[House Report 108-41]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-41
======================================================================
EXPRESSING THE SENSE OF THE HOUSE OF REPRESENTATIVES THAT THE NINTH
CIRCUIT COURT OF APPEALS RULING IN NEWDOW V. UNITED STATES CONGRESS IS
INCONSISTENT WITH THE SUPREME COURT'S INTERPRETATION OF THE FIRST
AMENDMENT AND SHOULD BE OVERTURNED, AND FOR OTHER PURPOSES
_______
March 18, 2003.--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
together with
MINORITY AND ADDITIONAL VIEWS
[To accompany H. Res. 132]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 132) expressing the sense of the House of
Representatives that the Ninth Circuit Court of Appeals ruling
in Newdow v. United States Congress is inconsistent with the
Supreme Court's interpretation of the first amendment and
should be overturned, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the resolution be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 16
Committee Consideration.......................................... 16
Vote of the Committee............................................ 16
Committee Oversight Findings..................................... 17
Performance Goals and Objectives................................. 17
New Budget Authority and Tax Expenditures........................ 17
Committee Cost Estimate.......................................... 17
Constitutional Authority Statement............................... 17
Section-by-Section Analysis and Discussion....................... 17
Markup Transcript................................................ 20
Minority Views................................................... 45
Additional Views................................................. 49
Additional Views................................................. 51
PURPOSE AND SUMMARY
The purpose of H. Res. 132, introduced by Rep. Doug Ose on
March 6, 2003, is to express the sense of the House of
Representatives that the phrase, ``one Nation under God,''
should remain in the Pledge of Allegiance \1\; that the Ninth
Circuit Court of Appeals ruling in Newdow v. U.S. Congress \2\
is inconsistent with the Supreme Court's interpretation of the
First Amendment; that the Attorney General of the United States
should appeal the Ninth Circuit's ruling; and that the
President should nominate, and the Senate confirm, Federal
circuit court judges who will interpret the Constitution
consistent with the Constitution's text. It also encourages
school districts across the Nation to continue reciting the
Pledge daily and praises the Elk Grove, California School
District for its defense of the Pledge of Allegiance against
this constitutional challenge.
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\1\ The Pledge reads, ``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.'' 4
U.S.C. Sec. 4.
\2\ No. 00-16423, 2003 WL 554742, (9th Cir. Feb. 28, 2003) (Newdow
II).
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Background and Need for the Legislation
THE NINTH CIRCUIT'S RULINGS IN NEWDOW V. U.S. CONGRESS
Michael Newdow is an atheist whose daughter attends Elk
Grove Unified School District (``EGUSD'') in California. Under
California's Education Code, public schools are required to
begin each school day with an ``appropriate patriotic
exercise[s].'' \3\ Accordingly, EGUSD instituted a policy under
which `` `[e]ach elementary school class shall recite the
pledge of allegiance to the flag once each day.' '' \4\ Under
these policies, the Pledge of Allegiance was recited at the
start of each school day in EGUSD classrooms, including
Newdow's daughter's class.
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\3\ ``In every public elementary school each day during the school
year at the beginning of the first regularly scheduled class or
activity period at which the majority of the pupils of the school
normally begin the school day, there shall be conducted appropriate
patriotic exercises. The giving of the Pledge of Allegiance to the Flag
of the United States of America shall satisfy the requirements of this
section.'' Cal. Educ. Code Sec. 52720 (1989).
\4\ Newdow II at 14.
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Objecting to this practice, Newdow filed suit, seeking
declaratory and injunctive relief, against the U.S. Congress,
the United States of America, the President, the State of
California, and the EGUSD, challenging the constitutionality of
the 1954 Act amending the Pledge to include the phrase, ``one
Nation under God,'' the California Statute, and the school
district's policy of requiring teachers to lead willing
students in the recitation of the Pledge.\5\ Newdow's suit,
however, did not assert that his daughter was required to
recite the Pledge but, rather, that her First Amendment rights
were violated by her being required to ``watch and listen as
her state-employed teacher in her state-run school leads her
classmates in a ritual proclaiming that there is a God, and
that our's [sic] is `one nation under God.' '' \6\
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\5\ See Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002)
(Newdow I).
\6\ Newdow II at *14.
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The U.S. Congress, the United States, and the President of
the United States joined in the motion to dismiss filed by the
EGUSD. The Federal district court granted this motion to
dismiss, Newdow appealed, and on June 26, 2002, a panel of the
Ninth Circuit, in Newdow I, reversed this dismissal.\7\ As to
Newdow's standing to challenge the recitation of the Pledge,
the panel concluded that Newdow had standing ``as a parent to
challenge a practice that interferes with his right to direct
the religious education of his daughter'' \8\; that he may
challenge the EGUSD's policy and practice regarding the Pledge
because his daughter currently attends one of the school
district's schools \9\; and that he has suffered an `` `injury
in fact' that is `fairly traceable' to the enactment of the
1954 Act.'' \10\
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\7\ See Newdow I. The panel, however, did affirm the district
court's dismissal of the U.S. Congress and the President as parties.
See id. The State of California did not join the motion to dismiss nor
did it otherwise participate in the district court proceedings so the
Newdow I panel declined to address the validity, separately, of the
California Statute. See id. at 602. The panel's decision was not
unanimous. Circuit Judge Goodwin authored the panel's opinion and
Circuit Judge Reinhardt joined in that opinion. Circuit Judge Fernandez
concurred with the panel opinion on the issues of jurisdiction and
standing but dissented from the panel's Establishment Clause holding.
See id. at 612.
\8\ Id. at 602.
\9\ See id. at 603.
\10\ See id. at 605.
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As for its Establishment Clause analysis, the panel held
that the Pledge of Allegiance as currently written to include
the phrase, ``one Nation under God,'' was unconstitutional for
three reasons: the inclusion of ``one Nation under God,''
unconstitutionally endorses religion,\11\ the phrase was added
to the Pledge in 1954 only to advance religion in violation of
the Establishment Clause,\12\ and that the recitation of the
Pledge in public schools at the start of every school day
coerces students who choose not to recite the Pledge into
participating in a religious exercise in violation of the
Establishment Clause of the First Amendment.\13\ The panel also
held the EGUSD's policy of reciting the Pledge unconstitutional
as having the effect of endorsing the existence of a
``monotheistic God.'' \14\ Thus the panel reversed the Federal
district court's dismissal and the case was remanded for
further proceedings.
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\11\ ``In the context of the Pledge, the statement that the United
States is a nation `under God' is an endorsement of religion. It is a
profession of a religious belief, namely, a belief in monotheism. The
recitation that ours is a nation `under God' is not a mere
acknowledgment that many Americans believe in a deity. Nor is it merely
descriptive of the undeniable historical significance of religion in
the founding of the Republic. Rather, the phrase `one nation under God'
in the context of the Pledge is normative. To recite the Pledge is not
to describe the United States; instead, it is to swear allegiance to
the values for which the flag stands: unity, indivisibility, liberty,
justice, and--since 1954--monotheism. The text of the official Pledge,
codified in Federal law, impermissibly takes a position with respect to
the purely religious question of the existence and identity of God.''
Id. at 607.
\12\ ``[T]he legislative history of the 1954 Act reveals that the
Act's sole purpose was to advance religion, in order to differentiate
the United States from nations under communist rule'' and to ``take a
position on the question of theism, namely, to support the existence
and moral authority of God, while `deny[ing] . . . atheistic and
materialistic concepts.' Such a purpose runs counter to the
Establishment Clause, which prohibits the government's endorsement or
advancement not only of one particular religion at the expense of other
religions, but also of religion at the expense of atheism.'' Id. at
610.
\13\ ``[T]he policy and the Act place students in the untenable
position of choosing between participating in an exercise with
religious content or protesting.'' Id. at 608. The panel reasoned that,
``[a]lthough the defendants argue that the religious content of `one
nation under God' is minimal, to an atheist or a believer in certain
non-Judeo-Christian religions or philosophies, it may reasonably appear
to be an attempt to enforce a `religious orthodoxy' of monotheism, and
is therefore impermissible. The coercive effect of this policy is
particularly pronounced in the school setting given the age and
impressionability of schoolchildren, and their understanding that they
are required to adhere to the norms set by their school, their teacher,
and their fellow students. Furthermore, under Lee, the fact that
students are not required to participate is no basis for distinguishing
Barnette from the case at bar because, even without a recitation
requirement for each child, the mere fact that a pupil is required to
listen every day to the statement `one nation under God' has a coercive
effect.'' Id. at 609.
\14\ ``Given the age and impressionability of schoolchildren, as
discussed above, particularly within the confined environment of the
classroom, the policy is highly likely to convey an impermissible
message of endorsement to some and disapproval to others of their
beliefs regarding the existence of a monotheistic God.'' Id. at *611.
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Following its June 2002 ruling, the Ninth Circuit
immediately issued a stay to allow parties to file rehearing
petitions. In August 2002, the defendants filed a petition for
rehearing and a petition for a rehearing en banc. On February
28, 2003, the panel denied these petitions and amended its June
26, 2002, ruling.\15\ In its amended ruling, Newdow II, the
panel held that the EGUSD's policy and practice of opening each
school day with the voluntary recitation of the Pledge
``impermissibly coerces a religious act'' on the part of those
students who choose not to recite the Pledge and thus violates
the [E]stablishment [C]lause of the [F]irst [A]mendment.\16\
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\15\ See Newdow II. There are 24 active judges sitting on the Ninth
Circuit Court of Appeals. The case would have been reheard if a
majority, in this case thirteen, of the active judges voted in favor of
a rehearing. In addition to the panel's amended ruling, including an
amended concurrence and partial dissent from Judge Fernandez, Judge
O'Scannlain issued a dissent from the court's denial of rehearing en
banc in which five judges joined. Judge Reinhardt filed an opinion
concurring in the order.
\16\ ``We are free to apply any or all of the three tests, and to
invalidate any measure that fails any one of them. Because we conclude
that the school district policy impermissibly coerces a religious act
and accordingly hold the policy unconstitutional, we need not consider
whether the policy fails the endorsement test or the Lemon Test as
well.'' Id. at *18.
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Citing to Lee v. Weisman \17\ in which the U.S. Supreme
Court held unconstitutional the practice of public schools
assisting in the composition of a graduation prayer that was
later led by a member of the clergy, the panel in Newdow II
concluded that, ``The school district's policy here, like the
school's action in Lee, places students in the untenable
position of choosing between participating in an exercise with
religious content or protesting.'' \18\ The panel reasoned
that,
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\17\ 505 U.S. 577 (1992).
\18\ Newdow II at *19.
``[t]he coercive effect of the policy here is
particularly pronounced in the school setting given the
age and impressionability of schoolchildren, and their
understanding that they are required to adhere to the
norms set by their school, their teacher and their
fellow students. Furthermore, under Lee, non-compulsory
participation is no basis for distinguishing Barnette
from the case at bar because, even without a recitation
requirement for each child, the mere presence in the
classroom every day as peers recite the statement `one
nation under God' has a coercive effect.'' \19\
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\19\ Id. at *20.
The panel responded to the dissent's criticism that Newdow II's
holding is inconsistent with Supreme Court precedent by boldly
stating, ``[t]he Supreme Court has addressed the Pledge in
passing, and we owe due deference to its dicta. . . . Our
opinion, however, is not inconsistent with this dicta.'' \20\
The panel attempted to distinguish the Pledge from the recital
of other historical documents, ``[t]he Pledge differs from the
Declaration and the anthem in that its reference to God, in
textual and historical context, is not merely a reflection of
the author's profession of faith. It is, by design, an
affirmation by the person reciting it,'' \21\ and the
recitation of the Pledge by adults in other public contexts,
``[w]e may assume arguendo that public officials do not
unconstitutionally endorse religion when they recite the
Pledge, yet it does not follow that schools may coerce
impressionable young schoolchildren to recite it, or even to
stand mute while it is being recited by their classmates.''
\22\
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\20\ Id.
\21\ Id.
\22\ Id.
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The panel then proceeded to attack the Seventh Circuit
Court of Appeals' conclusion in Sherman v. Community
Consolidated School District 21,\23\ the only other circuit to
consider the recitation of the Pledge of Allegiance by public
school students at the commencement of the school day. It
concludes that the Seventh Circuit's holding was flawed because
it did not apply Lee's coercion test.\24\
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\23\ 980 F.2d 437 (7th Cir. 1992).
\24\ ``Instead of applying any of the tests announced by the
Supreme Court, the Seventh Circuit simply frames the question as
follows: `Must ceremonial references in civic life to a deity be
understood as prayer, or support for all monotheistic religions, to the
exclusion of atheists and those who worship multiple gods?' 980 F.2d at
445. For the reasons we have already explained, this question is simply
not dispositive of whether the school district policy impermissibly
coerces a religious act.'' Newdow II at *21.
