy that

states, in pertinent part: “Each elementary school class

[shall] recite the pledge of allegiance to the flag once

each day.””

The classmates of Newdow’s daughter in the EGUSD

are led by their teacher in reciting the Pledge codified

in federal law. On June 22, 1942, Congress first codified

the Pledge as “I pledge allegiance to the flag of the

United States of America and to the Republic for which

it stands, one Nation indivisible, with liberty and

justice for all.” Pub. L. No. 623, Ch. 435, § 7, 56 Stat.

380 (1942) (codified at 36 U.S.C. § 1972). On June 14,

1954, Congress amended Section 1972 to add the words

“onder God” after the word “Nation.” Pub. L. No. 396,

Ch. 297, 68 Stat. 249 (1954) (“1954 Act”). The Pledge is

currently codified as “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

1 The relevant portion of California Education Code § 52720

reads:

In every public elementary school each day during the school

year at the beginning of the first regularly scheduled class or

activity period at which the majority of the pupils of the school

normally begin the schoolday, there shall be conducted

appropriate patriotic exercises. The giving of the Pledge of

Allegiance to the Flag of the United States of America shall

satisfy the requirements of this section.

2 The SCUSD, the school district that Newdow claims his

daughter may in the future attend, has promulgated a similar rule:

“Bach school shall conduct patriotic exercises daily. . . . The

Pledge of Allegiance to the flag will fulfill this requirement.”

However, as discussed infra, Newdow lacks standing to challenge

the SCUSD’s rule requiring recitation of the Pledge.

28a

liberty and justice for all.” 4 U.S.C. § 4 (1998) (Title 36

was revised and recodified by Pub. L. No. 105-225,

§ 2(a), 112 Stat. 1494 (1998). Section 172 was abolished,

and the Pledge is now found in Title 4.)

Newdow does not allege that his daughter’s teacher

or school district requires his daughter to participate in

reciting the Pledge? Rather, he claims that his

daughter is injured when she is compelled to “watch

and listen as her state-employed teacher in her state-

run school leads her classmates in a ritual proclaiming

that there is a God, and that our’s [sic] is ‘one nation

under God.’”

Newdow’s complaint in the district court challenged

the constitutionality, under the First Amendment, of

the 1954 Act, the California statute, and the school

district’s policy requiring teachers to lead willing stu-

dents in recitation of the Pledge. He sought declara-

tory and injunctive relief, but did not seek damages.

The school districts and their superintendents (collec-

tively, “school district defendants”) filed a Federal Rule

of Civil Procedure 12(b)(6) motion to dismiss for failure

to state a claim. Magistrate Judge Peter A. Nowinski

held a hearing at which the school district defendants

requested that the court rule only on the consti-

tutionality of the Pledge, and defer any ruling on sover-

3 Compelling students to recite the Pledge was held to be a

First Amendment violation in West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed.

1628 (1943) (“[TJhe action of the local authorities in compelling the

flag salute and pledge transcends constitutional limitations on their

power and invades the sphere of intellect and spirit which it is the

purpose of the First Amendment to our Constitution to reserve

from all official control.”). Barnette was decided before the 1954.

Act added the words “under God” to the Pledge.

29a

eign immunity. The United States Congress, the

United States, and the President of the United States

(collectively, “the federal defendants”) joined in the

motion to dismiss filed by the school district defen-

dants. The magistrate judge reported findings and a

recommendation; District Judge Edward J. Schwartz

approved the recommendation and entered a judgment

of dismissal. This appeal followed.

DISCUSSION

A. Jurisdiction

Newdow asks the district court to order the Pre-

sident of the United States (“the President”) to “alter,

modify or repeal” the Pledge by removing the words

“under God”; and to order the United States Congress

(“Congress”) “immediately to act to remove the words

‘under God’ from the Pledge.” The President, however,

is not an appropriate defendant in an action challenging

the constitutionality of a federal statute. See Franklin

v. Massachusetts, 505 U.S. 788, 802-03, 112 S. Ct. 2767,

120 L.Ed.2d 636 (1992) (plurality) (observing that a

court of the United States “ ‘has no jurisdiction of a bill

to enjoin the President in the performance of his official

duties’”) (quoting Mississippi v. Johnson, 71 U.S. 475,

501, 18 L.Ed. 487 (1866)).

Similarly, in light of the Speech and Debate Clause of

the Constitution, Art. I, § 6, cl. 1, the federal courts lack

jurisdiction to issue orders directing Congress to enact

or amend legislation. See Eastland v. United States

Servicemen’s Fund, 421 U.S. 491, 503, 95 S. Ct. 1813, 44

L.Ed.2d 324 (1975). Because the words that amended

the Pledge were enacted into law by statute, the

district court may not direct Congress to delete those

words any more than it may order the President to take

30a

such action. All this, of course, is aside from the fact

that the President has no authority to amend a statute

or declare a law unconstitutional, those functions being

reserved to Congress and the federal judiciary respec-

tively.

Newdow nevertheless argues that because the 1954

Act violates the Establishment Clause, Congress

should not be protected by the Speech and Debate

Clause. This argument misses the jurisdictional, or

separation of powers, point. As the Court held in

Eastland, in determining whether or not the acts of

members of Congress are protected by the Speech and

Debate Clause, the court looks solely to whether or not

the acts fall within the legitimate legislative sphere; if

they do, Congress is protected by the absolute prohibi-

tion of the Clause against being “questioned in any

other Place.” Jd. at 501. “If the mere allegation that a

valid legislative act was undertaken for an unworthy

purpose would lift the protection of the Clause, then the

Clause simply would not provide the protection

historically undergirding it.” Jd. at 508-09, 95 S. Ct.

1813. Although the district court lacks jurisdiction over

the President and the Congress, the question of the

constitutionality of the 1954 Act remains before us.

While the court correctly dismissed the claim against

those parties, it survives against others.

B. The State of California as a defendant

The State of California did not join in the motion to

dismiss or otherwise participate in the district court

proceedings. It did, however, sub silentio, receive the

benefit of the district court’s ruling dismissing the

complaint. Accordingly, a reversal of the order would

result in the reinstatement of the complaint against the

state. With respect to the validity of the California

3la

statute, however, unlike in the case of the Congres-

sional enactment and the school district policy, no

arguments, legal or otherwise, were advanced by the

parties either below or here. Thus, we do not address

separately the validity of the California statute.

C. Standing

Article III standing is a jurisdictional issue. See

United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.

1997). Accordingly, it “may be raised at any stage of

the proceedings, including for the first time on appeal.”

See A-Z Intern. v. Phillips, 179 F.3d 1187, 1190-91 (9th

Cir. 1999). To satisfy standing requirements, a plaintiff

must prove that “(1) it has suffered an ‘injury in fact’

that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury

is fairly traceable to the challenged action of the defen-

dant; and (3) it is likely, as opposed to merely specu-

lative, that the injury will be redressed by a favorable

decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693,

145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 119

L.Ed.2d 351 (1992)).

Newdow has standing as a parent to challenge a prac-

tice that interferes with his right to direct the religious

education of his daughter. “Parents have a right to

direct the religious upbringing of their children and, on

that basis, have standing to protect their right.” Doe v.

Madison Sch. Dist. No. 321, 177 F.3d 789, 795 (9th Cir.

1999) (en banc); see also Grove v. Mead Sch. Dist. No.

$54, 753 F.2d 1528, 1532 (9th Cir. 1985) (“Appellants

have standing to challenge alleged violations of the

establishment clause of the First Amendment if they

are directly affected by use of [the challenged book] in

32a

the English curriculum. [Appellant] has standing as a

parent whose right to direct the religious training of

her child is allegedly affected.”) (citation omitted).

Newdow has standing to challenge the EGUSD’s

policy and practice regarding the recitation of the

Pledge because his daughter is currently enrolled in

elementary school in the EGUSD. However, Newdow

has no standing to challenge the SCUSD’s policy and

practice because his daughter is not currently a student

there. The SCUSD and its superintendent have not

caused Newdow or his daughter an “injury in fact” that

is “actual or imminent, not conjectural or hypothetical.”

Laidlaw, 528 U.S. at 180, 120 S. Ct. 698 (citing Lujan,

504 U.S. at 560- 561, 112 S. Ct. 2130).

The final question of standing relates to the 1954 Act.

Specifically, has Newdow suffered an “injury in fact”

that is “fairly traceable” to the enactment of the 1954

Act? Id.

We begin our inquiry by noting the general rule that

the standing requirements for an action brought under

the Establishment Clause are the same as for any other

action. Valley Forge Christian Coll. v. Americans

United for Separation of Church and State, Inc., 454

U.S. 464, 488-90, 102 S. Ct. 752, 70 L.Ed.2d 700 (1982).

“The requirement of standing focuses on the party

seeking to get his complaint before a federal court and

not on the issues he wishes to have adjudicated.

Moreover, we know of no principled basis on which to

create a hierarchy of constitutional values or a comple-

mentary ‘sliding scale’ of standing which might permit

respondents to invoke the judicial power of the United

States.” Jd. at 484, 102 S. Ct. 752 (citation and internal

quotation marks omitted). In Valley Forge, an organi-

zation dedicated to the separation of church and state

33a

brought suit challenging the federal government’s

grant of surplus federal property to a church-related

college. The suit alleged that this grant of real prop-

erty, without any financial payment by the college, was

a violation of the Establishment Clause. The Supreme

Court found that the plaintiff had standing neither as a

taxpayer, see id. at 479-80, 102 S. Ct. 752, nor as a party

personally injured as a consequence of the alleged un-

constitutional action, see id. at 484-86, 102 S. Ct. 752.

The “psychological consequence‘presumably produced

by observation of conduct with which one disagrees

; is not an injury sufficient to confer standing

under Art. III, even though the disagreement is

phrased in constitutional terms.” Jd. at 485-86, 102 S.

Ct. 752. The Court emphasized that “(t]he assumption

that if respondents have no standing to sue, no one

would have standing, is not a reason to find standing.’”

Id. at 489, 102 S. Ct. 752 (quoting Schlesinger v. Re-

servists Comm. to Stop the War, 418 U.S. 208, 227, 94

S. Ct. 2925, 41 L.Ed.2d 706 (1974)).

While Valley Forge remains good law, the Supreme

Court in more recent opinions has indirectly broadened

the notion of Establishment Clause standing in public

education cases by holding that the mere enactment of

a statute may constitute an Establishment Clause

violation. In Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct.

2479, 86 L.Ed.2d 29 (1985), the Court considered an

Establishment Clause challenge to an Alabama statute

that originally had authorized a one-minute period of

silence in public schools “for meditation,” but was later

amended to authorize a period of silence “for meditation

or voluntary prayer.” Id. at 40-42, 105 S. Ct. 2479.

Although the previous form of the statute specifically

allowed students to use the moment of silence for

34a

“meditation,” silent prayer was always an option. “{I]t

is undisputed that at the time of the enactment of [the

amended statute] there was no governmental practice

impeding students from silently praying for one minute

at the beginning of each schoolday.” Id. at 57 n.45,

105 S. Ct. 2479. Nor were students, under the amended

form of the statute, compelled to use the allotted time

for prayer. In sum, the amendment to the Alabama

statute had no discernible effect on public school stu-

dents other than to inform them that the state was

encouraging them to engage in prayer during their

daily moment of silence. Because the Supreme Court

has repeatedly held that standing is a jurisdictional

requirement, the existence of which each federal court

must determine for itself, see Lujan, 504 U.S. at 559-

561, 112 S. Ct. 2180; FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 230-31, 110 S. Ct. 596, 107 L.Ed.2d 603 (1990),

we may presume that in Wallace the Court examined

the standing question before deciding the merits, and

that the Court determined that the -schoolchildren’s

parents had standing to challenge the amended

Alabama statute.

Our reading of Wallace is supported by Santa Fe

Independent School District v. Doe, 530 U.S. 290, 120

S. Ct. 2266, 147 L.Ed.2d 295 (2000), where the Court

upheld a facial challenge to a school district’s policy of

permitting, but not requiring, prayer initiated and led

by a student at high school football games. Noting that

“the Constitution also requires that we keep in mind

‘the myriad, subtle ways in which the Establishment

Clause values can be eroded,” id. at 314, 120 S. Ct.

