[House Report 107-659]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-659
======================================================================
 
  TO REAFFIRM THE REFERENCE TO ONE NATION UNDER GOD IN THE PLEDGE OF 
                               ALLEGIANCE

                                _______
                                

 September 17, 2002.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 2690]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (S. 2690) to reaffirm the reference to one Nation under 
God in the Pledge of Allegiance, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................     8
Committee Consideration..........................................     8
Vote of the Committee............................................     8
Committee Oversight Findings.....................................     9
Performance Goals and Objectives.................................     9
New Budget Authority and Tax Expenditures........................     9
Congressional Budget Office Cost Estimate........................     9
Constitutional Authority Statement...............................    10
Section-by-Section Analysis and Discussion.......................    10
Changes in Existing Law Made by the Bill, as Reported............    14
Markup Transcript................................................    14

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. FINDINGS.

    Congress finds the following:
            (1) On November 11, 1620, prior to embarking for the shores 
        of America, the Pilgrims signed the Mayflower Compact that 
        declared: ``Having undertaken, for the Glory of God and the 
        advancement of the Christian Faith and honor of our King and 
        country, a voyage to plant the first colony in the northern 
        parts of Virginia,''.
            (2) On July 4, 1776, America's Founding Fathers, after 
        appealing to the ``Laws of Nature, and of Nature's God'' to 
        justify their separation from Great Britain, then declared: 
        ``We hold these Truths to be self-evident, that all Men are 
        created equal, that they are endowed by their Creator with 
        certain unalienable Rights, that among these are Life, Liberty, 
        and the Pursuit of Happiness''.
            (3) In 1781, Thomas Jefferson, the author of the 
        Declaration of Independence and later the Nation's third 
        President, in his work titled ``Notes on the State of 
        Virginia'' wrote: ``God who gave us life gave us liberty. And 
        can the liberties of a nation be thought secure when we have 
        removed their only firm basis, a conviction in the minds of the 
        people that these liberties are of the Gift of God. That they 
        are not to be violated but with His wrath? Indeed, I tremble 
        for my country when I reflect that God is just; that his 
        justice cannot sleep forever.''.
            (4) On May 14, 1787, George Washington, as President of the 
        Constitutional Convention, rose to admonish and exhort the 
        delegates and declared: ``If to please the people we offer what 
        we ourselves disapprove, how can we afterward defend our work? 
        Let us raise a standard to which the wise and the honest can 
        repair; the event is in the hand of God!''.
            (5) On July 21, 1789, on the same day that it approved the 
        Establishment Clause concerning religion, the First Congress of 
        the United States also passed the Northwest Ordinance, 
        providing for a territorial government for lands northwest of 
        the Ohio River, which declared: ``Religion, morality, and 
        knowledge, being necessary to good government and the happiness 
        of mankind, schools and the means of education shall forever be 
        encouraged.''.
            (6) On September 25, 1789, the First Congress unanimously 
        approved a resolution calling on President George Washington to 
        proclaim a National Day of Thanksgiving for the people of the 
        United States by declaring, ``a day of public thanksgiving and 
        prayer, to be observed by acknowledging, with grateful hearts, 
        the many signal favors of Almighty God, especially by affording 
        them an opportunity peaceably to establish a constitution of 
        government for their safety and happiness.''.
            (7) On November 19, 1863, President Abraham Lincoln 
        delivered his Gettysburg Address on the site of the battle and 
        declared: ``It is rather for us to be here dedicated to the 
        great task remaining before us--that from these honored dead we 
        take increased devotion to that cause for which they gave the 
        last full measure of devotion--that we here highly resolve that 
        these dead shall not have died in vain--that this Nation, under 
        God, shall have a new birth of freedom--and that Government of 
        the people, by the people, for the people, shall not perish 
        from the earth.''.
            (8) On April 28, 1952, in the decision of the Supreme Court 
        of the United States in Zorach v. Clauson, 343 U.S. 306 (1952), 
        in which school children were allowed to be excused from public 
        schools for religious observances and education, Justice 
        William O. Douglas, in writing for the Court stated: ``The 
        First Amendment, however, does not say that in every and all 
        respects there shall be a separation of Church and State. 
        Rather, it studiously defines the manner, the specific ways, in 
        which there shall be no concern or union or dependency one on 
        the other. That is the common sense of the matter. Otherwise 
        the State and religion would be aliens to each other--hostile, 
        suspicious, and even unfriendly. Churches could not be required 
        to pay even property taxes. Municipalities would not be 
        permitted to render police or fire protection to religious 
        groups. Policemen who helped parishioners into their places of 
        worship would violate the Constitution. Prayers in our 
        legislative halls; the appeals to the Almighty in the messages 
        of the Chief Executive; the proclamations making Thanksgiving 
        Day a holiday; `so help me God' in our courtroom oaths--these 
        and all other references to the Almighty that run through our 
        laws, our public rituals, our ceremonies would be flouting the 
        First Amendment. A fastidious atheist or agnostic could even 
        object to the supplication with which the Court opens each 
        session: `God save the United States and this Honorable Court.' 
        ''.
            (9) On June 15, 1954, Congress passed and President 
        Eisenhower signed into law a statute that was clearly 
        consistent with the text and intent of the Constitution of the 
        united States, that amended the Pledge of Allegiance to read: 
        ``I pledge allegiance to the Flag of the United States of 
        America and to the Republic for which it stands, one Nation 
        under God, indivisible, with liberty and justice for all.'';
            (10) On July 20, 1956, Congress proclaimed that the 
        national motto of the United States is ``In God We Trust'', and 
        that motto is inscribed above the main door of the Senate, 
        behind the Chair of the Speaker of the House of 
        Representatives, and on the currency of the United States.
            (11) On June 17, 1963, in the decision of the Supreme Court 
        of the United States in Abington School District v. Schempp, 
        374 U.S. 203 (1963), in which compulsory school prayer was held 
        unconstitutional, Justices Goldberg and Harlan, concurring in 
        the decision, stated: ``But untutored devotion to the concept 
        of neutrality can lead to invocation or approval of results 
        which partake not simply of that noninterference and 
        noninvolvement with the religious which the Constitution 
        commands, but of a brooding and pervasive devotion to the 
        secular and a passive, or even active, hostility to the 
        religious. Such results are not only not compelled by the 
        Constitution, but, it seems to me, are prohibited by it. 
        Neither government nor this Court can or should ignore the 
        significance of the fact that a vast portion of our people 
        believe in and worship God and that many of our legal, 
        political, and personal values derive historically from 
        religious teachings. Government must inevitably take cognizance 
        of the existence of religion and, indeed, under certain 
        circumstances the First Amendment may require that it do so.''.
            (12) On March 5, 1984, in the decision of the Supreme Court 
        of the United States in Lynch v. Donelly, 465 U.S. 668 (1984), 
        in which a city government's display of a nativity scene was 
        held to be constitutional, Chief Justice Burger, writing for 
        the Court, stated: ``There is an unbroken history of official 
        acknowledgment by all three branches of government of the role 
        of religion in American life from at least 1789 . . . 
        [E]xamples of reference to our religious heritage are found in 
        the statutorily prescribed national motto `In God We Trust' (36 
        U.S.C. 186), which Congress and the President mandated for our 
        currency, see (31 U.S.C. 5112(d)(1) (1982 ed.)), and in the 
        language `One Nation under God', as part of the Pledge of 
        Allegiance to the American flag. That pledge is recited by many 
        thousands of public school children--and adults--every year . . 
        . Art galleries supported by public revenues display religious 
        paintings of the 15th and 16th centuries, predominantly 
        inspired by one religious faith. The National Gallery in 
        Washington, maintained with Government support, for example, 
        has long exhibited masterpieces with religious messages, 
        notably the Last Supper, and paintings depicting the Birth of 
        Christ, the Crucifixion, and the Resurrection, among many 
        others with explicit Christian themes and messages. The very 
        chamber in which oral arguments on this case were heard is 
        decorated with a notable and permanent--not seasonal--symbol of 
        religion: Moses with the Ten Commandments. Congress has long 
        provided chapels in the Capitol for religious worship and 
        meditation.''.
            (13) On June 4, 1985, in the decision of the Supreme Court 
        of the United States in Wallace v. Jaffree, 472 U.S. 38 (1985), 
        in which a mandatory moment of silence to be used for 
        meditation or voluntary prayer was held unconstitutional, 
        Justice O'Connor, concurring in the judgment and addressing the 
        contention that the Court's holding would render the Pledge of 
        Allegiance unconstitutional because Congress amended it in 1954 
        to add the words ``under God,'' stated ``In my view, the words 
        `under God' in the Pledge, as codified at (36 U.S.C. 172), 
        serve as an acknowledgment of religion with `the legitimate 
        secular purposes of solemnizing public occasions, [and] 
        expressing confidence in the future.' ''.
            (14) On November 20, 1992, the United States Court of 
        Appeals for the 7th Circuit, in Sherman v. Community 
        Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), 
        held that a school district's policy for voluntary recitation 
        of the Pledge of Allegiance including the words ``under God'' 
        was constitutional.
            (15) The 9th Circuit Court of Appeals erroneously held, in 
        Newdow v. U.S. Congress, (9th Cir. June 26, 2002) that the 
        Pledge of Allegiance's use of the express religious reference 
        ``under God'' violates the First Amendment to the Constitution, 
        and that, therefore, a school district's policy and practice of 
        teacher-led voluntary recitations of the Pledge of Allegiance 
        is unconstitutional.
            (16) The erroneous rationale of the 9th Circuit Court of 
        Appeals in Newdow would lead to the absurd result that the 
        Constitution's use of the express religious reference ``Year of 
        our Lord'' in Article VII violates the First Amendment to the 
        Constitution, and that, therefore, a school district's policy 
        and practice of teacher-led voluntary recitations of the 
        Constitution itself would be unconstitutional.

