Amicus Curiae Brief — United States v. Newdow

a Supteme Court, US. |

FILED

Ct) | way 3 amg

No. 02-1574 OFFICE OF THE CLERK ]

In The

Supreme Court of the United States

©

THE UNITED STATES OF AMERICA,

Petitioner,

MICHAEL A. NEWDOW, ET AL.

Respondents.

¢

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

®

BRIEF AMICUS CURIAE OF WALLBUILDERS, INC.

in support of the Petitioner

e

Barry C. Hodge

Counsel of Record for Amicus Curiae

Steven W. Fitschen

The National Legal Foundation

2224 Virginia Beach Blvd., Suite 204

Virginia Beach, VA 23454

(757) 463-6133

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...........ccscsssssseereseees li

INTEREST OF AMICUS CURIAE ..........000004 —

SUMMARY OF THE ARGUMENT..........cs000+ 1

ARGUMENT. ......ccccccoosssscsrscesscereesscssscssscssccssssrees 2

I. THE NINTH CIRCUIT’S

OPINION SHOULD BE

REVERSED BECAUSE IT

ERRED BY NOT GIVING

DEFERENCE TO THIS

COURT’S DICTA WHICH HAS

STATED THAT THE PLEDGE

OF ALLEGIANCE IS

CONSTITUTIONAL.......cccrsssssrseeseceees 2

CONCLUSION .........csccccscsscsrecsesscssesssscesssceserenees 9

il

TABLE OF AUTHORITIES

Page

UNITED STATES SUPREME COURT CASES

(1963) -ossdidiubcbonsbnablodechecciehleic eee nna 8

County of Allegheny v. ACLU,

492 US. S06... . 5, 7,8

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

Newdow v. U.S. Congress,

328 F.3d 466 (9th Cir. 2003)........... 3,4, 7,2

Seminole Tribe v. Florida, 517 U.S. 44 (1996)..... 4

Wallace v. Jaffree, 472 U.S. 38 (1985)... 3,8

West Virginia Bd. of Educ. v. Barnetie,

319 U.S. 624 (894D) vcocccneveronamsarrsodnsesensreres 7

FEDERAL COURTS OF APPEALS CASES

Cerro Metal Products v. Marshall, 620 F.2d 964

(3rd Cir. 1980) ......ccseccsseseseseseeeserenecsrensestseesnenenenens 5

Se

ll

Navajo Nation v. U.S. Dept. of

Health and Human Services,

285 F.3d 864 (9th Cir. 2002)... eee 6

Sherman v. Cmty. Consol. Sch. Dist.21,

980 F.2d 437 (7th Cir. 1992)............ cco 3

United States v.Baird,

85 F.3d 450 (9th Cir. 1996).................008 6,8

Zal v. Steppe, 968 F.2d 924 (9th Cir. 1992)....... 6-7

OTHER AUTHORITIES

Appellant United States’ Petition for Writ of

CNT vcccsinsiniercnes icectalenediepailadauanahaiiacoidetpeimitvnrnss 2

Appellant School District’s Petition for Writ of

Riles Tidak ie isds as vcdkaphibianiensknndstrenénkvaavenn 2

Michael Sean Quinn, Argument and Authority

in Common Law Advocacy and

Adjudication: An Irreducible Pluralism

of Principles, 74 Chi.-Kent L. Rev. 655

iE 10s cos daicen daatasetineehannchexeouesemeensins +

1

INTEREST OF AMICUS CURIAE'

WallBuilders, Inc. is a 501(c)(3) organization

that is dedicated to the restoration of the moral and

religious foundation on which America was built.

As such, the organization has a direct interest in

seeing that students are allowed to say the full and

official version of the Pledge of Allegiance in their

schools. WallBuilders has a large base of supporters

who are equally concerned with this issue.

This brief is filed pursuant to the consent of

the counsel of record for all parties.

SUMMARY OF THE ARGUMENT

The Ninth Circuit Court of Appeals erred in

ruling that the Elk Grove Unified School District’s

policy of having elementary aged school children

recite the Pledge of Allegiance is unconstitutional.

In ruling the Pledge unconstitutional, the Ninth

Circuit overlooked this Court’s dicta concerning the

constitutionality of the Pledge. This brief will

document in greater detail the assertion of the

United States and Elk Grove Unified School District

that the Ninth Circuit should have been guided by

this Court’s dicta. This brief will show certain types

of dicta should be viewed as having binding

' No counsel for any party has authored this brief in whole or in

part. No person or entity has made any monetary contribution to

the preparation or submission of this brief, other than the amicus

curiae, its members, and its counsel.

2

authority or nearly so. The Ninth Circuit has itself

decided that this Court’s dicta is on the upper end of

the precedential continuum. The Ninth Circuit

should have been guided by this Court’s dicta and

ruled the policy of the school district

constitutionally sound.

