[Congressional Record Volume 148, Number 87 (Wednesday, June 26, 2002)]
[House]
[Pages H4045-H4051]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       NINTH CIRCUIT RULES PLEDGE OF ALLEGIANCE UNCONSTITUTIONAL

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2001, the gentleman from California (Mr. Cox) is recognized 
for 60 minutes as the designee of the majority leader.
  Mr. COX. Mr. Speaker, I rise this evening to bring to the attention 
of the House the decision of the Ninth Circuit Court of Appeals in the 
case of Michael A. Newdow v. United States Congress. This case, Mr. 
Speaker, even though it was decided by the Ninth Circuit Court of 
Appeals only a few hours ago, has already attracted considerable 
national attention. Indeed, it has drawn the comment of the President 
of the United States.
  The reason is rather simple. It is a decision involving something 
that is well known to all of us in this Chamber, the Pledge of 
Allegiance. The Ninth Circuit Court of Appeals has ruled that the 
Pledge of Allegiance, written into statute a half century ago, is 
unconstitutional. Of course this Chamber is opened each day with a 
recitation of the Pledge of Allegiance. Public schools across the 
country begin their day this way. Some Members and some students may, 
if they choose, listen or absent themselves, indeed, because there is 
no requirement of Members of Congress as we open our day this way or of 
students that they recite the Pledge. It is a voluntary act.
  Nonetheless, a parent, Michael A. Newdow, of a student in a 
California public school, brought a lawsuit, one of several that he has 
brought, urging an injunction against the President of the United 
States and an injunction against this Congress. In the latter case, he 
wished us to be ordered by court immediately to rewrite the statute, 
the statute he wished that we would rewrite so that the words ``under 
God'' would be deleted from the Pledge of Allegiance.
  I think because the Pledge is so familiar to us, particularly the 
Pledge has been recited by so many so often in so many public ways, 
whether it be at sporting events or public gatherings since September 
11, that it comes as something of an unexpected surprise that a court 
would rule this way. I will devote a brief portion of my brief remarks 
this evening to the substance of the question and, that is, whether or 
not Congress, which was a defendant in this case, was within its rights 
to write the law as we did a half century ago; but I would spend most 
of my time drawing attention to what I consider to be the sloppy 
jurisprudence in this case.
  What is really at issue in what shall become a very well known 
decision of Newdow v. U.S. Congress is the rule of law. Precious little 
respect was paid to precedent in this case, because many of the 
questions, procedural questions indeed, not just the substance here, 
many of the questions have already been decided. But this court chose 
to decide the same questions differently, and that lack of respect for 
precedent raises questions about the rule of law in America, about the 
predictability of the law, about the ability of any of us to know in 
advance what are the rules to which we must conform our conduct.
  Let me begin by just describing a little bit about the case, a little 
bit about the facts of the case. Newdow, the fellow who brought the 
lawsuit, is an atheist whose daughter attends public elementary school 
in the Elk Grove Unified School District in my State of California. In 
the public school that she attends, like many public schools, they 
start the day with the Pledge of Allegiance.
  But Newdow, according to the Ninth Circuit, 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. That is what this 
lawsuit is all about, according to the Ninth Circuit. The gravamen of 
the complaint is there is injury, that is the word that is used, and it 
is an important word, as I shall return to in just a moment. There is 
injury when someone is required to be in the presence of others who are 
reciting something in which they believe. The United States Supreme 
Court was asked to decide this question, this very question, in another 
case, Valley Forge Christian College v. Americans United for Separation 
of Church and State, Incorporated, 1982. Here is what the Court said in 
the Valley Forge case:
  ``The psychological consequence presumably produced by observation of 
conduct with which one disagrees is

[[Page H4046]]

