Amicus Curiae Brief — Newdow v. United States Congress

No. 03-0007

IN THE

Supreme Court of the United States

THE REV. DR. MICHAEL NEWDOW, fetitioner,

¥.

UNITED Si: ATES CONGRESS, ET AL.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

FOR SEPARATION OF CHURCH AND STATE IN

OPPOSITION TO CERTIORARI OR,

| ALTERNATIVELY, IN SUPPORT OF VACATUR

\ BRIEF AMICUS CURIAE OF AMERICANS UNITED

Ayesha Khan David H. Remes

Legal Director Counsel of Record

Americans United for Covington & Burling

Separation of Church 1201 Pennsylvania Ave., N.W.

and State Washington, D.C. 20004

518 C St., N.E. (202) 662-5212”

Washington, D.C. 20002

July 30, 2003 “additional counsel listed inside

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Brian S. Prestes’

Covington & Burling

1201 Pennsylvania Ave., N.W.

Washington. D.C. 20004

|

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Mr. Prestes is admitted only in Massachusetts. He is not

admicted in the District of Columbia and is supervised by

principals of the firm. |

7

QUESTION PRESENTED

In deciding petitioner’s appeal, the Ninth Circuit did

not address petitioner’s claim that the federal Pledge

statute, and the recitation of the Pledge under official

auspices in various settings, violates his rights as a

citizen and taxpayer under the Establishment Clause.

The question presented is:

Whether the Court should review the citizen and tax-

payer claims of petitioner that the Ninth Circuit did not

address, including his Article III standing to assert those

claims and the sovereign immunity issue they present.

ill

TABLE OF CONTENTS

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a THE COURT SHOULD DECLINE TO

REVIEW NEWDOW’S ESTABLISHMENT

CLAUSE CLAIMS AS A CITIZEN AND

TAXPAYER BECAUSE THOSE CLAIMS

WERE NOT ADDRESSED BELOW. ...................... 4

II. ALTERNATIVELY, THE COURT SHOULD

VACATE AND REMAND FOR

CONSIDERATION OF NEWDOW’S CLAIMS

BY THE COURT OF APPEALS IN THE

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APPENDIX

California Constitutional Provisions Relied on

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TABLE OF AUTHORITIES

FEDERAL CASES

Alexanderv. United States, 509 U.S. 544 (1993)...

Arizonans for Official English v. Arizona, 520 U.S.

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Ashwanderv. Tenn. Valley Auth., 297 U.S. 288

GED sete scatnenssnciinnseinscinnnnniin pakucnnonmalipesibaneatinues

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

ED sxscaseiaiessinssdhassaitpmonaeabaman

Edwards v. Aguillard, 482 U.S. 578 (1987) ............

Escambia County v. McMillan, 466 U.S. 48 (1984)

Hagansv. Lavine, 415 U.S. 528 (1974)...

Ins. Co. v. Ben Cooper, Inc., 498 U.S. 964 (1990)...

J. Truett Payne Co. v. Chrysler Motors Corp., 451

rs SEE EE vantcvicaicenneenoindieeanee

Leev. Kemna, 534 U.S. 362 (2002)..............sss.se0a00

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......eee

Nati Collegiate Athletic Assn v. Smith, 525 U.S.

Be CE iad

Patrick v. Burget, 486 U.S. 94 (1988)...

Pennhurst State Sch. & Hosp. v. Halderman, 465

Rs AD aictintnininuicenuieciaimmnninianns

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

CR ee ah

Schmidt v. Oakland Unified Sch. Dist., 457 U.S. 594

CIE vec ihictcicvnnaxomnseakietaiaecmusemeedeniieesienssaabaionants

Steel Co. v. Citizens for a Better Env, 523 U.S. 83

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United States v. N.Y. Rayon Importing Co., 329 U.S.

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Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464

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FEDERAL CONSTITUTIONAL AND STATUTORY

PROVISIONS AND COURT RULES

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OTHER AUTHORITIES

Robert L. Stern et al, SUPREME COURT PRACTICE

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INTEREST OF AMICUS !

Americans United for Separation of Church and State

is a 75,000-member not-for-profit organization dedicated

to defending religious diversity and church-state separa-

tion. It advances these goals by speaking out through the

media, public forums, and other channels; mobilizing

Americans at the grassroots level and through state and

regional chapters; advocating for separation of church

and state in Congress and state legislatures; and partici-

pating in litigation. Americans United was the respon-

dent in Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc., 454 U.S.

464 (1982). In the past thirty years it has filed or joined

amicus briefs in numerous Establishment Clause cases.

