Here, in the dissent of the recent decision Newdow v. Rio Linda Union School District (also known as Newdow v. Carey), we have an example of the writing of a competent judge who knows the law, knows how to apply the law, can reason and think clearly and deeply, and has first rate ethical commitment and judgment. Unfortunately, the other two judges, who together constituted the majority, can't hold a candle to Judge Stephen Reinhardt from the United States Court of Appeals for the Ninth Circuit on even any one of those attributes.
Introduction
Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the "under God" version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, "under God", words added in 1954 for the specific religious purpose, among others, of indoctrinating public schoolchildren with a religious belief. The recitations of the amended version as conducted by the Rio Linda Union and other school districts fail all three of the Court's Establishment Clause tests: The recitation of the Pledge in its historic secular version would not fail any of them. Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.
To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today's majority purports to do, that the words "under God" were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: "to recognize the power and the universality of God in our pledge of allegiance;" to "acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion," 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919. Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or non-participation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.
It is equally clear that no judge familiar with our constitutional history and the history of the Pledge could legitimately rely on a 2002 "reaffirmation" to justify the incorporation of the words "under God" into the Pledge in 1954 by a statutory amendment, or suggest that, in determining the question before us, we should not look to that amendment but only to the Pledge itself, as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred. Finally, no such judge could ignore the fact that in a clearly controlling decision that binds us here the Supreme Court has directed us, in deciding a constitutional question such as we now face, to examine the 1954 amendment and why it was adopted rather than to look to the pertinent statute, here the Pledge, as a whole. See Wallace v. Jaffree, 472 U.S. 38, 58-61 (1985).
The undeniably religious purpose of the "under God" amendment to the Pledge and the inherently coercive nature of its teacher-led daily recitation in public schools ought to be sufficient under any Establishment Clause analysis to vindicate Jan Roe and her child's constitutional claim, and to require that the Pledge of Allegiance, when recited as part of a daily state-directed, teacher-led program, be performed in its original, pre-amendment secular incarnation that served us so well for generations. Surely, our original Pledge, without the McCarthy-era effort to indoctrinate our nation's children with a state-held religious belief, was no less patriotic. For purposes of this case, the only difference between the original secular Pledge and the amended religious version is that the former did not subject, and was not designed to subject, our children to an attempt by their government to impose on them a religious belief regarding the existence of God. We should indeed have had more faith in our country, our citizens, and our Constitution than we exhibited at the peak of the McCarthy era when we enacted the religious amendment to our Pledge of Allegiance, in part to inculcate in our children a belief in God. In doing so, we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.
Today's majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts, just as this court's decision in Newdow I1 was condemned by so many who did not even bother to read it and simply rushed to join the political bandwagon. As before, there will be little attention paid to the constitutional rights of the minority or to the fundamental tenets of the Establishment Clause. Instead, to the joy or relief, as the case may be, of the two members of the majority, this court's willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.
If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular. In such circumstances, adherence to constitutional principles by all members of this court and all members of the judiciary will become all the more important. I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all. That is not an easily achieved objective, as today's decision shows, but it remains an essential one.
History leaves no doubt that Congress inserted the words "under God" in the Pledge of Allegiance in order to inculcate in America's youth a belief in religion, and specifically a belief in God. No matter the majority's attempts to obfuscate the question, the record on that point is clear. It is equally clear that the daily, state-sponsored, teacher-led recitation of the "under God" version of the Pledge in public schools, institutions in which First Amendment rights are most in need of vigilant protection, violates the Establishment Clause, under any legal analysis in which this court may properly engage. If our constitutional principles are to be redefined in the manner the majority suggests (and I would hope that they would not be), only the Supreme Court may do so, not two members of an appellate court who for varying reasons wish to repudiate our earlier decision.
The Constitution "has never meant that a majority could use the machinery of the State to practice its beliefs." Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 226 (1963). It was to forestall practices such as are currently engaged in by the Rio Linda and other school districts that the Founders adopted the Establishment Clause while deliberately omitting the term "God" from the constitution. The Founders sought to preserve a strict division between the religious and the secular, and between the Church and the State. As appellate judges it is our duty to preserve that division, unless and until the Supreme Court instructs us to the contrary.
The 2002 reaffirmation2 by Congress made no change in the Pledge as amended in 1954, but simply purported to reaffirm the earlier Congress's action fifty years before, when it added to it the additional phrase "under God"; it also sought to explain why it believed that the earlier Congress's action was constitutional at the time it was taken, and why it thought that this court's interpretation of the Constitution in Newdow I half a century after the amendment was adopted was wrong.3 Any effort to address the issue before us, however, must be based not on what happened in 2002, long after the "under God" amendment was adopted, but on the facts and circumstances surrounding the enactment of that amendment in 1954, as well as on other relevant historical facts. There is simply no basis in law, constitutional or otherwise, for using an event that occurred many years later, let alone one of no legal significance, to attempt to rewrite history: here, the history relating to the enactment of the amendment to the Pledge in 1954. History cannot be eradicated by a different Congress's recitation long afterwards of its version of the events that preceded or followed the actions of an earlier body. If this is not apparent to all on its face, it is clear as a matter of law, because the Supreme Court has so squarely held. See McCreary County v. ACLU of Ky., 545 U.S. 844, 871-72 (2005).
I. The Majority's Fundamental Errors
A reader of the majority opinion, if unfamiliar with the facts of this case and the law that intermediate courts are bound to apply to those facts, would be left with a number of misconceptions about both. It might be helpful to identify the most fundamental of those misconceptions at the outset, prior to engaging in the more detailed examination of the facts and the law that follows. Although the majority's reasoning is far from clear, its conclusion that the state-directed, teacher-led, daily recitation of the "under God" version of the Pledge in public schools complies with the Establishment Clause appears to result from at least seven major errors in its legal analysis.
First, this case involves only the phrase "under God" as
recited by young children as part of a state-directed, teacher-
led, daily program in public schools. Only those two words
are at issue. The plaintiffs in this case do not ask us to "strike
down the Pledge" or to prohibit its recitation, as the majority
claims. Rather, they ask only that the two words be stricken
and that the state-directed, teacher-led, daily recitation return
to the original, purely secular Pledge of Allegiance that
schoolchildren had recited long before Congress enacted it
into law in 1942, and long before Congress added the reli-
gious phrase at issue here by statutory amendment in 1954.
Second, the majority asserts that "under God" as that term appears in the amendment to the Pledge is not a religious phrase, and was not inserted in the Pledge for a religious purpose. Instead, the majority argues that "under God" is simply "a reference to the historical and political underpinnings of our nation," that its purpose is to remind us that ours is a "limited government" and, thus, that the term as adopted by Congress has a predominantly secular meaning and purpose. There is simply no basis in fact or law for so absurd an assertion. If the plain meaning of the words "under God" were not enough to demonstrate beyond any doubt that the majority's contention borders on the irrational, and that the term is predominantly, if not entirely, religious in both meaning and purpose, the overwhelmingly religious intent of the legislators who added the phrase to the Pledge, as shown by the unanimous statements to that effect in the Congressional Record, would remove any possible doubt from the mind of any objective person.
Third, the majority states that in order to determine the constitutionality of the amendment adding the phrase "under God" to the Pledge, we must examine the Pledge as a whole and not the amendment. Well-established controlling Supreme Court law is squarely to the contrary. See Wallace v. Jaffree, 472 U.S. 38 (1985). Wallace makes it clear, beyond dispute, that it is the amendment and its language, not the Pledge in its entirety, that courts must examine when, as here, it is the amendment, not the Pledge as a whole, that is the subject of the claim of unconstitutionality. The majority's error in this respect causes it to analyze the legal issues improperly throughout its opinion. Examining the wrong issue inevitably leads the majority to reach the wrong result.
Fourth, the amendment to the Pledge that added the phrase "under God" was, contrary to the majority's contention, adopted in 1954, not in 2002. Congress's reaffirmation of the "under God" amendment in response to this court's Newdow I decision is of no legal consequence. Congress could not and did not change the meaning and purpose of the 1954 amendment in 2002 and did not purport to do so. It simply proclaimed that we were wrong in our legal ruling and that we erred in our constitutional analysis of the First Amendment issue. Although the 2002 Congress did not purport to suggest a different purpose for Congress's 1954 action than did the earlier Congress, even had it sought to add a secular purpose, such as to remind us of our nation's "limited government" or "historical principles of governance," doing so would not have changed the overwhelmingly predominant religious meaning and purpose of the amendment. See McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). Nor, certainly, would it have changed the effect of the amendment upon the schoolchildren who are subjected to the state-directed, teacher-led, daily recitations of the Pledge.
Fifth, the majority suggests that the School District's policy
is constitutional because under that policy only "willing" stu-
dents recite the Pledge. The majority does not and cannot
make that argument explicitly, however, because it is well-
established that the Constitution forbids governmental coer-
cion, and not just compulsion, of religious belief. The major-
ity acknowledges at a later point in its opinion that public
schoolchildren are "coerced to participate" in the state-
directed, teacher-led recitation of the "under God" version of
the Pledge, but then excuses that coercion on other grounds
that are as fallacious as its initial argument.
Sixth, the majority repeatedly asserts that under the coercion test only "religious exercises" may be deemed unconstitutional. The majority's "religious exercise" limitation conflicts with the express holding of Lee v. Weisman, 505 U.S. 577, 587 (1992), as well as the Supreme Court's decisions in Stone v. Graham, 449 U.S. 39 (1980) (per curiam), and Edwards v. Aguillard, 482 U.S. 578 (1987). Coercion is prohibited with respect to participation in religious activities as well as other efforts to support or promote religion. Moreover, the majority errs in its contention that because the Pledge constitutes a patriotic rather than a religious exercise, the religious component does not fail the coercion test. A religious component included in a secular exercise, whether or not a patriotic one, is subject to the same coercion rules as is any other religious practice to which public school students are subjected. Further, the majority's assertion that the coerced recitation of the Pledge does not require "a personal affirmation . . . that the speaker believes in God" is not only contradicted within the majority opinion itself, but is foreclosed by the Supreme Court's explicit statement that the Pledge "requires affirmation of a belief." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). In any event, it is self-evident that one cannot profess to believe that our nation is "under God" without professing to believe that God exists.
Seventh, the majority appears at several points in its opinion to imply that the use of the term "under God" in the Pledge may be justified by the doctrine of ceremonial deism. The theory of ceremonial deism has never been approved by the Supreme Court for use in Establishment Clause cases in general; the Court has, however, expressly disapproved the use of that doctrine to justify state-sponsored religious practices in the public schools. Lee, 505 U.S. at 596-97. The majority's suggestion that the doctrine may be applicable here is clearly erroneous.