not an injury sufficient to confer standing under article 3, even 
though the disagreement is phrased in constitutional terms.''
  Let me describe a little bit about what the Court was saying here. 
The Court said there was no standing under article 3. That is lawyer 
language which means there was no case. The very jurisdiction of a 
Federal court requires as a condition for proceeding to hear the facts 
and apply the law that there be an injury in fact, somebody be injured 
by the thing about which they are complaining. And so that was a 
threshold question that the Court had to decide here: Was this man, Mr. 
Newdow, sufficiently injured personally by what was going on in this 
case, particularly by the act of Congress, which is what he was suing 
about? And the Supreme Court said ``no'' in the case of Valley Forge. 
They could not have said ``no'' in plainer terms, because he pleaded in 
his action that his daughter's teacher and the school district did not 
require his daughter to participate in reading the Pledge of 
Allegiance. That was his allegation about this case. Rather, he claims 
that his daughter is injured when she is compelled to watch and listen.
  So now let us go back to that language of the Supreme Court. The 
Supreme Court said, ``The psychological consequence presumably produced 
by observation of conduct with which one disagrees is not an injury 
sufficient to confer standing under article 3, even though the 
disagreement is phrased in constitutional terms.''
  The Ninth Circuit Court of Appeals was aware of this binding U.S. 
Supreme Court precedent. And what did they say to deal with that fact? 
They said, ``Valley Forge remains good law.'' They acknowledge that 
case has not been overturned. It has not been reversed. It is still 
there. But what they chose to do is to say essentially that the law is 
progressing here, we want to take it the next step, because they view 
the law as an organism, something that is ever evolving and changing 
and developing. Leave aside whether they are right or wrong in the 
application of that principle, if one chooses to call it that, in this 
case. What does it mean if the law is the plastic, malleable instrument 
of judges? It means that none of us as citizens knows in advance how 
the case is going to be decided, how it is going to turn out.
  Everyone here, in addition perhaps to having said the Pledge of 
Allegiance in school when they were schoolchildren, probably learned 
about Hammurabi. Hammurabi is well known for erecting in the town 
square stone tablets bearing the written law. For the first time, the 
law was written down. Why was that important? Why was written law 
important? It was important because, for the first time, the subjects 
of Hammurabi, the citizens, knew in advance the standard to which they 
should conform their conduct. And at that moment the law stopped being 
arbitrary. We have heard it said that we are a government of laws, not 
men. Yet what does it mean when it is essentially a lottery? We roll 
the dice. We do not know how these cases are going to turn out 
in advance because it is up to the judges and their personal view.

  One of the contests in constitutional law, in constitutional 
interpretation, is between those who believe in what is sometimes 
referred to as original intent, those who believe that what the people 
who wrote it matters in interpreting the words, versus those who 
believe in the Constitution as a living document, that the way we 
choose to interpret those words in our time and place ought to govern.
  It is of some great consequence how one answers that question, 
because the Founders lived some time ago; and whether or not one agrees 
with them or disagrees with them subsequently, in subsequent ages, at 
least what was settled at the time becomes an objective standard. And 
the Founders left us with an article in the Constitution, article 5, 
that permits us in our time and place to amend the document if we 
decide that it is too much of a tight collar for us and we cannot live 
within those strictures in our place and time. So is there anything 
about the first amendment which is at issue here in the time of its 
drafting and what was on the mind of the Founders that can help us 
understand whether they thought that references to God in public 
places, not references to a particular establishment of religion, were 
violative of the Constitution?
  Let us turn to the first amendment. With respect to religion, it is 
very concise. It says, ``Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise thereof.'' 
So the question is, should this clause be interpreted as barring the 
government from giving preferment to a particular religion? That is one 
interpretation. Or should it be interpreted as requiring the complete 
and total elimination of any reference to God in our public 
institutions? That is a different interpretation.
  The Supreme Court considered this very question in an earlier case 
involving the Pledge of Allegiance. They considered it in a different 
way, however. Remember that the language that we are talking about, 
``under God,'' was added a half century ago. A few years before that 
language was added, the Supreme Court first considered the Pledge 
without those words, and it decided that students cannot be required to 
recite it. Students cannot be required to salute the flag, either. 
``The action of the local authorities in compelling the flag salute and 
Pledge transcends constitutional limits on their power.'' That is what 
the Supreme Court said in West Virginia State Board of Education 
against Barnette in 1943. Compelling someone to recite or to do 
something against their will that affects or represents their beliefs 
is not within the power of our government. Indeed, it was pointed out 
in that connection and in other connections that that is what the 
Pledge of Allegiance is about. If there is liberty for all, that means 
we have to be free in our minds as well as in our physical actions, and 
so we cannot be compelled to say we believe something that we do not 
believe. A very important case.
  But they went on. They said that it was unconstitutional because it 
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. It was the compulsory aspect of what was going on in that case 
that bothered the Court. The Court noted that the school district was 
compelling the students to declare a belief and requiring the 
individual to communicate by word and sign. Remember, the Pledge was 
accompanied by a flag salute or a hand over the heart. ``The compulsory 
flag salute and Pledge requires affirmation of a belief and an attitude 
of mind,'' those further words from the Court's decision in the 
Barnette case.
  The Court also said, ``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.''