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

(2000); Edwards v. Aguillard. 482 U.S. 578 (1987);

Lemon v. Kurtzman, 403 U.S. 602 (1971). Americans

United has filed an amicus brief in vided Nos. 02-1574 &

02-1624.

STATEMENT

In his complaint, Newdow alleged Establishment

Clause injuries to himself (1) as a parent, as a result of

the Pledge policies of his daughter’s school district

(EGUSD) and another school district (SCUSD), and

(2) as a citizen and taxpayer, as a result of the federal

Pledge statute, 4 U.S.C. § 4, the recitation of the Pledge

under official auspices in various settings, and the publi-

1 Letters of consent to the filing of this brief have been lodged

with the Clerk. No counsel for a party in this case authored

this brief in whole or in part and no person or entity other

than the amicus or its counsel made a monetary contribution

to the preparation or submission of this brief.

2

cation of the Pledge in government documents. See

Pet. 3-5. The particulars of Newdow’s citizen and tax-

payer claims are set forth in the margin.2, Newdow also

alleged that recitation of the Pledge under official aus-

pices violates three provisions of the California Constitu-

tion. See Pet. 5 n.1; Compl. §§ 67, 107-08, 118-19. Those

provisions are reproduced in the Appendix below.

The school districts moved to dismiss Newdow’s com-

plaint, contending, among other things, that Newdow

had failed to state a claim and that the Eleventh

Amendment barred his claims against them. Their mo-

tion was referred to a magistrate, who undertook with

the consent of the parties to decide the merits without

reaching the school districts’ Eleventh Amendment de-

fense or any affirmative defenses that might be asserted

by the federal defendants. ER 189-99. Characterizing

Newdow’s complaint only as challenging the school dis-

tricts’ Pledge policies—and making no mention of New-

dow’s claims as a citizen and taxpayer or his state-law

2 Newdow alleged Establishment Clause injury to himself as

a citizen in having to endure the existence of the federal

Pledge statute, e.g., Compl. § 62, and the recitation of the

Pledge in his presence under official auspices (when he accom-

panies his daughter t» class, zd. § 80, and when he attends

EGUSD and SCUSD meetings, id. 44 85-87). He also alleged

that the school districts’ Pledge policies effectively foreclose

him from serving on the district school boards, id. | 88-90,

and from working for the districts as a teacher, id. J] 120-21.

As a taxpayer, Newdow alleged Establishment Clause injury

frorii the expenditure of public funds to pay for the salaries of

government employees who recite the Pledge as part of their

official duties; to pay for the recitaticn of the Pledge in public

schools; to pay for official events at which the Pledge is recited;

and to pay for the printing of the United States Code and other

government documents containing the Pledge. Jd. 4] 109-19.

3

claims—the magistrate concluded that “the Pledge does

not violate the Establishment Clause,” and recommended

that the complaint be dismissed. App. 1lla-12a. The

district court adopted the magistrate’s report and dis-

missed the complaint. App. 110a. The Ninth Circuit

stated that the district court dismissed the complaint “on

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

not violate the First Amendment.” App. 18a.

Newdow appealed the dismissal of his complaint, in-

cluding his citizen and taxpayer claims and his state-law

claims. See Newdow Br. 8 n.12, 15-16, 21-22, 50-51, 54-

56, 62; see also US Br. 3-4, 5-7.

In its amended decision, the Ninth Circuit found that

Newdow had standing as a parent to challenge EGUSD’s

Pledge policy, App. 7a, see also sd. 95a-98a, and it invali-

dated the policy as impermissibly coercive, App. 1la-17a.

The court, however, “decline[d] to reach” the constitu-

tionality of the federal Pledge statute, App. 18a, and it

did not address Newdow’s other citizen and taxpayer

claims or his state-law claims. The court made no finding

with respect to Newdow’s Article III standing to assert

his citizen and taxpayer claims; it also made no finding

with respect to the sovereign immunity issue presented

by his assertion of an Establishment Clause claim

against the United States. The court vacated the dis-

5 See Br. Amicus Curiae of Americans United, Nos. 02-1574

& 02-1624, at 5-6 (discussing the sovereign immunity issue).

The Ninth Circuit held that Newdow lacked standing to chal-

lenge SCUSD’s Pledge policy because his daughter did not

attend school in that district. App. 7a-8a. With respect to

Newdow’s challenge to the federal Pledge statute, the court

held that the President was not an appropriate defendant and

that the Speech and Debate Clause barred Newdow’s claim

against Congress. App. 5a.