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In contrast to Newdow I, Newdow II fails to address
plaintiff-appellant Newdow's standing to challenge the 1954
act.\25\ Although the court refused to reach the question of
Newdow's standing to challenge the 1954 statute, the statute,
in a practical sense must be considered unconstitutional, at
least as applied to its voluntary recitation in the public
school classroom; the inclusion of ``under God'' no longer
renders that statute, on its face, suspect as an
unconstitutional endorsement of religion but its mere
recitation in the presence of children, or dissenting children,
is unconstitutional.\26\
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\25\ Because the amended ruling did not dismiss the United States
as a party or rule conclusively that Newdow lacked jurisdiction to
challenge the 1954 statute, it should be assumed that the United States
is still a party to the suit and as such retains an interest in the
outcome of the litigation and will have standing to appeal the ruling
in Newdow II. In addition, the United States operates several schools
that fall within the territory of the Ninth Circuit and thus retains
standing in its capacity of operating those schools.
\26\ As Justice O'Scannlain stated, ``the Pledge was
unconstitutional for everybody; in Newdow II the Pledge is only
unconstitutional for public school children and teachers.'' Newdow II
at *4 (O'Scannlain, J., dissenting.
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On March 4, 2003, the panel issued a 90-day stay of its
order in Newdow II. The ruling affects public school systems at
which the Pledge is recited in Alaska, Arizona, California,
Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and
the Norther Mariana. The 9.6 million public school students in
these states and territories account for approximately one-
fifth of the Nation's public school students.\27\
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\27\ See U.S. Dept. of Ed., Nat'l. Ctr. For Ed. Statistics,
available at http://nces.ed.gov/pubs2002/snf--report/table--01--1.asp.
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CONGRESSIONAL RESPONSE TO NEWDOW V. U.S. CONGRESS
Congressional reaction to the Ninth Circuit's ruling in
Newdow I was immediate. On June 26, 2002, Judiciary Committee
Chairman F. James Sensenbrenner introduced H. Res. 459, in
which the House reaffirmed the Pledge as currently written, to
include the phrase, ``one Nation under God,'' and urged the
Ninth Circuit to rehear the panel's ruling. H. Res. 459 passed
by a 416 to 3 vote, with 11 Members voting present. On June 26,
2002, the Senate approved S. Res. 292, reaffirming its support
for the Pledge of Allegiance, by a 99 to 0 vote. Similarly, on
June 27, 2002, Sen. Tim Hutchinson introduced and the Senate
approved, by a 99 to 0 vote, S. 2690 which reaffirmed that the
language of the Pledge of Allegiance should continue to include
the phrase ``one Nation under God'' and that the national motto
should remain, ``In God we trust.'' The Judiciary Committee
considered S. 2690 in a markup session on September 12, 2002,
and reported out the bill with an amendment.\28\ S. 2690 was
then approved by the House by a 401 to 5 vote, with 4 Members
voting present.
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\28\ 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. See H.R. Rep. No. 107-659, at 8 (2002).
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In the days following the Ninth Circuit panel's issuance of
its amended ruling, the Senate approved S. Res. 71, expressing
its support for the Pledge of Allegiance, stating that the
Senate ``strongly disapproves'' of the panel's amended ruling,
Newdow II, and the decision of the Ninth Circuit not to rehear
the case, and authorizing and instructing Senate Legal Counsel
to seek to intervene in the case or to file an amicus curiae
brief in support of the constitutionality of the Pledge as
currently drafted. S. Res. 71 passed the Senate on March 4,
2003, by a 94 to 0 vote.
CONSTITUTIONAL ANALYSIS
The Ninth Circuit clearly erred when it concluded, as a
matter of Supreme Court precedent, that the voluntary
recitation of the Pledge of Allegiance is a religious act. To
conclude otherwise is to have misinterpreted the last 40 years
of Supreme Court precedent.\29\ Justice O'Scannlain, dissenting
in Newdow II, summarized the numerous instances in which the
Court has distinguished the Pledge from otherwise prohibited
activity:
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\29\ See Newdow II. See also id. at *4 (O'Scannlain, J.,
dissenting) (``With grim insistence, the majority in Newdow II
continues to stand by its original error--that voluntary recitation of
the Pledge of Allegiance in public school violates the Establishment
Clause because, according to the two-judge panel majority, it is `a
religious act.' '').
Several other Supreme Court cases contain explicit
references to the constitutionality of the Pledge. See
Engel, 370 U.S. at 440 n.5 (Douglas, J., concurring)
(``[The Pledge] in no way run[s] contrary to the First
Amendment'') (quoting H.R. Rep. No. 1693, 83d Cong., 2d
Sess., p. 3); Schempp, 374 U.S. at 304 (Brennan, J.,
concurring) (``[R]eciting the Pledge may be no more of
a religious exercise than the reading aloud of
Lincoln's Gettysburg Address.''); Wallace, 472 U.S. at
78 n.5 (O'Connor, J., concurring) (``[T]he words `under
God' in the Pledge . . . serve as an acknowledgment of
religion.''); Co. of Allegheny v. ACLU, 492 U.S. 573,
602-03, 109 S.Ct. 3086, 106 L.Ed.2d 472 (Blackmun, J.,
for the court) (``Our previous opinions have considered
in dicta . . . the Pledge, characterizing [it] as
consistent with the proposition that government may not
communicate an endorsement of religious belief.'');
Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79
L.Ed.2d 604, 676 (1984) (Burger, C.J., for the court)
(``Other examples of reference to our religious
heritage are found . . . 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.'').\30\
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\30\ Newdow II at *11.
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Is the Pledge of Allegiance A Religious Act?
Simply put, reciting the Pledge of Allegiance is not a
religious act. To conclude otherwise is to misinterpret the
last 40 years of Supreme Court precedent. Yet, ``[w]ith grim
insistence, the majority in Newdow II continues to stand by its
original error--that voluntary recitation of the Pledge of
Allegiance in public school violates the Establishment Clause
because, according to the two-judge panel majority, it is `a
religious act.' '' \31\ In the words of Judge O'Scannlain in
dissent, ``[n]o court, state or federal, has ever held that the
Supreme Court's school prayer cases apply outside a context of
state-sanctioned formal religious observance.'' \32\ The
importance of this distinction is that as a result, no court
has ever applied the indirect coercion analysis to public
school activities that are not a formal religious exercise.
This is the crucial mistake made by the Newdow II panel,
``[t]he panel majority simply ignores . . . the `dominant and
controlling facts' '' in the school prayer cases ``that
Establishment Clause violations in public schools are triggered
only when `State officials direct the performance of a formal
religious exercise.' 505 U.S. at 586.'' \33\
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\31\ Id. at *4 (O'Scannlain, J., dissenting).
\32\ Id. at *9 (O'Scannlain, dissenting).
\33\ Id. (emphasis in original).
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It's instructive to look at the circumstances under which
the Pledge is recited in American culture. The Pledge is
recited in schools and at most public government ceremonies
including naturalization ceremonies. One can recall from
personal experience, however, that the Pledge is never, or very
rarely, recited at religious worship ceremonies held in houses
of worship. Unlike reciting the Pledge, ``to pray is to speak
directly to God, with bowed head, on bended knee, or some other
reverent disposition. It is a solemn and humble approach to the
divine in order to give thanks, to petition, to praise, to
supplicate or to ask for guidance.'' \34\
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\34\ Id. at *10.
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In Engel v. Vitale \35\ the Court considered a school
policy under which public school children were required to
recite a state composed prayer at the commencement of each
school day. It's instructive to review the Court's analysis of
what it ultimately determined was proscribed by the
Establishment Clause of the First Amendment. In Engel, the
state-composed prayer read, `` `Almighty God, we acknowledge
our dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our Country.' '' \36\ Of this prayer,
the recitation of which is clearly a religious activity, the
Court stated, ``[t]here can, of course, be no doubt that New
York's program of daily classroom invocation of God's
blessings, as prescribed in the Regents' prayer, is a religious
activity. It is a solemn avowal of divine faith and
supplication for the blessings of the Almighty.'' \37\
Throughout its opinion in Engel, the Court referred to the
prayer as the offending act. In fact, the Court made this
distinction quite clear:
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\35\ 370 U.S. 421 (1962).
\36\ Id. at 422.
\37\ Id. at 424.
There is of course nothing in the decision reached here
that is inconsistent with the fact that schoolchildren
and others are officially encouraged to express love
for our country by reciting historical documents such
as the Declaration of Independence which contain
references to the Deity or by singing officially
espoused anthems which include the composer's
professions of faith in a Supreme Being, or with the
fact that there are many manifestations in our public
life of belief in God. Such patriotic or ceremonial
occasions bear no true resemblance to the unquestioned
religious exercise that the State of New York has
sponsored in this instance.\38\
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\38\ Id. at 435 n.21 (emphasis added).
This statement would certainly support the assertion that
California's statute and the EGUSD's policy, under which the
pledge is recited daily, directs schools to do just as the
Engel court suggested that it could, ``encourage[d] [students]
to express love for our country,'' and there should be little
doubt that such policies are within the bounds of
constitutionally accepted activity under the Establishment
Clause.
In School District of Abington Township v. Schempp \39\ the
Court held that a Pennsylvania statute under which Bible verses
were required to be read aloud at the opening of each public
school day and a school district's policy under which this was
followed by the Lord's prayer, unconstitutional. \40\
Significantly, the Bible reading and prayer at issue in Schempp
were followed by a recitation of the Pledge of Allegiance which
was not challenged by plaintiffs and was not questioned by the
Court. The Schempp court, affirming the holding of the district
court, cited from the findings of fact in Schempp:
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\39\ 374 U.S. 203 (1963).
\40\ Characterizing the practice at issue in Schempp as the
majority opinion referred to the ``pervading religious character of the
ceremony.'' Id. at 224.
The reading of the verses, even without comment,
possesses a devotional and religious character and
constitutes in effect a religious observance. The
devotional and religious nature of the morning
exercises is made all the more apparent by the fact
that the Bible reading is followed immediately by a
recital in unison by the pupils of the Lord's Prayer.''
\41\
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\41\ Id. at 210. See also id. at 277-78 (Brennan, J., concurring)
(``the panorama of history permits no other conclusion than that daily
prayers and Bible readings in the public schools have always been
designed to be, and have been regarded as, essentially religious
exercises'').
It is difficult to argue that reciting the Pledge of Allegiance
``possesses a devotional and religious character'' similar to
that of reading the Bible, of which the majority opinion in
Schempp observed, ``[s]urely the place of the Bible as an
instrument of religion cannot be gainsaid.'' \42\ Furthermore,
if the Bible reading was suspect in part because of the context
surrounding its recital, the recitation of the Lord's Prayer
immediately following, then certainly the Court should have,
and would have, included the Pledge as another contextual
element making the Bible reading suspect and, similarly, found
the Pledge equally suspect as another religious exercise. Yet,
the Court made absolutely no mention of the practice in its
analysis.
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\42\ Id. at 224.
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Justice Brennan, concurring in Schempp, was also of the
opinion that the Pledge was not a religious act, the recitation
of which in a public school classroom would have to thus be
prohibited by the Establishment Clause. Speaking of ``less
sensitive materials'' that ``might equally well serve'' the
purpose of ``fostering harmony and tolerance among the pupils,
enhancing the authority of the teacher, and inspiring better
discipline,'' Brennan declared that, ``readings from the
speeches and messages of great Americans, for example, or from
the documents of our heritage of liberty, daily recitation of
the Pledge of Allegiance, or even the observance of a moment of
reverent silence at the opening of class'' might ``adequately
serve the solely secular purposes of the devotional
activities'' that had been found unconstitutional in the
Schempp case.\43\ Justice Brennan expanded,
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\43\ Id. at 280-81.
The truth is that we have simply interwoven the motto
so deeply into the fabric of our civil polity that its
present use may well not present that type of
involvement which the First Amendment prohibits. This
general principle might also serve to insulate the
various patriotic exercises and activities used in the
public schools and elsewhere which, whatever may have
been their origins, no longer have a religious purpose
or meaning. The reference to divinity in the revised
pledge of allegiance, for example, may merely recognize
the historical fact that our Nation was believed to
have been founded `under God.' Thus reciting the pledge
may be no more of a religious exercise than the reading
aloud of Lincoln's Gettysburg Address, which contains
an allusion to the same historical fact.'' \44\
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\44\ Id. at 303-04 (emphasis added). A review of the House of
Representatives Committee Report filed in conjunction with the passage
of legislation adding ``under God'' to the Pledge of Allegiance only
adds support to Brennan's analysis,
At this moment of our history the principles underlying our
American Government and the American way of life are under
attack by a system whose philosophy is at direct odds with
our own. Our American Government is founded on the concept
of the individuality and the dignity of the human being.
