[Congressional Record (Bound Edition), Volume 150 (2004), Part 10]
[Senate]
[Page 12701]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       PLEDGE OF ALLEGIANCE CASE

  Mr. BROWNBACK. Mr. President, I would like to applaud the decision by 
the Supreme Court yesterday dismissing the Pledge of Allegiance Case 
and affirming a student's right to say the pledge with the phrase ``One 
Nation Under God.'' The majority decision concluded that the Court 
lacked jurisdiction over Mr. Newdow's claim of injury since Mr. Newdow 
is merely a noncustodial parent with no decision-making authority over 
his daughter's education.
  The Court, of course, chose to sidestep the larger issue presented by 
the case. If you recall, Mr. President, the Ninth Circuit's stunning 
decision was deeply troubling to many Americans when it was first 
announced in 2000. The Ninth Circuit, unable to legally address the 
issue of relationship between the father and the daughter, simply 
decided that Mr. Newdow had a fundamental right to have his child 
shielded in public school from religious views that differ from his 
own.
  Never mind that such a right has not been articulated before, and 
certainly not within the context of a noncustodial relationship, but 
more importantly, a right of such magnitude has breathtaking 
implications for the future relationship between the Federal judiciary 
and public education. For one thing, any disenchanted parent similarly 
offended by what their children are taught in public schools could run 
to the Federal courts and clog the system with litigation. Mr. Newdow's 
objection to the Pledge of Allegiance is that it supports the 
historical fact that this Nation was founded on a belief in monotheism; 
the Pledge of Allegiance simply reflects that singular and important 
fact about this Nation and about us. As a matter of law, injury of the 
kind alleged by Mr. Newdow must be direct and palpable. Having an 
unorthodox interpretation of historical fact certainly does not rise to 
a level which would confer article III standing.
  But even if we assume that Mr. Newdow had standing, the merits of 
Newdow's case are nonexistent as Chief Justice Rhenquist, O'Connor, and 
Thomas argues in their minority opinion. Recitation of the Pledge of 
allegiance in public schools is fully consistent with and appropriate 
within the context of the establishment clause of the first amendment 
to the United States Constitution. The words of the pledge simply 
convey the conviction held by the Founders of this Nation that our 
freedoms come from God. Congress inserted the phrase ``One Nation Under 
God'' in the Pledge of Allegiance for the express purpose of 
reaffirming America's unique understanding of this truth, and to 
distinguish America from atheistic nations who recognize no higher 
authority than the State. The Ninth Circuit's decision was problematic 
on several fronts.
  Let me point out a few specifics. First, the court ignored the 
distinction that the Supreme Court historically has drawn between 
religious exercises in public schools and patriotic exercises with 
religious references. The Court repeatedly has said that the latter are 
consistent with the establishment clause. The voluntary recitation of 
the Pledge of allegiance is not a coerced religious act, and the Ninth 
Circuit's conclusion to the contrary is insupportable.
  Second, the Ninth Circuit ignored the numerous pronouncements by past 
and present members of the Court that the phrase ``under God'' in the 
Pledge of Allegiance poses no Establishment Clause problems. It is one 
thing to identify isolated dicta with no precedential weight; it is 
something quite different to ignore, as the Ninth Circuit did, 
consistent and numerous statements from the Court's opinions all 
pointing to a single conclusion. The Ninth Circuit's refusal to heed 
the Court's previous statements about the pledge is simply inexcusable 
and is a glaring and continuing example of judicial activism run amok.
  A decision to affirm the Ninth Circuit could have had ramifications 
extending far beyond the recitation of the Pledge of Allegiance in 
public schools. There is no principled means of distinguishing between 
recitation of the pledge, and recitation of passages from other 
historical documents reflecting the same truth. The Declaration of 
Independence and the Gettysburg Address that every student in this 
Nation is familiar with contain the same recognition that the Nation 
was founded upon a belief in God.
  Should we, in a recitation of those seminal speeches, similarly 
delete any references to God? In fact, had the Ninth Circuit's decision 
been allowed to stand, it could have cast doubt about whether a public 
school teacher could require students to memorize portions of either 
one.
  Additionally, much in the world of choral music would become 
constitutionally suspect, if it is performed by public school students. 
If the optional recitation of the Pledge of Allegiance violates the 
establishment clause, what would be the basis by which music teachers 
can have students perform any classical choral pieces with a religious 
message? The phrase ``under God'' in the Pledge of Allegiance is 
descriptive only. In contrast, much in classical choral music is 
explicitly religious. They would, under the Ninth Circuit's decision 
have a greater chance of being rejected.
  In ruling that Michael Newdow could not sue to ban the Pledge of 
Allegiance from his daughter's school and others because he did not 
have legal authority to speak for her, the Court avoided the larger 
question of whether or not recitation of the pledge in a public school 
is an unconstitutional violation of the First Amendment proscription 
against the establishment of religion.
  However, restrictions on religious freedom in the guise of preventing 
the establishment of religion have been eroding our freedoms and 
adversely affecting our culture. This began in 1962 in the Engel v. 
Vitale case, when 39 million students were forbidden to do what they 
and students had been doing since the founding of our Nation, and only 
a year later in the School District of Abington Township v. Schempp, 
the Court held that Bible readings in public schools also violated the 
first amendment's establishment clause. Then 1992, Lee v. Weisman 
removed prayer from graduation exercises, and the 2000 ruling in Santa 
Fe Independent School District v. Doe, prohibited student-initiated, 
student-led prayer at high school football games.
  No legislative body affirmatively adopted any of these restrictions. 
In fact, the people's representatives--at both the Federal and State 
level--did precisely the opposite. For example, when Congress added the 
phase ``under God'' in 1954 to the Pledge of Allegiance, it did so with 
the explicit intention of fostering patriotism and piety. It was done 
to reflect the values of the American people.
  Those values, Mr. President, have not changed. And the Court's ruling 
yesterday simply confirms what the American people have always known: 
acknowledging God in the public square is patriotic, wise, and good. It 
is not in conflict with our founding principles, or with our 
Constitution.

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