SEC. 2. ONE NATION UNDER GOD.

    (a) Reaffirmation.--Section 4 of title 4, United States Code, is 
amended to read as follows:

``Sec. 4. Pledge of allegiance to the flag; manner of delivery

    ``The Pledge of Allegiance to the Flag: `I pledge allegiance to the 
Flag of the United States of America, and to the Republic for which it 
stands, one Nation under God, indivisible, with liberty and justice for 
all.', should be rendered by standing at attention facing the flag with 
the right hand over the heart. When not in uniform men should remove 
any non-religious headdress with their right hand and hold it at the 
left shoulder, the hand being over the heart. Persons in uniform should 
remain silent, face the flag, and render the military salute.''.
    (b) Codification.--In codifying this subsection, the Office of the 
Law Revision Counsel shall show in the historical and statutory notes 
that the 107th Congress reaffirmed the exact language that has appeared 
in the Pledge for decades.

SEC. 3. REAFFIRMING THAT GOD REMAINS IN OUR MOTTO.

    (a) Reaffirmation.--Section 302 of title 36, United States Code, is 
amended to read as follows:

``Sec. 302. National motto

    `` `In God we trust' is the national motto.''.
    (b) Codification.--In codifying this subsection, the Office of the 
Law Revision Counsel shall make no change in section 302, title 36, 
United States Code, but shall show in the historical and statutory 
notes that the 107th Congress reaffirmed the exact language that has 
appeared in the Motto for decades.