If the majority made only one or two of the seven fundamental errors described above, its conclusion that the state-directed, teacher-led, daily recitation of the "under God" version of the Pledge is constitutional could not stand. With all seven errors, the majority sets an all-time record for failure to conform to any part of any of the three tests governing compliance with the Establishment Clause. Unless and until those tests are reversed or repudiated by the Supreme Court, an appellate court is not free to disregard the law and the Constitution in the manner that the two judges in the majority have in the case before us.
II. Historical and Factual Background
To begin with, this case concerns the daily recitation of a state-directed, teacher-led, religious version of the Pledge of Allegiance in public schools, a setting that the Supreme Court has always considered especially significant to its Establishment Clause analysis. A proper constitutional analysis must give substantial weight to the critical fact that we are dealing with "young impressionable children whose school attendance is statutorily compelled." Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (same). We must also bear in mind that the issue before us is whether those children may, regardless of their own fundamental views, be subjected to a daily Pledge that includes a religious component, as opposed to simply reciting the historic version of the Pledge that contained no reference to God. However, before discussing the complex case law regarding the Establishment Clause, or the less complex case law regarding the relationship between the Establishment Clause and public schoolchildren, it is important to have a full understanding of the words at the heart of this controversy, the added two words of the amended Pledge, and the history of how the Pledge grew from twenty-nine to thirty-one words in 1954.
For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.4 But those of us who attended school before the 1950s, including at least two members of this panel, may remember a different Pledge of Allegiance, a wholly secular pledge that was based solely on patriotism and not on any attempt at religious indoctrination. That version of the Pledge, the original version, was written by Francis Bellamy in 1892. It read: "I pledge allegiance, to my flag, and to the Republic for which it stands " one Nation indivisible " with Liberty and Justice for all." The Pledge achieved such popularity and acceptability that in 1942, Congress codified it, departing only slightly from Bellamy's words by replacing "my flag" with "the flag of the United States of America," thereby recognizing officially the minor change that had been made in practice a generation earlier.5 Neither Bellamy's version nor the slightly modified official version, recited for many years by school-children throughout the land, contained any language even remotely associated with religious beliefs.
It was not until 1954 that the provision amending the Pledge was enacted, inserting the words "under God" into the Pledge of Allegiance, and it is at this point that the majority's version of history diverges sharply from the facts. In the majority's view, the words "under God" were added to the Pledge for a predominantly secular purpose. That is simply not the case. Seizing on the fact that the amendment to the Pledge was adopted during the Cold War, the majority asserts that the "words `under God' were added . . . to reinforce the idea that our nation is founded upon a concept of a limited government, in stark contrast to . . . communist forms of government." Maj. op. at 3909 (emphasis added).6 In the majority's version of the facts, religion played at most only a minor part in the effort to amend the Pledge. Nothing could be further from the truth. As anyone with a whit of common sense will readily acknowledge, the word "God" carries predominantly, indeed exclusively, religious significance. While differentiating the United States from the Soviet Union was certainly a factor motivating the amendment of the Pledge, even that differentiation was based largely on the Soviets' purported belief in atheism and America's belief in religion, and particularly in God. Indeed, the overwhelmingly predomi nant purpose motivating the amendment of the Pledge was unqualifiedly religious in nature: Congress declared that "true" Americans believe in God and sought to imprint this belief on the minds of schoolchildren across the country.
Were the majority to engage seriously with the history of
the Pledge, it would be compelled to recognize beyond any
doubt that the words "under God" were inserted with the
explicit and deliberate intention of endorsing a particular reli-
gious belief, of compelling nonadherents to that belief to pro-
nounce the belief publicly or be labeled un-American, and of
instilling the particular religious view in America's youth
through daily indoctrination in the public schools.
For want of a respectable constitutional argument, the majority seeks to persuade us that "[i]t is the 2002 statute . . . that sets forth our current Pledge." Maj. op. at 3894. That statement is, at best, misleading: the "current Pledge" was enacted in 1954, and its language has not changed in any respect since the words "under God" were added at that time. As I shall explain, see infra Part III, the majority's attempt to use the 2002 legislation as the legal basis for the incorporation of the two additional words into the Pledge in 1954 is patently without merit and is contrary to logic, reason, and binding Supreme Court law. The "reaffirmation" by the later Congress does not in any way affect the constitutionality of the "under God" amendment as recited by public schoolchildren in the present or in any other circumstances.
A. Religious Origins of the "Under God" Amendment
For most of its 117 year existence, the Pledge of Allegiance existed, and was recited across the nation, in a purely secular form. The overwhelmingly religious purpose driving the decision to amend the Pledge into its current form is apparent from the earliest efforts to do so. Those efforts began in 1951, when the Knights of Columbus, a "major Roman Catholic fraternal order,"7 adopted a resolution requiring that the words "under God" be included in the Pledge of Allegiance when said at organizational meetings.8 The following year, the Supreme Council of the organization passed a resolution urging the United States Congress to adopt the Knights' version of the Pledge, and within a few months Representative Louis Rabaut, a Catholic congressman from Michigan, sponsored a bill to do just that.
That first bill, however, did not gain much traction, perhaps because the group backing its adoption was composed of Roman Catholics, who were, at the time, disdained as both foreign and ignorant by many segments of American society.9 No Catholic had been nominated for President of the United States by a major political party until 1928, when the Catholicism of Al Smith, the first member of that religion to become his party's standard bearer, was a major issue in the presidential campaign. Smith lost the election to Herbert Hoover by nearly twenty percentage points, and no other Catholic was gain nominated until after the Pledge had been amended. Following Rabaut's introduction of his bill, the Knights sent a second, identical resolution to every member of the House and Senate. ELLIS, supra note, at 131. Yet, "despite the [Knights'] best efforts . . . the movement to have the `under God' clause added to the Pledge languished throughout 1953." Id. at 132. Thus, the Catholic effort to place God in the Pledge appeared to be dead.
The next year, however, the words "under God" received a full-throated endorsement from members of a more mainstream and popular Christian denomination " a major Protestant religion. On February 7, 1954, the Reverend George M. Docherty, a highly regarded Presbyterian minister, delivered a sermon on "the American way of life" to an august congregation at Washington's prestigious New York Avenue Presbyterian Church: many members of Congress were present, and seated in President Lincoln's former pew were President and Mrs. Eisenhower. See 100 Cong. Rec. 1700 (1954). Reverend Docherty seized this opportunity to encourage the assembled national leaders to add the words "under God" to the Pledge of Allegiance, arguing that such a phrase was necessary to distinguish America from "militantly atheistic communism,"10 and, more specifically, to distinguish the "Judaio-Christian" beliefs governing this nation from the "secularized Godless" philosophy that motivated our opponents in the "theological war" in which we were engaged. Contrary to the majority's characterization of the purpose underlying the proposed insertion as predominantly secular, Reverend Docherty explicitly denied that the phrase "under God" emphasized a difference in political philosophies as the majority contends. Rather, he said:
We face today a theological war. It is not basically
a conflict between two political philosophies "
Thomas Jefferson's political democracy over against
Lenin's communistic state.
Nor is it a conflict fundamentally between two
economic systems[,] between, shall we say, Adam
Smith['s] "Wealth of Nations" and Karl Marx['s]
"Das Capital."
It is a fight for the freedom of the human personal-
ity. It is not simply, "Man's inhumanity to man." It
is Armageddon, a battle of the gods. It is the view of
man as it comes down to us from the Judaio-
Christian civilization in mortal combat against mod-
ern, secularized, godless humanity.
. . . [T]he pledge of allegiance . . . seems to me to
omit this theological implication that is inherent
within the "American Way of Life." It should be
"One nation, indivisible, Under God." Once "Under
God," then we can define what we mean by "liberty
and justice for all." To omit the words "under God"
in the pledge of allegiance is to omit the definitive
character of the "American Way of Life."
Diverging for a moment from his theological thesis, Reverend Docherty then paused to address those who "might assert this [proposed alteration] to be a violation of the First Amendment to the Constitution." Reverend Docherty had at least some specific critics in mind, seeing as when he had made a similar proposal to amend the Pledge in a sermon two years earlier "several of [his] colleagues" in the clergy "declared it would violate the principle of separation of church and state."11 In the Reverend's view, however, as expressed in his church lecture to the President and the assembled members of Congress, it was "quite the opposite," as the proposed insertion would not create a "state church in this land such as exists in England" nor would it discriminate between "the great Jewish Community, and the people of the Moslem faith, and the myriad denominations of Christians in the land."12
The Reverend was mindful, however, that he omitted a
group from his list: "What then of the honest atheist?" he
asked rhetorically. Here his answer was simple:
[A]n atheistic American is a contradiction in
terms. . . .
[T]hey really are spiritual parasites. . . . [They] are
living upon the accumulated spiritual capital of a
Judaio-Christian civilization, and at the same time,
deny the God who revealed the divine principles
upon which the ethics of this Country grow. . . .
. . . .
[I]f he denies the Christian ethic, [the atheist] falls
short of the American ideal of life.
The Reverend's central message was clear: the American way of life "is defined by a fundamental belief in God. [It is a] way of life that sees man, not as the ultimate outcome of a mysterious concatenation of evolutionary process, but a sentient being created by God and seeking to know His will . . . ." Only by adding the words "under God" to the Pledge of Allegiance could that oath truly be a pledge "to the United States of America."
The assembled legislators in Reverend Docherty's pews were enraptured by his sermon. One was so inspired that he felt compelled to break the Sabbath in order to draft the historic bill amending the Pledge of Allegiance in time to introduce it the next morning: "The following day, one of Docherty's petitioners [sic], Representative Charles Oakman, introduced a resolution in the House that would codify the inclusion of `under God' in the Pledge. Two days later, Senator Homer Ferguson presented an identical resolution to the Senate."13 Both legislators explicitly stated that they introduced their proposed bills in direct response to Reverend Docherty's sermon. See 100 Cong. Rec. 7759 (Rep. Oakman); id. at 6231 (Sen. Ferguson). Later that same week, Representative Rabaut, who had introduced the bill a year earlier that was "the grandaddy of them all," id. at 7758, took to the floor of the House to comment on the inspiring impact of Docherty's "eloquently" delivered sermon. See id. at 1700. Indeed, Docherty's "sermon was so powerful that in its wake no fewer than seventeen bills were introduced to incorporate God into the Pledge of Allegiance."14
B. Congressional Enactment of the "Under God"
Amendment
The strong religious sentiment driving the amendment to the Pledge only became more pietistic when the topic moved from the pulpit into the halls of Congress. The discussion of the proposed amendment could hardly be called a debate, as no one stood in opposition,15 but a parade of legislators still rose to offer spirited, deeply religious statements in support of the proposal. While it cannot fully recapture the fervent and undeniable religiosity so evident in the pages of the Congressional Record, even the limited report of the discussion that follows is extremely revealing. In an effort at completeness, this report includes statements from each and every legislator who commented on the proposed Pledge amendment in the Congressional Record.16
The discussion in Congress began five days after Reverend Docherty's sermon, when Congressman Rabaut made his way to the floor of the House of Representatives to declare that "[w]ithout these [new] words . . . the pledge ignores a definitive factor in the American way of life and that factor is belief in God." 100 Cong. Rec. 1700 (emphasis added). In the Congressman's view, anyone who did not wholeheartedly endorse that "belief in God" was not a true American. As for American atheists, Congressman Rabaut was unsparing in his condemnation:
From the root of atheism stems the evil weed of
communism and its branches of materialism and
political dictatorship. Unless we are willing to affirm
our belief in the existence of God and His creator-
creature relation to man, we drop man himself to the
significance of a grain of sand and open the flood-
gates to tyranny and oppression.