Underlying this concept is the belief that the human person
is important because he was created by God and endowed by
Him with certain inalienable rights which no civil
---------------------------------------------------------------------------
authority may usurp.
H.R. Rep. 83-396 (1954).
Even if the recitation of the Pledge and various other founding
documents containing religious references or statements of the
religious beliefs of the authors does become an act of
religious worship for some public school students, the
government cannot prohibit certain non-religious activities
simply because some participants may privately use the act of
reciting these documents as an opportunity for a spiritual,
religious exercise.
Justice Douglas, concurring in Schempp, agreed that the
activity at issue in the case was constitutionally suspect
because ``the State is conducting a religious exercise.'' \45\
Justice Goldberg, similarly, described the constitutionally
suspect activity at issue in Schempp as follows, ``[t]he state
has ordained and has utilized its facilities to engage in
unmistakably religious exercises--the devotional reading and
recitation of the Holy Bible.'' \46\ Goldberg continued and
described the ``pervasive religiosity . . . inhering in the
prescription of prayer and Bible reading in the public schools,
during and as part of the curricular day.'' \47\
---------------------------------------------------------------------------
\45\ Id. at 229 (Douglas, J., concurring) (emphasis added).
\46\ Id. at 307.
\47\ Id.IIII
---------------------------------------------------------------------------
Justice O'Connor is also of the opinion that the inclusion
of ``under God'' in the Pledge reflects a historical fact and
does not turn the pledge into a statement of religious faith or
belief, ``In my view, the words `under God' in the Pledge . . .
serve as an acknowledgment of religion with `the legitimate
secular purposes of solemnizing public occasions, [and]
expressing confidence in the future.' '' \48\ Referring to the
Court's opinion in both Engel and Schempp O'Connor has stated,
---------------------------------------------------------------------------
\48\ Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) quoting Lynch
v. Donnelly, 465 U.S. 668, 693 (1984) (O'Connor, J., concurring).
The Engel and Abington decisions are not dispositive on
the constitutionality of moment of silence laws. In
those cases, public school teachers and students led
their classes in devotional exercises. In Engel, a New
York statute required teachers to lead their classes in
a vocal prayer. The Court concluded that ``it is no
part of the business of government to compose official
prayers for any group of the American people to recite
as part of a religious program carried on by the
government.'' 370 U.S., at 425, 82 S.Ct., at 1264. In
Abington, the Court addressed Pennsylvania and Maryland
statutes that authorized morning Bible readings in
public schools. The Court reviewed the purpose and
effect of the statutes, concluded that they required
religious exercises, and therefore found them to
violate the Establishment Clause. 374 U.S., at 223-224,
83 S.Ct., at 1572. Under all of these statutes, a
student who did not share the religious beliefs
expressed in the course of the exercise was left with
the choice of participating, thereby compromising the
nonadherent's beliefs, or withdrawing, thereby calling
attention to his or her nonconformity. The decisions
acknowledged the coercion implicit under the statutory
schemes, see Engel, supra, at 431, 82 S.Ct., at 1267,
but they expressly turned only on the fact that the
government was sponsoring a manifestly religious
exercise.'' \49\
---------------------------------------------------------------------------
\49\ Wallace v. Jaffree, 472 U.S. 38, 71-2 (1985) (O'Connor, J.,
concurring) (emphasis added).
For O'Connor, Alabama's moment of silence law, which was struck
down as violating the Establishment Clause in Jaffree, was
constitutionally suspect because the State ``intentionally
crossed the line between creating a quiet moment during which
those so inclined may pray, and affirmatively endorsing the
particular religious practice of prayer.'' \50\
---------------------------------------------------------------------------
\50\ Id. at 84.
---------------------------------------------------------------------------
Finally, in Lee v. Weisman,\51\ the case the Newdow II
panel relied so heavily upon, in which the Court struck down a
school district's practice of inviting a clergy member to give
a graduation prayer authored with the assistance of school
officials, the Court continued to clearly limit its holding to
the facts at hand, the formal religious exercise of prayer. As
in Schempp, the activity at issue in Lee occurred in
conjunction with the recitation of the Pledge of
Allegiance.\52\ Justice Kennedy, writing for the majority,
began his analysis stating that ``the significance of the
prayers lies . . . at the heart'' of the case.\53\ Kennedy
continued,
---------------------------------------------------------------------------
\51\ 505 U.S. 577 (1992).
\52\ ``There the students stood for the Pledge of Allegiance and
remained standing during the rabbi's prayers.'' Lee at 583.
\53\ Id. at 584.
These dominant facts mark and control the confines of
our decision: State officials direct the performance of
a formal religious exercise at promotional and
graduation ceremonies for secondary schools. Even for
those students who object to the religious exercise,
their attendance and participation in the state-
sponsored religious activity are in a fair and real
sense obligatory, though the school district does not
require attendance as a condition for receipt of the
diploma.\54\
---------------------------------------------------------------------------
\54\ Id. at 586. Justice Kennedy continued, ``Conducting this
formal religious observance conflicts with settled rules pertaining to
prayer exercises for students, and that suffices to determine the
question before us.'' Id. at 587.
Significantly, for the Newdow II panel's holding, the Lee court
stated, ``We do not hold that every state action implicating
religion is invalid if one or a few citizens find it offensive.
People may take offense at all manner of religious as well as
nonreligious messages, but offense alone does not in every case
show a violation. We know too that sometimes to endure social
isolation or even anger may be the price of conscience or
nonconformity.'' \55\ That the Newdow II panel would not even
acknowledge the clear distinctions between the facts at issue
in Newdow and those at issue in Lee understandably causes
observers to question the Newdow II panel's willingness or
ability to interpret the Constitution and apply U.S. Supreme
Court precedent.
---------------------------------------------------------------------------
\55\ Id. at 597-98.
---------------------------------------------------------------------------
The Constitution Prohibits Compelling Public School Students To Recite
the Pledge of Allegiance
It's important that we recognize the right of those who do
not share the beliefs expressed in the Pledge to refrain from
its recitation, and under West Virginia Board of Education v.
Barnette individuals cannot be compelled to recite the Pledge
of Allegiance or to engage in any speech with which they
disagree.\56\ In Barnette, the Board of Education passed a
resolution which required that all teachers and pupils
participate in the salute to the flag.\57\ Barnette, a
Jehovah's Witness, brought suit claiming that the resolution
denied him ``freedom of speech'' and ``freedom of worship''
under the First Amendment, because it required him to bow to a
``graven image'' which is prohibited under the Jehovah's
teachings.\58\ Writing for the majority, Justice Frankfurter
contended, ``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.\59\ The Court
concluded that the resolution amounted to compelled speech
which ``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.'' \60\
---------------------------------------------------------------------------
\56\ See 319 U.S. 624 (1943).
\57\ See id. at 627.
\58\ See id. at 630. ``The Jehovah's Witnesses' religious beliefs
include a literal version of Exodus, Chapter 20, verses 4 and 5, which
says: `Thou shalt not make unto thee any graven image, or any likeness
of anything that is in heaven above, or that is in the earth beneath,
or that is in the water under the earth; thou shalt not bow down
thyself to them nor serve them.' They consider that the flag is an
`image' within this command. For this reason they refuse to salute it.
Id.
\59\ Id. at 643.
\60\ See id.
---------------------------------------------------------------------------
While we affirm the principles of Barnette, the Newdow case
did not involve compelled speech and accordingly, does not
implicate Barnette. Thus, the Ninth Circuit's conclusion is
troubling because it appears to reflect the flawed 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. Thus it has become necessary for Congress to
reaffirm its understanding that the text of both the Pledge and
our national motto are legally and historically consistent with
a reasonable interpretation of the First Amendment.
The Effect of Newdow II on The Voluntary Recitation of Other Founding
Documents in the Public School Context
The constitutionality of the voluntary recitation by public
school students of numerous historical and founding documents,
such as the Declaration of Independence, the Constitution, and
the Gettysburg Address, has been placed into serious doubt by
the Ninth Circuit's decision in Newdow II.\61\ As Judge
O'Scannlain stated in his dissent, ``[i]f reciting the Pledge
is truly `a religious act' in violation of the Establishment
Clause, then so is the recitation of the Constitution itself,
the Declaration of Independence, the Gettysburg Address, the
National Motto, or the singing of the National Anthem.'' \62\
The Founders based their right to ``dissolve the Political
Bands which [have] connected them with another'' on the ``Laws
of Nature and of Nature's God.'' They then went on to proclaim
that men ``are endowed by their Creator with certain
unalienable Rights,'' appealed to ``the Supreme Judge of the
World for the Rectitude'' of their intentions, and with ``a
firm Reliance on the Protection of divine Providence,''
``mutually pledge[d] to each other'' their ``Lives,''
``Fortunes,'' and ``sacred Honor.'' \63\ Article VII in the
U.S. Constitution refers to ``the Year of Our Lord.'' \64\ On
November 19, 1863, President Lincoln stated ``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.'' \65\ Our national motto is ``in
God we trust'' \66\ and the fourth stanza of the statutorily
prescribed National Anthem includes in part the following,
``Blest with victory and peace, may the heaven-rescued land,
Praise the Power that hath made and preserved us a nation. Then
conquer we must, when our cause is just, And this be our motto:
` in God is our trust.' '' \67\
---------------------------------------------------------------------------
\61\ ``[O]nly the purest exercise in sophistry could save multiple
references to our religious heritage in our national life from Newdow
II's axe.'' Newdow II at *10.
\62\ Id. at *4.
\63\ The Declaration of Independence.
\64\ U.S. Const. art. VII.
\65\ Gettysburg Address. There are 14 references to God in the 669
words comprising the Gettysburg Address.
\66\ 36 U.S.C. Sec. 302.
\67\ 36 U.S.C. Sec. 301(a).
---------------------------------------------------------------------------
Thus the U.S. Supreme Court has recognized the similarities
between the Pledge, the Declaration of Independence, the
Constitution and the Gettysburg Address in that they represent
the authors' reference to the history of the Nation's founding
which is clearly intertwined with fervent faith in God and
religious beliefs. For example, Justice Brennan, in Schempp,
offered that ``[t]he reference to divinity in the revised
pledge of allegiance, for example, may merely recognize the
historical fact that our Nation was believed to have been
founded 'under God.' Thus reciting the pledge may be no more of
a religious exercise than the reading aloud of Lincoln's
Gettysburg Address, which contains an allusion to the same
historical fact.'' \68\
---------------------------------------------------------------------------
\68\ School District of Abington Township v. Pennsylvania, 374 U.S.
203, 303-04 (1963).
---------------------------------------------------------------------------
To conclude otherwise, would clearly lead to an
interpretation of the Constitution that would call into
question the meaning of the First Amendment given to it by our
Nation's founders. Judge O'Scannlain's dissent is, again,
instructive on this point,
The majority's unpersuasive and problematic disclaimers
notwithstanding, Newdow II precipitates a ``war with
our national tradition,'' McCollum v. Bd. of Ed., 333
U.S. 203, 211, 68 S.Ct. 461, 92 L.Ed. 649 (1948), and
as Judge Fernandez so eloquently points out in dissent,
only the purest exercise in sophistry could save
multiple references to our religious heritage in our
national life from Newdow II's axe. Of course, the
Constitution itself explicitly mentions God, as does
the Declaration of Independence, the document which
marked us as a separate people. The Gettysburg Address,
inconveniently for the majority, contains the same
precise phrase--``under God''--found to constitute an
Establishment Clause violation in the Pledge. After
Newdow II, are we to suppose that, were a school to
permit--not require--the recitation of the
Constitution, the Declaration of Independence, or the
Gettysburg Address in public schools, that too would
violate the Constitution? Were the ``founders of the
United States . . . unable to understand their own
handiwork[?]'' Sherman, 980 F.2d at 445. Indeed, the
recitation of the Declaration of Independence would
seem to be the better candidate for the chopping block
than the Pledge, since the Pledge does not require
anyone to acknowledge the personal relationship with
God to which the Declaration speaks. So too with our
National Anthem and our National Motto. \69\
---------------------------------------------------------------------------
\69\ Newdow II at *10.
---------------------------------------------------------------------------
The Ninth Circuit's Ruling in Newdow II Has Created A Split Among the
Circuits
The Ninth Circuit's ruling in Newdow II has placed the
circuit in direct conflict with the Seventh Circuit Court of
Appeals which, in Sherman v. Community Consolidated School
District,\70\ held that a school district's policy allowing for
the voluntary recitation of the Pledge of Allegiance in public
schools does not violate the Establishment Clause of the First
Amendment.