4

trict court’s dismissal of Newdow’s complaint only with

respect to his challenge as a parent to EGUSD’s Pledge

policy, App. 18a, leaving undisturbed and unaddressed

the district court’s dismissal of Newdow’s other claims.

Newdow now seeks reviow of the citizen and taxpayer

claims that the Ninth Circuit did not address, including

his Article III standing to assert those claims and the

sovereign immunity issue presented by his challenge to

the federal Pledge statute.

ARGUMENT

I. THE COURT SHOULD DECLINE TO REVIEW

NEWDOW’S ESTABLISHMENT CLAUSE CLAIMS

AS A CITIZEN AND TAXPAYER BECAUSE THOSE

CLAIMS WERE NOT ADDRESSED BELOW.

The Yourt “usually will decline to consider questions

presented in a petition for certiorari that have not been

considered ‘by the lower court,” Patrick v. Burget, “86

U.S. 94, 99 n.5 (1988), consistent with its general prac-

tice of declining to consider issues that were not decided

in the first instance by the court below. See, e.g., Lee v.

Kemna, 534 U.S. 362, 387-88 (2002) (“We ordinarily ‘do

not decide in the first instance issues not decided be-

low.”) (quoting Nat? Collegiate Athletic Assn v. Smith,

525 U.S. 459, 470 (1999)); % Truett Payne Co. v. Chrys-

ler Motors Corp., 451 U.S. 557, 568 (1981) (“We do not

ordinarily address for the first time in this Court an

issue which the Court of Appeals has not addressed

.... ); Robert L. Stern et al, SUPREME COURT PRACTICE

419 (8th ed. 2002) (“The Court does not sit to resolve

issues that might have been but were not considered

below.”).

This case is particularly ill-suited for review because,

in order to reach the merits of Newdow’s citizen and

taxpayer claims, including his challenge to the federal

5

Pledge statute, the Court would first have to decide two

other issues that both courts below also did not ad-

dress—Newdow’s Article III standing to assert those

claims, see Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, 454 U.S. 464, 471-73

(1982), and the sovereign immunity issue presented by

Newdow’s assertion of an Establishment Clause claim

against the United States, see United States v. N.Y.

Rayon Importing Co., 329 U.S. 654, 660 (1947) (sovereign

immunity bars suit against United States absent express

waiver by Congress). The Court must decide those issues

first because they go to its jurisdiction and that of the

courts below to entertain Newdow’s claims. Stee/ Co. v.

Citizens for a Better Env't, 523 U.S. 83, 95 (1998); Arizo-

nans for Official English v. Arizona, 520 U.S. 43, 73

(1997). The petition therefore potentially requires the

Court to decide not one but three issues not decided

below. Accordingly, the petition should be denied.

4 Newdow does not ask the Court to hold EGUSD’s Pledge

policy invalid by reason of the invalidity of the federal Pledge

statute. The Ninth Circuit properly invalidated EGUSD’s

policy on the narrower ground that the policy was impermissi-

bly coercive. App. 1la-17a. For this reason the first question in

the petition of the United States in No. 02-1574 is far too

broadly stated. See Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 501 (1985) (federal courts should “never ... formulate a

rule of constitutional law broader than is required by the

precise facts to which it is to be applied”) (internal quotation

marks omitted); Ashwander v. Tenn. Valley Auth., 297 U.S.

288, 346-47 (1936) (Brandeis, J., concurring).

6

IJ. ALTERNATIVELY, THE COURT SHOULD VACATE

AND REMAND FOR CONSIDERATION OF

NEWDOW’S CLAIMS BY THE COURT OF APPEALS

IN THE FIRST INSTANCE.

A lower court’s failure to address a party’s claim is not

a “compelling” reason for granting review. See Rule 10.

If the Court nevertheless concludes that the Ninth Cir-

cuit’s failure to address Newdow’s citizen and taxpayer

claims warrants its intervention, the Court should vacate

the Ninth Circuit’s judgment and remand the case to

that court for its consideration of those claims in the first

instance. Such a disposition would be consistent with the

Court’s general practice of not deciding in the first in-

stance matters not addressed below. See, e.g., Lee, 534

U.S. at 387-88 (vacating and remanding so that court of

appeals could decide petitioner’s Due Process claim in

the first instance); A/exander v. United States, 509 U.S.

544, 559 (1993) (vacating and remanding so that court of

appeals could decide in the first instance whether chal-

lenged federal statute violated the Excessive Fines

Clause); Ins. Co. v. Ben Cooper, Inc., 498 U.S. 964 (1990)

(mem.) (vacating and remanding so that court of appeals

could decide jurisdictional issue in the first instance);

Escambia County v. McMillan, 466 U.S. 48, 51-52 (1984)

(per curiam) (vacating and remanding so that court of

appeals could decide in the first instance a statutory

question that could avoid the need to reach a constitu-

tional issue).