                              {time}  2045

  Note what was going on in the Barnette case.
  Listen to this list of things that the government cannot force us to 
believe in: politics, nationalism, religion, or other matters of 
opinion. They were dealing with the Pledge of Allegiance even before it 
had the words ``under God,'' and they said that the government cannot 
force you to say it. The government cannot force you to believe in a 
particular religion; the government cannot force you to believe in 
particular politics either.
  So, fast forward to today when we are watching as a court throws out 
the words ``under God'' from the Pledge of Allegiance and ask 
yourselves why the rest of it can remain. If there is some element of 
compulsion, even though you are not required to recite the Pledge, just 
in being forced to witness others say it, then is it there to precisely 
the same degree, that kind of compulsion, to the rest of the Pledge, 
even if we were to excise the words ``under God,'' and does not the 
Barnette case say that there can be no such compulsion?
  In this Newdow case, that is the name of the Ninth Circuit decision 
handed down today, the court said, ``The Pledge, as currently codified, 
is an impermissible government endorsement of religion,'' and it is so 
common in court opinions these days to cite authority. It is the reason 
we can call the cases decided by courts case law. It is not supposed to 
be the mental invention of the judges; it is supposed to be

[[Page H4047]]

an application of well-known principles of law to the facts at hand.
  So having said, ``The Pledge, as currently codified, is an 
impermissible government endorsement of religion,'' the court cited 
some authority. What did they cite for authority? They cited Justice 
O'Connor's words in another case, and they cited Justice Kennedy's 
words in another case. Here is how they interpreted Justice Kennedy's 
words: Justice Kennedy agreed with us. That is what they are saying. 
Justice Kennedy agreed with us that ``The Pledge, as currently 
codified, is an impermissible government endorsement of religion,'' but 
Justice Kennedy does not agree with that. There is plenty of case law 
making it very clear that the language that they are quoting from 
Justice Kennedy was written for the opposite purpose.
  Here is what Justice Kennedy said in his dissent, in his dissent in a 
case called Allegheny County v. Greater Pittsburgh ACLU. Now that case, 
by the way, involved holiday displays in the downtown area in 
Pittsburgh. On some public property they were displaying a menorah and 
they were displaying a nativity scene; and the ACLU, the American Civil 
Liberties Union, sued, and by a 5 to 4 majority, the Court said that 
could not go on because a menorah signified a particular religion, 
Judaism, and the nativity scene signified a particular set of 
religions, Christianity. So there were particular sects being promoted 
by the government, not just sort of general references to God and, for 
that reason, it was unconstitutional.
  Justice Kennedy dissented from that case, and he would have allowed 
it. He was among the four members who would have allowed it; and yet he 
is being cited for authority in this case striking down the words 
``under God'' in the Pledge of Allegiance. Why would they do that?
  Here is what Justice Kennedy is quoted as having said, quoted by the 
Ninth Circuit in their decision today as having said: ``By 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 his fellow Americans recited, as part of their 
expression of patriotism and love for country, a phrase he believed to 
be false.'' That is what they quote him as saying. And they say, 
therefore, he agrees with our decision that ``The Pledge, as currently 
codified, is an impermissible government endorsement of religion.''
  But Justice Kennedy went on to say, in the immediately-following 
sentence, which the Ninth Circuit fails to quote, ``Likewise, our 
national motto, `In God We Trust,' which is prominently engraved in the 
wall above the Speaker's dais in the Chamber of the House of 
Representatives,'' and Mr. Speaker, I would observe that you are 
sitting under the very model that Justice Kennedy is referring to in 
this decision, it says right over your chair, ``In God We Trust.'' He 
says it is ``prominently engraved in the wall above the Speaker's dais 
in the Chamber of the House of Representatives and is reproduced in 
every coin minted and every dollar printed by the Federal Government.''
  He is saying that these things must have the same effect if the 
intent of the establishment clause is to protect individuals from mere 
feelings of exclusion; and it is his opinion that that is not what the 
establishment clause does. That is what Justice Kennedy was saying. So 
it stands Justice Kennedy on his head to cite him as authority for the 
proposition in Newdow that the Pledge, as currently codified, is an 
impermissible government endorsement of religion.