---------------------------------------------------------------------------
\70\ 980 F.2d 437 (7th Cir. 1992).
---------------------------------------------------------------------------
The Seventh Circuit in Sherman concluded that the voluntary
recitation of the Pledge in public schools is not a violation
of the Establishment Clause of the First Amendment. That court
did not make the analytical mistake so fatal to the Newdow II
panel's analysis. Describing the practice that it was about to
review it stated,
Recall that for now we are treating the Pledge as a
patriotic expression, even though the objections to
public patriotism may be religious (as they were in
Barnette). Patriotism is an effort by the state to
promote its own survival, and along the way to teach
those virtues that justify its survival. Public schools
help to transmit those virtues and values. Separation
of church from state does not imply separation of state
from state. Schools are entitled to hold their causes
and values out as worthy subjects of approval and
adoption, to persuade even though they cannot compel,
and even though those who resist persuasion may feel at
odds with those who embrace the values they are
taught.\71\
---------------------------------------------------------------------------
\71\ Sherman v. Community Consolidated School District, 980 F.2d
437, 444 (7th Cir. 1992).
In response to the assertion that the voluntary recitation of
the Pledge is offensive to those student who don't choose to
---------------------------------------------------------------------------
recite it, that court stated,
Students not only read books that question or conflict
with their tenets but also write essays about them and
take tests--questions for which their teachers
prescribe right answers, which the students must give
if they are to receive their degrees. The diversity of
religious tenets in the United States ensures that
anything a school teaches will offend the scruples and
contradict the principles of some if not many persons.
The problem extends past government and literature to
the domain of science; the religious debate about
heliocentric astronomy is over, but religious debates
about geology and evolution continue. An extension of
the school-prayer cases could not stop with the Pledge
of Allegiance. It would extend to the books, essays,
tests, and discussions in every classroom.\72\
---------------------------------------------------------------------------
\72\ Id. (emphasis added).
Recognizing that its analysis presumed that the Pledge was not
a ``prayer or other sign of religious devotion,'' the court
then proceeded to discuss whether the Pledge was in fact a
religious or patriotic exercise.\73\ After extensive discussion
about the founding documents and other religious references
sprinkled throughout the Nation's history and civic discourse,
the Sherman panel concluded, ``Unless we are to treat the
[F]ounders of the United States as unable to understand their
handiwork (or, worse, hypocrites about it), we must ask whether
those present at the creation deemed ceremonial invocations of
God as `establishment.' They did not.'' \74\
---------------------------------------------------------------------------
\73\ Id. at 445.
\74\ Id.
---------------------------------------------------------------------------
Newdow II and The Nomination of Federal Court Judges
The clearly erroneous nature of the panel's ruling
highlights not only the need for the U.S. Supreme Court to
correct this incorrect interpretation of its holdings by a
lower court, but also the importance of nominating and
appointing Federal judges who will interpret the Constitution
consistent with its text. There has been much debate, both on
the Court and within the legal community, surrounding the
Court's recent jurisprudence regarding the Establishment
Clause. Yet, despite what is admittedly a confused area of the
law, the Court has shown clear consistency with regard to the
recitation of the Pledge. The Ninth Circuit's failure to follow
the Supreme Court's pronouncements and precedent in this area
of the law will justifiably lead many to question whether the
judges sitting on this panel have made a good faith attempt to
interpret the Constitution consistent with its text.
The following testimony was submitted by the Honorable Alan
G. Lance, Attorney General, State of Idaho, on July 23, 2002,
at the Judiciary Committee's Subcommittee on Courts, the
Internet and Intellectual Property's Legislative Hearing on
H.R. 1203, the ``Ninth Circuit Court of Appeals Reorganization
Act of 2001'':
The Ninth Circuit has earned a national reputation as a
frequently reversed court. This reputation has factual
support. Consider the following:
1. LFrom 1990 to 1996, the Supreme Court struck down
73% of the Ninth Circuit decisions it reviewed. The
other circuits averaged 46%. Jeff Bleich, The Reversed
Circuit: The Supreme Court versus the Ninth Circuit, 57
Oregon State Bar Bulletin 17 (May 1997).
2. LIn 1997, the Supreme Court reversed 27 out of 28
Ninth Circuit decisions.
3. LSince 1998, the Supreme Court has granted review in
103 Ninth Circuit cases, affirming only 13. Moreover,
the Supreme Court has unanimously reversed or vacated
26 Ninth Circuit decisions since 1998.
The Ninth Circuit's number and rate of reversals is
troubling. The number of unanimous reversals is perhaps
even more troubling. Make no mistake about this--the
reputation, which is founded in fact, has caused
serious erosion in confidence for our Federal circuit
court.
The New York Times, generally considered to be the
newspaper of record for the country, began its recent
story on the pledge of allegiance decision with the
following line: ``Over the last 20 years, the Court of
Appeals for the Ninth Circuit has developed a
reputation for being wrong more often than any other
Federal appeals court.'' Adam Liptak, Court that Ruled
on Pledge often Runs Afoul of Justices, N.Y. Times,
July 1, 2002.
In response to a question about the high number of
unanimous reversals by the Supreme Court, Yale
University law professor Akhil Amar bluntly stated:
``When you're not picking up the votes of anyone on the
Court, something is screwy.'' Id.
In response to three former Chief Judges of the Ninth
Circuit who denied that the Ninth Circuit has a poor
track record in the Supreme Court, Justice Scalia said:
``There is no doubt that the Ninth Circuit has a
singularly (and, I had thought, notoriously) poor
record on appeal. That this is unknown to its chief
judges may be yet another sign of an unmanageably
oversized circuit.'' Id.\75\
---------------------------------------------------------------------------
\75\ Ninth Circuit Court of Appeals Reorganization Act of 2001:
Hearing on H.R. 1203 Before the House Comm. on the Judiciary, Subcomm.
on Courts, the Internet, and Intellectual Property, 107th Cong. 15
(2002) (statement of the Honorable Alan Lance, Attorney General, State
of Idaho).
Recent reports indicate that the Ninth Circuit's reversal rate
last term, 2001-02, was 71%, consistent with the average
reversal rate of the other circuits.\76\ However, the Newdow II
panel's disregard for Supreme Court precedent will certainly
serve to further its reputation as the Federal circuit most in
need of Supreme Court reversal.
---------------------------------------------------------------------------
\76\ See Marisa Taylor, Influential Ninth Circuit Assembles in
S.D.: Weighty Issues are on Agenda for Judges Who Defy Consensus, San
Diego Union Tribune, July 15, 2002, at A1.
---------------------------------------------------------------------------
Hearings
No hearings were held on H. Res. 132.
Committee Consideration
On March 12, 2003, the Committee met in open session and
ordered favorably reported the bill H. Res. 132, without
amendment, by a recorded vote of 22 to 2, with 8 members voting
present, a quorum being present.
Vote of the Committee
The motion to report H. Res. 132 favorably passed by a
rollcall vote of 22 yeas, 2 nays and 8 voting present.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Ms. Baldwin.....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 22 2 8
----------------------------------------------------------------------------------------------------------------
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
H. Res. 132 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.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee believes that
the resolution will have no budget effect.
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
H. Res. 132 expresses the sense of the House of
Representatives that the Ninth Circuit Court of Appeals ruling
in Newdow v. United States Congress is inconsistent with the
Supreme Court's interpretation of the First Amendment and
should be overturned, and for other purposes.
In paragraph one, Congress finds that on June 26, 2002, the
Ninth Circuit Court of Appeals, in Newdow v. United States
Congress (292 F.3d 597; 9th Cir. 2002) (Newdow I), held that
the Pledge of Allegiance to the Flag as currently written to
include the phrase, ``one Nation, under God'',
unconstitutionally endorses religion, that such phrase was
added to the pledge in 1954 only to advance religion in
violation of the Establishment Clause, and that the recitation
of the pledge in public schools at the start of every school
day coerces students who choose not to recite the pledge into
participating in a religious exercise in violation of the
Establishment Clause of the First Amendment.
In paragraph two, Congress finds that on February 28, 2003,
the Ninth Circuit Court of Appeals amended its ruling in this
case, and held (in Newdow II) that a California public school
district's policy of opening each school day with the voluntary
recitation of the Pledge of Allegiance to the Flag
``impermissibly coerces a religious act'' on the part of those
students who choose not to recite the pledge and thus violates
the Establishment Clause of the First Amendment.
In paragraph three, Congress finds that the Ninth Circuit's
ruling in Newdow II contradicts the clear implication of the
holdings in various Supreme Court cases, and the spirit of
numerous other Supreme Court cases in which members of the
Court have explicitly stated, that the voluntary recitation of
the Pledge of Allegiance to the Flag is consistent with the
First Amendment.
In paragraph four, Congress finds that the phrase, ``one
Nation, under God'', as included in the Pledge of Allegiance to
the Flag, reflects the notion that the Nation's founding was
largely motivated by and inspired by the Founding Fathers'
religious beliefs.
In paragraph five, Congress finds that the Pledge of
Allegiance to the Flag is not a prayer or statement of
religious faith, and its recitation is not a religious
exercise, but rather, it is a patriotic exercise in which one
expresses support for the United States and pledges allegiance
to the flag, the principles for which the flag stands, and the
Nation.
In paragraph six, Congress finds that the House of
Representatives recognizes the right of those who do not share
the beliefs expressed in the pledge or who do not wish to
pledge allegiance to the flag to refrain from its recitation.
In paragraph seven, Congress finds that the effect of the
Ninth Circuit's ruling in Newdow II will prohibit the
recitation of the pledge at every public school in 9 states,
schooling over 9.6 million students, and could lead to the
prohibition of, or severe restrictions on, other voluntary
speech containing religious references in these classrooms.
In paragraph eight, Congress finds that rather than
promoting neutrality on the question of religious belief, this
decision requires public school districts to adopt a preference
against speech containing religious references.
In paragraph nine, Congress finds that the
constitutionality of the voluntary recitation by public school
students of numerous historical and founding documents, such as
the Declaration of Independence, the Constitution, and the
Gettysburg Address, has been placed into serious doubt by the
ninth circuit's decision in Newdow II.
In paragraph ten, Congress finds that the Ninth Circuit's
interpretation of the First Amendment in Newdow II is clearly
inconsistent with the Founders' vision of the Establishment
Clause and the Free Exercise Clause of the First Amendment,
Supreme Court precedent interpreting the First Amendment, and
any reasonable interpretation of the First Amendment.
In paragraph eleven, Congress finds that this decision
places the Ninth Circuit in direct conflict with the Seventh
Circuit Court of Appeals which, in Sherman v. Community
Consolidated School District (980 F.2d 437; 7th Cir. 1992),
held that a school district's policy allowing for the voluntary
recitation of the Pledge of Allegiance to the Flag in public
schools does not violate the Establishment Clause of the First
Amendment.
In paragraph twelve, Congress finds that it has
consistently supported the Pledge of Allegiance to the Flag by
starting each session with its recitation.
In paragraph thirteen, Congress finds that the House of
Representatives reaffirmed its support for the Pledge of
Allegiance to the Flag in 107th Congress by adopting House
Resolution 459 on June 26, 2002, by a vote of 416-3.
In paragraph fourteen, Congress finds that the Senate
reaffirmed support for the Pledge of Allegiance to the Flag in
the 107th Congress by adopting Senate Resolution 292 on June
26, 2002, by a vote of 99-0.
Congress adopts the following resolutions:
In section (1), Congress resolves that the phrase ``one
Nation, under God,'' in the Pledge of Allegiance to the Flag
reflects that religious faith was central to the Founding
Fathers and
thus to the founding of the Nation.
In section (2), Congress resolves that the recitation of
the Pledge of Allegiance to the Flag, including the phrase,
``one Nation, under God,'' is a patriotic act, not an act or
statement of religious faith or belief.
In section (3), Congress resolves that the phrase ``one
Nation, under God'' should remain in the Pledge of Allegiance
to the Flag and the practice of voluntarily reciting the pledge
in public school classrooms should not only continue but should
be encouraged by the policies of Congress, the various States,
municipalities, and public school officials.
In section (4), Congress resolves that despite being the
school district where the legal challenge to the pledge
originated, the Elk Grove Unified School District in Elk Grove,
California, should be recognized and commended for their
continued support of the Pledge of Allegiance to the Flag.
In section (5), Congress resolves that the Ninth Circuit
Court of Appeals ruling in Newdow v. United States Congress has
created a split among the circuit courts, and is inconsistent
with the Supreme Court's interpretation of the first amendment,
which indicates that the voluntary recitation of the pledge and
similar patriotic expressions is consistent with the first
amendment.