                          Purpose and Summary

    The purpose of S. 2690, introduced and passed by the Senate 
on June 27, 2002, by a vote of 99-0, is to reaffirm Congress' 
commitment to the Pledge of Allegiance and our national motto, 
``In God we trust.''

                Background and Need for the Legislation

    It is an accepted legal principle that government 
acknowledgment of the religious heritage of the United States 
of America is consistent with the meaning of the Establishment 
Clause of the First Amendment to the U.S. Constitution. Indeed, 
although there has been much legal uncertainty throughout the 
last half century regarding the parameters of the Establishment 
Clause, the United States Supreme Court has repeatedly affirmed 
that government acknowledgment of our Nation's religious 
heritage is entirely consistent with, and in fact may in some 
circumstances be required by, the Establishment Clause. Yet, on 
June 26, 2002, a three member panel of the United States Court 
of Appeals for the Ninth Circuit held unconstitutional, in 
Newdow v. U.S. Congress, a California school district's policy 
and practice of teacher-led voluntary recitation of the Pledge 
of Allegiance, concluding that the use of the phrase ``one 
Nation under God'' violates the Establishment Clause of the 
First Amendment.\1\
---------------------------------------------------------------------------
    \1\ 292 F.3d 597 (9th Cir. 2002).
---------------------------------------------------------------------------
    Writing for the 2-1 majority, Circuit Judge Alfred T. 
Goodwin stated that the Pledge of Allegiance is an 
unconstitutional endorsement of religion, that ``impermissibly 
takes a position with respect to the purely religious question 
of the existence and identity of God,'' and places children in 
the ``untenable position of choosing between participating in 
an exercise with religious content or protesting.'' \2\
---------------------------------------------------------------------------
    \2\ See id. at 609.
---------------------------------------------------------------------------
    Yet, this conclusion is contrary to the vast weight of U.S. 
Supreme Court authority recognizing that the mere mention of 
God in a public setting is entirely consistent with the First 
Amendment's Establishment Clause. The Pledge of Allegiance is 
not a religious service or prayer, but is a statement of 
historical beliefs. It is a recognition of the fact that many 
Americans believe in God, and it acknowledges the value that 
our culture has traditionally placed on the role of religion in 
our founding and our culture. Thus, the Supreme Court has 
recognized that governmental entities may, consistent with the 
First Amendment, recognize the religious heritage of America. 
Although the United States Congress recognizes the right of 
those who do not share the beliefs expressed in the Pledge to 
refrain from its recitation, the Newdow ruling is troubling 
from a jurisprudential standpoint because its analysis appears 
to reflect the belief that any religious reference presents an 
inherent danger to individuals who hear it, the result of which 
would be the banishment of all such references from the public 
arena. Clearly, this is inconsistent with any reasonable 
interpretation of the Establishment Clause of the First 
Amendment.
    Immediately following the Newdow ruling on June 27, 2002, 
the House of Representatives passed H. Res. 459, introduced by 
Judiciary Committee Chairman F. James Sensenbrenner, Jr. 
expressing the sense of the House of Representatives that the 
Newdow case was erroneously decided by the Ninth Circuit and 
that the court should agree to hear the ruling en banc. H. Res. 
459 passed the House of Representatives by a 416-3 vote. By 
passing S. 2690, the House of Representatives will join the 
Senate in reaffirming its commitment to our Nation's pledge of 
allegiance as ``one Nation under God'' and our Nation's motto, 
``In God we trust.''
Historical References to and Acknowledgment of America's Religious 
        Heritage
    Our Nation's history of civic and political discourse is 
sprinkled with extensive references to God. On November 11, 
1620, prior to embarking for the shores of America, the 
Pilgrims signed the Mayflower Compact that declared, ``Having 
undertaken, for the Glory of God and the advancement of the 
Christian Faith and honor of our King and country, a voyage to 
plant the first colony in the northern parts of Virginia.'' On 
July 4, 1776, America's Founding Fathers, after appealing to 
the ``Laws of Nature, and of Nature's God'' to justify their 
separation from Great Britain, then declared, ``We hold these 
Truths to be self-evident, that all Men are created equal, that 
they are endowed by their Creator with certain unalienable 
Rights, that among these are Life, Liberty, and the Pursuit of 
Happiness.''
    In 1781, Thomas Jefferson, the author of the Declaration of 
Independence and later the Nation's third President, in his 
work titled ``Notes on the State of Virginia'' wrote, ``God who 
gave us life gave us liberty. And can the liberties of a nation 
be thought secure when we have removed their only firm basis, a 
conviction in the minds of the people that these liberties are 
of the Gift of God. That they are not to be violated but with 
His wrath? Indeed, I tremble for my country when I reflect that 
God is just; that his justice cannot sleep forever.'' On May 
14, 1787, George Washington, as President of the Constitutional 
Convention, rose to admonish and exhort the delegates and 
declared, ``If to please the people we offer what we ourselves 
disapprove, how can we afterward defend our work? Let us raise 
a standard to which the wise and the honest can repair; the 
event is in the hand of God!''
    On July 21, 1789, on the same day that it approved the 
Establishment Clause concerning religion, the First Congress of 
the United States also passed the Northwest Ordinance, 
providing for a territorial government for lands northwest of 
the Ohio River, which declared, ``Religion, morality, and 
knowledge, being necessary to good government and the happiness 
of mankind, schools and the means of education shall forever be 
encouraged.'' On September 25, 1789, the First Congress 
unanimously approved a resolution calling on President George 
Washington to proclaim a National Day of Thanksgiving for the 
people of the United States by declaring, ``a day of public 
thanksgiving and prayer, to be observed by acknowledging, with 
grateful hearts, the many favors of Almighty God, especially by 
affording them an opportunity peaceably to establish a 
constitution of government for their safety and happiness.''
    On November 19, 1863, President Abraham Lincoln delivered 
his Gettysburg Address on the site of the battle and declared, 
``It is rather for us to be here dedicated to the great task 
remaining before us--that from these honored dead we take 
increased devotion to that cause for which they gave the last 
full measure of devotion--that we here highly resolve that 
these dead shall not have died in vain--that this Nation, under 
God, shall have a new birth of freedom--and that Government of 
the people, by the people, for the people, shall not perish 
from the earth.''
    On April 28, 1952, in the decision of the Supreme Court of 
the United States in Zorach v. Clauson,\3\ in which school 
children were allowed to be excused from public schools for 
religious observances and education, Justice William O. 
Douglas, in writing for the Court, stated:
---------------------------------------------------------------------------
    \3\ 343 U.S. 306 (1952).