Id. (emphases added). At the close of the congressman's jeremiad against nonbelievers, he let the following words, lifted from Reverend Docherty's sermon, echo through the hall: "An atheistic American . . . is a contradiction in terms." Id. (emphasis added).
Once the seventeen separate House bills seeking to amend the Pledge were consolidated and favorably reported by the judiciary Committee, the House proceeded to a floor discussion during which many congressmen rose to express their views. Congressman Angell, who had authored one of the many bills, said, "there should be embodied in the pledge our allegiance and faith in the Almighty God. The addition of the words `under God' will accomplish this worthy purpose." Id. at 6919 (emphases added). Representative Pillion, author of a separate bill, gave a statement "in support of any and all bills that would serve to recognize the power and the universality of God in our pledge of allegiance. . . . The inclusion of God in our pledge would acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion." Id. at 7590-91 (emphases added). Congressman Bolton, author of yet another of the bills, stated that:
The significant import of our action today . . . is that
we are officially recognizing once again this
Nation's adherence to our belief in a divine spirit,
and that henceforth millions of our citizens will be
acknowledging this belief every time they pledge
allegiance to our flag.
Id. at 7757 (emphases added). Congressman Brooks rose to
declare that the proposed law "recognizes that all things
which we have in the way of life, liberty, constitutional gov-
ernment, and rights of man are held by us under the divine
benediction of the Almighty." Id. at 7758 (emphases added).
Congressman Keating noted that:
[W]e cannot too often be reminded of the spiritual
values which alone have permanence . . . . When the
forces of anti-God and antireligion so persistently
spread their dangerous and insidious propaganda, it
is wholesome for us to have constantly brought to
our minds the fact that . . . it is the strength of the
spirit . . . to which we must ultimately look for salva-
tion . . . .
Id. at 7760 (emphasis added). Congressman Oakman proudly introduced into the record a letter from a constituent praising his authorship of one of the proposed bills, which described the bill as "a realistic recognition of the theological and philosophical truth " the existence of a Supreme Being." Id. Congressman O'Hara observed that "what we are engaged in today is a sacred mission" and that in amending the Pledge the legislators were achieving a "victory for God." Id. at 7762 (emphases added). Congressman Wolverton commented that the proposed amendment "sets forth in a mere two words, but, very strong and meaningful words, the fundamental faith and belief of America in the overruling providence of God and our dependence at all times upon Him." Id. at 7763 (emphasis added). Congressman Rodino quoted scripture in order to best express "the spirit" of the proposed law, citing David the Psalmist for the proposition that Americans reciting the Pledge (including the public schoolchildren who were expected to recite it every day in the classroom, see infra Part II.C) "shall say to the Lord: Thou art my protector and my refuge: my God, in Him will I trust." Id. at 7764. Congressman Bolton rose to observe that the legislation "comes at a time in the world when we do well to once more publicly and officially affirm our faith." Id. (emphasis added). At the close of the discussion, the final congressman to speak was Representative Addonizio, who said:
We, who take the pledge of allegiance to the flag
of the United States of America and raise our eyes
toward that symbol of our faith, should bear in mind
that our citizenship is of no real value to us . . .
unless we can open our souls before God and before
Him conscientiously say, "I am an American."
Id. at 7765 (emphases added).
The majority asserts that "[t]he words `under God' were added as a description of `one Nation' primarily to reinforce the idea that our nation is founded upon the concept of a limited government, in stark contrast to . . . communist forms of government." Maj. op. at 3909 (emphasis added). In my colleagues' view, any religious purpose associated with the amendment of the Pledge was merely incidental to the patriotic, anti-Communist purpose driving the law. However, had my colleagues actually acknowledged the existence of the detailed historical record instead of ignoring it, they could not have failed to recognize that their historical assertion is precisely backward: the anti-Communist sentiment associated with the amendment was clearly secondary to the overwhelming and predominant religious purpose motivating the amendment. For one thing, the majority's revisionist account ignores the fact that much of the anti-Soviet sentiment associated with the amendment was itself driven in large part by the congressmen's religious disagreement with the Soviets' purported atheism. For example, in rising to endorse the amendment, Congressman Wolverton stated that a virtue of the proposed amendment was that it "plainly denies the atheistic and materialistic concepts of communism with its attendant subservience of the individual." 100 Cong. Rec. 7762 (emphasis added). Indeed, the original author of the bill to amend the Pledge stated that "the evil weed of communism and its branches of materialism and political dictatorship" stems "[f]rom the root of atheism." Id. at 1700 (emphasis added). The majority's revisionism is further refuted by that same original author, Congressman Rabaut, who explicitly stated: "You may argue from dawn to dusk about differing political, economic, and social systems, but the fundamental issue which is the unbridgeable gap between America and Communist Russia is a belief in Almighty God."17 Id. (emphases added). This was seconded by Congressman Brooks, who declared that "One thing separates free peoples of the Western World from the rabid Communist, and this one thing is a belief in God." Id. at 7758 (emphases added). Indeed, even the official House Report accompanying the bill demonstrates that the desire to underscore a political philosophy of anti-Communism was at most an ancillary aim of the bill, as it was listed as a second and separate rationale following the legislation's primary stated rationale: to "acknowledge the dependence of our people and our Government upon the moral directions of the Creator." See H.R. REP. NO. 83-1693 at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. Moreover, even that ancillary rationale stresses the religious underpinning of the anti-Soviet sentiment, as the Report goes on to state: "At the same time, [the bill] would serve to deny the atheistic and materialistic concepts of communism . . . . " Id., 1954 U.S.C.C.A.N. 2340 (emphasis added).
After all of the congressmen made their intentions clear and the House moved to adopt its final bill, discussion opened across the Capitol in the well of the Senate. Initially, the Senate version of the bill stalled in the Senate Judiciary Committee, where it "seemed dead" because some "senators had concerns about the resolution's implications for the separation of church and state." ELLIS, supra note 5, at 134; see also id. at 257 n.40. However, in light of the zealous and unanimous parade of congressmen who endorsed the bill in the House, the Senate was forced to consider the matter. The senators who remarked on the bill from the floor of that chamber were fewer in number,18 though no less fervent in their religiosity than their counterparts in the House. Senator Wiley, rising to congratulate Senator Ferguson for authoring the Senate bill, said that "in these days of great challenge to America, one can hardly think of a more inspiring symbolic deed than for America to reaffirm its faith in divine providence, in the process of restating its devotion to the Stars and Stripes." 100 Cong. Rec. 5915 (emphasis added). When the final resolution was reported to the Senate, Senator Ferguson explained its purpose as follows: "the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic." Id. at 6348 (emphasis added).
Evidence of the legislation's overt religious purpose was
not, as the majority claims, limited to individual statements
proclaiming the "religious motives of the legislators who
enacted the law." Maj. op. at 3911 n.27 (citing Bd. of Educ.
v. Mergens, 496 U.S. 226, 249 (1990) (plurality opinion of
O'Connor, J.)). To the contrary, the House and Senate
Reports accompanying the proposed bills also bear testament
to the new Pledge's indisputably religious purpose. The Sen-
ate Report stated that one of the reasons for adopting the
"under God" amendment was its recognition of "the funda-
mental truth that a government deriving its power from the
consent of the governed must look to God for divine leader-
ship." S. REP. NO. 83-1287 at 2 (1954) (emphasis added),
reprinted in 100 Cong. Rec. 6231. The House Report empha-
sized "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. The
inclusion of God in our pledge therefore would further
acknowledge the dependence of our people and our Govern-
ment upon the moral directions of the Creator." H.R. REP.
No. 83-1693 at 1-2 (1954) (emphasis added), reprinted in
1954 U.S.C.C.A.N. 2339, 2340.
With these official reports attached to the bills, both the
Senate and the House unanimously adopted the new Pledge
by voice vote and sent it to President Eisenhower for his
approval. The culmination of the legislative proceedings was
carefully timed so that the joint resolution could be approved
in time for the President to sign it on Flag Day, four short
months after Reverend Docherty's sermon. See, e.g., 100
Cong. Rec. 7759 (discussing scheduling of legislation in rela-
tion to Flag Day). And so it was that on June 14, 1954, Presi-
dent Eisenhower officially added his signature to the bill
amending the Pledge of Allegiance, thereby changing funda-
mentally the nature and purpose of the oath. After doing so,
he proclaimed in his signing statement:
From this day forward, the millions of our school
children will daily proclaim in every city and town,
every village and rural school house, the dedication
of our Nation and our people to the Almighty. To
anyone who truly loves America, nothing could be
more inspiring than to contemplate this rededication
of our youth, on each school morning, to our coun-
try's true meaning.19
Once the bill was signed into law, Senator Ferguson, Con-
gressman Rabaut, the sixteen other sponsors of the "under
God" resolutions, and the Senate Chaplain gathered before an
assembled audience at the Capitol and a national audience
watching on television for what Walter Cronkite called a
"stirring event."20 As described in the Congressional Record,
the legislators who amended the Pledge turned toward "the
believer's flag[,] the witness of a great nation's faith" and
recited the newly minted Pledge of Allegiance to "our Nation
[and] to the Almighty." 100 Cong. Rec. 8617. "Then, appro-
priately, as the flag was raised a bugle rang out with the
familiar strains of `Onward, Christian Soldiers!' " Id.:
Onward, Christian soldiers, marching as to war,
With the cross of Jesus going on before.
Christ, the royal Master, leads against the foe;
Forward into battle see His banners go!