  So I find it interesting that in this tradition of judges citing 
authority for their rulings, that we have cited the language of Justice 
Kennedy as well as the language of Justice O'Connor. But Justice 
O'Connor, likewise, does not support this proposition.
  In this case of Allegheny County v. the Greater Pittsburgh ACLU, the 
majority opinion was written by Justice Blackmun. Justice Blackmun 
discussed, before he got to his result, a case called Marsh against 
Chambers in which legislative prayers were challenged. Now, Mr. 
Speaker, my colleagues may be in memory of what happened at the 
beginning of the day today and what happens at the beginning of every 
one of our sessions every day. We begin with our Chaplain saying a 
prayer here in the House Chamber, standing, more to the point, under 
the motto, ``In God We Trust.''
  There was a lawsuit challenging legislative prayers; State 
legislatures do this as well. It went to the U.S. Supreme Court and the 
case that decided the question is called Marsh against Chambers. Now, 
we can guess what the result was in that case, because our prayers are 
still going on. Justice Kennedy, in the case of Allegheny County 
against the Greater Pittsburgh ACLU, the one that they decided about 
the nativity scene and the menorah, Justice Kennedy dissented in that 
case and he cited this Marsh case. And Justice Blackmun did not like 
his use of the Marsh case, did not like the reference that he made.
  So here is what Blackmun said about Marsh and about Justice Kennedy. 
He said, Justice Kennedy argues that such practices as our national 
motto, ``In God We Trust'' and our Pledge of Allegiance with the phrase 
``under God'' added in 1954 are in danger of invalidity if we were to 
say it is unconstitutional to have a nativity scene or it is 
unconstitutional to have a holiday menorah. Justice Blackmun said, that 
is silly. That is not what we mean. That is not what we are saying.
  Here is a quote from Justice Blackmun: ``Our previous opinions have 
considered indicative the motto and the Pledge characterizing them as 
consistent with the proposition that government may not communicate an 
endorsement of religious belief.'' And he cites for that proposition 
the words of two justices in other cases, Justice O'Connor and Justice 
Brennan.
  Now, Justice O'Connor is the other Justice that the Ninth Circuit was 
relying upon to reach today's result. So we now have on the record both 
Justice Kennedy and Justice O'Connor for the opposite proposition, and 
that is that the Pledge and our motto, ``In God We Trust,'' do not 
raise these establishment clause questions. That is certainly how I 
read those opinions, Mr. Speaker.
  Justice Blackmun goes on to say, we need not return to the subject, 
because there is an obvious distinction between creche displays, creche 
meaning the nativity scene, there is an obvious distinction between 
creche displays and references to God in the motto and in the Pledge. 
So we have Justice Kennedy raising the specter of: boy, if we go this 
way and throw out a nativity scene, pretty soon it is going to be the 
motto and the Pledge, and then Justice Blackmun saying, nonsense. We 
have already considered those questions, and there is no need to 
consider them here further.
  Justice Blackmun goes on to say: ``However history may affect the 
constitutionality of nonsectarian references to religion by the 
government, history cannot legitimate practices that demonstrate the 
government's allegiance to a particular sect or creed.''
  Why is that so important? Let us go back to the language of the first 
amendment. It is very short: ``Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise thereof.''
  Well, the free exercise clause obviously would tend in the opposite 
direction of this case: ``Government shall make no law prohibiting the 
free exercise of religion.'' So one should be free to practice religion 
in America. That is what the Constitution guarantees. But this other 
portion, the establishment clause says: ``Congress shall make no law 
respecting an establishment of religion.'' Now, some people like to do 
a little bait and switch with the specific article, the definite 
article. They substitute ``the'' for ``an,'' and ``the'' is specific 
and ``an'' is general. I do not know if we are all grammarians here 
this evening, but it matters. ``A baseball game'' is different than 
``the baseball game.''
  ``Congress shall make no law respecting an establishment of religion 
or prohibiting the free exercise thereof.'' What if it said instead: 
Congress shall make no law respecting the establishment of religion? 
Would that matter?
  Mr. Speaker, I think it would matter a great deal, because if it is 
religion that we are concerned about rather than an establishment of 
religion, an instance, one of many, then I think we

[[Page H4048]]

have given some ammunition to those who say the real purpose of this 
clause in the first amendment is to say, no religion can be discussed. 
But if what the Constitution is enjoining us to do is not to make any 
law respecting particular religions, particular kinds of religions, 
then it is something else entirely different.
  Mr. Speaker, I do not know that we can this evening, to everyone's 
satisfaction, resolve this basic question of whether the establishment 
clause in the first amendment should be better interpreted as barring 
the government from giving preferment to a particular religion, on the 
one hand, or rather as requiring the complete and total elimination of 
any reference to God in our public institutions on the other hand. But 
I think it is awfully clear that that is what is at stake here, because 
the court, the Ninth Circuit Court is troubled by the fact that there 
is the most conceivably abstract reference possible to God, not to even 
religion or to a specific religion, but simply to God.
  I am put in mind, and this will escape almost all of my hearers, of a 
National Lampoon parity of ``Desiderata'' called ``Deteriorata.'' This 
was popular in the 1970s. And they sort of made fun of the well-known, 
at the time at least, ``Desiderata,'' and in ``Deteriorata'' they said, 
``Therefore, make peace with your God, whatever you conceive him to be, 
Harry Thunderer or Cosmic Muffin.'' A little bit of humor that 
illustrates the point that one person's God is not another person's God 
is not another person's God. In fact, what God is, in the minds of 
physicists, it could be the entire universe as we know it. For 
animists, it could be the plants or the animals.