2266 (quoting Lynch v. Donnelly, 465 U.S. 668, 104

S. Ct. 1355, 79 L.Ed.2d 604, 694 (1984) (O’Connor, J.,

concurring)), the Court held that the “mere passage by

35a

the District of a policy that has the purpose and per-

ception of government establishment of religion,” id.,

violated the Establishment Clause. “[{T]Jhe simple

enactment of this policy, with the purpose and percep-

tion of school endorsement of student prayer, was a

constitutional violation.” Jd. at 316, 120 S. Ct. 2266

(emphasis added).

In Wallace and Santa Fe, the Court looked at the

language of each statute, the context in which the

statute was enacted, and its legislative history to

determine that the challenged statute caused an injury

in violation of the Establishment Clause. “We refuse to

turn a blind eye to the context in which this policy

arose, and that context quells any doubt that this policy

was implemented with the purpose of endorsing school

prayer.” Id. at 315, 120 S. Ct. 2266. Justice O’Connor’s

concurrence in Wallace noted that whether a statute

actually conveys a message of endorsement of religion

is “not entirely a question of fact . . . . The relevant

issue is whether an objective observer, acquainted with

the text, legislative history, and implementation of the

statute, would perceive it as state endorsement of

prayer in public schools.” 472 U.S. at 76, 105 S. Ct. 2479

(O’Connor, J., concurring in judgment). In Santa Fe,

“(t]he text and history of this policy . . . reinforce our

objective student’s perception that the prayer is, in

actuality, encouraged by the school.” 530 U.S. at 308,

120 S. Ct. 2266. In evaluating the purpose of the school

district policy, the Court found “most striking . . . the

evolution of the current policy.” Jd. at 309, 120 S. Ct.

2266. In Wallace, a review of the legislative history led

the Court to conclude that enactment of the amended

statute “was not motivated by any clearly secular

purpose—indeed, the statute had no secular purpose.”

36a

472 U.S. at 56, 105 S. Ct. 2479; see also id. at 57-60, 105

S. Ct. 2479.

Operating within the above-described legal land-

scape, we now turn to the question initially posed,

namely, does Newdow have standing to challenge the

1954 Act? Initially, we note that the 1954 statute

challenged by Newdow is similar to the Alabama

statute struck down in Wallace. Neither statute works

the traditional type of “injury in fact” that is implicated

when a statute compels or prohibits certain activity,

nor do the amendments brought about by these

statutes lend themselves to “as-applied” constitutional

review. Nevertheless, the Court in Wallace, at least

implicitly, determined that the schoolchildren’s parents

had standing to attack the challenged statute. More-

over, the legislative history of the 1954 Act shows that

the “under God” language was not meant to sit pas-

sively in the federal code unbeknownst to the public;

rather, the sponsors of the amendment knew about and

capitalized on the state laws and school district rules

that mandate recitation of the Pledge. The legislation’s

House sponsor, Representative Louis C. Rabaut,

testified at the Congressional hearing that “the children

of our land, in the daily recitation of the pledge in

school, will be daily impressed with a true under-

standing of our way of life and its origins,” and this

statement was incorporated into the report of the

House Judiciary Committee. H.R. Rep. No. 83-1693, at

3 (1954), reprinted in 1954 U.S.C.C.A.N. 2389, 2341.

Taken within its context, the 1954 addendum was

designed to result in the recitation of the words “under

God” in school classrooms throughout the land on a

daily basis, and therefore constituted as much of an

injury-in-fact as the policies considered in Wallace and

37a

Santa Fe. As discussed earlier, Newdow has standing

as a parent to challenge a practice that interferes with

his right to direct the religious education of his

daughter. The mere enactment of the 1954 Act in its

particular context constitutes a religious recitation

policy that interferes with Newdow’s right to direct the

religious education of his daughter. Accordingly, we

hold that Newdow has standing to challenge the 1954

Act. |

D. Establishment Clause

The Establishment Clause of the First Amendment

states that “Congress shall make no law respecting an

establishment of religion,” U.S. Const. amend. I, a pro-

vision that “the Fourteenth Amendment makes

applicable with full force to the States and their school

districts.” Lee v. Weisman, 505 U.S. 577, 580, 112 S. Ct.

2649, 120 L.Ed.2d 467 (1992). Over the last three

decades, the Supreme Court has used three inter-

related tests to analyze alleged violations of the

Establishment Clause in the realm of public education:

the three-prong test set forth in Lemon v. Kurtzman,

403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L.Ed.2d 745

(1971); the “endorsement” test, first articulated by

Justice O’Connor in her concurring opinion in Lynch,

and later adopted by a majority of the Court in Cownty

of Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086,

106 L.Ed.2d 472 (1989); and the “coercion” test first

used by the Court in Lee.

In 1971, in the context of unconstitutional state aid to

nonpublic schools, the Supreme Court in Lemon set

forth the following test for evaluating alleged Esta-

blishment Clause violations. To survive the “Lemon

test,” the government conduct in question (1) must

have a secular purpose, (2) must have 4a principal or

38a

primary effect that neither advances nor inhibits re-

ligion, and (3) must not foster an excessive government

entanglement with religion. Lemon, 403 U.S. at 612-13,

91 S. Ct. 2105. The Supreme Court applied the Lemon

test to every Establishment case it decided between

1971 and 1984, with the exception of Marsh v. Cham-

bers, 463 U.S. 783, 103 S. Ct. 3330, 77 L.Ed.2d 1019

(1983), the case upholding legislative prayer. See

Wallace, 472 U.S. at 63, 105 S. Ct. 2479 (Powell, J.,

concurring).

In the 1984 Lynch case, which upheld the inclusion of

a nativity scene in a city’s Christmas display, Justice

O’Connor wrote a concurring opinion in order to

suggest a “clarification” of Establishment Clause juris-

prudence. 465 U.S. at 687, 104 S. Ct. 1855 (O’Connor, i

concurring). Justice O’Connor’s “endorsement” test

effectively collapsed the first two prongs of the Lemon

test:

The Establishment Clause prohibits government

from making adherence to a religion relevant in any

way to a person’s standing in the political com-

munity. Government can run afoul of that pro-

hibition in two principal ways. One is excessive

entanglement with religious institutions. . . . The

second and more direct infringement is government

endorsement or disapproval of religion. Endorse-

ment sends a message to nonadherents that they are

4 In Marsh, the Court “held that the Nebraska Legislature’s

practice of opening each day’s session with a prayer by @ chaplain

paid by the State did not violate the Establishment Clause of the

First Amendment. [The] holding was based upon the historical

acceptance of the practice that had become ‘part of the fabric of our

society.” Wallace, 472 U.S. at 63 n.4, 105 S. Ct. 2479 (Powell, J.,

concurring) (quoting Marsh, 463 US. at 792, 103 S. Ct. 3330).

39a

outsiders, not full members of the political commun-

ity, and an accompanying message to adherents that

they are insiders, favored members of the political

community.

Id. at 687-88, 91 S. Ct. 2105 (O’Connor, J., concurring).

The Court formulated the “coercion test” when it

held unconstitutional the practice of including invoca-

tions and benedictions in the form of “nonsectarian”

prayers at public school graduation ceremonies. Lee,

505 U.S. at 599, 112 S. Ct. 2649. Declining to reconsider

the validity of the Lemon test, the Court in Lee found it

unnecessary to apply the Lemon test to find the

challenged practices unconstitutional. Jd. at 587, 112 S.

Ct. 2649. Rather, it relied on the principle that “at a

minimum, the Constitution guarantees that govern-

ment may not coerce anyone to support or participate

in religion or its exercise, or otherwise to act in a way

which establishes a state religion or religious faith, or

tends to do so.” Jd. (citations and internal quotation

marks omitted). The Court first examined the degree

5 Although this formulation is referred to as the “coercion” test,

it should be noted that coercion is not a necessary element in

finding an Establishment Clause violation. “The Establishment

Clause, unlike the Free Exercise Clause, does not depend upon any

showing of direct governmental compulsion. . . .” Engel v. Vitale,

870 U.S. 421, 430, 82 S. Ct. 1261, 8 L.Ed.2d 601 (1962). “[TJhis

court has never relied on coercion alone as the touchstone of

Establishment Clause analysis. To require a showing of coercion,

even indirect coercion, as an essential element of an Establishment

Clause violation would make the free Exercise Clause a redun-

dancy.” Allegheny, 492 U.S. at 628, 109 S. Ct. 3086 (O’Connor, J.,

concurring). “Over the years, this Court has declared the in-

validity of many noncoercive state laws and practices conveying a

message of religious endorsement.” Lee, 505 U.S. at 618, 112 S. Ct.

2649 (Souter, J., concurring).

40a

of school involvement in the prayer, and found that “the

graduation prayers bore the imprint of the State and

thus put school-age children who objected in an

untenable position.” Id. at 590. The next issue the

Court considered was “the position of the students,

both those who desired the prayer and she who did

not.” Id. Noting that “there are heightened concerns

with protecting freedom of conscience from subtle coer-

cive pressure in the elementary and secondary public

schools,” id. at 592, 112 S.Ct. 2649, the Court held that

the school district’s supervision and control of the

graduation ceremony put impermissible pressure on

students to participate in, or at least show respect

during, the prayer, id. at 593, 112 S. Ct. 2649. The

Court concluded that primary and secondary school

children may not be placed in the dilemma of either

participating in a religious ceremony or protesting. Id.

at 594, 112 S. Ct. 2649.

Finally, in its most recent school prayer case, the

Supreme Court applied the Lemon test, the endorse-

ment test, and the coercion test to strike down a school

district’s policy of permitting student-led “invocations”

before high school football games. See Santa Fe, 530

U.S. at 310-16, 120 S. Ct. 2266. Citing Lee, the Court

held that “the delivery of a pregame prayer has the

improper effect of coercing those present to participate

in an act of religious worship.” Id. at 312, 120 S. Ct.

2266. Applying the Lemon test, the Court found that

the school district policy was facially unconstitutional

because it did not have a secular purpose. Id. at 314-16.

The Court also used language associated with the

endorsement test. Jd. at 315, 120 S. Ct. 2266 (“(T his

policy was implemented with the purpose of endorsing

school prayer.”); id. at 317, 120 S. Ct. 2266 (“Govern-

4la

ment efforts to endorse religion cannot evade consti-

tutional reproach based solely on the remote possibility

that those attempts may fail.”).

We are free to apply any or all of the three tests, and

to invalidate any measure that fails any one of them.

The Supreme Court has not repudiated Lemon; in

Santa Fe, it found that the application of each of the

three tests provided an independent ground for

invalidating the statute at issue in that case; and in Lee,

the Court invalidated the policy solely on the basis of

the coercion test. Although this court has typically

applied the Lemon test to alleged Establishment

Clause violations, see, e.g., Am. Family Ass’n, Inc. v.

City and County of San Francisco, 277 F.3d 1114, 1120-

21 (9th Cir. 2002), we are not required to apply it if a

practice fails one of the other tests. Nevertheless, for

purposes of completeness, we will analyze the school

district policy and the 1954 Act under all three tests.

We first consider whether the 1954 Act and the

EGUSD’s policy of teacher-led Pledge recitation sur-

vive the endorsement test. The magistrate judge found

that “the ceremonial reference to God in the pledge

does not convey endorsement of particular religious

beliefs.” Supreme Court precedent does not support

that conclusion.

In the context of the Pledge, the statement that the

United States is a nation “under God” is an endorse-

ment of religion. It is a profession of a religious belief,

namely, a belief in monotheism. The recitation that

ours is a nation “under God” is not a mere acknowledg-

ment that many Americans believe in a deity. Nor is it

merely descriptive of the undeniable historical signifi-

cance of religion in the founding of the Republic.

Rather, the phrase “one nation under God” in the

42a

context of the Pledge is normative. To recite the

Pledge is not to describe the United States; instead, it

is to swear allegiance to the values for which the flag

stands: unity, indivisibility, liberty, justice, and—since

1954—monotheism. The text of the official Pledge,

codified in federal law, impermissibly takes a position

with respect to the purely religious question of the

existence and identity of God. A profession that we are

a nation “under God” is identical, for Establishment

Clause purposes, to a profession that we are a nation

“ander Jesus,” a nation “under Vishnu,” a nation “under

Zeus,” or a nation “under no god,” because none of

these professions can be neutral with respect to

religion. “[TJhe government must pursue a course of

complete neutrality toward religion.” Wallace, 472 US.

at 60, 105 S. Ct. 2479. Furthermore, the school

district’s practice of teacher-led recitation of the Pledge

aims to inculcate in students a respect for the ideals set

forth in the Pledge, and thus amounts to state endorse-

ment of these ideals. Although students cannot be

forced to participate in recitation of the Pledge, the

school district is nonetheless conveying a message of

state endorsement of a religious belief when it requires

public school teachers to recite, and lead the recitation

ideological nature of the Pledge in Barnette, 319 US.

