[Congressional Record Volume 150, Number 117 (Friday, September 24, 2004)]
[Extensions of Remarks]
[Pages E1711-E1712]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     PLEDGE PROTECTION ACT OF 2004

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON-LEE

                                of texas

                    in the house of representatives

                      Thursday, September 9, 2004

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 2028) to 
     amend title 28, United States Code, with respect to the 
     jurisdiction of Federal courts inferior to the Supreme Court 
     over certain cases and controversies involving the Pledge of 
     Allegiance:
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise in strong opposition 
to the Pledge Protection Act of 2003, H.R. 2028. The operative language 
of H.R. 2028 is contained in a single provision--Section 2(a):

     [n]o court created by an Act of Congress shall have any 
     jurisdiction, and the Supreme Court shall have no appellate 
     jurisdiction, to hear or decide any question pertaining to 
     the interpretation of, or the validity under the Constitution 
     of, the Pledge of Allegiance, as defined in section 4 of 
     title 4, or its recitation.

  Mr. Chairman, we have seen this kind of egregious legislation before 
in the context of closing federal court doors to claims related to the 
Defense of Marriage Act. This legislation violates the same principles 
as that did--supreme court and lower federal court jurisprudence; well-
respected legal precedence; the doctrines of the ``separation of 
powers;'' the doctrine of ``judicial review;'' equal rights and equal 
protection; the U.S. Constitution; the intent of the original Framers; 
and others.
  H.R. 2028 would preclude any federal judicial review of any 
constitutional challenge to the Pledge of Allegiance--whether it be in 
the lower federal courts or in the highest Court in the Land, the U.S. 
Supreme Court. Effectively, if passed, this extremely vague legislation 
will relegate all claimants to State courts to review any challenges to 
the Pledge. This possibility will lead to different constitutional 
constructions in each of the 50 states. If one of the purported goals 
of H.R. 2028 is to minimize the amount of cases brought to the federal 
courts and save the court administration's time, this bill fails 
miserably. H.R. 2028 ``dumps'' these claims onto the dockets of the 
State courts which will render different decisions across the board--
clearly bad policy.


                    Judicial Review and Article III

  Article III of the U.S. Constitution vests ``the Judicial Power of 
the United States . . . in one supreme court.'' The laundry list of 
areas which the federal courts have the power to hear and decide under 
Section 2 of Article III, establishes the doctrine of the ``separation 
of powers.''
  For over 50 years, the federal courts have played a central role in 
the interpretation and enforcement of civil rights laws. Bills such as 
H.R. 2028 and H.R. 3313, the Marriage Protection Act--bills to prevent 
the courts from exercising their Article III functions only mask 
discrimination.
  We cannot allow bad legislation such as this to pass in the House. In 
the 1970s, some members of Congress unsuccessfully sought to strip the 
courts of jurisdiction to hear desegregation efforts such as busing, 
which would have perpetuated racial inequality.
  At the height of anti-immigration sentiments in 1996, Congress 
succeeded in enacting immigration laws that stripped federal courts of 
the ability to hear appeals by legal immigrants who sought to challenge 
the harsh deportation laws that were on the books. Some of these laws 
were so extreme that the Supreme Court ultimately weighed in and struck 
them down as unconstitutional. As Ranking Member of the House Judiciary 
Subcommittee on Immigration and Claims, I recognize the importance of 
the Supreme Court's role in ensuring that fundamental fairness remains 
the hallmark of the American legal and judicial system.
  Minority groups enjoy the freedoms that they now enjoy today because 
of the wisdom of the Supreme Court. By passing legislation such as H.R. 
2028 and H.R. 3313, Congress will set a dangerous precedent that will 
leave many Americans vulnerable to discrimination and disparate 
treatment.
  The denial of a federal forum for plaintiffs to vindicate their 
Constitutional rights would preclude a body specifically suited for the 
analysis of federal interests from doing what it has been created to do 
under the Constitution. State courts, which will be the ``last shot'' 
at relief for these plaintiffs, may lack the expertise and independent 
safeguards provided to federal judges under Article III.
  H.R. 2028, as drafted, insulated the Pledge of Allegiance as set 
forth in section 4 of title 4 of the United States Code from 
constitutional challenge in the federal courts.
  However, the statute and the Pledge are subject to change by future 
legislative bodies. This means that if some future Congress decides to 
insert some religiously offensive or discriminatory language in the 
pledge, the matter would be immune to constitutional challenge in the 
federal courts.
  The Jackson-Lee amendment, which I will offer, provides for an 
exception to the bill's preclusion that involves allegations of coerced 
or mandatory recitation of the Pledge of Allegiance, including coercion 
in violation of the First Amendment.
  Closing the doors of the federal courthouse doors to claimants will 
amount to a coercion of individuals to recite the Pledge and its 
reference to God in violation of the holding in West Virginia State 
Board of Education v. Barnette. This case struck down mandatory 
recitation of the Pledge of Allegiance.
  In Barnette, the Supreme Court struck down a West Virginia law that 
mandated schoolchildren to recite the Pledge of Allegiance. Under the 
West Virginia law, religious minorities faced expulsion from school and 
could be subject to prosecution and fined, if convicted