                              {time}  2100

  God is as general and as high on the ladder of abstraction as one can 
be, and it is very different, this reference to God, than a particular 
religion.
  That is important, Mr. Speaker, because I think the court betrays its 
fundamental error in logic when it says, and I will find the precise 
language here, but it says essentially that for constitutional purposes 
there is no distinction between the words ``under God'' in the Pledge 
and ``under Jesus'' or ``under Vishnu'' or ``under Zeus.''
  That is what the opinion says. And I think there is a world of 
difference. There is a world of difference, because one is as 
respectful as possible of the right that is guaranteed in the rest of 
the first amendment, the free exercise of one's particular religion. It 
does not give a preferment to any religion, which is what the 
establishment clause at a minimum is meant to guard against.
  Mr. Speaker, here is precisely what the Ninth Circuit Court of 
Appeals said on this point:
  ``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.''
  Of course, here is the rabbit in a hat. It is interchangeable for the 
Ninth Circuit in this opinion that we might be dealing with religion as 
a general noun, a class of things, the dictionary definition of 
religion, which could be almost anything, on the one hand; or a 
religion, a specific religion.
  And again, that gets us back to the fundamental question of what the 
first amendment means. Does it mean that government shall make no law 
respecting an establishment of religion; or, in fact, forget the 
business about the definite article, but just religion? Maybe 
``establishment'' should be read out of the first amendment: ``And 
government shall make no law respecting a religion.'' That would 
certainly be directly to the point made by the Ninth Circuit today.
  It is worth drawing attention to what the Ninth Circuit believes here 
because not all the judges were in agreement. There was a two-person 
majority and a one-person dissent. And in a three-judge panel, of 
course, that is all it takes, is two judges.
  Judge Fernandez, circuit judge in the Ninth Circuit Court of Appeals, 
said this: ``We are asked to hold that inclusion of the phrase `under 
God' in this Nation's Pledge of Allegiance violates the religion clause 
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 discriminate against a religion or religions . . . 
when all is said and done, the danger that `under God' in our Pledge of 
Allegiance will tend to bring about a theocracy or suppress somebody's 
beliefs is so minuscule as to be de minimis. The danger that 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.''
  At this point, Judge Fernandez cites four preceding Supreme Court 
opinions and goes into some great detail with his authority. He refers 
to the case of the County of Allegheny, to which I made reference 
earlier, in which the majority said, ``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.''
  Now, the Seventh Circuit Court of Appeals decided a case very similar 
to this one, and the Seventh Circuit is, of course, a different 
jurisdiction of equal dignity with the Ninth Circuit Court of Appeals. 
And because there was no identical case previously decided by any 
precedent in the Ninth Circuit, the panel in this case was required to 
at least acknowledge it, and they did.
  They said the only other court to consider this was the Seventh 
Circuit, and even though the Seventh Circuit decided it consistently 
with the Supreme Court dicta, we are going to go the other way. So they 
acknowledged they are blazing a new trail out there in the Ninth 
Circuit.
  Again, whatever one feels about the decision, this takes us back to 
the question of the rule of law and predictability. When precedent does 
not matter, when we are always trying to move that ratchet one more 
notch, we are always trying to take the law in new directions and 
expand it and make sure it is a living organism and reflective of what 
is new and modern, there is not any predictability, and it becomes the 
rule of men and not law.

  Judge Fernandez went on to say, ``such phrases as In God We Trust'' 
or ``under God'' have no tendency to establish a religion in this 
country or suppress anyone's exercise 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 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, for instance,'' 
and remember, the Barnett case which I discussed earlier is the one 
involving the Pledge of Allegiance and the flag salute, in which the 
court held that it is not constitutional to force people to do these 
things, to say these things, to recite the Pledge. If people do not 
believe that America is a country that stands for liberty and justice 
for all, then they do not have to recite the Pledge. That is what the 
court said there.
  ``In West Virginia Board of Education v. Barnett . . . '' Judge 
Fernandez says,

[[Page H4049]]