        The First Amendment, however, does not say that in 
        every and all respects there shall be a separation of 
        Church and State. Rather, it studiously defines the 
        manner, the specific ways, in which there shall be no 
        concern or union or dependency one on the other. That 
        is the common sense of the matter. Otherwise the State 
        and religion would be aliens to each other--hostile, 
        suspicious, and even unfriendly. Churches could not be 
        required to pay even property taxes. Municipalities 
        would not be permitted to render police or fire 
        protection to religious groups. Policemen who helped 
        parishioners into their places of worship would violate 
        the Constitution. Prayers in our legislative halls; the 
        appeals to the Almighty in the messages of the Chief 
        Executive; the proclamations making Thanksgiving Day a 
        holiday; ``so help me God'' in our courtroom oaths--
        these and all other references to the Almighty that run 
        through our laws, our public rituals, our ceremonies 
        would be flouting the First Amendment. A fastidious 
        atheist or agnostic could even object to the 
        supplication with which the Court opens each session: 
        ``God save the United States and this Honorable 
        Court.'' \4\
---------------------------------------------------------------------------
    \4\ Id. at 312.

    On June 15, 1954, Congress passed, and President Eisenhower 
signed into law a statute, that was clearly consistent with the 
text and intent of the Constitution of the United States, that 
amended the Pledge of Allegiance to read, ``I pledge allegiance 
to the Flag of the United States of America and to the Republic 
for which it stands, one Nation under God, indivisible, with 
liberty and justice for all.'' On July 20, 1956, Congress 
proclaimed that the national motto of the United States is ``In 
God We Trust,'' and that motto is inscribed above the main door 
of the Senate, behind the Chair of the Speaker of the House of 
Representatives, and on the currency of the United States.
    On June 17, 1963, in the decision of the Supreme Court of 
the United States in Abington School District v. Schempp,\5\ in 
which compulsory school prayer was held unconstitutional, 
Justices Goldberg and Harlan, concurring in the decision, 
stated:
---------------------------------------------------------------------------
    \5\ 374 U.S. 203 (1963).

        But untutored devotion to the concept of neutrality can 
        lead to invocation or approval of results which partake 
        not simply of that noninterference and noninvolvement 
        with the religious which the Constitution commands, but 
        of a brooding and pervasive devotion to the secular and 
        a passive, or even active, hostility to the religious. 
        Such results are not only not compelled by the 
        Constitution, but, it seems to me, are prohibited by 
        it. Neither government nor this Court can or should 
        ignore the significance of the fact that a vast portion 
        of our people believe in and worship God and that many 
        of our legal, political, and personal values derive 
        historically from religious teachings. Government must 
        inevitably take cognizance of the existence of religion 
        and, indeed, under certain circumstances the First 
        Amendment may require that it do so.\6\
---------------------------------------------------------------------------
    \6\ Id. at 306 (Goldberg, J., concurring).

    On March 5, 1984, in the decision of the Supreme Court of 
the United States in Lynch v. Donelly,\7\ in which a city 
government's display of a nativity scene was held to be 
constitutional, Chief Justice Burger, writing for the Court, 
stated:
---------------------------------------------------------------------------
    \7\ 465 U.S. 668 (1984).

        There is an unbroken history of official acknowledgment 
        by all three branches of government of the role of 
        religion in American life from at least 1789. . . . 
        [E]xamples of reference to our religious heritage are 
        found in the statutorily prescribed national motto ``In 
        God We Trust,'' which Congress and the President 
        mandated for our currency,\8\ and in the language ``One 
        Nation under God,'' as part of the Pledge of Allegiance 
        to the American flag. That pledge is recited by many 
        thousands of public school children--and adults--every 
        year. . . . Art galleries supported by public revenues 
        display religious paintings of the 15th and 16th 
        centuries, predominantly inspired by one religious 
        faith. The National Gallery in Washington, maintained 
        with Government support, for example, has long 
        exhibited masterpieces with religious messages, notably 
        the Last Supper, and paintings depicting the Birth of 
        Christ, the Crucifixion, and the Resurrection, among 
        many others with explicit Christian themes and 
        messages. The very chamber in which oral arguments on 
        this case were heard is decorated with a notable and 
        permanent--not seasonal--symbol of religion: Moses with 
        the Ten Commandments. Congress has long provided 
        chapels in the Capitol for religious worship and 
        meditation.\9\
---------------------------------------------------------------------------
    \8\ See 31 U.S.C. 5112(d)(1) (1982).
    \9\ 465 U.S. at 674.