[[Page E1712]]

of violating the statute's provisions. In striking down that statute, 
Justice Jackson wrote for the Court:

       To believe in patriotism will not flourish if patriotic 
     ceremonies are voluntary and spontaneous instead of a 
     compulsory routine is to make an unflattering estimate of the 
     appeal of our institutions to free minds . . . 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.

  This legislation would strip the parents of those children of the 
right to go to court and defend their children's religious liberty. If 
this legislation is passed, schools could expel children for acting 
according to the dictates of their faith and Congress will have slammed 
the courthouse door shut in their faces. When I was a child, I always 
wondered why, when the rest of the class recited the Pledge of 
Allegiance, she always sat quietly. Today, I understand that it was 
because she was of the 7th Day Adventist faith and therefore reciting 
the ``under God'' provision would force her to frustrate her religious 
faith. If H.R. 2028 were law back then, the school administrators could 
have forced her to say the pledge and she would have no recourse in the 
federal courts.
  The Jackson-Lee Amendment protects religious minorities, Mr. 
Chairman.
  Recently, a panel of the U.S. Court of Appeals for the Third Circuit 
held that a Pennsylvania law requiring recitation of the Pledge, even 
when it provided a religious exception, violated the Constitution 
because it violated the free speech of the students.
  In Circle School v. Pappert, the court found that:

       It may be useful to note our belief that most citizens of 
     the United States willingly recite the Pledge of Allegiance 
     and proudly sing the national anthem. But the rights embodied 
     in the Constitution, particularly the First Amendment, 
     protect the minority--those persons who march to their own 
     drummers. It is they who need the protection afforded by the 
     Constitution and it is the responsibility of federal judges 
     to ensure that protection.

  Again, under H.R. 2028, such a coercive speech case could never reach 
the federal courts.


                  due process and separation of powers

  Protecting fundamental due process of the law requires independent 
judicial forums capable of determining federal constitutional rights--
with experience. H.R. 2028 will deprive the federal courts of the 
ability to hear cases involving fundamental free exercise and free 
speech rights of students, parents, religious affiliates, and many 
others. Congressional denial of a federal forum to plaintiffs in a 
specified class of cases would force these plaintiffs out of federal 
courts--which are specifically suited for the vindication of federal 
interests, and into state courts which may be inexperienced and hostile 
to federal claims.
  The Pledge Protection Act threatens to destroy the U.S. Constitution, 
the independence of the federal judiciary, separation of powers, and 
individual rights and protections guaranteed by the Constitution. Mr. 
Chairman, I urge my colleagues to save this country from legal demise 
and defeat the base bill.

                          ____________________