624, 63 S. Ct. 1178, 87 L.Ed. 1628. There, the Court

held unconstitutional a school district’s wartime policy

43a

and sign his acceptance of the political ideas [the flag]

. . « bespeaks,” id. at 633, 63 S. Ct. 1178. “(T]he com-

pulsory flag salute and pledge requires affirmation of a

belief and an attitude of mind.” Id. The Court empha-

sized that the political concepts articulated in the

Pledge’ were idealistic, not descriptive: “(Liberty and

justice for all,’ if it must be accepted as descriptive of

the present order rather than an ideal, might to some

seem an overstatement.” Jd. at 634 n. 14, 63 S. Ct. 1178.

The Court concluded that: “If there is any fixed star in

our constitutional constellation, it is that no official,

high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of

opinion or force citizens to confess by word or act their

faith therein.” Jd. at 642, 63 S. Ct. 1178.

The Pledge, as currently codified, is an impermissible

government endorsement of religion because it sends a

message to unbelievers “that they are outsiders, not

full members of the political community, and an accom-

panying message to adherents that they are insiders,

favored members of the political community.” Lynch,

465 U.S. at 688, 104 S. Ct. 1855 (O’Connor, J., concurr-

ing). Justice Kennedy, in his dissent in Allegheny,

agreed:

[Bly statute, the Pledge of Allegiance to the Flag

describes the United States as ‘one nation under

God.’ To be sure, no one is obligated to recite this

phrase,. . . but it borders on sophistry to suggest

that the reasonable atheist would not feel less than a

full member of the political community every time

& Barnette was decided before “under God” was added, and

thus the Court’s discussion was limited to the political ideals

contained in the Pledge.

44a

his fellow Americans recited, as part of their ex-

pression of patriotism and love for country, a phrase

he believed to be false.

Allegheny, 492 U.S. at 672, 109 S. Ct. 3086 (Kennedy, J.,

dissenting) (citations and internal quotation marks

omitted).’ Consequently, the policy and the Act fail the

endorsement test.

Similarly, the policy and the Act fail the coercion test.

Just as in Lee, the policy and the Act place students in

the untenable position of choosing between partici-

pating in an exercise with religious content or pro-

testing. As the Court observed with respect to the

graduation prayer in that case: “What to most be-

lievers may seem nothing more than a reasonable

request that the nonbeliever respect their religious

practices, in a school context may appear to the non-

believer or dissenter to be an attempt to employ the

machinery of the State to enforce a religious ortho-

doxy.” Lee, 505 U.S. at 592, 112 S. Ct. 2649. Although

the defendants argue that the religious content of “one

nation under God” is minimal, to an atheist or a believer

in certain non-Judeo-Christian religions or philosophies,

it may reasonably appear to be an attempt to enforce a

“religious orthodoxy” of monotheism, and is therefore

impermissible. The coercive effect of this policy 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 school, their teacher and their fellow

students Furthermore, under Lee, the fact that

7 For Justice Kennedy, this result was a reason to reject the

ad The “subtle and indirect” social pressure which permeates the

classroom also renders more acute the message sent to non-

~~

45a

students are not required to participate is no basis for

distinguishing Barnette from the case at bar because,

even without a recitation requirement for each child,

the mere fact that a pupil is required to listen every day

to the statement “one nation under God” has a coercive

effect.? The coercive effect of the Act is apparent from

its context and legislative history, which indicate that

the Act was designed to result in the daily recitation of

the words “under God” in school classrooms. President

Eisenhower, during the Act’s signing ceremony, stated:

“From this day forward, the millions of our school

children will daily proclaim in every city and town,

every village and rural schoolhouse, the dedication of

our Nation and our people to the Almighty.” 100 Cong.

Rec. 8618 (1954) (statement of Sen. Ferguson incor-

porating signing statement of President Eisenhower).

Therefore, the policy and the Act fail the coercion test.”

believing schoolchildren that they are outsiders. See Lee, 505 U.S.

at 592-93, 112 S. Ct. 2649 (stating that “the risk of indirect

coercion” from prayer exercises is particularly “pronounced” in

elementary and secondary public school because students are

subjected to peer pressure and public pressure which is “as real as

any overt compulsion”).

® The objection to the Pledge in Barnette, like in the case at

bar, was based upon a religious ground. The Pledge in the

classroom context imposes upon schoolchildren the constitutionally

unacceptable choice between participating and protesting. Rec-

ognizing the severity of the effect of this form of coercion on

children, the Supreme Court in Lee stated, “the State may not,

consistent with the Establishment Clause, place primary and

secondary school children in this position.” 505 U.S. at 593, 112 S.

Ct. 2649.

In Aronow v. United States, 482 F.2d 242 (9th Cir. 1970), this

court, without reaching the question of standing, upheld the

inscription of the phrase “In God We Trust” on our coins and

currency. But cf. Wooley v. Maynard, 430 U.S. 705, 722, 97 S. Ct.

46a

Finally we turn to the Lemon test, the first prong of

which asks if the challenged policy has a secular

purpose. Historically, the primary purpose of the 1954

Act was to advance religion, in conflict with the first

prong of the Lemon test. The federal defendants “do

not dispute that the words ‘ander God’ were intended”

“to recognize a Supreme Being,” at a time when the

government was publicly inveighing against atheistic

communism. Nonetheless, the federal defendants argue

that the Pledge must be considered as a whole when

assessing whether it has a secular purpose. They claim

that the Pledge has the secular purpose of “solemnizing

public occasions, expressing confidence in the future,

and encouraging the recognition of what is worthy of

appreciation in society.” Lynch, 465 U.S. at 693, 104 S.

Ct. 1355.

The flaw in defendants’ argument is that it looks at

the text of the Pledge “as a whole,” and glosses over the

1954 Act. The problem with this approach is apparent

when one considers the Court’s analysis in Wallace.

There, the Court struck down Alabama’s statute man-

dating a moment of silence for “meditation or voluntary

prayer” not because the final version “as a whole”

lacked a primary secular purpose, but because the state

legislature had amended the statute specifically and

solely to add the words “or voluntary prayer.” 472 US.

at 59-60, 105 S. Ct. 2479.

case. The most important distinction is that school children are not

coerced into reciting or otherwise actively led to participating in an

endorsement of the markings on the money in circulation.

47a

By analogy to Wallace, we apply the purpose prong

of the Lemon test to the amendment that added the

words “under God” to the Pledge, not to the Pledge in

its final version. As was the case with the amendment

to the Alabama statute in Wallace, the legislative his-

tory of the 1954 Act reveals that the Act’s sole purpose

was to advance religion, in order to differentiate the

United States from nations under communist rule.”

[T]he First Amendment requires that a statute must be

invalidated if it is entirely motivated by a purpose to

advance religion.” Jd. at 56, 105 S. Ct. 2479 (citations

omitted) (applying the Lemon test). As the legislative

history of the 1954 Act sets forth:

At this moment of our history the principles under-

lying our American Government and the American

way of life are under attack by a system whose

philosophy is at direct odds with our own. 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 acknowl-

edge the dependence of our people and our Govern-

ment upon the moral directions of the Creator. At

the same time it would serve to deny the atheistic

and materialistic concepts of communism with its

attendant subservience of the individual.

H.R. Rep. No. 83-1698, at 1-2 (1954), reprinted in 1954

U.S.C.C.A.N. 2339, 2340. This language reveals that

the purpose of the 1954 Act was to take a position on

the question of theism, namely, to support the existence

and moral authority of God, while “deny[ing] .

48a

atheistic and materialistic concepts.” Id. Such a pur-

pose runs counter to the Establishment Clause, which

prohibits the government’s endorsement or advance-

ment not only of one particular religion at the expense

of other religions, but also of religion at the expense of

atheism.

[T]he Court has unambiguously concluded that the

individual fr m of conscience protected by the

First Amendment embraces the right to select any

religious faith or none at all. This conclusion derives

support not only from the interest in respecting the

individual’s freedom of conscience, but also from the

conviction that religious beliefs worthy of respect

are the product of a free and voluntary choice by the

- faithful, and from recognition of the fact that the

political interest in forestalling intolerance extends

beyond intolerance among Christian sects—or even

intolerance among “religions”—to encompass intole-

rance of the disbeliever and the uncertain.

Wallace, 472 U.S. at 52-54, 105 S. Ct. 2479.

In language that attempts to prevent future

constitutional challenges, the sponsors of the 1954 Act

expressly disclaimed a religious purpose. “This is not

an act establishing a religion. . . . A distinction must

be made between the existence of a religion as an

institution and 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), reprinted in 1954 U.S.C.C.A.N. 2339, 2341-42.

This alleged distinction is irrelevant for constitutional

purposes. The Act’s affirmation of “a belief in the

sovereignty of God” and its recognition of “the guidance

of God” are endorsements by the government of reli-

49a

gious beliefs. The Establishment Clause is not limited

to “religion as an institution”; this is clear from cases

such as Santa Fe, where the Court struck down

student-initiated and student-led prayer at high school

football games. 530 U.S. at 310-16, 120 S. Ct. 2266. The

Establishment Clause guards not only against the

establishment of “religion as an institution,” but also

against the endorsement of religious ideology by the

government. Because the Act fails the purpose prong

of Lemon, we need not examine the other prongs.

Lemon, 403 U.S. at 612-14, 91 S. Ct. 2105.

Similarly, the school district policy also fails the

Lemon test. Although it survives the first prong of

Lemon because, as even Newdow concedes, the school

district had the secular purpose of fostering patriotism

in enacting the policy, the policy fails the second prong.

As explained by this court in Kreisner v. City of San

ego, 1 F.3d 775, 782 (9th Cir. 1998), and by the Sup-

reme Court in School District of Grand Rapids v. Ball,

473 U.S. 378, 390, 105 S. Ct. 3216, 87 L.Ed.2d 267 (1985),

the second Lemon prong asks “whether the challenged

government action is sufficiently likely to be perceived

by adherents of the controlling denominations as an

endorsement, and by the nonadherents as a disap-

proval, of their individual religious choices.”" Ball, 473

Although Ball was overruled in part by Agostini v. Felton,

521 U.S. 208, 236, 117 S. Ct. 1997, 188 L.Ed.2d 391 (1997), as the

Court stated in Agostini, Ball’s statement of the general principles

and relevant tests to be used in determining what constitutes an

Establishment Clause violation remain intact; only the underlying

factual assumptione and presumptions have changed. In parti-

cular, the Court rejected the following three core assumptions of

Ball:

50a

U.S. at 390, 105 S. Ct. 3216. Given the age and impres-

sionability of schoolchildren, as discussed above, parti-

cularly within the confined environment of the class-

room, the policy is highly likely to convey an imper-

missible message of endorsement to some and dis-

approval to others of their beliefs regarding the

existence of a monotheistic God. Therefore the policy

fails the effects prong of Lemon, and fails the Lemon

test. In sum, both the policy and the Act fail the Lemon

test as well as the endorsement and eoercion tests.”

(i) any public employee who works on the premises of a

religious school is presumed to inculcate religion in her work;

(ii) the presence of public employees on private school

premises creates a symbolic union between church and state,

and (iii) any and all public aid that directly aids the educational

function of religious schools impermissibly finances religious

indoctrination, even if the aid reaches such schools as a

consequence of private decisionmaking.

Agostini, 521 USS. at 222, 117 S. Ct. 1997. Therefore, Ball’s re-

statement of the second prong of Lemon remains valid even after

Agostini.

12 We recognize that the Supreme Court has occasionally

commented in dicta that the presence of “one nation under God” in

the Pledge of Allegiance is constitutional. See Allegheny, 492 U.S.

at. 602-03, 109 S. Ct. 3086; Lynch, 465 U.S. at 676, 104 S. Ct. 1355;

id. at 698, 104 S. Ct. 1855 (O’Connor, J., concurring); Abington Sch.