    On June 4, 1985, in the decision of the Supreme Court of 
the United States in Wallace v. Jaffree,\10\ in which a 
mandatory moment of silence to be used for meditation or 
voluntary prayer was held unconstitutional, Justice O'Connor, 
concurring in the judgment and addressing the contention that 
the Court's holding would render the Pledge of Allegiance 
unconstitutional because Congress amended it in 1954 to add the 
words ``under God,'' stated, ``In my view, the words `under 
God' in the Pledge, as codified at 36 U.S.C. 172, serve as an 
acknowledgment of religion with the legitimate secular purposes 
of solemnizing public occasions, [and] expressing confidence in 
the future.'' \11\ On November 20, 1992, the United States 
Court of Appeals for the 7th Circuit, in Sherman v. Community 
Consolidated School District 21,\12\ held that a school 
district's policy for voluntary recitation of the Pledge of 
Allegiance including the words ``under God'' was 
constitutional.
---------------------------------------------------------------------------
    \10\ 472 U.S. 38 (1985).
    \11\ Id. at 78 n.15 (O'Connor, J., concurring).
    \12\ 980 F.2d 437 (7th Cir. 1992).
---------------------------------------------------------------------------
    Clearly, America has a rich history of referring to God in 
its political and civic discourse and acknowledging the 
important role faith and religion have played throughout our 
Nation's history. Thus the Ninth Circuit's analysis in the 
Newdow ruling cannot be supported by any reasonable 
interpretation of the Establishment Clause as their holding is 
inconsistent with the meaning given the Establishment Clause 
since America's founding. It is important to note that under 
Pierce v. Underwood, 487 U.S. 552 (1988), Congress, by 
approving S. 2690 which calls for the re-codification of 
section 4 of title 4 of the United States Code, could be 
presumed to have adopted previous interpretations of this 
provision, including the Ninth Circuit Court of Appeals' 
interpretation of section 4 of title 4 of the Unites States 
Code in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002). 
The Committee wishes to make clear that it is not the intent of 
Congress to adopt any previous judicial interpretations of this 
provision, particularly that given to it by the Ninth Circuit 
in the Newdow ruling.

                                Hearings

    No hearings were held on S. 2690.

                        Committee Consideration

    On September, 10, 2002, the Committee met in open session 
and ordered favorably reported the bill S. 2690, with 
amendment, by voice vote, a quorum being present.