C. The 1954 Amendment and America's Schoolchildren
The foregoing history of the process by which the Pledge
was amended " beginning in the pews of New York Avenue
Presbyterian Church, continuing through speech after speech
in the House and Senate declaring the need for America to
"affirm our belief in the existence of God," id. at 1700, fol-
lowed by the President's remarks regarding schoolchildren
daily proclaiming their dedication to the Almighty, and con-
cluding with the triumphant playing of Onward Christian Sol-
diers on the Capitol steps to baptize the newly amended
national oath " demonstrates beyond any shadow of a doubt
that the purpose driving the amendment was predominantly,
and indeed overwhelmingly, religious in nature. But there is
more. Not only was the message underlying the new Pledge
clear " "true" Americans believe in God and non-believers
are decisively un-American " but so too was its intended
audience: America's schoolchildren.21
The legislators who set out to insert the words "under God"
into the Pledge of Allegiance were fully aware that in 1954
the original Pledge was a commonplace scholastic ritual.22
Indeed, a primary rationale for inserting the explicitly reli-
gious language into the Pledge of Allegiance, as opposed to
into some other national symbol or verse, was that the Pledge
was an ideal vehicle for the indoctrination of the country's
youth. The amendment's chief proponents in Congress were
not at all bashful about their intentions. Speaking from the
well of the Senate, Senator Wiley endorsed the bill by saying,
"What better training for our youngsters could there be than
to have them, each time they pledge allegiance to Old Glory,
reassert their belief, like that of their fathers and their fathers
before them, in the all-present, all-knowing, all-seeing, all-
powerful Creator." Id. at 5915 (emphases added). Senator
Ferguson, who authored the Senate bill, agreed that "we
should remind the Boy Scouts, the Girl Scouts, and the other
young people of America, who take [the] pledge of allegiance
to the flag more often than do adults, that it is not only a
pledge of words but also of belief." Id. at 6348 (emphasis
added). In the House, Congressman Rabaut, the original
author of the first bill to amend the Pledge, declared that
"from their earliest childhood our children must know the real
meaning of America," a country whose "way of life . . . sees
man as a sentient being created by God and seeking to know
His will." Id. at 1700 (emphases added). His colleague, Con-
gressman Angell, argued that "the schoolchildren of Ameri-
ca" should understand that the Pledge of Allegiance
"pledge[s] our allegiance and faith in the Almighty God." Id.
at 6919 (emphases added). Similarly, Congressman O'Hara
noted that the new Pledge's "acknowledgment that God is the
foundation of our Nation will be of incalculable value, all
through the years, of ever keeping vividly before our . . .
children[,] who from earliest childhood[ ] pledge their alle-
giance to the flag, that the real source of our strength in the
future, as in the past, is God." Id. at 7763 (emphases added).
Indeed, the last words said before the House passed the bill
inserting "under God" into the Pledge emphasized "the mil-
lions of school children who daily repeat the pledge of alle-
giance." Id. at 7766 (emphasis added). And of course, when
President Eisenhower signed the law amending the Pledge, he
declared that "[f]rom this day forward, the millions of our
school children will daily proclaim in every city and town,
every village and rural school house, the dedication of our
Nation and our people to the Almighty."23 Id. at 8618 (empha-
ses added). These statements reflect the unanimous expecta-
tion on the part of both houses of Congress and the President
of the United States that the new religious version of the
Pledge would be recited regularly by "the schoolchildren of
America." Id. at 6919.
Nor was it only the federal government that promoted the newly amended Pledge through legislation. At the time Congress first considered the amendment to the Pledge, only six states " Delaware, Massachusetts, Mississippi, New Jersey, Rhode Island, and Washington " had statutes requiring students to recite the Pledge in school,24 even though the Pledge had, at that point, existed for over sixty years and had been "a defining symbol of national patriotism" for over three decades. See ELLIS, supra note 5, at 79. However, once Congress inserted the words "under God" into the Pledge in 1954, the number of states statutorily providing for its recitation skyrocketed: Within a few years of the congressional amendment, nine state legislatures passed laws either requiring or encouraging recitation of the Pledge in school with the newly inserted words "under God."25 A steady march of legislatures followed suit so that today all but seven states statutorily provide for the teacher-led daily recitation of the "under God" version of the Pledge.26 As the proponents of the "under God" amendment stated early on, such "widespread support [for] the [new Pledge] . . . must bear testimony to a religious revival of significance."27
At the forefront of that revival was the state of California. While many other states, perhaps preoccupied with more pressing legislative business, took a decade or more to endorse state-directed, teacher-led, daily recitation of the religious version of the Pledge in public schools, California did so in 1961, becoming one of the first states to adopt a school-pledge statute after Congress inserted the words "under God."28 California's Pledge-recitation bill was introduced on January 12, 1961, following an opening prayer in the California State Assembly to "Jesus Christ, our Lord and Redeemer."29 Some legislators, apparently concerned over the religious content recently inserted into the Pledge by Congress, attempted to amend the proposed state bill in order to allow "any pupil" to be "excused from giving the pledge" if doing so "conflicts with [his] religious beliefs."30 However, even this modest protection for religious minorities was removed from the final version of the bill, over the dissenting votes of seven members.31 Thus, on May 1, 1961, when the final version of the bill was signed by Governor Edmund G. "Pat" Brown,32 California joined those states ensuring by force of law that the state-directed, teacher-led recitation of the "under God" version of the Pledge of Allegiance would occur daily in classrooms throughout the state.
D. The 2002 "Reaffirmation"
Almost immediately after its amendment, the new Pledge
was the subject of numerous constitutional challenges. See
infra note 102. Those challenges continued consistently over
the following decades, but met with little success until June
26, 2002, when this court held that the state-directed recita-
tion of the "under God" version of the Pledge of Allegiance
in California's public schools violated the First Amendment.
Newdow I, 292 F.3d at 612. In response to that constitutional
ruling, lawmakers immediately took to the floor in both
houses of Congress to condemn this court's decision. Among
them was Senator Robert Byrd, who proudly announced that
he was "the only Member of Congress today, bar none, in
either body, who was a Member of the House on June 7,
1954, when the words `under God' were included in the
Pledge of Allegiance." 107 Cong. Rec. S6103. His comments,
like those of the other Senators who spoke that day, made
clear that his outrage over the Newdow I decision was not
based on any devotion to principles of limited government:
I, for one, am not going to stand for this country's
being ruled by a bunch of atheists. If they do not like
it, let them leave. They do not have to worship my
God, but I will worship my God and no atheist and
no court is going to tell me I cannot do so whether
at a school commencement or anywhere else.
Id.
That same afternoon, the Senate passed a resolution expressing its "strong[ ] disapprov[al]" of the Newdow I decision. S. Res. 292, 107th Cong. (2002), reprinted in 107 Cong. Rec. S6105. The reason for that disapproval is readily apparent from the statements offered in the resolution's support. Senator Robert Bennet, for example, announced that "[r]egardless of what the courts may say, the American people still trust in God. . . . [I]t is a correct statement of how we feel, and it belongs in the Pledge of Allegiance to our flag." 107 Cong. Rec. S6106 (emphasis added). Numerous other senators expressed similar views,33 including Senator Sam Brownback, who remarked upon the superiority of the United States, "a nation that honors God," to North Korea, "a country that does not honor God." Id. at S6109.
Although the majority asserts that "virtually all of the
members of Congress agreed" that we had misunderstood its
purpose when we decided Newdow I, maj. op. at 3913
(emphasis added), not a single Senator expressed the view
that our court had misunderstood the 1954 Congress's pur-
pose for enacting the "under God" amendment. Several Sena-
tors, however, explicitly stated their disagreement with any
interpretation of the Constitution under which that religious
purpose would be impermissible. For example, Senator
George Allen declared that the Pledge "should remain in our
schools" because "the purpose of the Establishment Clause .
. . was not to expunge religion or matters of faith from all
aspects of public life." Id. at S6108. Similarly, Senator John
Ensign urged the Senate "to take it upon itself to correct what
the Ninth Circuit has done" because "we need to reestablish
in this country what this document " the Constitution of the
United States " really says and really was about." Id. at S6102.34
Recognizing these strong sentiments, Senator Trent Lott stated when he introduced the resolution that additional measures should be taken to reaffirm the actions of the 1954 Congress:
[F]or our children to be allowed to invoke God's
blessing on our country in the Pledge of Allegiance
is certainly something we want to do.
If there is ever a time when we need this addi-
tional blessing, perhaps it is now more than ever in
our lifetimes. . . . .
In [this resolution], we state that we disapprove of
the decision by the Ninth Circuit . . . .
Beyond that, to further make it clear, the Senate
should consider a recodification of the language that
was passed in 1954. There was no uncertainty or
ambiguity about what was done in 1954. The Con-
gress, in fact the American people, spoke through
their Congress. We should make it clear once again.
107 Cong. Rec. S6105 (emphasis added).35
And so they did. The next morning, Senator Byrd called the
Senate to order and invited the Reverend Lloyd J. Ogilvie, the
Senate Chaplain, to lead "[t]he prayer to Almighty God, the
supreme Judge of the world." 107 Cong. Rec. S6177. In his
invocation, Reverend Ogilvie declared that "[t]here is no sep-
aration between God and State," and proclaimed God as the
"ultimate Sovereign of our Nation." Id. He then described the
Pledge as an expression of America's trust in God: "It is with
reverence that in a moment we will repeat the words of com-
mitment to trust You which are part of our Pledge of Alle-
giance to our flag: `One Nation under God, indivisible.' " Id.
After the members of the Senate recited the Pledge, Senator
Tom Daschle offered the chaplain both thanks and agreement:
"I know I speak for all of our colleagues in thanking Chaplain
Ogilvie for his wonderful prayer this morning. He spoke for
all of us." Id.
The Senate then considered a recodification bill, entitled "An Act To reaffirm the reference to one Nation under God in the Pledge of Allegiance," later that day. 107 Cong. Rec. S6225.36 The recodification bill served two ends: to express the approval of the 2002 Congress of the 1954 Congress's inclusion of "under God" in the Pledge, and to express its disapproval of the constitutional interpretation of the First Amendment by this court in Newdow I.37 It did not make any change to the content of the Pledge or offer any different purpose for its adoption than the religious purpose that motivated the 1954 Congress. In support of the legislation, Senator Jeff Sessions made clear that he considered the Pledge an "expression of faith," that he approved wholeheartedly of what the 1954 Congress had done, and that the Senate should again express its approval of the inclusion of God in the Pledge. He stated that he disagreed not only with Newdow I, but with other limitations on religious expression in public schools:
I am a cosponsor and helped draft this legislation.
I would say this: This is not an itty bitty issue. This
is a big issue. The Congress and States and cities
have been expressing a desire to have, and be
allowed to have, an expression of faith in the public
life of America. The courts have been on a trend for
decades now to constrict that. . . . .