Dist. v. Schempp, 374 U.S. 203, 303-04, 83 S. Ct. 1560, 10 L.Ed.2d

844 (1963) (Brennan, J., concurring); id. at 306-08, 83 S. Ct. 1560

(Goldberg, J., joined by Harlan, J., concurring); Engel, 370 USS. at

435 n. 21, 82 S. Ct. 1261. However, the Court has never been pre-

sented with the question directly, and has always clearly refrained

from deciding it. Accordingly, it has never applied any of the three

tests to the Act or to any school policy regarding the recitation of

the Pledge. That task falls to us, although the final word, as

always, remains with the Supreme Court.

5la

The only other United States Court of Appeals to consider the

issue is the Seventh Circuit, which held in Sherman v. Community

Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), that a

policy similar to the one before us regarding the recitation of the

Pledge of Allegiance containing the words “one nation under God”

was constitutional. The Sherman court first stated that:

If as Barnette holds no state may require anyone to recite the

Pledge, and if as the prayer cases hold the recitation by a

teacher or rabbi of unwelcome words is coercion, then the

Pledge of Allegiance becomes unconstitutional under all

circumstances, just as no school may read from a holy scripture

at the start of class.

980 F.2d at 444. It then concludes, however, that this reasoning is

flawed because the First Amendment “[does] not establish general

rules about speech or schools; [it] call[s] for religion to be treated

differently.” Jd. We have some difficulty understanding this

statement; we do not believe that the Constitution prohibits

compulsory patriotism as in Barnette, but permits compulsory

religion as in this case. If government-endorsed religion is to be

treated differently from government-endorsed patriotism, the

treatment must be less favorable, not more.

The Seventh Circuit makes an even more serious error,

however. It not only refuses to apply the Lemon test because of

the Supreme Court’s criticism of that test in Lee, but it also fails to

apply the coercion test from Lee or the endorsement test from

Lynch. Circuit courts are not free to ignore Supreme Court pre-

cedent in this manner. Rodriguez de Quijas v. Shearson/Am. Exp.,

Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L.Ed.2d 526 (1989) (“If

a precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of decisions,

the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its

own decisions.”). Instead of applying any of the tests announced

by the Supreme Court, the Seventh Circuit simply frames the

question as follows: “Must ceremonial references in civic life to a

deity be understood as prayer, or support for all monotheistic

religions, to the exclusion of atheists and those who worship

multiple gods?” 980 F.2d at 445. Relying in part on Supreme

Court dicta regarding the Pledge, the court answers this question

in the negative, determining that “under God” is a statement

52a

In conclusion, we hold that (1) the 1954 Act adding

the words “under God” to the Pledge, and (2) EGUSD’s

policy and practice of teacher-led recitation of the

Pledge, with the added words included, violate the

Establishment Clause. The judgment of dismissal is

vacated with respect to these two claims, and the cause

is remanded for further proceedings consistent with our

holding. Plaintiff is to recover costs on this appeal.

REVERSED AND REMANDED.

which, taken within its context in the Pledge, is devoid of any

significant religious content, and therefore constitutional. Jd. at

447-48. At the very least, as discussed above in the text, the

Supreme Court requires that any policy alleged to be an

Establishment Clause violation must be held to the scrutiny of the

established tests. Our application of all of the tests compels the

conclusion that the policy and the Act challenged here violate the

Establishment Clause of the Constitution. Thus, we must

respectfully differ from the Seventh Circuit.

53a

FERNANDEZ, Circuit Judge, concurring and dis-

senting:

I concur in parts A, B and C’ of the majority opinion,

but dissent as to part D.

We are asked to hold that inclusion of the phrase

“under God” in this nation’s Pledge of Allegiance vio-

lates the religion clauses of the Constitution of the

United States. We should do no such thing. We should,

instead, recognize that those clauses were not designed

to drive religious expression out of public thought; they

were written to avoid discrimination.

We can run through the litany of tests and concepts

which have floated to the surface from time to time.

Were we to do so, the one that appeals most to me, the

one I think to be correct, is the concept that what the

religion clauses of the First Amendment require is

neutrality; that those clauses are, in effect, an early

kind of equal protection provision and assure that

government will neither discriminate for nor discri-

minate against a religion or religions. See Gentala v.

City of Tucson, 244 F.3d 1065, 1083-86 (9th Cir.) (en

banc) (Fernandez, J., dissenting), cert. granted and

judgment vacated by 534 U.S. 946, 122 S. Ct. 340, 151

L.Ed.2d 256 (2001); Goehring v. Brophy, 94 F.3d 1294,

1 T admit, however, to serious misgivings about standing to

attack 4 U.S.C. § 4 itself. Congress has not compelled anyone to do

anything. It surely has not directed that the Pledge be recited in

class; only the California authorities have done that. Even if a

general lack of standing to directly attack 4 U.S.C. § 4 would de-

prive federal courts of the opportunity to strike “under God” from

that statute, any lament would be no more than a complaint about

the limits on federal judges’ constitutional power. Nonetheless,

that ultimately makes little difference to the resolution of the First

Amendment issue in this case.

54a

1306-07 (9th Cir. 1996) (Fernandez, J., concurring). But,

legal world abstractions and ruminations aside, when all

is said and done, the danger that “under God” in our

Pledge of Allegiance will tend to bring about a theoc-

racy or suppress somebody's beliefs is so minuscule as

to be de minimis. The danger that phrase presents to

our First Amendment freedoms is picayune at most.

Judges, including Supreme Court Justices, have

recognized the lack of danger in that and similar

expressions for decades, if not for centuries, as have

presidents’ and members of our Congress. See, ¢.9.,

County of Allegheny v. ACLU, 492 U.S. 573, 602-03,

672-73, 109 S. Ct. 3086, 3106, 3143, 106 L.Ed.2d 472

(1989); Wallace v. Jaffree, 472 U.S. 38, 78 n. 5, 105 S. Ct.

2479, 86 L.Ed.2d 29 (1985); Lynch v. Donnelly, 465 U.S.

668, 676, 693, 716, 104 S. Ct. 1859, 1361, 79 L.Ed.2d 604

(1984); Abington Sch. Dist. v. Schempp, 374 U.S. 203,

306-08, 83 §. Ct. 1560, 1615-16, 10 L.Ed.2d 844 (1963);"

Separation of Church & State Comm. v. City of

Eugene, 93 F.3d 617, 622 (9th Cir. 1996) (O’Scannlain,

J., concurring); Gaylor v. United States, 74 F.3d 214,

217-18 (10th Cir. 1996); Sherman v. Cmty Consol. Sch.

Dist. 21, 980 F.2d 487, 445-48 (7th Cir. 1992); O’Hair v.

2 See, e.g., Lee v. Weisman, 505 U.S. 577, 632-35, 112 S. Ct. 2649,

120 L.Ed.2d 467 (1992) (Scalia, J., dissenting).

3 The citations to the four preceding Supreme Court opinions

are to majority opinions, concurring opinions, and dissents.

Because my point is that a number of Justices have recognized the

lack of danger and because I hope to avoid untoward complication

in the setting out of the citations, I have not designated which

Justices have joined in which opinion. All in all, however, perusing

those opinions indicates that Chief Justice Burger, Chief Justice

Rehnquist, and Justices Harlan, Brennan, White, Goldberg, Mar-

shall, Blackmun, Powell, Stevens, O’Connor, Scalia, and Kennedy

have so recognized.

55a

Murray, 588 F.2d 1144, 1144 (5th Cir. 1979) (per

curiam); Aronow v. United States, 482 F.2d 242, 243-44

(9th Cir. 1970); cf. Marsh v. Chambers, 463 U.S. 783,

795, 103 S. Ct. 3330, 77 L.Ed.2d 1019 (1983) (legislative

prayer). I think it is worth stating a little more about

two of the cases which I have just cited. In County of

Allegheny, 492 U.S. at 602-03, 109 S. Ct. at 3106, the

Supreme Court had this to say: “Our previous opinions

have considered in dicta the motto and the pledge,

characterizing them as consistent with the proposition

that government may not communicate an endorsement

of religious belief.” The Seventh Circuit, reacting in

part to that statement, has wisely expressed the

following thought: ‘s

Plaintiffs observe that the Court sometimes

changes its tune when it confronts a subject di-

rectly. True enough, but an inferior court had best

respect what the majority says rather than read

between the lines. If the Court proclaims that a

practice is consistent with the establishment clause,

we take its assurances seriously. If the Justices are

just pulling our leg, let them say so.

Sherman, 980 F.2d at 448.

Some, who rather choke on the notion of de minimis,

have resorted to the euphemism “ceremonial deism.”

See, e.g., Lynch, 465 U.S. at 716, 104 S. Ct. at 1382

(Brennan, J., dissenting). But whatever it is called (I

care not), it comes to this: such phrases as “In God We

Trust,” or “under God” have no tendency to establish a

religion in this country or to suppress anyone’s exer-

cise, or non-exercise, of religion, except in the fevered

eye of persons who most fervently would like to drive

all tincture of religion out of the public life of our polity.

56a

Those expressions have not caused any real harm of

that sort over the years since 1791, and are not likely to

do so in the future.’ As I see it, that is not because they

are drained of meaning.’ Rather, as | have already

indicated, it is-because their tendency to establish

religion (or affect its exercise) is exiguous. I recognize

that some people may not feel good about hearing the

phrases recited in their presence, but, then, others

might not feel good if they are omitted. At any rate,

the Constitution is a practical and balanced charter for

the just governance of a free people in a vast territory.

Thus, although we do feel good when we contemplate

the effects of its inspiring phrasing and majestic

promises, it is not primarily a feel-good prescription.°

In West Virginia Board of Education v. Barnette, 319

U.S. 624, 630, 642, 63 S. Ct. 1178, 1181, 1187, 87 L.Ed.

1628 (1943), for example, the Supreme Court did not

say that the Pledge could not be recited in the presence

of Jehovah’s Witness children; it merely said that they

did not have to recite it.’ That fully protected their con-

4 They have not led us down the long path to kulturkampf or

worse. Those who are somehow beset by residual doubts and fears

should find comfort in the reflection that no baleful religious effects

have been generated by the existence of similar references to a

deity throughout our history. More specifically, it is difficult to

detect any signs of incipient theocracy springing up since the

Pledge was amended in 1954.

5 See also Sherman, 980 F.2d at 448 (Manion, J., concurring).

6 We, by the way, indicated as much in American Family

Ass’n, Inc. v. City and County of San Francisco, 277 F.3d 1114,

1125-26 (9th Cir. 2002), which involved governmental conduct that

was much more questionable than adoption of the phrase “under

God.” See id. at 1126-28 (Noonan, J., dissenting).

7 | recognize that the Pledge did not then contain the phrase

“under God.”

“Neags edad bh ema goo iach ante elaaa Whe SaoAS

4

:

57a

stitutional rights by precluding the government from

trenching upon “the sphere of intellect and spirit.” Jd.

at 642, 63 S. Ct. at 1187. As the Court pointed out,

their religiously based refusal “to participate in the

ceremony [would] not interfere with or deny rights of

others to do so.” ZJd. at 630, 68 S. Ct. at 1181. We

should not permit Newdow’s feel-good concept to

change that balance.

My reading of the stelliscript suggests that upon

Newdow’s theory of our Constitution, accepted by my

colleagues today, we will soon find ourselves prohibited

from using our album of patriotic songs in many public

settings. “God Bless America” and “America the

Beautiful” will be gone for sure, and while use of the

first three stanzas of “The Star Spangled Banner” will

still be permissible, we will be precluded from straying

into the fourth.’ And currency beware! Judges can

accept those results_if they limit themselves to ele-

ments and tests, while failing to look at the good sense

and principles that animated those tests in the first

place. But they do so at the price of removing a vestige

of the awe we all must feel at the immenseness of the

universe and our own small place within it, as well as

the wonder we must feel at tne good fortune of our

country. That will cool the febrile nerves of a few at the

cost of removing the healthy glow conferred upon many

citizens when the forbidden verses, or phrases, are

uttered, read, or seen.

In short, I cannot accept the eliding of the simple

phrase “under God” from our Pledge of Allegiance,

when it is obvious that its tendency to establish religion

8 Nor will we be able to stray into the fourth stanza of “My

Country Tis of Thee” for that matter.

58a

in this country or to interfere with the free exercise (or

non-exercise) of religion is de minimis.”

Thus, I respectfully concur in part and dissent in

part.

