[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.
____________________