The Supreme Court . . . . has cracked down on
some very small instances of public expression of
faith. Our courts have made decisions such as con-
straining a valedictorian's address at a high school.
Certainly our prayer in schools has been rigorously
constricted or eliminated in any kind of normal
classroom setting, as has the prayer at football
games.
I will just say we hope the courts will reconsider
some of their interpretations of the establishment
clause and the free exercise clause of the first
amendment and help heal the hurt in this country.
Id. at S6226 (emphasis added).
The Senate's bill passed without opposition,38 and was then sent to the House for consideration.39 In its report on the bill, the House Judiciary Committee examined the historical events listed in the legislative findings, and explained why those events were relevant. It concluded that our interpretation of the First Amendment was itself unconstitutional:
Clearly, America has a rich history of referring to
God in its political and civic discourse and acknowl-
edging the important role faith and religion have
played throughout our Nation's history. Thus the
Ninth Circuit's analysis in the Newdow ruling cannot
be supported by any reasonable interpretation of the
Establishment Clause as their holding is inconsistent
with the meaning given the Establishment Clause
since America's founding.
H.R. Rep. 107-659, at 8 (2002).
On October 7, 2002, the Act "To reaffirm the reference to one Nation under God in the Pledge of Allegiance" was brought before the full House of Representatives. 107 Cong. Rec. at H7029. Representative Jim Sensenbrenner, who chaired the Judiciary Committee and submitted the House Report, explained the purpose of the legislation. He, too, expressed his approval of the action of the 1954 Congress in inserting "under God" into the Pledge and said that he thought it necessary for the later Congress to endorse and approve what the earlier Congress had done:
The Newdow ruling is troubling because its analysis
. . . . is inconsistent with any reasonable interpreta-
tion of the Establishment Clause of the First Amend-
ment. 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 histori-
cally consistent with a reasonable interpretation of
the first amendment.
Id. Only two other congressmen offered remarks on the bill. The first, Representative Robert C. Scott, stated that he "agree[d] with the dissent" in Newdow I, although he feared that the proposed legislation would further jeopardize the legal status of the amended Pledge "because if the courts look at the importance that we apparently affix to `one Nation under God' . . . then it diminishes the argument that the phrase has de minimis meaning." Id. at 7030. Representative Ronnie Shows then took to the floor to express his view that "[t]he values we teach at home and church are universal and should not be left outside the schoolhouse door . . . . I am happy that we are today considering a measure that reiterates the importance of our National Motto, and the presence of God in our lives." Id. (emphasis added). The House voted on the legislation the following day, and it passed by an overwhelming margin.40 Id. at H7186. On November 13, 2002, President George W. Bush signed the bill into law.41
As this series of events illustrates, "Congress chose to
explain in great detail its purpose in reaffirming the language
of the Pledge." Maj. op. at 3896. That 2002 Act's legislative
history makes clear that Congress's view of the reference to
"under God" in the Pledge had little to do with "political phi-
losophy," as the majority disingenuously claims, id. at 3902,
and much to do with the concept of religion, including pro-
moting the concept of God in the public schools. As the
House Report, which even the majority accepts as competent
evidence of purpose, see id. at 3912, explicitly states, the
Pledge "is a recognition of the fact that many Americans
believe in God." H.R. Rep. 107-659, at 5. The purpose of the
2002 Act could not be clearer: Congress sought to condemn
our decision in Newdow I, to defend the constitutionality of
the original 1954 amendment that added "under God" to the
Pledge, and to reaffirm "the presence of God in our lives,"
and in our Pledge.
In the end, the decision that the 2002 Congress went to such great lengths to condemn never took effect " though not, of course, because of Congress's legislative action. After our circuit declined to rehear the case en banc, without a single judge so much as suggesting that the 2002 Act had any relevance to the constitutional analysis, the Supreme Court granted certiorari and reversed on prudential standing grounds " a lack of standing of a non-custodial parent to assert the rights of his minor daughter " without addressing the merits of the Establishment Clause question. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). As a result, the state-directed, teacher-led recitation of the "under God" version of the Pledge has ever since 1954 continued, uninterrupted, in public schools throughout the nation " just as the 1954 Congress intended.
E. Jan Roe and Her Child's Constitutional Claim
Today, over six million students attend public school in the State of California.42 At least 190,000 of those students are Buddhist, Hindu or followers of a Native American religion and thus do not believe in traditional monotheism " that is,
the existence of a single, non-metaphorical, supervisory God.43 Over half a million California students come from "secular" families44 " a population that has "nearly doubled" across the country over the past two decades.45 Most of these individuals "moved away from religious observance because they no longer believe in God or religious teachings."46 Indeed, California and the West Coast have "the largest proportion of atheists and agnostics" of any region in the country.47 In California's public schools, over one million students are not sure whether they believe in God, and fully 439,000 students are avowed atheists.48
One atheist student who attends a California public school is the daughter of Jan Roe. Ms. Roe's child was born at the turn of the millennium, and so in September of 2004 the time came for Ms. Roe, a resident of the Rio Linda Union School District, to put her five-year-old daughter on a school bus and send her off for her first day of kindergarten. In so doing, Jan Roe joined the millions of parents in California and across the United States who every September "entrust public schools with the education of their children." Edwards v. Aguillard, 482 U.S. 578, 584 (1987). These parents hope the school teachers will look over their young children and keep them safe, but, just as important, they "condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family." Id.
When the five-year-old Roe child arrived for her first day of kindergarten, her teacher, a state employee, asked the young students to stand, to place their hands on their hearts, and to pledge their allegiance to "one nation, under God." Neither young Roe nor her mother, however, believe in God. Thus, having already learned that she should not tell a lie, young Roe simply stood silently, as her classmates recited in unison the version of the Pledge that requires its proponents to express their belief in God. Everyday thereafter, the children filed into school, and each morning they recited an oath of allegiance to "one nation, under God" " an oath that undeniably "requires affirmation of a belief and an attitude of mind" to which young Roe does not subscribe: a belief that God exists and is watching over our nation. Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). For eight months, the five-year-old Roe faced, every morning, the daily "dilemma of participating" in the amended Pledge, with all that implies about her religious beliefs, or of being cast as a protester for her silent refusal. Lee v. Weisman, 505 U.S. 577, 593 (1992). On some days she quietly endured the gaze of her teacher and her classmates as she refused to say the Pledge, standing in silence as the classroom's lone dissenter; on others she walked out of the room and stood in the hallway by herself, physically removed from the religious "adherents", the "favored members of the [classroom] community," Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000), who were able to swear their fealty to the United States without simultaneously espousing a state-sponsored belief in God that was antithetical to their personal religious views.
In April, 2005, Jan Roe filed this lawsuit on behalf of herself and her child. Her claim is straightforward: The Constitution of the United States, a nation founded by exiles who crossed an ocean in search of freedom from state-imposed religious beliefs, prohibits the purposefully designed, teacher-led, state-sponsored daily indoctrination of her child with a religious belief that both she and her daughter reject.
III. The 1954 Amendment and This Appeal
The history that I have just described permits only one conclusion regarding the constitutionality of the state-directed, teacher-led, daily recitation in public schools of the "under God" version of the Pledge of Allegiance as amended by Congress in 1954. In order to avoid reaching that conclusion, the majority repeatedly and deliberately misstates the issue that is before us.
First and foremost, the "hotly contested issue in this case"
is not, as the majority asserts, "whether Congress' purpose in
enacting the Pledge of Allegiance was predominantly patriotic
or religious." Maj. op. at 3885. For many years prior to 1942,
indeed from since at least the 1930s, the Pledge of Allegiance
was a patriotic and secular exercise widely recited in public
schools and at various public events and in various public
fora. It was officially adopted as such by Congress in 1942.
It is undisputed and indeed indisputable that at that time the
Pledge was solely patriotic and secular and contained no reli-
gious component or element. In 1954 Congress amended the
Pledge by inserting into that patriotic and secular instrument
the religious phrase "under God." The issue here is whether
the amendment to the Pledge " the insertion of the phrase
"under God" " was enacted for a predominantly religious
purpose, not whether the Pledge as a whole was enacted for
such a purpose.
Second, the issue is not "whether [plaintiff] Roechild can prevent other students . . . from saying the Pledge." Maj. op. at 3889; see also id. at 3888. Contrary to the majority's assertion, this case presents no issue about whether young Roe can prohibit other five-year-olds from doing anything at all. Rather, the issue is whether the Constitution prohibits young Roe's state-employed teachers from conducting the state-directed, daily recitation of the "under God" version of the Pledge in public schools. To be sure, as a member of the majority once wrote, prohibiting such recitations "deprives Christians [and other adherents to monotheistic religions] of the satisfaction of seeing the government adopt their religious message as [its] own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes." Cammack v. Waihee, 932 F.2d 765, 785 (9th Cir. 1991) (D. Nelson, J., dissenting) (second alteration original) (quoting County of Allegheny v. ACLU, 492 U.S. 573, 601 n.51 (1989)). Accordingly, the responsibility for any dissatisfaction felt by "other students" cannot be placed, as the majority shamefully seeks to do, upon the shoulders of a kindergartener; it results from the requirements of the Constitution itself.
Third, the majority's assertion that young Roe asks us "to prevent teachers from leading other students [in] reciting the Pledge of Allegiance," maj. op. at 3874, like its related claim that I "would have us strike down the Pledge," id. at 3919, is completely and utterly false. The issue presented by this case involves only the recitation of the words "under God" as a part of the Pledge of Allegiance " the words that Congress added to the Pledge in 1954 " and not the Pledge in its original, pre-amendment secular form. Had one more member of today's panel ruled in favor of the plaintiffs, our decision would have held only that the 1954 amendment to the Pledge was unconstitutional as applied in the context of public schools implementing a state-directed program of daily teacher-led recitations. Public schools could have complied with that ruling simply by having teachers lead students in daily recitations of the Pledge in its pre-1954 form, without the added religious phrase "under God." And our decision would not have held unconstitutional the recitation of any version of the Pledge " with or without the challenged phrase" outside of the public school context.
Finally, as must be obvious even to the majority, the issue in this case is not the purpose of the 2002 Pledge recodification, which merely reaffirmed the 1954 amendment and Congress's purpose in enacting it. The recodification also declared that our court's First Amendment analysis was erroneous and that Newdow I was wrongly decided. See supra Part II.D. The 2002 recodification is of no constitutional consequence, and no one but the two members of the majority has even purported to believe otherwise. Bafflingly, the majority declares that because the 2002 Congress adopted a provision that "reaffirmed the exact language that has appeared in the Pledge for decades," maj. op. at 3895, "[i]t is the 2002 statute . . . that sets forth our current Pledge," id. at 3894, and "[i]t is the 2002 Congress' purpose we are called upon to examine." Id. at 3928. The majority's reliance on the 2002 legislation to obviate the purpose of Congress in 1954 is no more than a transparent tactic intended to divert attention from an obvious constitutional violation towards a substance-less event of no legal consequence.