9 Lest I be misunderstood, I must emphasize that to decide this

case it is not necessary to say, and I do not say, that there is such a

thing as a de minimis constitutional violation. What I do say is that

the de minimis tendency of the Pledge to establish a religion or to

interfere with its free exercise is no constitutional violation at all.

59a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-16423

D.C. No. CV 00-00495-MLS/PAN

MICHAEL A. NEWDOW, PLAINTIFF-APPELLANT

Vv.

U.S. CONGRESS; UNITED STATES OF AMERICA;

GEORGE W. BUSH,” PRESIDENT OF THE UNITED

STATES; STATE OF CALIFORNIA: ELK GROVE UNIFIED

SCHOOL DISTRICT; DAVID W. GORDON,

SUPERINTENDENT EGUSD; SACRAMENTO CIty

UNIFIED SCHOOL DISTRICT; JIM SWEENEY,

SUPERINTENDENT SCUSD, DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Eastern District of California, Milton L. Schwartz,

Senior Judge, Presiding

Argued and Submitted: March 14, 2002

Filed: June 26, 2002

Amended: February 28, 2003

ORDER

The opinion filed June 26, 2002, is ordered amended.

The Clerk is instructed to file the amended opinion with

George W. Bush is substituted for his predecessor, William

Jefferson Clinton, as President of the United States. Fed. R. App.

P. 43(c)(2).

60a

Judge Fernandez’s amended concurrence/dissent.

Judge Reinhardt’s concurrence in the order denying

rehearing en banc, along with J udge O’Scannlain’s and

Judge McKeown’s dissent from that order shall also be

filed.

The Clerk is also instructed not to accept for filing

any new petitions for rehearing and petitions for

rehearing en banc in this case.

With the opinion thus amended, the panel has voted

unanimously to deny the petitions for rehearing.

The full court has been advised of the petitions for

rehearing en bane. An active judge requested a vote on

whether to rehear the matter en banc. The matter

failed to receive a majority of the votes of the non-

recused active judges in favor of en banc consideration.

Fed. R. App. P. 365.

The petitions for rehearing are DENIED and the

petitions for rehearing en banc are DENIED.

REINHARDT, Circuit Judge, concurring in the order:

My views as to the merits of this issue are set forth in

the amended majority opinion authored by Judge

Goodwin, and I adhere to them fully. I write separately

for two reasons unrelated to the contents of that

opinion. I write first to comment on the separate

dissent to the denial of rehearing en banc authored by

Judge McKeown and joined in by Judges Hawkins,

Thomas, and Rawlinson, in which my colleagues appear

to express the view that a case should be reheard en

banc whenever it involves “a question of exceptional

importance.” FED. R. APP. P. 35(a)(2).’ Second, I am

1 While the brief separate dissent is deliberately opaque and

uninformative, I would suspect that not all of its signatories

6la

compelled to register my strong disagreement with one

particularly unfortunate aspect of Judge C Scannlain’s

principal dissent that reflects a serious misconception of

fundamental constitutional principles and the proper

role of the federal judiciary.

I

As to the first question, I disagree with the notion

that the importance of an issue is a sufficient reason to

take a case en banc, either under the Rule or as a

matter of judicial policy. Rule 35(a) advises this court

of its discretionary power to order that a case already

decided by a three-judge panel be reheard by the full

court. Specifically, the rule begins by stating that a

“majority of the circuit judges who are in regular active

service may order that an appeal or other proceeding

be heard or reheard by the court of appeals en banc.”

FED. R. APP. P. 35(a) (emphasis added). Subsection two

guides such discretionary consideration by stating that

one compelling reason to grant rehearing en banc is the

“exceptional importance” of a particular case.

The most reasonable construction of the Rule is that

this court should rehear a case en banc when it is both

of exceptional importance and the decision requires

correction. See United States v. Burdeau, 180 F.3d

1091, 1092 (9th Cir. 1999) (Tashima, J., concurring in the

order denying rehearing en banc) (“Subject to rare

exceptions. . . . we should review the statements in

three[-]judge panel opinions only to ‘determine whether

the [panel’s] legal error resulted in an erroneous

believe that the general rule they appear to advocate should apply

regardless of the “correctness” of the panel opinion. The concept

that “exceptional importance” is, without more, a sufficient reason

for en banc review is, however, shared by at least several members

of the Court and accordingly merits some discussion.

62a

judgment .....- ’”) (quoting Chevron U.S.A. Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842 (1984)). A

decision may warrant correction because a three-judge

panel has reached a result or adopted a legal rule or

principle that conflicts with our existing circuit law or

that the majority of our court believes is incorrect and

needs further review. The fact that three-judge panels

often decide cases of exceptional importance, whether it

be the constitutionality of a state’s decision to execute

an individual who may be innocent, the existence or

non-existence of a fundamental right, or the ability of

the Congress to require the states to comply with

federal law—an issue that some of us thought had been

settled by the successful end to the Civil War—is an

unremarkable, but undeniably important, aspect of our

appellate system. See Tracey E. George, The Dyna-

mics and Determinants of the Decision to Grant En

Banc Review, 74 WASH. L. REV. 213, 218 (1999) (stating

that three-judge panels “representing and acting on be-

half of the whole court” is a “basic tenet of our inter-

mediate appellate system”). Unless reconsidered en

bane, a decision of a three-judge panel is a decision of

our court and speaks for our court. Moreover, it

ordinarily constitutes the final judicial decision.”

To rehear a case en banc simply on the basis that it

involves an important issue would undermine the three-

2 While the Supreme Court unquestionably has the authority

to review any or all of the decisions of the Court of Appeals, the

Court has elected to hear a remarkably small number of cases in

recent years. For example, in the 2001 term, of the 7,852 case

filings, the Court heard argument in 88 cases, and disposed of 85

in 76 signed opinions. See Supreme Court of the United States,

2002 Year-End Report on the Federal Judiciary, at http://www.

supremecourtus.gov/publicinfo/year-end/2002year-endreport.htm}

63a

judge panel system and create an impractical and

crushing burden on what otherwise should be, as Rule

35(a) suggests, an exceptional occurrence. See FED. R.

App. P. 35(a) (“An en banc hearing or rehearing is not

favored ....”). According to statistics kept by the

Clerk of the court, in 2002 this court decided 5,190 cases

on the merits, more than 98% of which were finally

decided by three-judge panels. These decisions are not

measures of “rough justice,” later to be refined by the

en banc court. Unless they decide issues of exceptional

importance erroneously, create a direct intra-circuit

split, or unless the interests of justice require that the

decision be corrected, the opinions of three-judge

panels should constitute the final action of this court.

I

I also feel compelled to discuss a disturbingly wrong-

headed approach to constitutional law manifested in the

dissent authored by Judge O’Scannlain. The dissent

suggests that this court should be able to conclude that

the panel’s holding was erroneous by observing the

“public and political reaction” to its decision. Dissent at

2783. This is not the first time that the magnitude of

the political response regarding an issue has distracted

certain members of this court. An equally disturbing

misunderstanding of the nature of our Constitution and

the role of the federal judiciary was manifested in

Coalition for Econ. Equity v. Wilson, 122 F.3d 692 (9th

Cir. 1997), a case involving a California initiative on the

subject of affirmative action. There, the three-judge

panel, in a case that unfortunately was not taken en

banc, notwithstanding its exceptional importance, made

the following remarkable statement: “A system which

permits one judge to block with the stroke of a pen

what 4,736,180 state residents voted to enact as law

64a

tests the integrity of our constitutional democracy.” Id.

at 699 (O’Scannilain, J.).

The Bill of Rights is, of course, intended to protect

the rights of those in the minority against the tem-

porary passions of a majority which might wish to limit

their freedoms or liberties. As Justice Jackson re-

cognized:

The very purpose of a Bill of Rights was to with-

draw certain subjects from the vicissitudes of poli-

tical controversy, to place them beyond the reach of

majorities and officials and to establish them as legal

principles to be applied by the courts. One’s right to

life, liberty, and property, to free speech, a free

press, freedom of worship and assembly, and other

fundamental rights may not be submitted to vote,

they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638

(1943). It is the highest calling of federal judges to

invoke the Constitution to repudiate unlawful majori-

tarian actions and, when necessary, to strike down

statutes that would infringe on fundamental rights,

whether such statutes are adopted by legislatures or by

popular vote. The constitutional system that vests such

power in an independent judiciary does not “test[ ] the

integrity of .. . democracy.” It makes democracy

vital, and is one of our proudest heritages.

Moreover, Article III judges are by constitutional

design insulated from the political pressures governing

members of the other two branches of government. We

are given life tenure and a secured salary so that, in our

unique capacity to “say what the law is,” Marbury Vv.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803), we may

decide constitutional issues without regard to popular

ee

4

65a

vote, political consequence, or the prospect of future

career advancement.’ Most federal judges do not

question the wisdom of this approach. When the

federal judiciary is so firmly separated by constitutional

structure from the direct influence of politics, we must

not undermine that structure by allowing politica)

pressures, polls, or “focus groups” to influence our

opinions, even indirectly.

This is not to say that federal judges should be

completely sequestered from the attitudes of the nation

we serve, even though our service is accomplished not

through channeling popular sentiment but through

strict adherence to established constitutional principles.

The Constitution contemplates occasions when we must

be responsive to long-term societal trends—when

determining, for example, that which is “cruel and

unusual,” see Hudson v. McMillian, 503 U.S. 1, 9 (1992),

whether in the execution of the mentally retarded, see

Atkins v. Virginia, 5386 U.S. 304, __, 122 S. Ct. 2242,

2247 (2002), or the execution of juvenile offenders, see

In re Stanford, 123 S.Ct. 472, 474 (2002) (Stevens, J.,

dissenting from the denial of an application for an

original writ of habeas corpus). This broader long-term

3 Alexander Hamilton was admirably cognizant of the danger

of relying on temporary political whimsy:

This independence of the judges is equally requisite to guard

the Constitution and the rights of individuals from the effects

of those ill humors which the arts of designing men, or the

influence of particular conjectures, sometimes disseminate

among the people themselves, and which, though they speedily

give place to better information, and more deliberate

reflection, have a tendency, in the meantime, to occasion dan-

gerous innovations in the government, and serious oppressions

of the minor party in the community.

THE FEDERALIST NO. 78, at 437 (Alexander Hamilton) (Clinton

Rossiter ed., 1999).

66a

social conscience, however, is a matter far different

from responding to particular immediate political pres-

sures. We may not—we must not—allow public senti-

ment or outcry to guide our decisions. It is particularly

important that we understand the nature of our obli-

gations and the strength of our constitutional principles

in times of national crisis; it is then that our freedoms

and our liberties are in the greatest peril. Any

suggestion, whenever or wherever made, that federal

judges should be encouraged by the approval of the

majority or deterred by popular disfavor is funda-

mentally inconsistent with the Constitution and must

be firmly rejected.

67a

O’SCANNLAIN, Circuit Judge, with whom KLEINFELD,

GOULD, TALLMAN, RAWLINSON, and CLIFTON, Circuit

Judges, join, dissenting from the denial of rehearing en

banc:

Last June, a two-judge majority of a three-judge

panel of this court ruled that the Pledge of Allegiance

was unconstitutional simply because of the presence of

two offending words: “under God.” It was an exercise

in judicial legerdemain which, not surprisingly, pro-

duced a public outcry across the nation. Since that time

we, as a court, have had the opportunity to order

reconsideration of that decision en banc, yet a majority

of the 24 active judges eligible to vote has decided not

to do so. While there are, no doubt, varied and plau-

sible reasons why this result occurred, I respectfully

conclude that our court has made a serious mistake and

thus must dissent from its order denying recon-

sideration.

I

While I cannot say that a randomly selected 11-judge

panel would have ruled differently, I believe that

neither the June 2002 version, Newdow v. United States

Congress, 292 F.3d 597 (9th Cir. 2002) (“Newdow rh.

nor today’s slightly revised version, __ F.3d __

(“Newdow IT’) to essentially the same effect, is de-

fensible. We should have reheard Newdow I en banc,

not because it was controversial, but because it was

wrong, very wrong—wrong because reciting the Pledge

of Allegiance is simply not “a religious act” as the two-

judge majority asserts, wrong as a matter of Supreme

Court precedent properly understood, wrong because it

set up a direct conflict with the law of another circuit,

68a |

\

and wrong as a matter of common sense. We should

have given 11 judges a chance to determine whether

the two-judge majority opinion truly reflects the law of

the Ninth Circuit.? Reciting the Pledge of Allegiance

cannot possibly be an “establishment of religion” under

any reasonable interpretation of the Constitution.’