In section (6), Congress resolves that the attorney general
should appeal the ruling in Newdow v. United States Congress,
and the Supreme Court should review this ruling in order to
correct this constitutionally infirm and historically incorrect
holding.
In section (7), Congress resolves that the President should
nominate and the Senate should confirm Federal circuit court
judges who interpret the Constitution consistent with the
Constitution's text.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, MARCH 12, 2003
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:07 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. A
working quorum is present.
Pursuant to notice, I now call up the resolution, H. Res.
132, a resolution stating the Pledge of Allegiance should be
upheld, for purposes of markup and move its favorable
recommendation to the House. Without objection, the resolution
will be considered as read and open for amendment at any point.
[The resolution follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Ohio, Mr. Chabot, Chairman of the Subcommittee on the
Constitution, for 5 minutes to explain the resolution.
Mr. Chabot. Thank you, Mr. Chairman. H. Res. 132 expresses
the sense of the House of Representatives that the Ninth
Circuit Court of Appeals ruling in Newdow v. United States
Congress, is inconsistent with the Supreme Court's
interpretation, and urging the Attorney General to appeal the
ruling. Specifically, H. Res. 132 expresses the sense of the
House of Representatives that the phrase ``One Nation under
God'' should remain in the Pledge of Allegiance, that the Ninth
Circuit Court of Appeals ruling in the Newdow v. U.S. Congress
is inconsistent with the Supreme Court's interpretation of the
First Amendment, urges the Attorney General of the United
States to appeal the Ninth Circuit's ruling, and urges the
President to nominate and the Senate to confirm Federal Circuit
Court Judges who will interpret the Constitution consistent
with the Constitution's text.
It also encourages school districts across the Nation to
continue reciting the pledge daily, and praises the Elk Grove
School District for its defense of the Pledge of Allegiance
against this constitutional challenge.
On February 28th, 2003 the Ninth Circuit Court of Appeals
refused to rehear its June 2002 ruling that the Pledge of
Allegiance as currently written to include the phrase ``One
Nation under God'' unconstitutionally endorses religion, and
that the recitation of the Pledge in the public schools at the
start of every school day coerces students who choose not to
recite the Pledge, in participating in a religious exercise in
violation of the establishment clause of the First Amendment.
Additionally, it amended its opinion in its June ruling,
and held that a California public school district's policy of
opening each school day with a voluntary recitation of the
Pledge of Allegiance to the flag, quote, ``impermissibly
coerces a religious act,'' unquote, on the part of those
students who choose not to recite the Pledge and thus violates
the establishment clause of the First Amendment.
That the Ninth Circuit's amended Newdow ruling contradicts
any reasonable interpretation of the First Amendment should be
clear to the average observer. The Pledge of Allegiance is
clearly not a religious statement or prayer. It is a statement
of allegiance to the ideas and principles upon which our Nation
was founded. It's a historical fact that our Nation's founding
principles were based upon the founding fathers' deeply held
religious views. The Pledge of Allegiance simply refers to this
fact. The reasoning and holding of the Ninth Circuit in its
recent Newdow ruling turns historical fact, as well as Supreme
Court precedent, on its head.
It's interesting to note that this ruling comes from the
circuit holding the dubious distinction of being reversed by
the U.S. Supreme Court more than any other circuit in recent
history.
Those who do not share the beliefs expressed in the Pledge
or those who do not wish to pledge allegiance to the flag have
a right to refrain from its recitation. Indeed, it is a
cornerstone of the religious faith that the founding fathers
held dear, that no man can force another to say or believe that
which their conscience would not allow. Thus, I would hope that
no court would issue a ruling that tramples upon this right.
However, the Ninth Circuit in Newdow simply ignored Supreme
Court precedent, and essentially gave those who don't wish to
recite the Pledge, and who possess the right to refrain from
reciting the Pledge, a heckler's veto over those who do wish to
recite the Pledge.
The effect of the Ninth Circuit's ruling is to prohibit the
recitation of the Pledge at every public school in 9 States,
9.6 million students, and could lead to the prohibition of or
severe restrictions on other voluntary speech containing
religious references in these classrooms. Similarly, the
constitutionality of the voluntary recitation by public school
students of numerous historical and founding documents, such as
the Declaration of Independence, the Constitution and the
Gettysburg Address, has been placed into serious doubt. This
ruling also places the Ninth Circuit in direct conflict with
the Seventh Circuit Court of Appeals, which in Sherman v.
Community Consolidated School District, held that a school
district's policy allowing for the voluntary recitation of the
Pledge of Allegiance in public schools does not violate the
establishment clause of the First Amendment.
Congress has consistently supported the Pledge of
Allegiance by starting each session with its recitation. The
House reaffirmed support for the Pledge, when on June 27, 2002,
it adopted H. Res. 459 introduced by our Chairman, Chairman
Sensenbrenner, by a vote of 416 to 3. The House should do the
same with H. Res. 132. Both the Chairman and I are original co-
sponsors of this resolution introduced by Representative Ose on
March 6, 2003.
I urge my colleagues on this Committee to approve this
resolution so that during this time of international conflict
in which our young men and women may be days away from going to
war to fight for those values based upon which our founding
fathers gave birth to this Nation, our youngest Americans, our
children, may pledge their allegiance to those same values.
I yield back the balance of my time.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Michigan informs me that he does not
wish to make an opening statement. Without objection, opening
statements by other Members will be included in the record at
this point.
Are there amendments?
The Gentleman from California, Mr. Berman.
Mr. Berman. Thank you, Mr. Chairman. I appreciate the
gentleman's comments and----
Chairman Sensenbrenner. Does the gentleman have an
amendment?
Mr. Berman. I do have an amendment.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H. Res. 132, offered by Mr. Berman.
Amend paragraph 7 beginning at page 5, line 23, to read as
follows:
(7) the President should nominate and the Senate should
confirm Federal judges who interpret the Constitution
consistent with the Constitution's text, including interpreting
Section 2 of Article III and Amendment 6 to strictly adhere to
the actual text of those constitutional provisions.
Chairman Sensenbrenner. I believe it's amendment 11.
The Clerk. Yes, sir.
Chairman Sensenbrenner. XI is 11.
The Clerk. Excuse me.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Berman. Thank you, Mr. Chairman. This amendment is
focused only on one portion of this resolution, and that is
paragraph 7 of the ``be it resolved'' clause, whereas the
gentleman mentioned in his opening statement that Congress
resolves that the President should nominate and the Senate
should confirm Federal Circuit Court Judges who interpret the
Constitution consistent with the Constitution's text.
My assumption in offering this amendment is that the
gentleman felt strongly about that principle, not simply as
applied to this particular issue, but generally in terms of
court interpretations of constitutional questions in the many
cases that it gets. And it's because of that that I am offering
this amendment to help establish that principle I think more
fully.
This amendment would make this paragraph apply to all
Federal judges and would specify Article III, Section 2, and
the Ninth Amendment as two type of constitutional provisions
that Federal judges should interpret with strict adherence to
their text.
In the series of cases interpreting Section 2 of Article
III and the Eleventh Amendment, Federal courts have not
strictly adhered to the plain wording of these constitutional
provisions. In fact, in many of these cases Federal courts have
issued decisions that run directly counter to the text of these
constitutional provisions or have no basis in the text of the
Constitution itself. Section 2 of article III states that the
judicial power shall extend to all cases in law or equity
arising under this Constitution, the laws of the United States
and treaties made, or which shall be made under their
authority.
The eleventh amendment states the judicial power of the
United States shall not be construed to extend to any suit in
law or equity commenced or prosecuted against one of the United
States by citizens of another State or by citizens who are
subjects of any foreign state. In other words, Article III
gives full and complete authority to the Judicial Branch to
determine all cases arising under this Constitution. The
Eleventh Amendment constrains that general grant by saying that
the judicial power shall not extend to any suit commenced
against one of the States of the United States by citizens of
another State or a foreign nation.
These words are very plain, and these words are very clear,
and by that, one is forced to come to the conclusion
interpreting the text literally and strictly, as the gentleman
has proposed in this resolution, we do not limit suits against
a State brought by a citizen of that same State, because the
Eleventh Amendment simply refers to citizens of other States or
foreign states. Despite the plain wording of Article III,
Section 2 and the Eleventh Amendment, Federal courts have
interpreted these constitutional provisions in ways that
directly contradict the plain text. In some instances Federal
courts have entirely abandoned any pretense of textual
interpretation of those constitutional provisions. Instead
these courts base their opinion solely on fundamental
postulates implicit in the constitutional design that can be
gleaned from the mere existence of those constitutional
provisions. Relying on these nontextual interpretations of the
Constitution, these activist Federal judges and courts have
struck down a wide variety of Federal statutes.
In Seminole Tribe v. Florida, Chief Justice Rehnquist,
writing for a 5-4 majority, relied on a non-textual activist
interpretation of Article III, Section 2 and the Eleventh
Amendment, to find that the Eleventh Amendment prohibits the
Seminole Indian tribe, located in the State of Florida, from
suing the State of Florida under the Indian Gaming Regulatory
Act of 1988. The majority opinion candidly acknowledged that
the text of the amendment would appear to restrict only the
Article III diversity jurisdiction of the Federal court.
Despite the acknowledged plain meaning of the Eleventh
Amendment, the 5 Justice majority decided that State sovereign
immunity bars suits against States based on Federal question
jurisdiction as well as on diversity jurisdiction.
In the Florida Prepaid cases, the U.S. Supreme Court
employed this activist interpretation of Article III, Section
2----
Chairman Sensenbrenner. The gentleman's time is----
Mr. Berman. I would ask unanimous consent for three
additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Berman. In the Florida Prepaid case the U.s. Supreme
Court employed this activist interpretation of Article III,
Section 2, and the Eleventh Amendment. Justice Scalia, writing
for a 5-4 majority, held that State sovereign immunity
prohibited Congress's efforts to subject States to liability
for patent infringement under the Patent and Plat Variety
Protection Remedy Clarification Act, and for false advertising
under the Lanham Act.
Relying on the activist interpretation employed in the
Florida Prepaid cases, the Fifth Circuit in Chavez found that
States were immune from suits for copyright infringement.
In Kimmel, the Supreme Court utilized a particularly
activist interpretation of the Eleventh Amendment to avoid the
plain meaning of that amendment. Writing for 5 Justices,
Justice O'Connor held that the Eleventh Amendment protected
States against suits by its own citizens under the Federal Age
Discrimination and Employment Act of 1967. Since Kimmel
involved ADEA suits brought by citizens of Alabama and Florida
against the States of Alabama and Florida, it represents an
egregiously activist interpretation of the Eleventh Amendment
prohibition on suits in Federal court against a State by
citizens of another State.
The Garrett decision also was based on this egregiously
activist interpretation of the Eleventh Amendment. Writing once
again for a 5-4 majority, Chief Justice Rehnquist held the
Eleventh Amendment bars suits to recover monetary damages by
State employees under Title I of the Americans with
Disabilities Act. Since this case involved an ADA suit brought
by citizens of Alabama, again against the State of Alabama, it
also ignores the plain meaning of the
Eleventh Amendment.
In Alden the Supreme Court extended its activist
interpretation of State sovereign immunity, far beyond the
bounds of Article III, Section 2, and the Eleventh Amendment.
Justice Kennedy, writing for a 5-4 majority, held that a
constitutional doctrine of State sovereign immunity prohibited
a resident and employee of the State of Maine from suing the
State of Maine in State Court, not Federal court, in State
court, under the Federal Fair Labor Standards Act, because
Article III, Section 2, and the Eleventh Amendment only refer
to the judicial power of the United States, and thus only
address Federal court jurisdiction. The Alden majority
apparently recognized that even the most tortured reading of
those constitutional provisions could not justify their holding
with regard to suits in State courts. Thus, the Alden majority
found that the scope of the State's immunity from suit is
demarcated not by the text of the Eleventh Amendment alone, but
by fundamental postulates implicit in the constitutional
design. Sounds like the penumbra in Griswold that led to Roe v.
Wade. In other words, the Alden majority decided the case based
on a theory of State sovereign immunity that is not supported
by any text in the Constitution, but rather it's by its
interpretation of the Constitution's unspoken meaning.
By this resolution that's before us, and by the gentleman's
decision----
Chairman Sensenbrenner. The gentleman's time has once
again----
Mr. Berman. One additional minute, Mr. Chairman.
Chairman Sensenbrenner. Reluctantly without objection.