The deliberate misstatement of the issue presented by a case is not an unusual tactic for a majority that seeks to mislead the reader, as well as other members of the judiciary, in order to prejudice the outcome of a constitutional question. Only twenty-four years ago, in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), the majority misstated the issue before the Court as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." The dissent correctly responded that the true issue was whether the Constitution protected "the fundamental interest all individuals have in controlling the nature of their intimate associations with others." Id. at 206 (Blackmun, J., dissenting). It took the Court seventeen years to overcome the majority's unconstitutional conclusion, which followed inevitably from its fallacious framing of the issue. The Court held in Lawrence v. Texas, 539 U.S. 558, 578 (2003), in unusually blunt terms, that "Bowers was not correct when it was decided, and it is not correct today." The framing of the issue here is even more blatantly erroneous and misleading than was its framing in Bowers, and the majority here must be as aware of that fact as, one may fairly surmise, was the majority in Bowers.
A. Recent Contrivance of the Majority's Novel Theory
Before the majority at some unknown point following the argument in this case conjured up its idea that "[i]t is the 2002 Congress' purpose we are called upon to examine," maj. op. at 3928, no one, lawyer or judge, had thought to offer such a bizarre argument or to attach any constitutional significance to the action of the 2002 Congress. The history of Newdow III makes this clear, as does all of the ensuing Pledge litigation, including the case before us. Three months after the reaffirmation of the Pledge statute, this court issued an amended opinion superseding Newdow I and an order denying rehearing en banc, with two separate dissents and a concurrence in the denial of rehearing en banc. See Newdow v. U.S. Cong., 328 F.3d 482 (9th Cir. 2003) ("Newdow III"), amending 292 F.3d 597 (9th Cir. 2002) ("Newdow I"), rev'd on other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). In striking contrast to today's majority, none of the twelve judges who participated in any of those opinions or orders thought the 2002 reaffirmation important enough even to mention.49 When the case was decided by the Supreme Court shortly afterwards, the opinion of the Court did not include any reference to the 2002 legislation; in fact, it stated that "the Pledge as we know it today" was the result of the 1954 amendment. Elk Grove, 542 U.S. at 7. Three justices wrote concurrences that addressed the constitutional issue, but the 2002 legislation was mentioned in only one fleeting reference that simply noted its enactment. See id. at 26 (Rehnquist, C.J., concurring).
Nor prior to the issuance of today's opinion did any party, intervenor, amicus, or judge in the case presently before us, including the two in the majority, deem the 2002 reaffirmation to be of any legal significance or indeed even worthy of mentioning at any time during the litigation of this appeal. During the hour-long oral argument before this court, no judge, specifically including the two members of today's majority, asked a single question or made a single reference of any kind to the 2002 reenactment. In fact, no one, including any of the counsel arguing the case, noted, referred to, or commented on it during that argument. To put it simply, no one, including the two judges in the majority, thought at the time of argument that the 2002 reaffirmation was in any way relevant. Furthermore, in the more than 500 pages of briefing filed by the parties, the intervenors, and the twelve amici, there were only two places at which the 2002 legislation was even noted, and at those places it was noted and nothing more. The brief of the United States includes one sentence in its history section recording the passage of the 2002 recodification and one citation to that legislative act in connection with the recodification of the motto, "In God We Trust." In that brief, like in all others filed in this litigation, the filing party, here the United States, attached no legal significance to the 2002 reaffirmation of the 1954 amendment. In sum, the parties, intervenors, and amici entirely ignored the 2002 reaffirmation in their discussions over whether the inclusion of "under God" in the Pledge rendered its daily recitation in public schools unconstitutional as applied; they all simply deemed the reaffirmation irrelevant. Accordingly, contrary to the suddenly developed nostra sponte view of two judges of this court, nowhere in the briefs or the oral argument was there any suggestion by the United States or anyone else that "[i]t is the 2002 statute . . . that sets forth our current Pledge," id. at 30, that "[i]t is the 2002 Congress' purpose we are cal led upon to examine," id. at 68, or indeed that the 2002 legislation had any relevance whatsoever to the question of the constitutionality of the recitation of the phrase "under God" as part of the Pledge. No one involved in this case suggested, even remotely, that the 2002 enactment shed any light on the purpose of Congress in amending the Pledge in 1954, or that a new or different purpose now underlies the inclusion of the words "under God" in the Pledge. Nor, of course, did anyone suggest that because Congress disagreed with us as to the meaning of the First Amendment, we should yield to Congress's view.
Other courts have also heard Establishment Clause challenges involving the Pledge of Allegiance in the years since the 2002 reenactment, but like our court, not one of them, not even a single judge, until today even mentioned the 2002 legislation when deciding such a claim. See, e.g., Myers v. Loudon County Pub. Schs., 418 F.3d 395, 398 (4th Cir. 2005) (noting that "[t]he Pledge was amended in 1954" but making no reference to the 2002 statute); Freedom from Religion Found. v. Hanover Sch. Dist., ___ F. Supp. 2d ___, 2009 WL 3227860 (D.N.H. Sept. 30, 2009) (discussing the intent of the 1954 Congress but making no reference to the 2002 statute); Keplinger v. United States, 2006 WL 1455747 (M.D. Pa. May 23, 2006) (Unpub.) (addressing the 1954 legislative history but making no reference to anything that occurred in 2002); see also Croft v. Perry, 604 F. Supp. 2d 932 (N.D. Tex. 2009) (in an Establishment Clause challenge to the Pledge of Allegiance to the Texas state flag, discussing the legislative history of the 1954 federal Pledge amendment but making no reference to the 2002 legislation).
Under these circumstances, one cannot help but wonder how, when, and why the majority decided to afford the 2002 reaffirmation the importance it attributes to it in today's opinion. Rarely, if ever, does a court decide a case, let alone an important constitutional issue, on a ground that no party mentioned, no party briefed, no party argued, the existence of which no intervenor or amicus including the United States deemed to be of any relevance, and as to which the court itself at no time made any inquiry or reference prior to issuing its decision. Certainly no court has ever done so on so spurious a ground as the 2002 reaffirmation, a ground supported by no colorable legal argument and contrary to so many decades of constitutional and other federal law. The best guess as to the reason for the majority's sudden, last-minute reliance on the 2002 reaffirmation is its belated recognition that its principal arguments with respect to the 1954 amendment, on which it had hoped to rely in order to reach its desired result, are all without merit and are easily refuted under controlling Supreme Court law. Nevertheless, I am compelled to address its Hail Mary argument.50
B. Immateriality of the 2002 Legislation
The reasons that the majority may ultimately have been driven to rely on the 2002 enactment as a justification for the 1954 amendment's addition of the phrase "under God" will become obvious in Sections IV and V, infra, where it is explained why the Constitution and the applicable Supreme Court precedent dictate the conclusion that all three Establishment Clause tests preclude the state-directed, teacher-led, daily recitation of the "under God" version of the Pledge in public schools. The reasons that no one but the two members of the majority has ever attempted to justify the 1954 insertion of the words "under God" into the Pledge on the basis of the 2002 "reaffirmation" are evident as well.
The majority argues that "it makes sense that we must examine the purpose of the most recent Congressional enactment" because "[o]therwise, a perfectly valid measure . . . would forever be banned by the politically motivated statements of some legislators." Maj. op. at 3913-14. This argument ignores the actual content and legislative history of both the 1954 enactment of the "under God" amendment and the 2002 reaffirmation of that congressional action. Whether a subsequent Congress could have rehabilitated the "under God" amendment by repudiating the actions of the 1954 lawmakers and then reenacting the amended Pledge for entirely different reasons is not a question presented here: the 2002 Congress did exactly the opposite. The legislation it passed did not purport to do anything more than express disagreement with Newdow I, assert that we misunderstood the meaning of the Establishment Clause, and reaffirm the earlier 1954 congressional action. Neither of the first two pronouncements constituted a lawful exercise of Congress's legislative powers and thus were without legal significance, and the third did not change in any way the facts or law regarding the constitutional question raised by Congress's adoption of the "under God" amendment in 1954, and thus had no effect upon the outcome of this case.
The 2002 Congress simply declared its approval of the 1954 amendment to the Pledge when, in response to Newdow I, it purported to reaffirm the earlier Congress's action, necessarily including the purpose that underlay it. Members of Congress stated their disapproval of Newdow I, in statements on the House and Senate floors and in the text of the reaffirmation itself, insisting that the 1954 law had been constitutionally adopted and applied. See supra Part II.D. Congress did not seek to nullify or change the earlier Congress's original purpose in 1954; at no time did it expressly state that the purpose in 1954 was other than religious, and at no time did it expressly offer any purpose other than religion for its act of affirmation. Certainly, at no point did it suggest that the phrase "under God" was not religious. Rather, what it essentially did was to react, as Congresses have done in the past, to a judicial decision that it did not like by passing legislation or resolutions that attempted to overrule the scope of constitutional protections that the courts had afforded. See City of Boerne v. Flores, 521 U.S. 507 (1997). It did so here by simply setting forth a set of "findings" reporting pre-1954 historical events and a series of judicial decisions, all but one post 1954, in order to explain why our court's interpretation of the Constitution in Newdow I was in error.
In its findings, Congress noted a number of times prior to 1954 that the religious term "God" had been used, such as Jefferson's authoring of "Notes on the State of Virginia" and Lincoln's Gettysburg Address, as well as the resolution calling for the proclamation of Thanksgiving Day. Pub. L. No. 107-293, 116 Stat. 2057, 2057-58 (2002). It then noted judicial decisions it apparently deemed inconsistent with Newdow I, id. at 2058-60, and it ended with its finding that Newdow I was "erroneous," id. at 2060. Somewhere in the recitation of historical facts, the majority purports to discover an "absolutely clear" expression of Congress's secular purposes, maj. op. 3902, and an equally clear statement "that we had misunderstood Congress' purpose in our ruling in Newdow III."51 Id. at 3913. The majority does not identify those "absolutely clear" statements, and for good reason: they do not exist.
