# Amicus Curiae Brief — United States v. Newdow

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1500%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 962

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1500%3A08. Public record. Not legal advice.