Mr. Berman. Thank you. The gentleman did not constrain--
confine this resolution to just dealing with this specific
decision, and I understand why. Because he is not trying to get
into second guessing each decision of the Court. He is trying
to establish a broader principle of strict interpretation, and
that is a fundamental principle, and therefore I am sure that
the majority side can appreciate that in this particular case
we have seen a line of decisions which have immunized citizens
of their States from exercising their Federal rights where
Congress clearly intended to cover the States from actions by
the States, and I would hope that they would show the
consistency of their position and they're serious about the
language of paragraph 7 of this resolution by adopting this
amendment.
Chairman Sensenbrenner. Gentleman from Ohio.
Mr. Chabot. Thank you, Mr. Chairman. Move to strike the
last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Chabot. Thank you. If I could address a question to the
gentleman from California. The gentleman's amendment is a very
interesting amendment. I would agree with the gentleman in part
and oppose to the gentlemen's amendment, be opposed in part.
Would the gentleman consider amending his amendment or
modifying it to the degree that we do include all Federal
judges, which I would agree with the gentleman would be an
improvement. Right now this is limited to just circuit court
judges. I would agree to expand that to Federal judges.
On the other hand, I would object to the additional
language which I find unnecessary. The text of the existing
resolution says: ``The President should nominate and the Senate
should confirm Federal Circuit Court Judges''--we would agree
to including all Federal judges--``who interpret the
Constitution consistent with the Constitution's text.'' To me
that's simpler, more understandable and less limited than it
would be if we should specifically point out other parts of the
Constitution as the gentleman suggests.
So just to reiterate, would the gentleman agree to
modifying his amendment to include Federal judges, in other
words, the first two lines of your amendment, but striking the
second two lines, which limits the parts of the Constitution
that we're referring to? I'll yield to the gentleman.
Mr. Berman. I thank the gentleman for yielding, and if he
would permit me, before I answer that question, to understand
fully what he's talking about, to ask him two questions. The
first would be: do you disagree with anything that I've said,
that the general principle of strict interpretation of the
Constitution is inconsistent with the decisions that I
mentioned, that keep citizens of the States from suing their
own States based on Federal statutes and denying jurisdiction,
not only to Federal courts but even in the most--the last of
the cases, just State courts, to litigate those Federal
questions?
Mr. Chabot. Reclaiming my time, the issue before us today
is the Newdow case and the Pledge of Allegiance, and that's how
we got to this point where we're at today. I wed agree with the
gentleman--I'm not going to say I agree with everything or
disagree with everything the gentleman said because it was 5
minutes, plus 3 minutes, plus 1 minute, which was 9 minutes I
believe, and I agree with much of what the gentleman said, but
I don't think we need to get into all those side issues. At
this point our goal here is to protect the rights of children
and others in this country to pledge allegiance to the flag,
which the Ninth Circuit has at this point declared
unconstitutional, and that's over 9 million kids that are going
to be unable in schools to pledge allegiance to the flag, which
seems absurd, but that's what the ruling has been thus far.
What we're trying to do at this point is to, as part of
this amendment, is to encourage the President to nominate and
the Senate to confirm judges who strictly--strike strictly--
interpret the Constitution consistent with the Constitution's
text. The additional items that the gentleman has included in
his amendment, from our point of view are unnecessary and just
complicate the matter further.
And I'd yield to the gentleman if he has anything to say.
Mr. Berman. I appreciate the gentleman yielding. This
resolution isn't just limited to the Pledge of Allegiance. The
gentleman's point is basically----
Mr. Chabot. Reclaiming my time, that's how we got here and
that's the principal issue, but I would yield back.
Mr. Berman. The gentleman chose to include paragraph 7. The
gentleman is saying, whatever you think about the Pledge,
whatever you think about that decision, the major error of the
Ninth Circuit decision was that they not apply the First
Amendment of the Constitution by its text, and they veered away
from a literal interpretation of the text of the First
Amendment, and its free exercise and establishment clauses.
That's why you include paragraph 7. And I'm just trying to
understand, is there a general principle here, because if there
is, if we don't want to get into my addition to the ``be it
resolved'' clause, would the gentleman accept simply including
a ``whereas'' clause that makes reference to the Eleventh
Amendment as well being an amendment for which the text should
be strictly adhered to.
Mr. Chabot. Reclaiming my time, and we've got very little
amount of time here, we're not agreeable at this time to any
additional verbiage. We are agreeable to expanding this to
include all Federal judges, not just circuit court judges. And
if the gentleman is agreeable to that, we could draft an
amendment, or you can modify it as such.
Mr. Berman. Well, I--no, I would not----
Chairman Sensenbrenner. Let the Chair make a constructive
suggestion. It seems to me there are two individual
propositions. If either gentleman wants to demand a division of
the question, we can vote on the first two lines of the Berman
Amendment first and the second two lines second, and perhaps
accomplish, allowing everybody to vote the way they wanted to.
Mr. Chabot. I would move to divide it.
Mr. Berman. Mr. Chairman, point of order. I'm curious on
how one can divide my amendment. Is this in a parliamentary
sense truly a divisible question?
Chairman Sensenbrenner. The Chair believe it is.
Mr. Berman. I guess that's just about enough, isn't it?
[Laughter.]
Mr. Berman. Is that a strict interpretation of----
Chairman Sensenbrenner. The time of the gentleman has
expired. The question is on----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio's time has
expired.
The gentleman from North Carolina, Mr. Watt?
Mr. Watt. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes, and the question currently is on the first two lines
of the Berman Amendment.
Mr. Watt. I don't have any comment on the first two lines
of the Berman Amendment. I think it's ridiculous to divide the
question because it's all one sentence, and I think the
Chairman is abusing the Chairman's rights by dividing the
question.
Chairman Sensenbrenner. Okay. Then the Chair will withdraw
the division of the question and the question now is on the
Berman Amendment as introduced.
Mr. Watt. I move to strike the last word. I move to strike
the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes.
I think this exercise is so ridiculous that I can't even bear
the thought of taking 5 minutes to debate it. If I read this
correctly the First Amendment of the Constitution says that we
should make no laws, no laws inconsistent with freedom of
speech. That would be absolutely ridiculous. That would be the
strict adherence to the actual text of the First Amendment, so
we're making a mockery of the Constitution that has worked for
our country for years and years and years, and just in the name
of making some political point here, which to me is just--
doesn't even warrant the dignity of this Committee.
I yield back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentleman from
New York seek recognition?
Mr. Nadler. Move to strike the last word.
Chairman Sensenbrenner. Gentleman's recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, I must confess, I'm not sure how
I should vote on Mr. Berman's amendment, because the fact of
the matter is, the courts always interpret the Constitution in
a way that the courts think, or claim they think at any rate,
it's consistent with the Constitution's text. So I don't know
what this amendment does. Now, the question is what does
``consistent'' mean? Judges interpret that in different ways.
Some think it means the literal meaning of the words. Justice
Scalia thinks it means whatever Madison thought it meant in
1788, what the original framers thought it meant in 1788, if
you can divine that somehow. Others think it means what a broad
reading would mean given current conditions, but whatever it
means, those are interpretations of what ``consistent with the
Constitution's text'' means.
Now, it's true that the current majority of the Supreme
Court has egregiously offended the meaning of Article XI by
going backwards on it. Article XI says--Eleventh Amendment--
well, the Eleventh Article's amendment to the Constitution.
The Eleventh Amendment says that the judicial power of the
United States shall not extend to suits by citizens of one
State against another. Very clear. The current court has
interpreted it to mean, well, it also shouldn't extend to suits
by citizens of a State against the same State. Quite different
from what the plain text seems to indicate. The current Supreme
Court has also invented the doctrine that this amendment also
brings the entire legal structure of sovereign immunity into
the States, and that the States accede to the power of the King
of England, because apparently when we rebelled against
England, sovereignty was not vested, taken away from the King
and given to the people. It was given to the States rather than
the people, which is a novel theory. But based on that theory,
they brought sovereign immunity into the Eleventh Amendment and
said that therefore people can't sue their own States to
enforce Federal laws.
But I'm not sure what this amendment means, and I certainly
wouldn't want to give it to the tender mercies of the current
members of the Supreme Court. I think that the Supreme Court
has made it very difficult by their varying interpretations,
and frankly, the current majority of the Supreme Court is
strictly textuous when they want to be and anti-textuous when
they don't want to be. For example, any Justices adhering to a
textuous interpretation of the Constitution would have thought
that the Supreme Court had no business getting involved with
Florida State Law in the case of Gore v. Bush, but they were
overriding reasons of politics to deviate from the normal
constitutional views of the Supreme Court majority there.
So I think that whether we have this language or not
doesn't take away from the danger that the Supreme Court poses
to the Constitution.
I yield back.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. And I will not take my 5 minutes. But I would
ask the proponent of the resolution if there is a--if he has
considered, along with others, the filing of an amicus? I yield
to the gentleman.
Mr. Chabot. No.
Mr. Delahunt. Could the gentleman distinguish the rationale
between the decision issued by the Ninth as opposed to that
issued by the Seventh Circuit?
Mr. Chabot. Would the gentleman yield?
Mr. Delahunt. I do.
Mr. Chabot. I think the Seventh was right and the Ninth was
wrong.
Mr. Delahunt. Well, I understand that, but if you could
just distinguish the rationale to amplify the logic of it, the
premise of the rationale.
Mr. Chabot. Will the gentleman yield?
Mr. Delahunt. Yes.
Mr. Chabot. The Ninth Circuit in this case basically
indicated that the Pledge of Allegiance is unconstitutional,
that it violates the establishment clause of the United States
Constitution, which I think is clearly in error. The Seventh
Circuit, in a different case, came to a very different
conclusion, and I think that the Seventh Circuit is much more
consistent with prevailing law, with the Supreme Court's
rulings over the years with respect to the establishment
clause, and I just think it's pretty clear that the Ninth in
this particular instance is out of whack not only with the
sentiment of the American people, but existing precedent over
many years, both----
Mr. Delahunt. Right. Well, reclaiming my time. I mean
oftentimes the Supreme Court is inconsistent with the sentiment
of the American people, but clearly it's their constitutional
duty to interpret the Constitution, so we're not talking about
sentiment. We're talking about the Constitution. We crafted a
Constitution, I would suggest, to avoid the popular mood of the
moment.
Having said that, I'll yield the time I have remaining to--
--
Ms. Lofgren. Would the gentleman yield?
Mr. Delahunt. To the lady from California.
Ms. Lofgren. I think--thank you for yielding--that the
issue raised by Mr. Berman is a sound and scholarly one, that I
understand I could support the amendment. But I'd like to go to
the underlying bill, which is a complete utter waste of our
time. I actually disagree with the Ninth Circuit. I think their
decision is wrong. It will be appealed. I think ultimately it
will be overturned.
The bill before us has nothing to do with that. I mean we
have a lot of work to do, and passing this bill--the House has
already expressed its opposition to the Ninth Circuit decision.
Why we are spending time, when we have so many other things to
do, on this preposterous exercise of grandstanding is beyond
me. And I yield back.
Mr. Delahunt. Reclaiming my time, I would yield to the
gentleman from California, Mr. Berman.
Mr. Berman. Thank you, Mr. Chairman, Mr. Delahunt.
And I just want to point out that fundamentally that
seventh paragraph in the eyes of the majority is nonsense. They
put it in, but they don't mean it. They're not serious about
it. And I don't mean this in any personal sense, but in a
general political sense, there's a tremendous hypocrisy here.
This isn't about strict interpretation versus activism. This is
a total result oriented line of thinking that says when we like
the decision and it's done in the name of strict construction,
we're for it. And when we want a decision that requires
activism and a search for nonconstitutional doctrines that
compel it, then it's fine. And the majority's unwillingness to
accept this language, evinces I think a broader sense than just
we want to keep the focus on the Pledge.
Over in the U.S. Senate now there's a debate about a
Federal judge. Paragraph 7 here says, ``Whereas the
decision''--I'm sorry. The seventh clause says, ``The President
should nominate and the Senate should confirm Federal Circuit
Judges who interpret the Constitution consistent with the
Constitution's text.'' The necessary conclusion one draws from
that language is that they should not confirm judges who do not
interpret the text strictly. In other words, judicial
philosophy is a very relevant consideration to the confirmation
of Federal judges. But when they talk about the hold up in the
Senate on this judgeship, they say, you shouldn't be judging
about whether it's judicial philosophy. It's whether he's
competent to be a judge. You don't mean that. You don't mean
strict interpretation. It's a total result-oriented philosophy.
When I like the decision, I'm for it. When I don't like the
decision, I'm----
Chairman Sensenbrenner. Time of the gentleman from
Massachusetts has expired.
Mr. Berman. Mr. Chairman, I'd like to withdraw the
amendment.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there further amendments?
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. Mr. Chairman, that was in error. Thank you
very much.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from Virginia?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. Gentleman's recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I come from a State that has a
long tradition in supporting religious freedom. In fact, it was
Thomas Jefferson of Virginia who wrote the Virginia State for
Religious Freedom which precedes the First Amendment to our
Constitution.