Had Congress set forth its "secular reasons . . . directly in the statute," as the majority claims, maj. op. at 3895, one would expect that my colleagues could and would simply quote those reasons directly from the statute. Had Congress made an "absolutely clear" statement of its secular purposes, id. at 3902, one would expect that the majority could and would provide an equally clear explanation of what those purposes were. The majority does neither, as Congress never identified any secular purpose underlying its 1954 adoption of the "under God" amendment or its 2002 reaffirmation of that amendment. Instead, the majority variously states that the 2002 Congress's purpose in reaffirming the inclusion of the phrase "under God" in the Pledge was "to underscore the political philosophy of the Founding Fathers," maj. op. at 3876, "to add [a] note of importance . . . [to the] Pledge," id., "to inspire patriotism," id. at 3877, to "recogni[ze] . . . historical principles of governance," id. at 3889, "to describe an attribute of the Republic," id. at 3891-94, to "reference . . . the historical and religious traditions of our country," id. at 3893, and to "inspir[e] and solemniz[e]," id. at 3914. At no point, however, did Congress say in 2002 that it had any purpose in reaffirming the 1954 amendment to the Pledge other than to reaffirm the 1954 Congress's effort to promote religion, especially in the case of public schoolchildren. To the extent that the majority has inferred any specific reasons from the 2002 Act's descriptions of various historical events, that methodology would provide equal support for the conclusion that Congress's purpose was to promote "the Glory of God and the advancement of the Christian Faith"; to hold "that God is just"; to "declare [ ] . . . [r]eligion . . . necessary to good government and the happiness of mankind"; and to "acknowledg[e] . . . the many signal favors of Almighty God."52
The majority cannot support or even clearly express its claim of a secular congressional purpose because at no point was there any statement, in the 2002 Act or in its findings, that there was any purpose other than religion that motivated the 1954 enactment of the "under God" amendment or the 2002 reaffirmation of that earlier congressional action. The 2002 Congress certainly disagreed with Newdow I, but its disagreement was based on our interpretation of the Establishment Clause. See supra Part II.D. Congress did not object to our decision on the basis that we had misunderstood its purpose; rather, it objected to our conclusion that the purpose we found was constitutionally impermissible. The Supreme Court has clearly and consistently stated that legislation seeking to change a court's constitutional decision exceeds congressional authority; if it did not, "no longer would the Constitution be `superior paramount law, unchangeable by ordinary means.' " Boerne, 521 U.S. at 529 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). Notwithstanding any legislation Congress might choose to enact, "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary." Id. at 524. Accordingly, we are bound to evaluate the "under God" version of the Pledge enacted in 1954, without regard to any view that Congress may have expressed as to its constitutionality in the 2002 reaffirmation or any view it may have expressed regarding any constitutional interpretation that we rendered in Newdow I:
When [a court] has interpreted the Constitution, it
has acted within the province of the Judicial Branch,
which embraces the duty to say what the law is. . . .
When the political branches of the Government act
against the background of a judicial interpretation of
the Constitution already issued, it must be under-
stood that in later cases and controversies the Court
will treat its precedents with the respect due them
under settled principles, including stare decisis, and
contrary expectations must be disappointed.
Id. at 536 (citing Marbury, 5 U.S. at 177).
Under these circumstances, it is difficult to comprehend how any reasonable judge could in good faith suggest that the 2002 recodification, even with its introductory recitation of historical events, provides any basis for disregarding the overwhelmingly predominant religious purpose of the 1954 amendment or substituting in its place some vague and inchoate secular purpose, especially knowing that no lawyer in this case and no judge in any similar case has ever offered so unsupportable a theory. Even were we to consider what the majority appears at times to contend is the additional purpose, "add[ing a] note of importance" to the Pledge, maj. op. at 3876, or any other similar purpose to which it seems at other times to allude, such as proclaiming that ours is a "limited government," any such additional purpose would be of minimal significance in light of the overwhelmingly predominant religious purpose evident from the entire legislative record let alone the plain meaning of the words "under God." The majority's approach is directly contrary to McCreary County v. ACLU of Kentucky, 545 U.S. 844, 871-72 (2005), in which the Supreme Court held that even the repeal of a prior enactment does not "erase[ it] from the record of evidence bearing on current purpose," and that a government action taken without "repeal[ing] or otherwise repudiat[ing]" the previous action carries even less weight.53 The majority defies this binding precedent and seizes upon the 2002 recodification in order to make an "implausible claim that governmental purpose has changed." McCreary, 545 U.S. at 874. That argument "should not carry the day in a court of law any more than in a head with common sense." Id.
The majority's decision not only fails to disappoint the illegitimate expectations of the 2002 Congress, it surely exceeds those lawmakers' highest hopes. It acquiesces completely in the congressional disagreement with the judicial interpretation we previously rendered, accepting the interpretation of constitutional law set forth in the legislative findings to the 2002 reaffirmation. Maj. op. at 3896-3902. It would appear, then, that the majority is no more willing to follow the rule of separation of powers than it is to adhere to the fundamental tenets of the Establishment Clause.
C. The Issue: The Constitutionality of the 1954 Amendment
As Applied
"It cannot be the case that Congress may override a constitutional decision by simply rewriting the history upon which it is based." United States v. Enas, 255 F.3d 662, 675 (9th Cir. 2001) (en banc). Nor can a court reach a constitutional conclusion by rewriting the history of the government's actions, or by selectively declaring some of those actions obsolete, as today's majority does. Rather, it is the judiciary's responsibility to undertake an independent examination of both the historical facts and the law, and, ultimately, "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).
Because the 2002 legislation made no effort to modify the wording of the amended Pledge, did not seek to change or disavow the purpose for which the words "under God" were inserted into the previously non-sectarian Pledge, and could not erase the legislative history underlying the 1954 amendment even if Congress so wished, the 2002 reaffirmation could, even under the majority's interpretation, constitute nothing more than an ineffective effort by Congress to overrule a judicial interpretation of the Constitution. The majority therefore does a disservice to the Constitution and the judiciary by purporting to rely on that Act to justify its position regarding the "under God" amendment. We must look to the Pledge as it was amended in 1954 and to the purpose for which that amendment was made. That has, correctly, been the view of our court and all other courts hearing Establishment Clause challenges involving the Pledge; it is the view of the parties to this action, of the intervenors, and of the amici; and it appeared to be the view of the two members of the majority until sometime after oral argument, when my colleagues must have thought that they had discovered, albeit belatedly, an argument that no one else had previously deemed worthy of consideration or had even mentioned " an argument that they hoped might somehow support the result that they desired to reach but could not otherwise attain. My colleagues would have far better performed their duty had they taken their chances and left it to the Supreme Court to revise the law governing the question now before us. For it is only if the Supreme Court were to decide to change its view of the Establishment Clause and overrule the precedent that now binds us, that the state-directed, teacher-led, daily recitation of the Pledge with the words "under God" included could be held to be in compliance with the Constitution.
IV. Establishment Clause Tests
I now turn to the real issue in this case: Does the Establishment Clause, as it has been construed by the Supreme Court, preclude the state-directed, teacher-led, daily recitation of the version of the Pledge, as amended by Congress in 1954, in public schools? The answer is crystal clear. Today's majority not only ignores the historical record and the plain meaning of the words contained in the amendment to the Pledge; it also distorts " when it does not ignore " the applicable Supreme Court doctrine governing the constitutional issues before us. Although the Court's Establishment Clause jurisprudence is often derided as inconsistent,54 the challenges in applying the governing precedents ought not be treated as a license to disregard or rewrite the law that binds us, especially where those precedents unambiguously require a holding contrary to that which a majority of a panel of this court may desire to reach. The Supreme Court's decisions do not merely provide "constitutional `signpost[s],' to be followed or ignored in a particular case as our predilections may dictate." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring in the judgment) (internal citation omitted). Rather, as members of an intermediate appellate court, our duty when existing doctrine clearly governs a case is to apply the law as it is written; "only [the Supreme] Court may overrule one of its precedents." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam).55
In the context of the Establishment Clause, circuit courts and scholars have recognized three separate "tests" that control our analysis: the Lemon test, the endorsement test, and the coercion test. See, e.g., Borden v. Sch. Dist. of E. Brunswick, 523 F.3d 153, 175 (3d Cir. 2008); Mellen v. Bunting, 327 F.3d 355, 370-71 (4th Cir. 2003); DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 410-16 (2d Cir 2001); Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 468 (5th Cir. 2001). There is no need to evaluate the relative merits of the various tests. As the majority acknowledges, the law is clear that each is binding and that the failure to satisfy any one is fatal. See, e.g., Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 818 (5th Cir. 1999), aff'd 530 U.S. 290 (2000) (applying the tests independently); accord Newdow III, 328 F.3d at 487 ("We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them."), rev'd on other grounds sub nom. Elk Grove, 542 U.S. 1 (2004). Here, the choice of test matters little, as the state-directed, teacher-led recitation of the "under God" version of the Pledge clearly fails to meet the constitutional standards under each of the tests, and thus is thrice unconstitutional.
A. The Lemon Test and the "Under God" Amendment
Despite repeated criticisms from various flanks, "[t]he Lemon test remains the benchmark to gauge whether a particular government activity violates the Establishment Clause." Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036, 1042 (9th Cir. 2007). The Supreme Court applied the Lemon test in its most recent Establishment Clause case, see McCreary County v. ACLU of Ky., 545 U.S. 844, 859-67 (2005), as well as its most recent Establishment Clause case involving public schools, see Santa Fe, 530 U.S. at 314. It has "particularly relied on Lemon in . . . case[s] involving the sensitive relationship between government and religion in the education of our children." Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 383 (1985). Indeed, with the exception of Lee v. Weisman, 505 U.S. 577 (1992), see infra Part IV.C, "[i]n no case involving religious activities in public schools has the Court failed to apply vigorously the Lemon factors." Lee, 505 U.S. at 603 n.4 (Blackmun, J., concurring).56
The test itself is well-established: "First, the statute [or practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute [or practice] must not foster `an excessive entanglement with religion.' " Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (internal citation omitted) (emphases added) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). The secular purpose must predominate; it cannot be "merely secondary to a religious objective." McCreary, 545 U.S. at 864. Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice. Particularly relevant to this case, a finding that a challenged statute or practice had a predominantly religious purpose "make[s] it unnecessary, and indeed inappropriate, to evaluate [its] practical significance." Wallace, 472 U.S. at 61. Thus, "[i]f the law was enacted for the purpose of endorsing religion `no consideration of the second or third criteria [of Lemon] is necessary.' " Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (second alteration in original) (quoting Wallace, 472 U.S. at 56)). Simply put, if the purpose of the statute or practice "is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution." Abington, 374 U.S. at 222.