Perhaps in an effort to avoid ultimate Supreme Court

review, Newdow II which replaces it, avoids expressly

reaching the technical question of the constitutionality

of the 1954 Act. Fundamentally, however, the amended

decision is every bit as bold as its predecessor. It bans

1 Judge Reinhardt’s protestations to the contrary notwith-

standing, I, too, believe that “[oJur judicial charge is to stand above

the inflamed passions of the public.” Dazo v. Globe Airport Sec.

Serv., 295 F.3d 934, 943 (9th Cir. 2002) (O’Scannlain, J., concurring

and dissenting). My disagreement with the panel majority has

nothing to do with bending to the will of an outraged populace, and

everything to do with the fact that Judge Goodwin and Judge

Reinhardt misinterpret the Constitution and 40 years of Supreme

Court precedent. That most people understand this makes the

decision no less wrong. It doesn’t take an Article III judge to

recognize that the voluntary recitation of the Pledge of Allegiance

in public school does not violate the First Amendment.

2 This case presents the classic situation required for our court

to rehear a case en bance. En banc consideration would have

allowed us to correct the error of a prior panel’s decision with re-

spect to the Pledge and resolve a constitutional question of

exceptional importance that affects the lives of millions of school

children who reside within the geographical boundaries of the

Ninth Circuit. See Fed. R. App. P. 35(a). The exceptional impor-

tance of this case reinforces the need for correction of the panel’s

mistaken view of our Constitution.

3 U.S. Const. Amend. I. (“Congress shall make no law re-

specting an establishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.”) (emphasis added).

69a

the voluntary recitation of the Pledge of Allegiance in

the public schools of the nine western states thereby

directly affecting over 9.6 million students,’ necessarily

implies that both an Act of Congress’ and a California

law* are unconstitutional, clearly conflicts with the

Seventh Circuit’s decision in Sherman v. Cmty. Consol.

Sch. Dist. 21 of Wheeling Township, 980 F.2d 437

(1992), and threatens cash-strapped school districts and

underpaid teachers with the specter of civil actions for

money damages pursuant to.42 U.S.C. § 1983.

Newdow I, the subject of our en banc vote, no longer

exists; it was withdrawn after the en banc call failed.

The panel majority has evolved to this extent: in

Newdow I the Pledge was unconstitutional for every-

body; in Newdow II the Pledge is only unconstitutional ~

for public school children and teachers. The remainder

of this dissent is directed entirely to Newdow IT, which,

as shall be demonstrated, differs little from Newdow I

in its central holding. With grim insistence, the

majority in Newdow IJ continues to stand by its original

error—that voluntary recitation of the Pledge of Alle-

4 See US. Dep’t of Ed., Nat’l Ctr. for Ed. Statistics, available

at http://nces.ed.gov/pubs2002/snf_report/table_01_l.asp. The

approximate figure is for the school year 2000-01, comprising the

states of Alaska, Arizona, California, Hawaii, Idaho, Montana,

Nevada, Oregon and Washington,

® 4US.C. § 4 (“The Pledge of Allegiance to the Flag: ‘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.’ ”). .

6 Cal. Educ. Code § 52720. This section provides that “at the

beginning of the first regularly scheduled class or activity period

. .. there shall be conducted appropriate patriotic exercises. The

giving of the Pledge of Allegiance to the Flag of the United States

of America shall satisfy the requirements of this section.”

70a

giance in public school violates the Establishment

Clause because, according to the two-judge panel

majority, it is “a religious act.” Newdow II, __ F.3d at

___. Common sense would seem to dictate otherwise,

as the public and political reaction should by now have

made clear. If reciting the Pledge is truly “a religious

act” in violation of the Establishment Clause, then so is

the recitation of the Constitution’ itself, the Declaration

of Independence,® the Gettysburg Address,’ the

National Motto,” or the singing of the National

Anthem." Such an assertion would make hypocrites

out of the Founders, and would have the effect of

_ 7 U.S. Const. Art. VII. (“Year of owr Lord”) (emphasis added).

8 The Declaration of Independence contains multiple

references to God. The founders claimed the right to “dissolve the

political bands” based on “the Laws of Nature and of Nature’s

God.” The most famous passage, of course, is that “all men are

created equal, that they are endowed by their Creator with certain.

unalienable Rights.” Subsequently, the signatories “appeal[ | to

the Supreme Judge of the world to rectify their intentions.”

9 On November 19, 1863, President Lincoln declared “that this

Nation, wnder God, shall have a new birth of freedom—and that

Government of the people, by the people, for the people, shall not

perish from the earth.”

10 See 36 U.S.C. § 302. (“ ‘In God we trust’ is the national

motto.”) (emphasis added).

11 See 36 U.S.C. § 301(a) (“The composition consisting of the

words and music known as the Star-Spangled Banner is the

national anthem.”). In fact, the Anthem is much more explicitly

religious in content than the Pledge, and much more than a ‘mere’

profession of the composer’s faith in a Supreme Being, as the

majority would have it. See Newdow II, __ F.3d at __. Consider

the following passage from the fourth stanza: “Blest with victory

and peace, may the heaven-rescued land, Praise the Power that

hath made and preserved us a nation. Then conquer we must,

when our cause is just, And this be our motto: ‘In God is our

trust.’ (emphasis added).

71a

driving any and all references to our religious heritage

out of our schools, and eventually out of our public life.

II

The Newdow II majority’s primary legal argument is

that the Supreme Court’s decision in Lee v. Weisman,

905 U.S. 577 (1992), a school prayer case, controls the

outcome of this case. In fact, rather than merely

following Lee and its predecessors, the two-judge panel

majority makes a radical departure from Lee and the

eases it purports to apply. To understand why this is

SO, an examination of the Supreme Court’s school

prayer decisions which culminate in Lee is in order.

A

1

The fountainhead of all school prayer cases is Engel

v. Vitale, 370 U.S. 421 (1962). In Engel the Court con-

sidered a school policy whereby children were directed

to say aloud a prayer composed by state officials. The

Court found that this practice was inconsistent with the

Establishment Clause, reasoning that “[the] program of

daily classroom invocation of God’s blessings as pre-

scribed in the Regents’ prayer is a religious activity. It

is a solemn avowal of divine faith and supplication for

the blessings of the Almighty. The nature of such a

prayer has always been religious.” Jd. at 424-25. The

Court concluded by stating that the state should leave

prayer, “that purely religious function, to the people

themselves.” Jd. at 435. Ina footnote, it reasoned as

follows:

There is of course nothing in the decision reached

here that is inconsistent with the fact that school

children and others are officially encouraged to

72a

express love for our country by reciting historical

documents such as the Declaration of Independence

which contain references to the Deity or by singing

officially espoused anthems which include the

composer’s professions of faith in a Supreme Being,

or with the fact that there are many manifestations

in our public life of belief in God. Such patriotic or

ceremonial occasions bear no true resemblance to

the unquestioned religious exercise that the State of

New York has sponsored in this instance.

Id. at 435 n.21. The Court drew an explicit distinction

between patriotic invocations of God on the one hand,

and prayer, an “unquestioned religious exercise,” on the

other. Concurring, Justice Douglas wrote that the

narrow question presented was whether the state

“oversteps the bounds when it finances a religious exer-

cise.” Id. at 439 (Douglas, J., concurring). J ustice

Douglas noted that the Pledge of Allegiance, “like .. .

prayer, recognizes the existence of a Supreme Being.”

Id. at 440 n.5. However, he noted that the House

Report recommending the addition of the words “under

God” to the Pledge stated that those words “in no way

run contrary to the First Amendment but recognize

‘only the guidance of God in our national affairs.’” Id.

(quoting H.R. Rep. No. 1693, 83d Cong., 2d Sess., p. 3).

2

The following year, the Supreme Court decided

Abington School Dist. v. Schempp, 374 U.S. 203 (1963).

In that case, the Court considered the constitutionality

of a Pennsylvania statute requiring that “[a]t least ten

verses from the Holy Bible shall be read, without

comment, at the opening of each public school on each

school day.” Id. at 205. The practice in public schools

73a

was for a teacher or student volunteer to read the

required Bible verses each morning. This in turn was

followed by a recitation of the Lord’s prayer. Finally,

the class would recite the Pledge of Allegiance to the

Flag. Id. at 207-08. The Court struck down the Bible

reading and the practice of reciting the Lord’s prayer

as a state prescribed “religious ceremony,” id. at 223,

but said nothing about the practice of reciting the

Pledge.

As in Engel, the Court took pains to point to the

character of the exercises it found wanting. The Court

reasoned that “reading . . . the verses . . . possesses

a devotional and religious character and constitutes in

effect a religious observance. The devotional and

religious nature of the morning exercises is made all the

more apparent by the fact that the Bible reading is

followed immediately by a recital in unison by the

pupils of the Lord’s prayer.” Jd. at 210. “The

pervading religious character of the ceremony,” wrote

Justice Clark, “cannot be gainsaid,” and led to the

conclusion that the exercises violated the Establish-

ment Clause. Jd. at 224.

The concurring opinions in Schempp were all to the

same effect. Justice Douglas agreed with the majority’s

conclusion that the practices at issue violated the

Establishment Clause because “the State is conducting

a religious exercise.” Id. at 229 (Douglas, J., con-

curring). In a lengthy concurrence, Justice Brennan

wrote that “[tJhe religious nature of the exercises here

challenged seems plain.” Jd. at 266 (Brennan, J., con-

curring). After surveying the history of devotional

exercises in American public schools, Justice Brennan

stated that “the panorama of history permits no other

conclusion than that daily prayers and Bible readings in

74a

the public schools have always been designed to be, and

have been regarded as, essentially religious exercises.”

Id. at 277-78. For Justice Brennan, “religious exercises

in the public schools present a unique problem” but “not

every involvement of religion in public life violates the

Establishment Clause.” Id. at 294. He warned that

“Calny attempt to impose rigid limits upon the mention

of God . . . in the classroom would be fraught with

dangers.” Id. at 301. Specifically, he wrote that “(t]he

reference to divinity in the revised pledge of allegiance

. may merely recognize the historical fact that our

Nation was believed to have been founded ‘under God.’

Thus reciting the pledge may be no more of a religious

exercise than the reading aloud of Lincoln’s Gettysburg

Address, which contains an allusion to the same

historical fact.” Jd. at 304.

Justice Goldberg also wrote separately, stating that

“the clearly religious practices presented in these cases

are . . . wholly compelling.” Jd. at 305 (Goldberg, J.,

concurring). He reasoned that “(t]he pervasive religios-

ity and direct governmental involvement inhering in

the prescription of prayer and Bible reading in the

public schools . . . cannot realistically be termed

simply accommodation.” Id. at 307. Like Justice

Brennan, Justice Goldberg cautioned that the decision

“does not mean that all incidents of government which:

import of the religious are therefore and without more

banned by the strictures of the Establishment Clause.”

Id. at 307-08. He then quoted in full the passage from

Engel which drew a distinction between patriotic

invocations of God, and unquestioned religious exer-

cises that give rise to Establishment Clause violations.

Id.

75a

3

The next case in this line is Wallace v. Jaffree, 472

U.S. 38 (1985). That case considered the constitutional-

ity of an Alabama statute authorizing a 1-minute period

of silence in public schools “for meditation or voluntary

prayer.” Jd. at 40. The Court found that “[{t]he wholly

religious character” of the challenged law was “plainly

evident from its text.” Jd. at 58. The legislature’s one

and only purpose in enacting the law was “to return

prayer to the public schools.” Jd. at 59-60. Justice

Powell’s separate concurrence was “prompted by

Alabama’s persistence in attempting to institute state-

sponsored prayer in the public schools.” Jd. at 62

(Powell, J., concurring). Justice O’Connor wrote sepa-

rately to suggest that moment-of-silence statutes were

not “a religious exercise,” and therefore were consti-

tutional. Jd. at 72 (O’Connor, J., concurring). Justice

O’Connor wrote further that “the words ‘under God’ in

the Pledge . . . serve as an acknowledgment of re-

ligion with ‘the legitimate secular purposes of

solemnizing public occasions, [and] expressing con-

fidence in the future.’” Jd. at 78 n.5 (quoting Lynch v.