``the Supreme Court did not say that the Pledge could not be recited in 
the presence of Jehovah's Witness children; it merely said they did not 
have to recite it. That fully protected their constitutional rights by 
precluding the government from trenching upon `the sphere of intellect 
and spirit.' As the court pointed out, their religiously based refusal 
`to participate in the ceremony [would] not interfere with or deny the 
rights of others to do so. . . . We should not permit Newdow's feel-
good concept to change that balance.''
  So this is a different judge of the Ninth Circuit giving us a very 
different point of view from the minority, and citing, I think rather 
more correctly, the holding in Barnette.
  ``My reading of the stelliscript suggests that upon Newdow's theory 
of our Constitution,'' and Newdow, remember, is the plaintiff in this 
case, the father whose daughter goes to school and has to watch as 
others recite the Pledge of Allegiance, ``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 and second stanzas of the Star-Spangled Banner 
will still be permissible, we will be precluded from straying into the 
third. 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.''
  So judge Fernandez is now giving us a view of where we might be 
headed if this decision holds and becomes law, the decision from which 
he dissented.
  He says, ``What about God Bless America in a public setting?'' What 
about it? What if it is the Marine Corps band? What if it is on the 
steps of the Capitol? Is that it? Is it all over for God bless America 
on the Capitol steps, or performed anywhere by our people, our men and 
women in uniform?
  Perhaps that is the sort of thing designed to scare people away from 
the results in the case at hand, which is not about God Bless America. 
But remember the decision in Allegheny, in which we had Justice Kennedy 
in his opinion dialogue with Justice Blackmon in the majority saying, 
Mr. Justice, if you go this way, if you say no creche, no menorah, then 
I think you are going to have to take a look at the Pledge of 
Allegiance and our motto in God We Trust, and you had the majority in 
that case say, Oh, pshaw, that is not what we mean. Do not worry about 
the Pledge or the motto, and here we are today, just as Justice Kennedy 
predicted, worrying about the Pledge.
  So perhaps we ought not to dismiss out of hand what Judge Fernandez 
is telling us: All right, if we do what the Ninth Circuit wishes us to 
in the Newdow case today, then we had better be prepared to get rid of 
God Bless America, we had better be prepared to get rid of that motto 
In God We Trust, right over the Speaker pro tempore's head, and we had 
better be prepared to get it off of our currency, because the same 
principle must apply. That is what Judge Fernandez says.
  So he says, ``Judges can accept those results,'' these extensions of 
the principle in Newdow, ``if they limit themselves to elements and 
tests, while failing to look at good sense and principles that animated 
those tests in the first place. But they do so'', judges would be doing 
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 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,'' he concludes, ``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 in this country or to 
interfere with the free exercise (or non-exercise) of religion is de 
minimis.''
  And he drops a footnote at this point, because there are going to be 
constitutional scholars who are going to say, wait a moment, are you 
saying there is such a thing as a constitutional violation that is so 
small we will just ignore it? And he is saying, that is not what I mean 
at all. ``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.''
  Mr. Speaker, I am sure that almost everyone in the country will end 
up having an opinion about this case, but I think it is very important 
that everyone in the country, as we enter into this debate, not assume 
that they know everything about it. They ought to take the time, as we 
have here this evening, to examine the facts.
  We were, of course, defendants in this case. We have a real stake in 
it. But it matters, for example, that the plaintiff in this case 
specifically pleaded or specifically alleged that she, or was her 
father pleading that his daughter was not required to recite the Pledge 
of Allegiance. So this is not a case about someone being required to 
say the Pledge, which happens to include the words ``under God.''
  That is an important fact to bear in mind. It may not affect Members' 
opinions one way or another in the end, but for some people the notion 
that someone might be coerced is very material, and those people should 
note that the Supreme Court dealt with that question 60 years ago. That 
is not an open question. We cannot be forced to say the Pledge in this 
country.
  I pulled up the legislative history because what the court did today 
is throw out an act of this Congress. I thought it was instructive in 
reading the court's opinion that they said that the reason that 
Congress did what it did was very important. Let us take a look at 
Congress' motive, they said. What was the purpose in enacting the 
statute? That might tell us whether what Congress was really trying to 
do this on the sly by inserting those words was to promote religion in 
violation of the First Amendment.
  They said, and I ought to be sure to quote the opinion directly to 
make sure that I do not mischaracterize it, but they said, in essence, 
that the legislative history in their mind was clear evidence of an 
unconstitutional purpose. Then they quoted a very, very small part of 
it.
  The problem, they say, is that when the Congress did this in 1954, 
and Mr. Speaker, I will have it here in just a moment, that the purpose 
of the Congress was not establishing a religion.

