[Congressional Record (Bound Edition), Volume 148 (2002), Part 9]
[Senate]
[Pages 12046-12047]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   THE PLEDGE OF ALLEGIANCE DECISION

  Mr. THURMOND. Mr. President, I rise today to express my outrage at 
the decision reached by the Ninth Circuit Court of Appeals in Newdow v. 
U.S. Congress, in which a three-judge panel held that schoolchildren's 
recitation of the phrase ``under God'' in the Pledge of Allegiance 
violates the Establishment Clause of the Constitution. This case is the 
result of yet another attempt by the radical left to wipe away public 
references to God, and is an unconscionable act of judicial activism. I 
hope that the Ninth Circuit's decision will ultimately be reversed on 
appeal, allowing reason and common sense to prevail.
  Simply put, there is no support in the law for this ruling, even in 
the Ninth Circuit's own jurisprudence. The phrase ``under God'' in the 
Pledge of Allegiance is very similar to the use of ``In God We Trust'' 
on currency and as the national motto, which has been repeatedly upheld 
by the courts. In Aronow v. United States, the Ninth Circuit Court of 
Appeals ruled that the phrase does not violate the Establishment Clause 
of the Constitution. The court said, ``Its use is of a patriotic or 
ceremonial character and bears no true resemblance to a governmental 
sponsorship of a religious exercise.'' It also said that ``it is quite 
obvious'' that the phrase ``has nothing whatsoever to do with the 
establishment of religion.''
  While the Ninth Circuit is the most relevant here because of 
Wednesday's ruling, other circuit courts have reached the same 
conclusion. The Tenth Circuit explained in Gaylor v. United States that 
the national motto ``through historical usage and ubiquity cannot be 
reasonably understood to convey government approval of religious 
belief.'' In cases such as Lynch v. Donnelly, the Supreme Court has 
indicated its approval of these rulings. Even Justice William Brennan, 
one of the most liberal Supreme Court justices of the modern era and 
one of the most strident advocates for the separation of church and 
state, indicated his support for this view, saying that Americans have 
``simply interwoven the motto so deeply into the fabric of our civil 
polity'' as to eliminate constitutional problems.
  The same reasoning applies to the phrase ``under God'' in the Pledge 
of Allegiance. The use of this phrase simply indicates the important 
role that religion plays in America, but it does not establish a 
religion or endorse a religious belief.
  It is also significant that even when the Supreme Court ruled in 
Engel v. Vitale that organized prayer is unconstitutional in public 
schools, the Court made it clear that the case did not apply to 
patriotic slogans or ceremonial anthems that refer to God. While I have 
always viewed this case as misguided, and have for years introduced a 
constitutional amendment to reverse it, even this case supports the use 
of phrases, such as ``under God'' and ``God Bless America,'' as part of 
our civic vocabulary.
  The fact is that religion is central to our culture and our patriotic 
identity as a nation. As the Supreme Court said in Lynch v. Donnelly, 
there is ``an unbroken history of official acknowledgment by all three 
branches of government of the role of religion in American life.''
  I am pleased my colleagues have denounced this ruling. Throughout the 
history of this great Nation, we have invoked the blessings of God 
without establishing religion. From prayers before legislative assembly 
meetings and invocations before college football games to the national 
motto on our currency, our Constitution has allowed references to God.
  I would also like to say a few words about the Ninth Circuit. Several 
years ago, it was suggested that the Ninth Circuit be broken up. I 
think that it is time to reconsider that proposal. The Supreme Court 
reverses the Ninth Circuit at a much higher rate than other

[[Page 12047]]

circuits, indicating the activist propensities of this circuit. Simply 
put, the Ninth Circuit is out of the mainstream, and the decision in 
Newdow underscores that fact. It is unhealthy for our democracy when 
one circuit routinely refuses to follow the law. During the last six 
years, the Supreme Court has reversed 80-90% of Ninth Circuit cases 
reviewed. While the Supreme Court corrects the Ninth Circuit often, it 
cannot do so on every questionable ruling, and this allows the 
establishment of dangerous precedents.
  I am particularly concerned about Wednesday's ruling because one of 
the judges who joined in the majority opinion was Judge Stephen 
Reinhardt, whose own confirmation process was marked by controversy in 
1980. I served as Ranking Member of the Judiciary Committee at the 
time, and I expressed serious concern over Judge Reinhardt's fitness to 
serve as a Federal judge. He was extremely active in politics and known 
for his very liberal views. Judge Reinhardt's major area of practice 
was labor law, and there was a question as to whether he had sufficient 
experience. His record, in my view, called into question his ability to 
serve as an impartial judge. During his tenure of the Ninth Circuit, 
Judge Reinhardt has been reversed an alarming number of times. He was 
reversed 11 times during the 1996-97 term, and he holds the record for 
unanimous reversals in one term.
  I mention the matter of Judge Reinhardt's controversial past only to 
address his fitness as a Federal judge. This question is legitimate 
because circuit judges make important decisions that affect a lot of 
people. In the Ninth Circuit case, Judge Reinhardt helped create law 
that is dangerous in its precedent and unsound in its reasoning.
  Mr. President, once again I want to state unequivocally that the 
Ninth Circuit made a poor decision in the Newdow case. I hope that this 
decision will alert all Americans to the dangerous judicial activism 
that plagues the Ninth Circuit. Furthermore, I hope that this case is 
reversed on appeal, so that many more generations of schoolchildren 
will proudly learn the Pledge of Allegiance.

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