So as we send our troops overseas to fight for freedoms,
let us remember the good work of those who wrote the First
Amendment to the Constitution. Today's exercise is totally
gratuitous because nothing we do here will change the
underlying law. This is because we're dealing with
constitutional issues that cannot be altered by resolution. If
the Judicial Branch ultimately finds the pledge to be
constitutional, then nothing needs to be done. On the other
hand, if the courts ultimately find it to be unconstitutional,
no law that we pass will change that.
Whether or not you agree with the decision, the fact is
that the majority opinion is well reasoned. The appellate court
applied all three different tests that have been applied in the
last 50 years in evaluating establishment clause cases, and
found the constitutional violation based on all three tests.
One test was whether the phrase ``under God'' in the Pledge
constitutes an endorsement of religion. The majority opinion
says that it was an endorsement of one view of religion,
monotheism, and therefore was an unconstitutional endorsement.
Another test was whether the individuals were coerced into
being exposed to the religious message. And again, the majority
opinion concluded that the Pledge was unconstitutional because
young children, who are compelled by law to attend school,
quote, ``may not be placed in the dilemma of either
participating in a religious ceremony or protesting.'' Finally,
the Court applied the lemon test, part of which holds that a
law violates the establishment clause if it has no secular
purpose or no non-religious purpose. For example, cases
involving the moment of silence in public schools, some of
those laws have been upheld if the law allows silent prayer as
one of many activities which can be done in silence. But courts
have stricken laws in which a moment of silent prayer is added
to existing moments of silence because that law has no secular
purpose. The court concluded that the 1954 law, which added
``under God'' to the existing Pledge, had no secular purpose
and therefore was unconstitutional.
I also believe, Mr. Chairman, that a good argument can be
made in support of the dissent. The operative language in the
dissent was, and I quote, ``Legal word abstractions and
ruminations aside, when all is said and done, the danger that
'under God' in our Pledge will tend to bring about a theocracy
or suppress someone's belief is so minuscule as to be de
minimis. The danger that that phrase represents to our First
Amendment's freedoms is picayune at best,'' unquote.
Unfortunately, our actions today may cause the courts to
review the sentiments behind this because if the courts look at
the importance that we apparently affix to ``under God,'' these
terms will--these actions will diminish the argument that the
phrase has de minimis meaning, and our actions today will
actually increase the constitutional vulnerability of the use
of the phrase in the pledge.
Now, while a Federal Court of Appeals in California
recently rejected calls to rehear the case, the fact remains
that this issue is still alive and well in the courts, and
every hearing we hold chips away at the de minimis meaning
argument.
Furthermore, Mr. Chairman, the court may review the
legislation, this legislation under the lemon test, and find
that today's exercise has no secular purpose, and therefore
helps interested constitutional attack. Those attacks will gain
validity because of our attacks today.
Mr. Chairman, let me close with a quote from an editorial
that appeared in the Christian Century, a nondenominational
Protestant weekly which a good friend was so kind to send to
me. It reads, and I quote: ``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, I side with the Ninth Circuit.''
Mr. Chairman, I would hope that we would not pass this
resolution and get on to more important work.
I yield back the balance of my time.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I wish
to speak in opposition to this resolution. When we considered a
very similar resolution on the floor of the House, what was it,
last year, most of the newspaper columnists, most of the
speakers on the floor of the House said something that I
profoundly disagreed with. They said that this was a shocking
and surprising decision and would almost certainly be
overturned when the Court heard it en banc.
If you read the decision, however, as Mr. Scott pointed
out, it's well reasoned legally, and more to the point, it is
absolutely mandated, in my opinion, by the school prayer
jurisprudence of the last 40 years of the Supreme Court. And
the only way you can get around that is by saying that ``under
God'' is de minimis, which is an insult to religion. God is not
de minimis. I hope that this Committee will not vote for this
resolution, in effect endorsing their opinion of the Court that
God is de minims. God is not minor, and a declaration of a
belief in God is not unimportant. And if it is important and
you coerce students into doing it, and it is coercion, as the
Court pointed out, the entire jurisdiction of the school prayer
area in the Supreme Court in the last 40 years says it's
unconstitutional.
Now, having said that, you have a conflict of courts
between the Ninth and the Seventh. Why not let--the Supreme
Court will have to decide this. I predict they will uphold the
Ninth Circuit. They will say that the Ninth Circuit was
correct. But why not let that go forward and see? It will go
forward in any event. Why should Congress come out--well, I
know why. It's political grandstanding. But putting that aside,
Congress has no business telling the courts that they're right
or wrong.
Another reason for opposing this resolution is it is simply
a violation of the separation of powers. It's simply wrong, of
the spirit. I mean we can say anything we like, but we
shouldn't go telling courts they're wrong. If we think the
court did something that we don't appreciate, draft a bill to
change the law, or draft an amendment to change the
Constitution if it's a constitutional issue. That's our job. We
write the laws. We can initiate an amendment to the
Constitution. But if you're not prepared to do that, a
resolution that simply says the courts are wrong in how they
interpret the Constitution, it's none of our business to say
that. As individuals, but not as the House of Congress.
So I believe on several grounds, one, the court was right.
I think the Supreme Court's going to sustain that. Time will
tell. But it's not our business to change that unless we want
to wait for the Supreme Court to decide, and if we don't like
that, you can try to amend the Constitution, which I wouldn't
suggest in any event, but that's the proper procedure. This is
simply political grandstanding, and it's dangerous political
grandstanding, and I challenge anyone to go home and say the
Ninth Circuit is wrong because the phrase ``under God'' is
meaningless and unimportant. It's not meaningless. It is not
unimportant. I have no problem reciting the Pledge, but we
shouldn't--we shouldn't coerce schoolchildren into doing it,
for those few who may disagree, who may come from Buddhist
households or Hindu households or atheist households. They're
Americans too. They have equal religious liberty with all the
rest of us. I yield back.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. Mr. Chairman, thank you for your kindness.
I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Jackson Lee. Mr. Chairman, I'm going to take a slightly
different perspective than a number of my colleagues.
Hopefully, I will be in line with constitutional commentary and
arguments, and I will make the point that when Members write
legislation, jurisdiction is, if you will, directed. I imagine
that we are looking at this legislative initiative because it
deals with the Constitution and deals with the judicial
opinion, and so it is appropriately referred to the Judiciary
Committee.
I say that because I hope that the resolution that I am
drafting and one that I've already drafted, that indicates that
Congress should be the entity under the Constitution, to be the
vehicle to declare war will be considered by this Committee
expeditiously. So I'm not going to argue the point about the
question of H. Res. being before us, because I hope that there
will be a fair treatment of all Members' resolutions dealing
with the Constitution, and I believe that this House and this
Congress has abdicated its responsibility with the allowing of
a potential preemptive unilateral strike, and I believe that a
constitutional review should take place of that.
As it relates to H. Res. 132 I also have a view that will
cause me to vote present on this, on these accounts. One is
that I believe that the First Amendment--and since we are here
speaking about judicial opinions, we all can just give our
opinion--as an amendment that allows a freedom of expression,
freedom of religion, freedom of speech. I believe the Pledge of
Allegiance is an expression of speech. I also believe that it
is a voluntary expression of speech, and so I have to read this
legislation to ensure that there is no compulsion on the part
of anyone in the United States, any elementary, any middle
school, any high school, public school student being forced to
say the Pledge of Allegiance. If that is the case then I think
this is a benign resolution except for its gratuitous comments
about judicial appointments, which is causing me to oppose the
resolution as it presently is written, because I'm not sure
what my colleagues on the other side are trying to say. Are
they trying to suggest there's a litmus test for the kinds of
judges that are to be appointed? And I think that is wrong.
That has no place in this gratuitous resolution.
But as far as the Pledge of Allegiance is concerned, I
think that it is a voluntary expression. The ``under God'' is a
voluntary expression. If you do not want to say it, do not say
it. It may be a little uncomfortable for you. I think maybe if
you're in elementary school, the parents should be notified or
the parents should notify the school. The child should not be
isolated. We should not categorize any children who do not want
to say it, but the Pledge of Allegiance is voluntary.
So from a personal perspective I disagree with the Ninth
Circuit, and from a personal perspective I think the First
Amendment protects us in saying ``under God.'' But my personal
perspective is probably totally irrelevant.
This Committee, this Chairman and this Committee has chosen
to accept this resolution, and I have no argument with that in
terms of being presented to this body. But I will say to my
colleagues, be fair to those of us who believe that we are
proceeding with an unconstitutional war because we have not
actually declared war by way of as vote of this Congress, and
that you will accept resolutions that we have that says that
under Article II, Section 8, the Congress is the only body to
declare war. And I guess as we proceed with this resolution, I
hope that the First Amendment does protect any of us who desire
to pledge allegiance to the flag and allow the words ``under
God'' to be part of our pledge, and as we do so, I would think
that we would characterize this as a voluntary statement of our
loyalty to the United States of America, respect for the
democracy and the Constitution, and this resolution would have
been better off if it had had one statement, which is, ``We
believe in the pledge of allegiance to the flag. Here it is,
and we support it.'' But obviously that was not the intention.
I hope that as it goes to the floor it will be presented in a
way that many of us who agree that the First Amendment protects
saying ``under God'' because it is voluntary, will be able to
vote for this when it finally arrives at the floor of the
House.
With that, Mr. Chairman, I yield back, and I look forward
to us reviewing the resolutions that I'll be presenting on the
war and the unconstitutionality of the present posture of the
United States in preemptive unilateral strike without a
constitutional declaration of war. I yield back.
Chairman Sensenbrenner. Are there amendments?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes.
I just wanted to say publicly what I just leaned over and said
to my colleague, Mr. Scott. I endorse his statement fully, his
wonderful intellectual statement of what I had to say
emotionally. I just don't have the patience to say it when
people politically grandstand, but I have great admiration for
the manner and content of the way he deals with this. I yield
back.
Mr. Delahunt. If I----
Mr. Watt. I yield to the gentleman from----
Mr. Delahunt. I just wanted to note that I do believe that
Congress has the right that I think it has exercised in the
past in terms of expressing its opinion about the Constitution,
and I would--clearly, this body in our system is not the
ultimate arbiter of the interpretation of the Constitution, but
I think the gentlelady from Texas makes an excellent point. If
the motion itself, if the resolution itself was restricted to
an expression about a particular decision, I think there would
be a different comfort level, if you will, in terms of many of
us that serve on this Committee as far as a vote is concerned.
But with the additional language that is in the amendment,
I daresay that her reference to a litmus test or to that
language, undermining, if you will, the reality and the basic
constitutional premise that we have an independent judiciary is
absolutely on the market. And maybe the gentleman who proposed
the resolution should review the resolution based on her
comments. And I yield back.
Mr. Watt. I yield back, Mr. Chairman.
Chairman Sensenbrenner. Are there amendments? If not, a
reporting quorum is present. The question is on agreeing to the
motion to favorably report House Resolution 132. Those in favor
will say aye.
Opposed, no.
The ayes appear to have it.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio.
Mr. Chabot. Ask for recorded vote.
Chairman Sensenbrenner. Recorded vote is requested. Those
in favor of reporting H. Res. 132 favorably, will, as your
names are called, answer aye, those opposed no, and the clerk
will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes.
[No response.]
The Clerk. Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Carter?
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
Mrs. Blackburn. Aye.
The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Present.
The Clerk. Mr. Berman, present. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. Present.
The Clerk. Mr. Watt, present. Ms. Lofgren?
Ms. Lofgren. Present.
The Clerk. Ms. Lofgren, present. Ms. Jackson Lee?
Ms. Jackson Lee. Present.
The Clerk. Ms. Jackson Lee, present. Ms. Waters?
Ms. Waters. Present.
The Clerk. Ms. Waters, present. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Present.
The Clerk. Mr. Delahunt, present. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Present.
The Clerk. Ms. Sanchez, present. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members in the chamber, wish to
cast or change their votes? Gentleman from North Carolina, Mr.
Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. Gentleman from Virginia, Mr.
Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Chairman Sensenbrenner. Other Members who wish to cast or
change their vote? The gentleman from Massachusetts, Mr.
Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote? Mr. Meehan again.
Mr. Meehan. Can I change my vote to aye or present?
[Laughter.]
Chairman Sensenbrenner. Remember, three strikes and you're
out. [Laughter.]
Mr. Meehan. Present, please.
The Clerk. Mr. Meehan, present.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes?
If not, the clerk will report.
Mr. Meehan. Can I take my staffer off the payroll?
[Laughter.]
Mr. Delahunt. Leave me alone, Marty.