                              {time}  2115

  That is the language that they quote. It rather befuddles one to 
understand why, therefore, they infer that was the purpose. Here is the 
legislative history that they quote: ``The sponsors of the 1954 act 
expressly disclaimed a religious purpose.'' So in those days, in 1954, 
when political correctness was not at large, they still did not get 
tripped up by the test that we are applying now in 2002. They said: 
``This is not an act establishing a religion.'' 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 religious 
beliefs,'' the court says. But the legislature, this Congress at the 
time that we passed the law, said that there was no such purpose.
  The establishment clause they say is not limited to religion as an 
institution. And so they are again retreating to this abstract notion 
of all religion being the problem, not just an establishment, even 
though that is the plain word of the first amendment.
  Here is what the legislative history says, Mr. Speaker. I have taken 
it from our official documents in May 1954. They say: ``By the addition 
of the phrase `under God' to the Pledge the consciousness of the 
American people will be more alerted to the true meaning of our country 
and its form of government.'' That was their purpose. ``The 
consciousness of the American people will be more alerted to the true 
meaning of our country and its form of government.'' That, Mr. Speaker, 
is a secular purpose. In this full awareness we will, I believe, be 
strengthened for

[[Page H4050]]

the conflict now facing us and more determined to preserve our precious 
heritage. ``Fortify our youth in their allegiance to the flag by their 
dedication to one nation under God.''
  So the purpose is to fortify our youth in their allegiance to the 
flag. Is that not a secular purpose? So it is a legislative history as 
important as the Ninth Circuit says it is, I think it pays to read it. 
They went on to say, ``It should be pointed out that the adoption of 
this legislation in no way runs contrary to the provisions of the first 
amendment to the Constitution. It is not an act establishing religion 
or one interfering with the free exercise of religion.''
  So what they did in Congress at the time was look to what they 
thought was the law, the decisions of the Supreme Court interpreting 
the first amendment. ``The Supreme Court has clearly indicated that the 
references to the Almighty which run through our laws, our public 
rituals, and our ceremonies in no way flout the provisions of the first 
amendment.'' Then they cite the Supreme Court authority of the day.
  So what has happened is between then and now, perhaps, the 
Constitution has changed. The language of the first amendment has not 
changed. It is the very same language. The Congress did the best it 
could at the time. They relied on the Supreme Court, which clearly 
indicated that ``the references to the Almighty which run through our 
laws, our public rituals, and our ceremonies in no way flout the 
provisions of the first amendment.'' They went on to say in 1954: ``In 
so construing the first amendment, the Court,'' referring to the 
Supreme Court, ``pointed out that if this recognition of the Almighty 
was not so, then an atheist,'' the plaintiff in this case, ``could 
object to the way in which the Court itself opens each of its sessions, 
namely, `God save the United States and this honorable Court.' ''
  Well, today, across the street at the United States Supreme Court 
that is how the Court opens its sessions. They still say as they did in 
1954, ``God save the United States and this honorable Court.'' So these 
questions are all of a piece, the motto, Mr. Speaker, over your head; 
indeed, the fact that the great law givers of all time ring this 
Chamber, and that the central one who looks directly at you is Moses, 
all of these things are of a piece; and it is quite clear the slope 
that we are on.
  The legislative history makes it very clear that to the extent that 
it was possible for human beings to do so in 1954, the drafters and the 
Members of Congress at the time went out of their way to make sure that 
they were following the guidance of the United States Supreme Court.
  What has happened over the last several decades intervening makes it 
clear that whatever one's view about whether the law should be a living 
document on the one hand or whether it should be a text that means from 
age to age, whatever the society or perhaps the Court thinks it ought 
to mean, that that question looms very, very large. We may not ever 
know if that is the rule that we follow what the law is and we will 
have to wait until the oracles tell us.
  Here in Congress as we seek to write laws consistent with the 
Constitution, we simply do not have sufficient guidance when all we 
have is the text of the Constitution and all of the Court's decisions 
interpreting it, because those can be changed and are very mutable, and 
precedence are only so good as the paper they are written on. But they 
can be overturned at will.