Donnelly, 465 U.S. 668, 693 (O’Connor, J., concurring))

(alterations in original). In contrast, the Alabama

Statute at issue was very different from the Pledge—

the state had “intentionally crossed the line [by]

affirmatively endorsing the particular religious practice

of prayer.” Id. at 84.

4

Finally, there is the Supreme Court’s decision in Lee

v. Weisman. The issue presented was “whether in-

cluding clerical members who offer prayers as part of

the official school graduation ceremony” is consistent

76a

with the Establishment Clause. 505 U.S. at 580. The

graduating students entered as a group in a pro-

cessional, after which “the students stood for the

Pledge of Allegiance and remained standing during the

rabbi’s prayers.” Id. at 583. Justice Kennedy wrote

that “the significance of the prayers lies . . . at the

heart of [the] case.” Jd. He framed the inquiry as

follows:

These dominant facts mark and control the confines

of our decision: State officials direct the perfor-

mance of a formal religious exercise at promotional

and graduation ceremonies for secondary schools.

Even for those students who object to the religious

exercise their attendance and participation in the

state-sponsored religious activity are in a fair and

real sense obligatory, though the school district does

not require attendance as a condition for receipt of

the diploma.

Id. at 586.

The Court in Lee concluded that Engel and its

progeny controlled the outcome, writing that “[cJon-

ducting this formal religious observance conflicts with

settled rules pertaining to prayer exercises for stu-

dents.” Id. at 587. As in Engel, Schempp, and Wallace,

the crucial factor was the nature of the exercise in

which the students were asked to participate. Time and

again the Court went out of its way to stress the nature

of the exercise, writing that prayer was “an overt re-

ligious exercise,” id. at 588, and that “prayer exercises

in public schools carry a particular risk of indirect

coercion.” Id. at 592. The practice was unconstitutional

because “the State has in every practical sense com-

pelled attendance and participation in an explicit re-

77a

ligious exercise at an event of singular importance to

every student.” Jd. at 598. Just like the decisions in

Engel and Schempp, the Court in Lee took pains to

stress the confines of its holding, concluding that “[w]e

do not hold that every state action implicating religion

is invalid if one or a few citizens find it offensive,” id. at

597, and that “(a] relentless and all-pervasive attempt

to exclude religion from every aspect of public life could

itself become inconsistent with the Constitution.” Jd. at

598.

B

Two fundamental principles may therefore be

derived from the school prayer cases culminating in

Lee.

1

Formal religious observances are prohibited in public

schools because of the danger that they may effect an

establishment of religion. See Engel, 370 U.S. at 424-25

(“[D]aily classroom invocation of God’s blessings . . .

is a religious activity.”); Schempp, 374 U.S. at 210 (Bible

reading followed by the Lord’s prayer “possesses a

devotional and religious character and constitutes in

effect a religious observance.”); Wallace, 472 U.S. at 58

(Prayer is of a “wholly religious character.”); Lee, 505

U.S. at 586 (Prayer written by state officials constitutes

a “formal religious exercise”). In each of these cases,

the Court took pains to stress that not every reference

to God in public schools was prohibited. See Engel, 370

U.S. at 435 n.21 (“patriotic or ceremonial occasions”

which contain “references to the Deity” bear “no true

resemblance to the unquestioned religious exercise” of

prayer); Schempp, 374 U.S. at 301 (Brennan, J ., cOn-

curring) (“Any attempt to impose rigid limits upon the

78a

mention of God . . . in the classroom would be fraught

with dangers.”); Wallace, 472 U.S. at 78 n.5 (O’Connor,

J., concurring) (“the words ‘under God’ in the Pledge”

are not unconstitutional); Lee, 505 U.S. at 598 (“A

relentless and all-pervasive attempt to exclude religion

_ could itself become inconsistent with the Consti-

tution.”).

2

Once it is established that the state is sanctioning a

formal religious exercise, then the fact that the stu-

dents are not required to participate in the formal

devotional exercises does not prevent those exercises

from being unconstitutional. See Engel, 370 U.S. at 431

(“(T]he indirect coercive pressure upon religious

minorities to conform” to the prayer exercises “is

plain.”); Schempp, 974 U.S. at 210-11 (“The fact that

some pupils, or theoretically all pupils, might be

excused from attendance at the exercises does not

mitigat> the obligatory nature of the ceremony.”);

Wallace, 472 U.S. at 57 (State-sanctioned voluntary

prayer in public schools violates Establishment Clause);

Lee, 505 U.S. at 592 (“[P]rayer exercises in public

schools carry a particular risk of indirect coercion.”). To

be sure, Lee is the Court’s most elaborate pronounce-

ment with respect to indirect coercion. It identifies the

circumstances in which indirect coercion may be said to

be unconstitutional: when the government directs “the

performance of a formal religious exercise” in such a

way as to oblige the participation of objectors. Lee, 505

U.S. at 586.

Ill

No court, state or federal, has ever held, even now,

that the Supreme Court’s school prayer cases apply

79a

outside a context of state-sanctioned formal religious

observances. But Newdow II finesses all that, and the

sleight of hand the majority uses becomes immediately

apparent: obfuscate the nature of the exercise at issue

and emphasize indirect coercion. The panel majority

simply ignores, because they are inconvenient, the

“dominant and controlling facts” in Lee and its pre-

decessors: that Establishment Clause violations in

public schools are triggered only when “State officials

direct the performance of a formal religious exercise.”

505 U.S. at 586 (emphasis added); see also Schempp, 374

U.S. at 210 (“devotional . . . religious observance”

prohibited); Wallace, 472 U.S. at 58 (activities of a

“wholly religious character” prohibited).

A

To avoid a flagrant inconsistency with Lee, and with

40 years of Supreme Court precedent, the two-judge

panel majority must first examine whether the act of

pledging allegiance is “a religious act.” As the Seventh

Circuit in Sherman framed it, “Does ‘undér God’ make

the Pledge a prayer, whose recitation violates the

establishment clause of the first amendment?” 980 F.2d

at 445. That court answered the question in the nega-

tive; the Newdow II majority, in conclusory fashion,

simply assumes the affirmative. __ F.3dat___— (“[W]e

conclude that the school district policy impermissibly

coerces a religious act.”) (emphasis added).

This assertion belies common sense. Most assuredly,

to pledge allegiance to flag and country is a patriotic

act. After the public and political reaction last summer,

it is difficult to believe that anyone can continue to

think otherwise. The fact the Pledge is infused with an

undoubtedly religious reference does not change the

80a 7

nature of the act itself. The California statute under

which the school district promulgated its policy is

entitled “[dlaily performance of patriotic exercises in

public schools.” Cal. Educ. Code § 52720 (emphasis

added). The Pledge is recited not just in schools but

also at various official events and public ceremonies,

including perhaps the most patriotic of occasions—

naturalization ceremonies. Generally, the Pledge is

recited while standing, facing a United States flag, with

the right hand held over the heart, much like the

National Anthem. See 4 U.S.C. § 4 (articulating proper

procedure for reciting Pledge); 36 U.S.C. § 301 (during

anthem “all present . . . should stand at attention

facing the flag with the right hand over the heart.”).

Whatever one thinks of the normative values under-

lying the Pledge, they are unquestionably patriotic in

nature. Indeed, it is precisely because of the Pledge’s

explicitly patriotic nature that in 1943 the Supreme

Court ruled that no one is required to Pledge allegiance

against their will. West Virginia v. Barnette, 319 US.

624, 642 (1943).

In contrast, to pray is to speak directly to God, with

bowed head, on bended knee, or some other reverent

disposition. It is a solemn and humble approach to the

divine in order to give thanks, to petition, to praise, to

supplicate, or to ask for guidance. Communal prayer,

by definition, is an even more forceful and profound

experience for those present. Little wonder that the

Supreme Court has recognized the “unique problem”

and “particular risk” posed by school prayer to non-

participating students. Lee, 505 U.S. at 592 (“[Plrayer

exercises in public schools carry a particular risk of

indirect coercion.”); Schempp, 374 U.S. at 294 (Brennan,

8la

J., concurring) (noting that prayers in public schools

“present a unique problem”).

Not only does the panel majority’s conclusion that

pledging allegiance is “a religious act” defy common

sense, it contradicts our 200-year history and tradition

of patriotic references to God. The Supreme Court has

insisted that interpretations of the Establishment

Clause must comport “with what history reveals was

the contemporaneous understanding of its guarantees.”

Lynch, 465 U.S. at 673; see also Schempp, 374 U.S. at

294 (“(T]he line we must draw between the permissible

and the impermissible is one which accords with history

and faithfully reflects the understanding of the Found-

ing Fathers.”) (Brennan, J., concurring).

The majority’s unpersuasive and problematic

disclaimers notwithstanding, Newdow II precipitates a

“war with our national tradition,” McCollum v. Bd. of

Ed., 333 U.S. 203, 211 (1948), and as Judge Fernandez

so eloquently points out in dissent, only the purest

exercise in sophistry could save multiple references to

our religious heritage in our national life from Newdow

IT's axe. Of course, the Constitution itself explicitly

mentions God, as does the Declaration of Independence,

the document which marked us as a separate people.

The Gettysburg Address, inconveniently for the

majority, contains the same precise phrase—’under

God”—found to constitute an Establishment Ciause

violation in the Pledge.” After Newdow II, are we to

suppose that, were a school to permit—not require—

the recitation of the Constitution, the Declaration of

Independence, or the Gettysburg Address in public

schools, that too would violate the Constitution? Were

12 See infra footnote 9.

82a

the “founders of the United States . . . unable to

understand their own handiwork[?]” Sherman, 980

F.2d at 445. Indeed, the recitation of the Declaration of

Independence would seem to be the better candidate

for the chopping block than the Pledge, since the

Pledge does not require anyone to acknowledge the

personal relationship with God to which the Declara-

tion speaks.” So too with our National Anthem and our

National Motto.

Our national celebration of Thanksgiving dates back

to President Washington, which Congress stated was

“to be observed by acknowledgment with grateful

hearts, the many and signal favours of Almighty God.”

Lynch, 465 U.S. at 675 n.2. Congress made Thanks-

giving a permanent holiday in 1941," and Christmas has

been a national holiday since 1894." Are pere [sic]

Newdow’s constitutional rights violated when his

daughter is told not to attend school on Thanksgiving?

On Christmas day? Must school outings to federal

courts be prohibited, lest the children be unduly in-

fluenced by the dreaded intonation “God save these

United States and this honorable Court”? A theory of

the Establishment Clause that would have the effect of

driving out of our public life the multiple references to

13 See infra footnote 8.

14 See 5 U.S.C. § 6103(a).

15 See id.

16 Indeed, even our own court’s formal announcement to open

sessions contains the offending word: “Hear ye! hear ye! All

persons having business with the honorable, the United States

Court of Appeals for the Ninth Circuit will now draw near, give

your attention and you will be heard, for this court is now in

session. God save these United States and this honorable Court.”

(emphasis added).

83a

the Divine that run through our laws, our rituals, and

our ceremonies is no theory at all.

B

As if all of this were not enough, the Supreme Court

has gone out of its way to make it plain that the Pledge

itself passes constitutional muster. In two of the school

prayer cases, the Court noted without so much as a hint

of disapproval the fact that the students, in addition to

being subject to formal religious observances, also

recited the Pledge of Allegiance. See Schempp, 374

U.S. at 207-08 (noting that the practice in public schools

consisted of Bible reading and recitation of the Lord’s

prayer, followed by recitation of the Pledge); Lee, 505

U.S. at 583 (noting that “the students stood for the

Pledge of Allegiance and remained standing during the

rabbi’s prayers.”).

Several other Supreme Court cases contain explicit

references to the constitutionality of the Pledge. See

Engel, 370 U.S. at 440 n.5 (Douglas, J., concurring)

(“[The Pledge] in no way run{s] contrary to the First

Amendment”) (quoting H.R. Rep. No. 1693, 83d Cong.,

2d Sess., p. 3); Schempp, 374 U.S. at 304 (Brennan, J _

concurring) (“[Rleciting the pledge may be no more of a

religious exercise than the reading aloud of Lincolns’

Gettysburg Address.”); Wallace, 472 U.S. at 78 n.5

(O’Connor, J., concurring) (“[T]he words ‘under God’ in

the Pledge . . . serve as an acknowledgment of

religion.”); Co. of Allegheny v. ACLU, 492 U.S. 578,

602-03 (Blackmun, J., for the court) (“Our previous

opinions have considered in dicta . . . the pledge,

characterizing [it] as consistent with the proposition

that government may not communicate an endorsement

of religious belief.”); Lynch v. Donnelly, 465 U.S. 668,

84a

676 (1984) (Burger, C.J., for the court) (“Other

examples of reference to our religious heritage are

found . . . in the language ‘One nation under God,’ as

part of the Pledge of Allegiance to the American flag.