                         Vote of the Committee

    1. Mr. Nadler and Mr. Scott offered an amendment to S. 2690 
to clarify that section 4 of title 4's requirement that men, 
who are not in uniform, ``remove their headdress with their 
right hand and hold it at the left shoulder, the hand being 
over the heart'' prior to reciting the pledge only applies to a 
``non-religious'' headdress. The amendment was agreed to by a 
voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    S. 2690 does not authorize funding. Therefore, clause 3(c) 
of rule XII of the Rules of the House of Representatives is 
inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, S. 2690, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 12, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2690, an act to 
reaffirm the reference to one Nation under God in the Pledge of 
Allegiance.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
S. 2690--An act to reaffirm the reference to one Nation under God in 
        the Pledge of Allegiance.
    S. 2690 would reaffirm the current language of the Pledge 
of Allegiance to the Flag and the national motto. CBO estimates 
that enacting this legislation would result in no cost to the 
Federal Government. Because S. 2690 would not affect direct 
spending or receipts, pay-as-you-go procedures would not apply. 
The act contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact is Matthew Pickford, who can be 
reached at 226-2860. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, clause 18 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    S. 2690 reaffirms the reference to one Nation under God in 
the Pledge of Allegiance.
    Section 1. Findings. In paragraph (1) Congress finds that 
on November 11, 1620, prior to embarking for the shores of 
America, the Pilgrims signed the Mayflower Compact that 
declared, ``Having undertaken, for the Glory of God and the 
advancement of the Christian Faith and honor of our King and 
country, a voyage to plant the first colony in the northern 
parts of Virginia.''
    In paragraph (2) Congress finds that on July 4, 1776, 
America's Founding Fathers, after appealing to the ``Laws of 
Nature, and of Nature's God'' to justify their separation from 
Great Britain, then declared, ``We hold these Truths to be 
self-evident, that all Men are created equal, that they are 
endowed by their Creator with certain unalienable Rights, that 
among these are Life, Liberty, and the Pursuit of Happiness.''
    In paragraph (3) Congress finds that in 1781, Thomas 
Jefferson, the author of the Declaration of Independence and 
later the Nation's third President, in his work titled ``Notes 
on the State of Virginia'' wrote, ``God who gave us life gave 
us liberty. And can the liberties of a nation be thought secure 
when we have removed their only firm basis, a conviction in the 
minds of the people that these liberties are of the Gift of 
God. That they are not to be violated but with His wrath? 
Indeed, I tremble for my country when I reflect that God is 
just; that his justice cannot sleep forever.''
    In paragraph (4) Congress finds that on May 14, 1787, 
George Washington, as President of the Constitutional 
Convention, rose to admonish and exhort the delegates and 
declared, ``If to please the people we offer what we ourselves 
disapprove, how can we afterward defend our work? Let us raise 
a standard to which the wise and the honest can repair; the 
event is in the hand of God!''
    In paragraph (5) Congress finds that on July 21, 1789, on 
the same day that it approved the Establishment Clause 
concerning religion, the First Congress of the United States 
also passed the Northwest Ordinance, providing for a 
territorial government for lands northwest of the Ohio River, 
which declared, ``Religion, morality, and knowledge, being 
necessary to good government and the happiness of mankind, 
schools and the means of education shall forever be 
encouraged.''
    In paragraph (6) Congress finds that on September 25, 1789, 
the First Congress unanimously approved a resolution calling on 
President George Washington to proclaim a National Day of 
Thanksgiving for the people of the United States by declaring, 
``a day of public thanksgiving and prayer, to be observed by 
acknowledging, with grateful hearts, the many favors of 
Almighty God, especially by affording them an opportunity 
peaceably to establish a constitution of government for their 
safety and happiness.''
    In paragraph (7) Congress finds that on November 19, 1863, 
President Abraham Lincoln delivered his Gettysburg Address on 
the site of the battle and declared, ``It is rather for us to 
be here dedicated to the great task remaining before us--that 
from these honored dead we take increased devotion to that 
cause for which they gave the last full measure of devotion--
that we here highly resolve that these dead shall not have died 
in vain--that this Nation, under God, shall have a new birth of 
freedom--and that Government of the people, by the people, for 
the people, shall not perish from the earth.''
    In paragraph (8) Congress finds that on April 28, 1952, in 
the decision of the Supreme Court of the United States in 
Zorach v. Clauson,\13\ in which school children were allowed to 
be excused from public schools for religious observances and 
education, Justice William O. Douglas, in writing for the Court 
stated: ``The First Amendment, however, does not say that in 
every and all respects there shall be a separation of Church 
and State. Rather, it studiously defines the manner, the 
specific ways, in which there shall be no concern or union or 
dependency one on the other. That is the common sense of the 
matter. Otherwise the State and religion would be aliens to 
each other--hostile, suspicious, and even unfriendly. Churches 
could not be required to pay even property taxes. 
Municipalities would not be permitted to render police or fire 
protection to religious groups. Policemen who helped 
parishioners into their places of worship would violate the 
Constitution. Prayers in our legislative halls; the appeals to 
the Almighty in the messages of the Chief Executive; the 
proclamations making Thanksgiving Day a holiday; `so help me 
God' in our courtroom oaths--these and all other references to 
the Almighty that run through our laws, our public rituals, our 
ceremonies would be flouting the First Amendment. A fastidious 
atheist or agnostic could even object to the supplication with 
which the Court opens each session: `God save the United States 
and this Honorable Court.' '' \14\
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    \13\ 343 U.S. 306 (1952).
    \14\ Id. at 312.
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    In paragraph (9) Congress finds that on June 15, 1954, 
Congress passed, and President Eisenhower signed into law a 
statute, that was clearly consistent with the text and intent 
of the Constitution of the United States, that amended the 
Pledge of Allegiance to read, ``I pledge allegiance to the Flag 
of the United States of America and to the Republic for which 
it stands, one Nation under God, indivisible, with liberty and 
justice for all.''
    In paragraph (10) Congress finds that on July 20, 1956, 
Congress proclaimed that the national motto of the United 
States is ``In God We Trust,'' and that motto is inscribed 
above the main door of the Senate, behind the Chair of the 
Speaker of the House of Representatives, and on the currency of 
the United States.
    In paragraph (11) Congress finds that on June 17, 1963, in 
the decision of the Supreme Court of the United States in 
Abington School District v. Schempp,\15\ in which compulsory 
school prayer was held unconstitutional, Justices Goldberg and 
Harlan, concurring in the decision, stated: ``But untutored 
devotion to the concept of neutrality can lead to invocation or 
approval of results which partake not simply of that 
noninterference and noninvolvement with the religious which the 
Constitution commands, but of a brooding and pervasive devotion 
to the secular and a passive, or even active, hostility to the 
religious. Such results are not only not compelled by the 
Constitution, but, it seems to me, are prohibited by it. 
Neither government nor this Court can or should ignore the 
significance of the fact that a vast portion of our people 
believe in and worship God and that many of our legal, 
political, and personal values derive historically from 
religious teachings. Government must inevitably take cognizance 
of the existence of religion and, indeed, under certain 
circumstances the First Amendment may require that it do so.'' 
\16\
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    \15\ 374 U.S. 203 (1963).
    \16\ Id. at 306 (Goldberg, J., concurring).
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    In paragraph (12) Congress finds that on March 5, 1984, in 
the decision of the Supreme Court of the United States in Lynch 
v. Donelly,\17\ in which a city government's display of a 
nativity scene was held to be constitutional, Chief Justice 
Burger, writing for the Court, stated: ``There is an unbroken 
history of official acknowledgment by all three branches of 
government of the role of religion in American life from at 
least 1789. . . . [E]xamples of reference to our religious 
heritage are found in the statutorily prescribed national motto 
`In God We Trust,' which Congress and the President mandated 
for our currency,\18\ and in the language `One Nation under 
God,' as part of the Pledge of Allegiance to the American flag. 
That pledge is recited by many thousands of public school 
children--and adults--every year. . . . Art galleries supported 
by public revenues display religious paintings of the 15th and 
16th centuries, predominantly inspired by one religious faith. 
The National Gallery in Washington, maintained with Government 
support, for example, has long exhibited masterpieces with 
religious messages, notably the Last Supper, and paintings 
depicting the Birth of Christ, the Crucifixion, and the 
Resurrection, among many others with explicit Christian themes 
and messages. The very chamber in which oral arguments on this 
case were heard is decorated with a notable and permanent--not 
seasonal--symbol of religion: Moses with the Ten Commandments. 
Congress has long provided chapels in the Capitol for religious 
worship and meditation.'' \19\
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    \17\ 465 U.S. 668 (1984).
    \18\ See 31 U.S.C. 5112(d)(1) (1982).
    \19\ 465 U.S. at 674.
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    In paragraph (13) Congress finds that on June 4, 1985, in 
the decision of the Supreme Court of the United States in 
Wallace v. Jaffree,\20\ in which a mandatory moment of silence 
to be used for meditation or voluntary prayer was held 
unconstitutional, Justice O'Connor, concurring in the judgment 
and addressing the contention that the Court's holding would 
render the Pledge of Allegiance unconstitutional because 
Congress amended it in 1954 to add the words ``under God,'' 
stated, ``In my view, the words `under God' in the Pledge, as 
codified at 36 U.S.C. 172, serve as an acknowledgment of 
religion with the legitimate secular purposes of solemnizing 
public occasions, [and] expressing confidence in the future.'' 
\21\
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    \20\ 472 U.S. 38 (1985).
    \21\ Id. at 78 n.15 (O'Connor, J., concurring).
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    In paragraph (14) Congress finds that on November 20, 1992, 
the United States Court of Appeals for the 7th Circuit, in 
Sherman v. Community Consolidated School District 21,\22\ held 
that a school district's policy for voluntary recitation of the 
Pledge of Allegiance including the words ``under God'' was 
constitutional.
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    \22\ 980 F.2d 437 (7th Cir. 1992).
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    In paragraph (15) Congress finds that the 9th Circuit Court 
of Appeals erroneously held, in Newdow v. U.S. Congress,\23\ 
that the Pledge of Allegiance's use of the express religious 
reference ``under God'' violates the First Amendment to the 
Constitution, and that, therefore, a school district's policy 
and practice of teacher-led voluntary recitations of the Pledge 
of Allegiance is unconstitutional.
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    \23\ 292 F.3d 597 (9th Cir. 2002).
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    In paragraph (16) Congress finds that the erroneous 
rationale of the 9th Circuit Court of Appeals in Newdow would 
lead to the absurg result that the Constitution's use of the 
express religious reference ``Year of our Lord'' in Article VII 
violates the First Amendment to the Constitution, and that, 
therefore, a school district's policy and practice of teacher-
led voluntary recitations of the Constitution itself would be 
unconstitutional.
Section 2. One Nation Under God.
    Subsection (a) amends section 4 of title 4, United States 
Code, to read as follows: ``Sec. 4. Pledge of allegiance to the 
flag; manner of delivery
    `The Pledge of Allegiance to the Flag: ``I pledge 
allegiance to the Flag of the United States of America, and to 
the Republic for which it stands, one Nation under God, 
indivisible, with liberty and justice for all.'', should be 
rendered by standing at attention facing the flag with the 
right hand over the heart. When not in uniform men should 
remove any non-religious headdress with their right hand and 
hold it at the left shoulder, the hand being over the heart. 
Persons in uniform should remain silent, face the flag, and 
renders the military salute.' ''.
    Subsection (b) directs that in codifying this subsection, 
the Office of the Law Revision Councel shall make no change in 
section 4, title 4, United States Code, but shall show in the 
historical and statutory notes that the 107th Congress 
reaffirmed the exact language that has appeared in the Pledge 
for decades.
Section 3. Reaffirming That God Remains in our Motto.
    Subsection (a) amends section 302 of title 36, United 
States Code, to read as follows: ``Sec. 302. National motto
    `In God we trust' is the national motto.''.
    Subsection (b) provides that in codifying this subsection, 
the Office of Law Revision Councel shall make no change in 
section 302, title 36, United States Code, but shall show in 
the historical and statutory notes that the 107th Congress 
reaffirmed the exact language that has appeared in the Motto 
for decades.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                SECTION 4 OF TITLE 4, UNITED STATES CODE