If vacatur is ordered, the Court should direct the

Ninth Circuit, before it reaches the federal constitutional

issue, to consider Newdow’s claim that recitation of the

Pledge under official auspices violates the California

Constitution, see supra at 2 & n.2; infra Appendix, in-

cluding whether Newdow is permitted to assert that

claim in this federal court action. Disposition of New-

7

dow’s state-law claim on the merits, if the Ninth Circuit

concludes that Newdow may assert that claim here,

could avoid or limit the need to decide federal constitu-

tional issues here and could also modt vided Nos. 02-1574

& 02-1624. See Pennhurst State Sch. & Hosp. v. Hal-

derman, 465 U.S. 89, 117-18 & n.28 (1984) (stating gen- ~

eral rule, qualified by Eleventh Amendment, that federal

court should decide a case on state law grounds if doing

so would avoid federal constitutional issue); Schmidt v.

Oakland Unified Sch. Dist., 457 U.S. 594, 594-95 (1982)

(per curiam) (vacating and remanding so that court of

appeals could consider in the first instance a state-law

question that might avoid need to reach a federal consti-

tutional issue); Hagans v. Lavine, 415 U.S. 528, 546

(1974) (“The Court has characteristically dealt first with

possibly dispositive state law claims pendent to federal

constitutional claims.”).

As with the novel and unsettled state-law question on

which Newdow’s Article III standing as a parent depends

in Nos. 02-1574 & 02-1624, a GVR directing certification

to the California Supreme Court of this state-law ques-

tion (whether recitation of the Pledge under official aus-

pices violates the California Constitution) is also an

option here, if the Ninth Circuit should conclude that

Newdow is permitted to assert his state-law claim in this

action. See Br. Amicus Curiae of Americans United, Nos.

02-1574 & 02-1624, at 8-9 & n.5.5

5 In its amicus brief in Nos. 02-1574 & 02-1624, Americans

United has suggested the precise question to be certified to the

California Supreme Court with respect to Newdow’s standing

as a parent under California law to challenge EGUSD’s Pledge

policy notwithstanding the custodial parent’s consent to the

policy. Br. Amicus Curiae of Americans United, Nos. 02-1574

& 02-1624, at 20.

|

ne

The petition should be denied. Alternatively, the

Court should grant the petition, vacate the Ninth Cir-

cuit’s judgment, and ir the case for consideration of

eae

Newdow’s citizen and taxpayer claims, including consid-

eration or certification of Newdow’s state-law claims.

Respectfully Submitted,

Ayesha Khan David H. Remes

Legal Director Counsel of Record

Americans United for Brian S. Prestes’

Separation of Church Covington & Burling

and State 1201 Pennsylvania Ave., N.W.

518 C St., N.E. Washington, D.C. 20004

Washington, D.C. 20002 (202) 662-5212

July 30, 2003

Mr. Prestes is admitted only in Massachusetts. He is no

admitted in the District of Columbia and is supervised b

principals of the firm.

la

APPENDIX

CALIFORNIA CONSTITUTIONAL PROVISIONS RE-

LIED ON BY PETITIONER

Article I, § 4:

Free exercise and enjoyment of religion without dis-

crimination or preference are guaranteed. This liberty of

conscience does not excuse acts that are licentious or

inconsistent with the peace or safety of the State. The

Legislature shall make no law respecting an establish-

ment of religion. .

A person is not incompetent to be a witness or juror

because of his or her opinions on religious beliefs.

Article IX, § 8:

No public money shall ever be appropriated for the

support of any sectarian or denominational school, or any

school not under the exclusive control of the officers of

the public schools; nor shall any sectarian or denomina-

tional doctrine be taught, or instruction thereon be per-

mitted, directly or indirectly, in any of the common

schools of this State.

Article XVI, § 5:

Neither the Legislature, nor any county, city and

county, township, school district, or other municipal

corporation, shall ever make an appropriation, or pay

from any public fund whatever, or grant anything to or

in aid of any religious sect, church, creed, or sectarian

purpose, or help to support or sustain any school, college,

university, hospital, or other institution controlled by

any religious creed, church, or sectarian denomination

whatever; nor shall any grant or donation of personal ~

property or real estate ever be made by the State, or any

2a

city, city and county, town, or other municipal corpora-

tion for any religious creed, church, or sectarian purpose

whatever; provided, that nothing in this section shall

prevent the Legislature granting aid pursuant to Section

3 of Article XVI.