ARGUMENT

In their briefs, both the United States and Elk

Grove Unified School District have mentioned this

Court’s dicta regarding the constitutionality of the

Pledge of Allegiance. (Appellant United States’

Petition for Writ of Certiorari at 19-20).; (Appellant

School District’s Petition for Writ of Certiorari at

6). The purpose of this brief is to expand upon

reasons why the United States and Elk Grove

Unified School District were correct in their

assertions that the Ninth Circuit should have been

guided by this Court’s Pledge dicta.

I. THE NINTH CIRCUIT’S OPINION

SHOULD BE REVERSED BECAUSE IT

ERRED BY NOT GIVING DEFERENCE

TO THE DICTA OF THIS COURT

WHICH HAS STATED THAT THE

PLEDGE OF ALLEGIANCE IS

CONSTITUTIONAL.

The debate between the majority and minority

opinions as well as Judge O’Scannlain’s dissent

3

from denial of rehearing is over whether to decide

the issue of the constitutionality of the Pledge of

Allegiance by trying to extend the logic of this

Court’s Establishment Clause precedent or by using

this Court’s dicta regarding the Pledge of

Allegiance. Newdow v. United States Congress, 328

F.3d 466, 471-82 (9th Cir. 2003) (O’Scannlain, J.,

dissenting from denial of rehearing en banc); id. at

482-90 (majority opinion); id. at 490-93 (minority :

opinion).

The problem with trying to apply the

precedent in a new context is that this Court’s

Establishment Clause jurisprudence has often been

unpredictable, as various Justices of this Court have

acknowledged. See, e.g., Wallace v. Jaffree, 472

U.S. 38, 107-12 (1985) (Rehnquist, J., dissenting)

(stating that the application of the Establishment

Clause since the late 1940s has little value because it

has no basis in history and “is difficult to apply and

yields unprincipled results.”). With this type of

unpredictable Establishment Clause jurisprudence,

this Court should affirm the approach of the dissent

below as well as the Seventh Circuit’s decision in

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

437, 439 (7th Cir. 1992). Following this Court’s

dicta would have been the best alternative for the

Ninth Circuit. “[A]n inferior court had best respect

what the majority [of the United States Supreme

Court] 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.” Jd. at 448.

Below, the majority opinion recognized that

this Court has stated in dicta that the words “one

nation under God” in the Pledge of Allegiance are

constitutional.” Newdow, 328 F.3d at 489.

However, the majority did not give deference to this

Court’s dicta, as it stated it would. /d. The question

for this Court to resolve is whether the Ninth Circuit

gave inadequate deference to this Court’s dicta. For

the reasons stated in the discussion below, the Ninth

Circuit should have been guided, if not bound, by

this Court’s dicta regarding the constitutionality of

the Pledge.

Dictum is “{a]n opinion expressed by a court,

but which, not being necessarily involved in the

case, lacks the force of adjudication ....” Michael

Sean Quinn, Argument and Authority in Common

Law Advocacy and Adjudication: An Irreducible

Pluralism of Principles, 74 Chi.-Kent L. Rev. 655,

710 (1999). Judges and attorneys often divide dicta

into obiter dicta and judicial dicta to determine the

precedential value of individual dictum. Id. at 712-

13. Obiter, or mere, dicta is an opinion expressed in

_ passing and has less persuasive value. /d. at 713.

Judicial dicta are “court’s reasoned consideration

and elaboration upon a legal norm” and have much

more persuasive authority. /d. at 713-14.

In fact some courts, including this Court, give

judicial dicta great weight. In Seminole Tribe v.

Florida, 517 U.S. 44 (1996), this Court adhered to

5

judicial dicta which was regarded as a “well-

established rationale upon which the Court based the

results of its earlier decisions.” /d. at 67. Similarly,

this Court has stated that the “principle of stare

decisis directs us to adhere not only to the holdings

of... prior cases, but also to... explications of the

governing rules of law.” County of Allegheny v.

ACLU,, 492 U.S. 573, 668 (1989) (emphasis added).

Likewise, the Third Circuit Court of appeals

has noted that “{a] . . . distinction has been drawn

between ‘judicial dictum’ and ‘obiter dictum’:

Judicial dicta are conclusions that have been briefed,

argued, and given full consideration even though

admittedly unnecessary to decision. A judicial

dictum may have great weight.” Cerro Metal

Products v. Marshall, 620 F.2d 964, 978 n.39 (3d

Cir. 1980). Indeed, judicial dicta are of such serious

consequence that some courts consider judicial dicta

issued by supreme courts to be binding precedent:

“A Wisconsin court has stated it thus: ‘When a court

of last resort intentionally takes up, discusses, and

decides a question germane to, though not

necessarily decisive of, the controversy, such

decision is not a dictum but is a judicial act of the

court which it will thereafter recognize as a binding

decision.’” Id. (citation omitted).