Sec. [4. Pledge of allegiance to the flag; manner of delivery

    [The Pledge of Allegiance to the Flag, ``I pledge 
allegiance to the Flag of the United States of America, and to 
the Republic for which it stands, one Nation under God, 
indivisible, with liberty and justice for all.'', should be 
rendered by standing at attention facing the flag with the 
right hand over the heart. When not in uniform men should 
remove their headdress with their right hand and hold it at the 
left shoulder, the hand being over the heart. Persons in 
uniform should remain silent, face the flag, and render the 
military salute.]

Sec. 4. Pledge of allegiance to the flag; manner of delivery

    The Pledge of Allegiance to the Flag: ``I pledge allegiance 
to the Flag of the United States of America, and to the 
Republic for which it stands, one Nation under God, 
indivisible, with liberty and justice for all.'', should be 
rendered by standing at attention facing the flag with the 
right hand over the heart. When not in uniform men should 
remove any non-religious headdress with their right hand and 
hold it at the left shoulder, the hand being over the heart. 
Persons in uniform should remain silent, face the flag, and 
render the military salute.
                              ----------                              


              SECTION 302 OF TITLE 36, UNITED STATES CODE

[Sec. 302. National motto

    [``In God we trust'' is the national motto.]

Sec. 302. National motto

    ``In God we trust'' is the national motto.