Chairman Sensenbrenner. And that can be done outside the
Committee room. The clerk will report.
The Clerk. Mr. Chairman, there are 22 ayes, 2 nays, and 8
present.
Chairman Sensenbrenner. And the motion to report the
resolution favorably is agreed to. Without objection, the staff
is directed to make any technical and conforming changes, and
all Members will be given 2 days as provided by the House rules
in which to submit additional dissenting supplemental or
minority views.
Minority Views
Minority Views to H. Res. 132, a resolution to reaffirm the
reference to one Nation under G-d in the Pledge of Allegiance
H. Res. 132 is a response to the 9th Circuit's decision in
Newdow v. U.S. Congress I \1\ and Newdow v. U.S. Congress II.
\2\ In these rulings, the 9th Circuit held that daily voluntary
\3\ recitation of the pledge violated the Establishment Clause
of the Constitution. \4\ Both the House of Representatives and
the Senate passed resolutions in the 107th Congress immediately
after the Court handed down its decision in Newdow I. H. Res.
459 passed by a vote of 416-3, and S. Res. 292 passed by a vote
of 99-0. \5\ The current resolution is in response to Newdow
II, recently released on February 28, which reaffirms the first
holding and denies all petitions for rehearing on the issue.
---------------------------------------------------------------------------
\1\ 292 F.3d 597 (9th Cir. 2002). http://www.ca9.uscourts.gov/ca9/
newopinions.nsf/FE05EEE79C2A97B688256BE3007FEE32/$file/0
016423.pdf?openelement
\2\ No. 00-16423 (9th Cir., February 28, 2003)
\3\ Mandatory recitation of the Pledge was struck down by the
Supreme Court in West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943).
\4\ The Court wrote, ``[t]he Pledge, as currently codified, is an
impermissible government endorsement of religion because it sends a
message to unbelievers `that they are outsiders, not full members of
the political community, and an accompanying message to adherents that
they are insiders, favored members of the political community.' ''
Newdow I at 9124. The 9th Circuit, relying on the Supreme Court's
voluntary school prayer jurisprudence stated, ``the phrase `one nation
under G-d' in the context of the Pledge is normative. To recite the
Pledge is not to describe the United States; instead, it is to swear
allegiance to the values for which the flag stands: unity,
indivisibility, liberty, justice, and--since 1954--monotheism. The text
of the official Pledge, codified in Federal law, impermissibly takes a
position with respect to the purely religious question of the existence
and identity of G-d. A profession that we are a nation `under G-d' 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 g-d,' because none of these professions
can be neutral with respect to religion.'' Id. at 9123.
\5\ H. Res. 459, 107th Cong., 148 Cong. Rec. H4125-4136 (June 27,
2002); S. Res. 292, 107th Cong., 148 Cong. Rec. S6105-6106 (June 26,
2002).
---------------------------------------------------------------------------
Although the 9th Circuit has held that the Pledge violates
the Establishment Clause, the only other Circuit to have
considered the question, the 7th Circuit, has upheld the
language of the Pledge, including the 1954 amendment. \6\
Although the proposed legislation cites Supreme Court dicta on
the subject of the Pledge and the national motto, the Court has
never squarely considered the question of the constitutionality
of the voluntary recitation of the Pledge in schools.
---------------------------------------------------------------------------
\6\ Sherman v. Community Consolidated School District 21, 980 F.2d
437 (7th Cir. 1992).
---------------------------------------------------------------------------
We voted for the resolution at Committee because we believe
the Ninth Circuit Court of Appeals ruling runs counter to the
spirit and precedent surrounding the First Amendment. As
Members with great respect and reverence for our pledge of
allegiance, we don't believe its recitation substantively
infringes on freedom of religion.
H. Res. 132 should not be interpreted as a means of
discrediting the judiciary. When Members of Congress argue, as
they did last Congress, that a decision was written by
``radical secularists \7\'' and others make assertions
concerning the judiciary creating a ``G-dless state \8\''
little room is left for fair and reasoned debate. However, it
should be noted that other judicial rulings have been much more
objectionable and destructive to the ideals of our
Constitution; for example, the Supreme Court ruling in Bush v.
Gore in which Five Republican political appointees contorted
the equal protection clause to stop the counting of votes. \9\
Although the Majority now decries judicial activism, there was
no resolution on the floor in condemnation of that.
---------------------------------------------------------------------------
\7\ Remarks of Mr. Pence, Cong. Rec. H4074, 107th Congress, June
27, 2002.
\8\ Remarks of Mr. Pickering, Cong. Rec. H4129, 107th Congress,
June 27, 2002.
\9\ Bush v. Gore, 531 U.S. 98 (2000).
---------------------------------------------------------------------------
In addition, last June, the Supreme Court ruled in Zelman
v. Simmons-Harris that taxpayer funds can be used in voucher
programs to support parochial schools. \10\ This ruling has
been called the worst church-state ruling in 50 years. The
Supreme Court also upheld random drug testing of high school
students who participate in extracurricular activities in Board
of Education v. Earls, including those students who are not
suspected of any wrongdoing. \11\ Its hard to imagine an
opinion that is more objectionable from a privacy standpoint.
But again, we doubt we will see a congressional referenda on
those decisions any time soon.
---------------------------------------------------------------------------
\10\ Zelman v. Simmons-Harris, No. 00-1751(2002).
\11\ Board of Education of Independent School District No. 92 of
Pottawatomie County et. al. v. Earls et al., No. 01-332 (2002).
---------------------------------------------------------------------------
We also take great issue with our friends who came to the
House Floor claiming that Newdow is a shocking sign of some
fundamental defect in the judiciary. Unlike Bush v. Gore, this
decision can be appealed, where it will likely be overturned.
This is but one step in the judicial process, a process that
usually and ultimately gets it right. Just as Plessy v.
Ferguson \12\ (upholding separate but equal) was eventually
overturned by Brown v. Board of Education \13\, and Penry v.
Lynaugh \14\ (permitting execution of the mentally retarded)
was overridden by Atkins v. Virginia \15\, we have seen that
the courts have often lost their way only to find it again
---------------------------------------------------------------------------
\12\ Plessy v. Ferguson, 163 U.S. 537 (1896).
\13\ Brown v. Board of Education, 347 U.S. 483 (1954).
\14\ Penry v. Lynaugh, 492 U.S. 302 (1989).
\15\ Atkins v. Virginia, No. 00-8452 (2002).
---------------------------------------------------------------------------
We are also concerned about new language inserted in this
Congress' resolution that states ``the President should
nominate and the Senate should confirm Federal circuit court
judges who interpret the Constitution consistent with the
Constitution's text.'' In one sense, this new language is a
truism--obviously the Constitution needs to be read consistent
with its text. That is what judges do. We hope this is not read
as some sort of a litmus test that sitting judges and other
potential nominees had better tailor their constitutional views
to a particular or a narrow view of the Constitution.
Lost in our debate on H. Res. 132 is the value of our
judicial system, the crown jewel of our democracy. If there is
any single idea in the Constitution that has separated our
experiment in democracy from all other nations, it is the
concept of an independent judiciary.
The Founding fathers, in their great wisdom, created a
system of checks and balances. Independent judges with lifetime
tenure were given the tremendous responsibility of interpreting
the constitution. It is no surprise that over the years, it is
the judiciary, more than any other branch of our government,
that has served as the protector of our precious civil rights
and civil liberties over the years. We agree with Alexander
Hamilton that the ``independence of the judges'' enables them
to stand against the ``ill humors'' of passing political
majorities. \16\
---------------------------------------------------------------------------
\16\ The Federalist No. 78 at 469 (Alexander Hamilton) (Clinton
Rossiter ed., 1961)
---------------------------------------------------------------------------
The fact that the Ninth circuit appears to have gone astray
does nothing to diminish our respect for our Judiciary.
John Conyers, Jr.
Additional Views
Judges should not be immune from criticism. Indeed, healthy
debate on the merits of judicial decisions is an essential
element of our system of justice. But there is a difference
between legitimate criticism and pressure tactics that pose a
threat to judicial independence.
Like all Americans, Members of Congress are free to
criticize judicial decisions with which we disagree. In fact, I
joined most of my colleagues in voting for a resolution during
the last Congress (H. Res. 459) that expressed disapproval of
this very decision and urged that it be overruled.
But I voted ``present'' on this current resolution because
it goes further in a way that I believe would set an unwise and
dangerous precedent. It is one thing to urge the Judicial
Branch to use the normal process of appellate review to correct
an erroneous decision. It is quite another thing to imply that
judges who issue unpopular decisions in particular cases are
unfit for office.
Unfortunately, that is what the present resolution does. It
not only expresses disapproval of the court's reasoning in
Newdow, but states that ``the President should nominate and the
Senate should confirm Federal circuit court judges who
interpret the Constitution consistent with the Constitution's
text.''
By linking future nominations to a particular ruling with
which the proponents disagree, the resolution sends a not-so-
subtle message to sitting judges and other potential nominees
that they had better tailor their constitutional views to those
of the congressional majority if they wish to be confirmed.
The framers recognized that an independent Judicial Branch
is an essential guarantor of freedom in a democracy. For this
reason, Article III of the Constitution provides that judges
shall continue in office during good behavior, and that their
compensation shall not be diminished during their continuance
in office. For the same reason, those who profess fidelity to
the Constitution must take great care not to chip away at the
independence of the judiciary on which our liberty depends.
William D. Delahunt.
Howard L. Berman.
Additional Views
I come from a State that has a long tradition in supporting
religious freedom. In fact, it was Thomas Jefferson of Virginia
who wrote the Virginia Statute for Religious Freedom which
precedes the first amendment of the Constitution.
H. Res 132 is totally gratuitous, as it will do nothing to
change the underlying law. This is because we are dealing with
constitutional issues that cannot be altered by resolution. If
the Judicial branch ultimately finds the Pledge or the national
motto to be constitutional, then nothing needs to be done. If,
on the other hand, the courts ultimately find it to be
unconstitutional, no law that we pass will change that.
Although I tend to agree with the dissent in the Newdow vs
U.S. Congress, 292 F. 3d 597(9th Cir. 2002), case regarding the
Pledge of Allegiance, I believe the reasoning of the majority
opinion in that case was sound. In that case, the Supreme Court
applied three different tests that have been applied for the
last 50 years in evaluating the establishment clause cases. One
test was whether the phrase ``under God'' in the Pledge
constitutes an endorsement of religion. The majority opinion
says it was an endorsement of one view of religion, monotheism,
and, therefore, was an unconstitutional endorsement.
Another test was whether the individuals were coerced into
being exposed to the religious message, and the majority
opinion concluded that the Pledge was unconstitutional because
young children ``may not be placed in the dilemma of either
participating in a religious ceremony or protesting.''
Finally, the court applied the Lemon test, part of which
holds that a law violates the establishment clause if it has no
secular or nonreligious purpose. For example, cases involving a
moment of silence in public schools, some of those laws have
been upheld if the law allows silent prayer as one of the many
activities that can be done in silence. But courts have
stricken laws in which a moment of silent prayer is added to
existing moments of silence because that law has no secular
purpose. The court concluded that the 1954 law which added
``under God'' to the existing Pledge had no secular purpose
and, therefore, was unconstitutional.
I indicated that I tended to agree with the dissent in the
Newdow case. The operative language in the dissent which
persuaded me was the following:
``Legal world abstractions and ruminations aside, 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 someone's belief is so minuscule
as to be de minimis. The danger that phrase represents
to our first amendment's freedoms is picayune at
best.''
Unfortunately, our actions in enacting H. Res. 132 may
cause the courts to review the sentiments behind ``one Nation
under God'' or ``In God We Trust'' because if the courts look
at the importance that we apparently affix to ``one Nation
under God'' or ``In God We Trust,'' then it diminishes the
argument that the phrase has de minimis meaning and increases
the constitutional vulnerability of the use of that phrase in
the Pledge. While, a Federal appeals court in California
recently rejected calls to rehear the controversial ruling that
struck down recitation of the Pledge of Allegiance in public
schools due to its religious content, the fact remains that
this issue is alive and well and every hearing chips away at
the de minimis meaning argument.
Furthermore, the court may look at the legislation under
the Lemon test and find that this exercise has no secular
purpose and is, therefore, unconstitutional. The phrase ``In
God We Trust'', the national motto, appears to be vulnerable to
the same constitutional attack as the phrase ``under God'' in
the Pledge. Those attacks gain validity because of our actions
on H. Res 132.
A quote from an editorial that appeared in the Christian
Century, a non-denominational Protestant weekly, Puts this
matter in perspective:
``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, I side with the Ninth
Circuit - the government should not link religion and
patriotism''
Robert C. Scott.