Furthermore, the distinction between obiter

dictum and judicial dictum is not a bright line..

Michael Sean Quinn, Argument and Authority in

Common Law Advocacy and Adjudication: An

Irreducible Pluralism of Principles, 74 Chi.-Kent L.

6

Rev. 655, 717-18 (1999). Hard and fast divisions

“are probably wrong” and can lead to “intellectual

chicanery.” Id. at 730, 776. It is not easy to

determine what constitutes judicial dictum. Id. at

735. In fact, dicta are better thought of as being on

a continuum. Jd. at 740. Under this view, obiter

dicta, in which a court has not deliberated over what

it has said, see id., rest at the lower end of the

continuum. Judicial dicta, in which a court has

more deliberately considered what it has said to

guide future litigation and in which the parties may

have briefed the issue, id. at 730, rest at the upper

end of the continuum. Therefore, it is important

under this view to realize that dicta, even dicta other

than that which is technically judicial dicta, can lie

very close to that end of the continuum and can be

worthy of receiving precedential or near-

precedential value.

Ironically, the Ninth Circuit itself has placed

dicta issued by the United States Supreme Court on

the upper end of the continuum. See United States

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

According to the Ninth Circuit, Supreme Court dicta

is to be treated “with due deference.” Id. One Ninth

Circuit judge has stated that Supreme Court dicta

must not be discarded lightly. Navajo Nation v. U.S.

Dept. of Health and Human Services, 285 F.3d 864,

877 (9th 2002) (Fletcher, J., dissenting). Another

stated, “{D]icta of the Supreme Court have a weight

that is greater than ordinary judicial dicta as

prophecy of what the Court might hold. We should

not blandly shrug it off because they were not a

holding.” Zal v. Steppe, 968 F.2d 924, 935 (9th Cir.

1992) (Noonan, J., concurring in part and dissenting

in part). The Ninth Circuit, therefore, has placed

Supreme Court dicta high on the continuum giving

it great weight — even when that the dictum is not

judicial dictum. For example, this Court’s dicta at

issue in Zal must be considered obiter dicta, yet

Judge Noonan pointed out the weight they deserved.

See id.

Certainly, this Court’s dicta regarding the

Pledge of Allegiance are worthy of even more

weight since they are much closer to the judicial

dicta end of the continuum. While the

constitutionality of the Pledge may not have been

extensively briefed and argued, the pertinent

Establishment Clause test and principles were

briefed and argued in all the cases in which the

Pledge was used as an illustration. For example,

this Court has stated, “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.” County of

Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989).

This Court also stated that one’s “religiously based

refusal” to recite the pledge should not interfere with

the right of others to recite it. See Newdow, 328

F.3d at 492 (Fernandez, J., concurring in part and

dissenting in part) (citing West Virginia Bd. of Educ.

v. Barnette, 319 U.S. 624, 642 (1943)). In fact, five

8

current Justices of this Court, as well as eight prior

Justices, have recognized that including “under

God” in the Pledge of Allegiance does not impose a

danger to society by establishing a theocracy or

inhibiting one’s religious beliefs. Jd. at 491 (citing

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

03, 672-73 (1989); Wallace v. Jaffree, 472 U.S. 38,

78 n (1985); Lynch v. Donnelly, 465 U.S. 668, 676,

693, 716, (1984); Abington Sch. Dist. v. Schempp,

374 US. 203, 306-08 (1963).

The majority opinion below dismissed this

Court’s dicta because this Court has never directly

addressed the issue and has not applied the

Establishment Clause tests to it. Newdow, 328 F.3d

at 489. Based on the Ninth Circuit’s own precedent,

Supreme Court dicta should be given great

deference. Baird, 85 F.3d at 453. This Court has

stated multiple times that the pledge does not violate

the Establishment Clause. See Newdow, 328 F.3d at

491 (Fernandez, J., concurring in part and dissenting

in part) (noting cases cited in the previous

paragraph). Because this Court has declared the

Pledge to be constitutional on multiple occasions,

and because each of the cases addressed basic First

Amendment principles, this Court did not make

those statements regarding the Pledge without due

consideration. Therefore, the Ninth Circuit erred by

not being guided by the applicable dicta from this

Court. Had it been so guided, it would have upheld

the constitutionality of the Pledge. Indeed, this

Court has already decided the issue.

CONCLUSION

For the foregoing reasons, amicus respectfully

request this Court to grant Petitioners’ writ of

certiorari.

Respectfully submitted

This 30th day of May 2003

Suny C. Meda

Barry C. Hodge

Counsel of Record for pf Curiae

The National Legal Foundation

2224 Virginia Beach Blvd., Ste. 204

Virginia Beach, VA 23454

(757) 463-613