That pledge is recited by many thousands of public

school children—and adults—every year.”).

The panel majority’s answer to these myriad

statements from our high court is summarily to dismiss

them as dicta. However, “dicta of the Supreme Court

have a weight that is greater than ordinary judicial

dicta as prophecy of what that Court might hold. We

should not blandly shrug them off because they were

not a holding.” Zal v. Steppe, 968 F.2d 924, 935 (9th Cir.

1992) (Noonan, J., concurring and dissenting in part);

see also United States v. Baird, 85 F.3d 450, 453 (9th

Cir. 1996) (“[W]e treat Supreme Court dicta with due

deference.”)."

17 Other courts have, unremarkably enough, not been so

flippant when it comes to considering consistent Supreme Court

dicta on this issue. See Sherman, 980 F.2d at 448 (“[A]n inferior

court had best respect what the majority says rather than read

between the lines. If the Court proclaims that a practice is con-

sistent with the establishment clause, we take its assurances

seriously. If the Justices are just pulling our leg, let them say

so.”); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)

(“(T]his court considers itself bound by Supreme Court dicta

almost as firmly as by the Court’s outright holdings, particularly

when the dicta is recent and not enfeebled by later statements.”);

ACLU v. Capital Square Review, 243 F.3d 289, 301 n.10 (6th Cir.

2001) (“We should . . . be amazed if the Supreme Court were now

to question the constitutionality of the [revised Pledge]”). Indeed,

the unanimity on this point relative to Newdow II is striking.

C

The Newdow II majority, then, finds itself caught

between a rock and a hard place—the recitation of the

Pledge is not a formal religious act, while patriotic

invocations of God do not give rise to Establishment

Clause violations. It nonetheless manages to skirt

these obstacles to reach its indirect coercion analysis.

Newdow II’s conclusory foray into the social sciences is

a case study, an advertisement, for why it is that the

Supreme Court has anchored coercion analysis only to

those situations where “formal religious exercises” take

place in our public schools. The panel majority seeks to

protect dissenters at the risk of courting some unpopu-

larity, but this is not the test. “[O]ffense alone does not

in every case show a violation . . . . and sometimes to

endure social isolation or even anger may be the price

of conscience or nonconformity.” Lee, 505 U.S. at 597-

98. The Newdow IT majority’s expansive application of

the coercion test is ill-suited to a society as diverse as

ours, since almost every cultural practice is bound to

offend someone’s sensibilities. In affording Michael

Newdow the right to impose his views on others,

Newdow II affords him a right to be fastidiously intoler-

ant and self-indulgent. In granting him this supposed

right, moreover, the two-judge panel majority has not

eliminated feelings of discomfort and isolation, it has

simply shifted them from one group to another.

Newdow ITs psychological ipse dixit is also delivered

without reference or regard to our collective experience

in the half-century since the passage of the offending

statute. In that time, generations of Americans have

grown up reciting the Pledge, religious tolerance and.

diversity has flourished in this country, and we have

become a beacon for other nations in this regard. As

86a

Judge Fernandez observes, “it is difficult to detect any

signs of incipient theocracy springing up since the

Pledge was amended in 1954.” Newdow II __ F.3d at

___n.4 (Fernandez, J., dissenting).

IV

In fairness to the Newdow II panel majority, its

professed “neutrality” does have some plausible basis in

the case law of the Supreme Court, which has un-

doubtedly constructed a “fractured and incoherent

doctrinal path” in the Establishment Clause area,

broadly speaking. Sep. of Church and State Comm. v.

City of Eugene, 93 F.3d 617, 622 (9th Cir. 1996)

(O’Scannlain, J., concurring). Indeed, its Establishment

Clause cases sometimes “more closely resemble ad hoc

Delphic pronouncements than models of guiding legal

principles.” Ingebretsen v. Jackson Pub. Sch. Dist., 88

F.3d 274, 282 (5th Cir. 1996) (Jones, J., dissenting from

denial of rehearing en banc). Supreme Court Justices

themselves have recognized that if some of its

reasoning “were to be applied logically, it would lead to

the elimination” of many cherished, long-standing prac-

tices. Co. of Allegheny, 492 U.S. at 674 n.10 (Kennedy,

J., dissenting).

With respect to the issue presented in this case,

however, the Supreme Court has displayed remarkable

consistency—patriotic invocations of God simply have

no tendency to establish a state religion. Even Justice

Brennan, that most stalwart of separationists, re-

cognized that some official acknowledgment of God is

appropriate “if the government is not to adopt a stilted

indifference to the religious life of the people.” Lynch,

465 U.S. at 714 (Brennan, J., dissenting). The decision

reached in Newdow II does precisely that: it adopts a

87a

stilted indifference to our past and present realities as a

predominantly religious people.

But Newdow II goes further, and confers a favored

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

pervasive public sector, our public schools are a most

important means for transmitting ideas and values to

future generations. The silence the majority commands

is not neutral—it itself conveys a powerful message,

and creates a distorted impression about the place of

religion in our national life. The absolute prohibition on

any mention of God in our schools creates a bias against

religion. The panel majority cannot credibly advance

the notion that Newdow II is neutral with respect to

belief versus non-belief; it affirmatively favors the

latter to the former. One wonders, then, does atheism

become the default religion protected by the Establish-

ment Clause?

In short, a lack of clarity in the Supreme Court’s

Establishment Clause cases generally does not help to

explain or to justify the panel majority’s decision with

respect to this particular issue. Put simply, the panel

was asked to decide whether the recitation of the

Pledge of Allegiance in public schools amounted to a

government establishment of religion. The answer to

that question is clearly, obviously, no. We made a grave

error in failing to take Newdow I en banc, and we have

failed to correct that error ourselves. Now we have

Newdow II. Perhaps the Supreme Court will have the

opportunity to correct the error for us. I must respect-

fully dissent from the order denying reconsideration en

bance.

88a

McKEown, Circuit Judge, with whom HAWKINS,

THOMAS, and RAWLINSON, Circuit Judges, join, dis-

senting from the denial of rehearing en banc:

The recitation of the Pledge of Allegiance by school

children presents a constitutional question of ex-

ceptional importance that merits reconsideration by the

en bane court. See Fed. R. App. P. 35(a)(2) (en banc

hearing appropriate when “the proceeding involves a

question of exceptional importance”). Although not

every case of exceptional importance can or should be

reheard en banc, this is a case that should be reheard. I

respectfully dissent from the court’s decision to deny

rehearing en banc.

89a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-16423

MICHAEL A. NEWDOW, PLAINTIFF-APPELLANT

Vv.

U.S. CONGRESS; UNITED STATES OF AMERICA; GEORGE

W. BUSH,” PRESIDENT OF THE UNITED STATES; STATE

OF CALIFORNIA; ELK GROVE UNIFIED SCHOOL

DISTRICT; DAVID W. GORDON, SUPERINTENDENT

EGUSD; SACRAMENTO CITY UNIFIED SCHOOL

DISTRICT; JIM SWEENEY, SUPERINTENDENT SCUSD,

DEFENDANTS-APPELLEES

Dec. 4, 2002

ORDER

Before: GOODWIN, REINHARDT and FERNANDEZ,

Circuit Judges.

Order by Judge GOODWIN; Concurrence by Judge

FERNANDEZ.

GOODWIN, Circuit Judge.

After we issued our June 26, 2002 opinion in this case,

Sandra Banning, the mother of Michael Newdow’s

. George W. Bush is substituted for his predecessor, William

Jefferson Clinton, as President of the United States. Fed. R. App.

P. 43(c)(2).

90a

daughter, filed a motion for leave to intervene, in order

to, inter alia, challenge Newdow’s standing to maintain

this action. Banning attached to her motion as an

exhibit a copy of a February 6, 2002 California Superior

Court custody order. That order awarded Banning

“sole legal custody” of the child. We have carefully

reconsidered the question of Newdow’s Article III

standing in light of this custody order and affirm our

holding that he has standing as a parent to continue to

pursue his claim in federal court.

I. FACTUAL AND PROCEDURAL BACKGROUND

When this case first reached us from the district

court, no legal custody question or order had been

disclosed to the federal courts. Newdow had alleged in

the district court that he was the father, and had

custody of the minor child. The record now indicates

that Newdow and Banning formed a family consisting

of an unmarried man, an unmarried woman, and their

biological minor child, who lived together part of the

time and lived in separate homes in Florida and Cali-

ornia, from time to time, with informal visiting

arrangements. This informal arrangement apparently

was not subject to any custody order until February 6,

2002, after Newdow had appealed from the dismissal of

the action he had commenced in federal district court to

challenge on Establishment Clause grounds the prac-

tice of reciting the pledge of allegiance in the public

elementary school his child attends.

On February 6, the California Superior Court

entered an order containing the following language:

The child’s mother, Ms. Banning, to have sole legal

custody as to the rights and responsibilities to make

decisions relating to the health, education and

9la

welfare of [the child]. Specifically, both parents

shall consult with one another on substantial deci-

sions relating to non-emergency major medical care,

dental, optometry, psychological and educational

needs of [the child]. If mutual agreement is not

reached in the above, then Ms. Banning may exer-

cise legal control of [the child] that is not specifically

prohibited or inconsistent with the physical custody

order. The father shall have access to all of [the

child’s] school and medical records.

Thereafter, Newdow, alleging “changed circum-

stances,” filed a motion in the Superior Court for a

modification of the custody order, seeking, inter alia,

joint legal custody with Banning of their child.

On September 25, 2002, the Superior Court (Judge

Mize) entered an in personam order enjoining Newdow

from pleading his daughter as an unnamed party or

representing her as a “next friend” in this lawsuit. The

United States promptly filed a motion, which we have

granted, to enlarge the record to include the state court

transcript of the September 25 hearing before Judge

Mize. That transcript contemplates a full trial in the

future on Newdow’s motion for modification of the

February 6 custody order.

Judge Mize appropriately reserved to this court,

however, the question of Newdow’s Article III stand-

ing in federal court. Newdow no longer claims to

represent his child, but asserts that he retains standing

in his own right as a parent to challenge alleged uncon-

stitutional state action affecting his.child while she

attends public school in the Elk Grove Unified School

District (EGUSD).

92a

II. DISCUSSION

Our original opinion in this case holds that a parent

has Article III standing to challenge on Establishment

Clause grounds state action affecting his child in public

school. See Newdow v. U.S. Congress, 292 F.3d 597, 602

(9th Cir. 2002) (citing Doe v. Madison Sch. Dist. No.

321, 177 F.3d 789, 795 (9th Cir. 1999) (en banc) and

Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532

(9th Cir. 1985)). Banning’s motion for leave to inter-

vene presents a question of first impression in this

Circuit which we are required to consider, even though

raised for the first time on appeal. See United States v.

Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997) (“(T]he

jurisdictional issue of standing can be raised at any

time.”). Does the grant of sole legal custody to Banning

deprive Newcow, as a noncustodial parent, of Article

III standing to object to unconstitutional government

action affecting his child?

A Seventh Circuit decision, Navin v. Park Ridge

School District 64, 270 F.8d 1147 (7th Cir. 2001) (per

curiam), addresses a noncustodial parent’s standing to

challenge a school’s educational plan for his disabled

child under the Individuals with Disabilities Education

Act (IDEA). Though not controlling, the Seventh

Circuit’s reasoning in Navin illustrates a useful method

of analysis for the standing question presented here.

The divorce decree in that case had granted the mother

sole legal custody of her son. The Illinois Marriage and

Dissolution of Marriage Act provided that the legal

custodian may determine, absent an agreement by the

parties to the contrary, “the child’s uprising, including

but not limited to, his education, health care and relig-

ious training.” See 750 IL CH § 5/608(a). Contending

that tutoring for his dyslexic son was being provided by

93a

a “crossing guard supervisor with no skill (or at least no

certification) in educating dyslexic youths,” the father

in Navin had asked for an administrative hearing under

the IDEA and filed suit in federal court when the

hearing officer terminated the proceedin

This text is long and has been trimmed here. Open the source document for the complete record.