                           Markup Transcript



                            BUSINESS MEETING

                      TUESDAY, SEPTEMBER 10, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order, and 
a working quorum is present.
    [Intervening business.]
    Finally, pursuant to notice, I now call up the bill, S. 
2690, a bill to reaffirm the reference to ``One nation under 
God'' in the Pledge of Allegiance for purposes of markup and 
move its favorable recommendation to the House.
    Without objection the bill will be considered as read, open 
for amendment at any point. My lengthy statement talking about 
what a great bill this is will be put in the record, without 
objection. All Members statements may be put in the record at 
this point without objection.
    [The bill, S. 2690, follows:]
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    Chairman Sensenbrenner. Are there amendments? The gentlemen 
from New York.
    Mr. Nadler. Thank you, Mr. Chairman. My lengthy statement 
about how superfluous a bill this will also be placed in the 
record. I have two amendments. I would like to offer them one 
after the other. One is by me and one is by myself and 
Representative Scott. Take up the one by me first.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to S. 2690 offered by Mr. Nadler. On 
Page 9, line 9, omit ``erroneously.'' On Page 9, line 16, omit 
``erroneous.''
    [The amendment follows:]
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    Mr. Nadler. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, I will take less; probably half a 
minute.
    Mr. Chairman, I don't believe it is the business or the 
proper role of Congress to say that a decision of a court is 
erroneous. If we don't like the decision of a court, we can 
pass a bill, we can initiate a constitutional amendment. But I 
don't think it is the business of one branch of Government to 
say that another branch of Government, to say officially--as 
individuals we can say anything we want--but we don't pass 
resolutions saying the President is wrong or the courts are 
wrong.
    Now, the points that are made on Page 9 in findings 15 and 
16 flow just as well if you omit the words ``erroneously'' and 
``erroneous.''
    The 9th Circuit Court of Appeals made the decision saying 
this and the rationale of the court, if followed, would lead to 
the following conclusion. I just don't think we should label a 
court decision erroneous. I don't think it is the business of 
the Congress to characterize a court decision officially as a 
coordinate branch of Government.
    Therefore, the amendment would simply remove the words, 
``erroneously'' and ``erroneous.'' The same points will be made 
in the findings as is made with those words.
    Chairman Sensenbrenner. The question is on the amendment. 
Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    The second amendment?
    Mr. Nadler. I call up the amendment.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to S. 2690 offered by Mr. Nadler and 
Mr. Scott: On Page 10, Line 12, before ``headdress'' a, strike 
``their'' and b----
    [The amendment follows:]
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    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, this amendment deals with the 
provision of existing law that says on how to deal with the 
flag ``When not in uniform, men should remove their headdress 
with their right hand and hold it at their left shoulder, the 
hand being over the heart.''
    This was passed, I think, in a less sensitive era. The fact 
is there are religions which demand that people wear headdress. 
Orthodox Judaism says people have to wear something on their 
heads, whether a hat or a yarmulke. Sikhs have to wear turbans. 
Certain Muslims have to wear other things. So, I just think it 
should say when not in uniform men should remove their non-
religious head
dress.
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Nadler. Yes.
    Chairman Sensenbrenner. I think the gentleman makes a good 
point on this one. I am prepared to accept the amendment.
    Mr. Nadler. I thank the Chairman.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Scott. Mr. Chairman, have you called the question on 
this amendment?
    Chairman Sensenbrenner. Question? Without objection, the 
amendment is agreed to.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I come from a State that has a 
long tradition of supporting religious freedom. In fact, it was 
Thomas Jefferson of Virginia who wrote the Virginia Statute of 
Religious Freedom which preceded the First Amendment to the 
Constitution.
    Today's exercise is certainly gratuitous in that if this is 
a constitutional issue, when the courts have finished with it, 
nothing we can do can change that.
    The court in its dissent said that the Pledge of Allegiance 
should be constitutional because the ``under God'' in the 
Pledge of Allegiance was de minimus. The danger the phrase 
represents to our First Amendment freedoms is picayune at best. 
Our actions today, however, may cause the court to review that 
sentiment because if the Court looks at the importance that we 
have affixed to that phrase because of this legislation, the 
idea that they may consider it de minimus will be less and 
unconstitutional, more.
    Today's action may also cause them to take another look 
because under the Lemon Test the law violates Establishment 
Clause if it has no secular purpose. For example, in cases 
involving a moment of silence in public schools, laws have been 
upheld if the law allows silent prayer as one of many 
activities which can be done in silence, but have stricken laws 
in which a moment of silent prayer is added to an existing 
moment of silence because that law has no secular purpose.
    Because this legislation's sole purpose is religious, not 
secular, the bill is vulnerable to that same constitutional 
attack.
    Mr. Chairman, I want to quote finally the editorial from 
the Christian Century, a nondenominational Protestant weekly 
which said, ``To the extent 'under God' has real religious 
meaning, then it is unconstitutional. The phrase is 
constitutional to the extent that it is religiously innocuous. 
Given that choice, we side with the 9th Circuit. We see no 
need, especially for Christians, to defend hollow references to 
innocuous God.''
    Mr. Chairman, I ask unanimous consent to include for the 
record the entire editorial and the Virginia Statute for 
Religious Freedom.
    Chairman Sensenbrenner. Without objection.
    [The information follows:]
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    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. Mr. Chairman, I strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Mr. Chairman, I rise to support S. 2690. I 
will briefly state my conclusions on this legislation. My 
understanding of the First Amendment argues against and 
prohibits the establishment of religion by this nation.
    I would argue that the re-inclusion of the language or the 
re-emphasis of the language ``One nation under God'' is in fact 
not an establishment of religion and as well still allows those 
who find offense or find that it offends their religious 
practices or their non-religious practices the ability and 
discretion to make the choice of reciting the Pledge of 
Allegiance in its totality, of not reciting it and reciting it 
without such words in it.
    I believe what this legislation simply does is restate 
statutory language and provides the opportunity for choice to 
be made and not in establishment of religion by the nation as 
the First Amendment prohibits.
    I yield back and ask my colleagues to support it, as I know 
they might be doing.
    Chairman Sensenbrenner. The chair notes the presence of a 
reporting quorum. The question is on reporting the bill, S. 
2690 favorably as amended.
    All those in favor will say aye.
    Opposed, no.
    Chairman Sensenbrenner. The ayes appear to have it. The 
ayes have it. The motion to report favorably is adopted. 
Without objection the bill will be reported favorably to the 
House in the form of a single amendment in the nature of a 
substitute incorporating the amendment adopted here today.
    Without objection the Chairman is authorized to move to go 
to conference pursuant to House rules.
    Without objection the staff is directed to make any 
technical and conforming changes.
    All Members will be given 2 days as provided by House rules 
in which to submit additional dissenting supplemental or 
minority views.
    The chair thanks the Members for their patience and their 
indulgence. A lot of people didn't think we would get through 
the agenda. We did and the Committee is adjourned.
    [Whereupon, at 2:52 p.m. the Committee was adjourned.]

                                
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