  The fact that the Seventh Circuit has already disagreed with the 
Ninth Circuit and the Seventh Circuit came first and that that 
precedent was ignored here; the fact, Mr. Speaker, that the very 
remedies that the plaintiff were seeking here are all illegitimate 
remedies and the Ninth Circuit found that that was so, none of that 
seemed to slow them down. It is worth bringing to the Members' 
attention that what Newdow was asking for here is that the court should 
order the President of the United States to alter, modify or repeal the 
Pledge. So he is drafting the complaint. He has brought a lawsuit, and 
he wants the court to order the President to alter, modify or repeal 
the Pledge by removing the words ``under God.'' He asked for one other 
element of relief. He wanted the court to order the United States 
Congress immediately to act to remove the words ``under God'' from the 
Pledge.
  Well, now, in our juris prudence in America you cannot do that. The 
courts cannot do that. The President is not an appropriate defendant in 
an action challenging the constitutionality of a Federal statute. 
Period. And in light of the speech and debate clause just as much part 
of the Constitution as is the first amendment, article 1, section 6, 
clause 1: ``The Federal courts lack jurisdiction to issue orders 
directing Congress to enact or amend legislation.''
  The words that the plaintiff in this case is challenging included the 
Pledge of Allegiance were enacted into law by statute by this Congress; 
and therefore, no court may direct this Congress to deleted those words 
any more than it may order the President to take such action. An 
injunction against the President is not in order, and an injunction 
against the Congress is not in order. And that is all that the 
plaintiff was asking for, so there is nothing left of the case. And 
yet, even after acknowledging these things, the Ninth Circuit moved on.
  The Ninth Circuit also just zipped right past the article 3 standing 
question even though that is jurisdictional, even though you must 
address standing in order to have a case to decide at all. And they 
skipped beyond the article 3 holding of the United States Supreme Court 
that ``the psychological consequence presumably produced by observation 
of conduct with which one disagrees is not an injury sufficient to 
confer standing under article 3 even though the disagreement is phrased 
in constitutional terms.''
  That is a holding that the Ninth Circuit Court says is still good 
law, and they just breeze right past that as well.
  Now, Mr. Speaker, we may find after an en banc court of the Ninth 
Circuit takes this case and rewrites it, that these mistakes are 
corrected. We may find even a different result in the case; but at a 
minimum I would expect that if the same result is reached, it will be 
reached in a much more legitimate manner than this.
  But what are we to think in the meantime? The Ninth Circuit is a big 
circuit. It governs a lot of States. My whole State of California, 30 
million people, Nevada, Arizona, Washington, Oregon, Montana, Alaska, 
Hawaii. Public school students in all of these States, what are they to 
do on the anniversary of September 11 next? Do they say the Pledge at 
all? Do they say it the old way? The new way? What are their teachers 
to do and what are their parents to do?
  We do not know because we now find when judges make new law that none 
of us knows really what the law is.
  Some of our constituents are already lighting up the phones saying, 
Congress has got to do something. But the truth is in our system when a 
court throws out an act of Congress on constitutional grounds there is 
nothing to be done about it. The Constitution does indeed trump acts of 
Congress; and the Court, not the Congress is the ultimate arbiter of 
the constitutionality of statutes. Now, I suppose we could reenact it 
in precisely the same way, but that would be something of a tedious, if 
not fatuous, merry-go-round. I do not think that would be serving our 
constituents well.
  I think, rather, we can expect with the leadership of the President 
of the United States and the Attorney General that there will be a 
petition for rehearing en banc in this case, and that the Ninth Circuit 
itself will have a chance to reconsider the enormous impact they are 
having without perhaps giving just that ounce of good judgment that 
would have made the difference if they had taken into consideration 
what the Supreme Court has said about this.
  The only things that the Supreme Court has said about the Pledge, 
albeit in dicta, are exactly the opposite from the result that was 
achieved in this case. The only thing that the Supreme Court has said 
about this question of whether observing something that one does not 
like being the source of injury, runs exactly the opposite way from the 
decision in this case.
  I think if a court normally sets out to avoid constitutional 
questions and decide cases on other simpler grounds, statutory grounds, 
procedural grounds and so on, there were ample ways that

[[Page H4051]]

a court could have handled this Newdow litigation. Newdow was a pro se 
plaintiff. That means he represented himself without a lawyer although 
he has had some legal training apparently. He made a lot of mistakes in 
his pleadings. They were very sloppy. And the court below, even though 
it was lenient, the district court, the trial court, threw out his 
case.
  The Ninth Circuit Court of Appeals came and resuscitated it. They had 
to put a lot of Band-aids on it because procedurally it was in bad 
shape. It took a nearly superhuman effort to put this case up on stilts 
so that we could get the constitutional question for decision. It was 
to all appearances, Mr. Speaker, something of a reach, and I think our 
country deserves better. But we shall see. We shall see how this is 
accepted by the public, what the court itself may do about it.
  But at a time when so many people are working so hard to pay their 
taxes, at a time when the courts are as busy as they are, and most 
middle Americans know if they were to bring a lawsuit it might be 3 to 
5 years before they could get a decision because of the backlog and the 
expense, is it not interesting that the people in San Francisco seem to 
have sufficient time on their hands so to finely perch this question of 
angels on the head of a pin, so that they can reach a constitutional 
question that was not procedurally put to them in a way that required 
its decision?
  I think laying out a case in this way, Mr. Speaker, will it better 
inform the debate? And that while I recognize with 435 Members in the 
House we might have some diversity of opinion about the case, even here 
it is bound to occupy the minds of our constituents for some time to 
come.
  I appreciate the indulgence of the Chamber in considering it at first 
blush because the opinion was just issued today, this evening.

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