The majority does not disagree that Lemon is the law of the land, nor does it dispute that a statute or state-sponsored practice that has a predominantly religious purpose necessarily violates the Establishment Clause. Rather, the fundamental error the majority makes that permeates its entire analysis is that it fails to comprehend that the Lemon test must be applied to the 1954 amendment that adds "under God" to the Pledge and not to the Pledge in its entirety. The majority's attempt to ignore the amendment and instead base its analysis on "the Pledge as a whole," maj. op. at 3876, is contrary to the legal principles that bind us for two reasons: First and foremost, the Supreme Court has determined how statutes amending provisions similar to the one before us shall be examined under Lemon and we are obligated to follow its holding. Second, it is the words "under God" contained in the amendment that Jan Roe and her daughter challenge. They raise no question as to the constitutionality of the state-directed recitation of the Pledge as it existed prior to the 1954 amendment, or as it would exist today if the two offending words were stricken; it is only the addition of the religious phrase that they contest. Yet, as evidenced by its deliberate decision not to discuss or even to acknowledge the explicitly religious legislative history of the "under God" amendment to the Pledge, the majority simply refuses to examine the legislative enactment that
was zealously supported and unanimously adopted by 531 Senators and Representatives, signed by the President of the United States, celebrated with the most bellicose and divisive of all religious hymns on the steps of the Capitol, and endorsed by forty-three state legislatures. Instead, my colleagues contend that our analysis should examine "the entire wording of the Pledge as a whole," id. at 3886 n.9 (emphasis added), i.e., the Pledge as it exists today, disregarding the fact that it is only the application of the amendment that is challenged as unconstitutional.
Although the majority's willful blindness toward the exis-
tence and text of the amendment to the Pledge may be a nec-
essary precondition to its reaching its desired outcome in this
case, its refusal to follow controlling Supreme Court prece-
dent reflects remarkable disdain for the law. The Supreme
Court has explicitly held in a case that is indistinguishable
from the one before us that our inquiry must center on the
amendment and not the provision as a whole " in this case
on the specific words Congress enacted in 1954 and inserted
into the Pledge of Allegiance: "under God." In Wallace v. Jaf-
free, a secular and otherwise constitutional statute providing
for a moment of silence in public schools was amended so as
to add an explicitly religious provision stating that the
moment of silence could be employed for prayer. The
Supreme Court struck down that legislative amendment as
violative of the Establishment Clause because of the "textual
differences" introduced by the amendment: "The addition of
[the words] `or voluntary prayer' indicates that the State
intended to characterize prayer as a favored practice." Wal-
lace, 472 U.S. at 60. The majority seeks to evade its obliga-
tion to follow that binding precedent, but it is not free to set
aside, overrule, or ignore it, or to avoid the conclusion that
such binding precedent compels.
If the majority followed the Court's opinion in Wallace, as it is bound to do, it would be required to recognize that the previously secular Pledge of Allegiance was amended with the express purpose of promoting a state-sponsored belief in God and of indoctrinating schoolchildren with that belief. The only permissible conclusion my two colleagues could reach after acknowledging that fact would be that the amendment that results in the state-directed, teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools is, at the least, unconstitutional as applied.
1.
There is no escaping the fact that our decision today is con-
trolled by the Supreme Court's directly on-point analysis in
Wallace v. Jaffree, 472 U.S. 38 (1985). The case is what law
students and their professors used to call a "spotted cow."57
The majority goes through numerous contortions in an effort
to escape the unavoidable conclusion reached by Chief Justice
Burger in dissent: Wallace "render[s] the Pledge unconstitu-
tional." Id. at 88 (Burger, C.J., dissenting).58 These contor-
tions, however, cannot hide the fact that two judges of our
circuit are simply disregarding binding Supreme Court law.
In Wallace, the state of Alabama amended a statute that called for a moment of silence at the beginning of each school day by adding language clarifying that the moment of silence could be used for "voluntary prayer." See Wallace, 472 U.S. at 40 n.2. Unlike here, there was no practical difference in Wallace between the original statute and the revised version that incorporated the amendment; in fact, the Court did not question that under the original statute students could voluntarily pray during mandatory moments of silence if they so desired. Cf. id. at 59; id. at 72-74 (O'Connor, J., concurring in the judgment); id. at 85 (Burger, C.J., dissenting). Still, the Court struck down the statute containing the clarifying "voluntary prayer" amendment as an unconstitutional establishment of religion, reasoning that the "textual differences" between the original and the revised statute conclusively established the religious purpose of the later enactment. Id. at 58 (majority opinion). Laying the two statutes side by side, the Court noted that "[w]hen the differences between [the revised statute] and its . . . predecessor [were] examined," id., it was readily apparent that the amendment "had no secular purpose,"id. at 56. As the Court explained:
[T]he only significant textual difference is the addi-
tion of the words `or voluntary prayer.' . . . Appel-
lants have not identified any secular purpose that
was not fully served by [the law] before the enact-
ment of [the amendment]. Thus, only two conclu-
sions are consistent with the text of the [new law]:
(1) the statute was enacted to convey a message of
state endorsement and promotion of [religion]; or (2)
the statute was enacted for no purpose. No one sug-
gests that the statute was nothing but a meaningless
or irrational act.
Id. at 59 (emphasis added).
In reaffirming Wallace, the Supreme Court has held that "[t]he plain meaning of [a] statute's words . . . can control the determination of legislative purpose." Edwards, 482 U.S. at 594. Here, as in Wallace, it does. The only two operative words the amendment contains, the only two words it added to the Pledge, are the words "under God." The Pledge remains exactly the same except for the insertion of the two new words. Only the most extreme sophistry could permit a reading of those words, "under God," that carries anything but a predominantly religious meaning and a predominantly religious purpose.
To be precise, the ordinary and plain meaning of the word "God" is undeniably religious.59 So it was in the beginning, is now, and ever shall be. Even the majority concedes that examining the words "under God" in isolation would reveal a meaning that "could not be anything but religious." Maj. op. at 3903. Yet despite acknowledging that the purpose inquiry requires us to examine "the plain meaning of the statute's words," id. at 3894, the majority purports somewhat incoherently to examine "Congress' reasons for `the plain meaning of the statute's words,' " id. (emphasis added), and to find in the context of the religious phrase a meaning directly opposite to its plain meaning. In so doing, the majority declines to apply the meaning of the words themselves, but instead substitutes a statutory purpose of its own making.
The majority asserts that although "the words `under God' have religious significance," maj. op. at 3890, the phrase "under God" in the Pledge conveys nothing more than the secular principle that "our nation is founded upon the concept of a limited government," id. at 3909, an odd proposition that occurred to none of the authors or supporters of the amendment. Indeed, a simple reading of the legislative history, and specifically the Congressional Record pertaining to the 1954 amendment, would make it clear to any reasonable person, even to one who could not grasp the plain meaning of the words "under God," that the phrase as used in the amendment is a religious phrase deliberately inserted in the Pledge of Allegiance by Congress for a religious purpose. The congressional authors and supporters of the amendment did not conceal their purpose; they proclaimed it proudly. Congress unequivocally professed its desire to promote religion and faith in a Supreme Being; it did not even hint at the idea that the amendment was intended to proclaim that this country had a government of limited powers.
The majority's concession that "under God" is in fact a religious phrase simply highlights the absurdity of its argument that, when added to the Pledge, the phrase suddenly became a reference to "limited government." Id. at 3909. Nothing in the plain meaning of the words "under God," the legislative history of the statutory amendment, or the history of the events leading up to its adoption in any way suggests any such meaning. With all due respect to my colleagues, their "limited government" argument is pure poppycock, fabricated by the members of the majority in order to obfuscate the issues before us and supported by neither the words of the amendment nor the purpose expressed by Congress. Whether added to the Pledge, inserted into a high school civics textbook, or used in any other manner, the religious phrase "under God" sets forth the proposition, not that our government is one of limited powers, but that our country is subordinate to the deity that rules over us " as in "Lord, our God, ruler of the universe."60 The majority's hapless attempt to give the phrase "under God" a predominantly secular construction serves only to underscore the fact that no relevant distinction between Wallace and this case can be drawn, and that the majority's determination to reach the result it does knows no intellectual bounds.
As in Wallace, once the original statute and its amendment are compared, or as that case puts it, laid side by side, the amendment's religious purpose must become clear even to the members of the majority. In Wallace, Justice O'Connor found it particularly "notable that Alabama already had a moment of silence statute before it enacted" its amendment adding the words "voluntary prayer." Wallace, 472 U.S. at 77 (O'Connor, J., concurring in the judgment). So too, here, the United States already had a patriotic Pledge of Allegiance before Congress added the words "under God" to it in 1954. Indeed, it is hard to "identif[y] any secular purpose that was not fully served by" the original Pledge "before the enactment of" its amendment. Id. at 59 (majority opinion) (emphasis added). The majority contends that the original Pledge did not adequately express the secular notion of "limited government," but, as I have already pointed out, it is sheer sophistry to suggest that the words "one nation under God" somehow mean a nation with a "limited government," rather than a nation subordinate to a higher religious being, or that the words "under God" were added to the Pledge for some other secular purpose. Certainly none of the amendment's sponsors or supporters ever expressed so extraordinary an idea; indeed, they made it clear that their purpose was quite the opposite "to proclaim our nation's dedication to the Almighty." See infra Part IV.A.2.
The majority also suggests that the amendment to the Pledge advances the secular purpose of steeling Americans' hearts and minds against Communism. But, again, it is difficult to see how this secular purpose "was not fully served" by the original Pledge, Wallace, 472 U.S. at 59, which, like the current Pledge, emphatically began with the words, "I pledge allegiance to the flag of the United States of America." In the midst of the Cold War, could there possibly have been a more forceful renunciation of the foreign doctrine of Communism? The man who wrote the Pledge certainly did not think so. In the 1920s, Francis Bellamy, who at that time was very "preoccup[ied] with subversives and radicals" in America, "especially German Americans . . . Communists, `Bolshevists,' and anarchists," wrote a manifesto that "spelled out his vision of how the Pledge of Allegiance" " that is, the original Pledge of Allegiance, without the words "under God", "could be used to promote patriotism and ward off un-Americanism." ELLIS, supra note 5, at 68-71 (emphasis added). Bellamy's understanding of the words that he authored confirms the obvious: a pledge of allegiance to a national flag is, by definition, supremely patriotic. Except in theocracies, such a pledge does not become more patriotic by amending it to include a personal affirmation of belief in God.61
As the dissenting Chief Justice in Wallace stated, the court's opinion in that case "render[s] the [amended] Pledge unconstitutional . . . . That [must] be the consequence of [its] method of focusing on the difference between [the current statute] and its predecessor statute . . . ." Wallace, 472 U.S. at 88 (Burger, C.J., dissenting). Chief Justice Burger was correct, at least to the extent that public schoolchildren may not be subjected to the daily state-directed, teacher-led recitation of the version of the Pledge that includes the words "under God" as added by the statutory amendment. Rather, when the Pledge is recited by schoolchildren in such circumstances, it must be the traditional, purely patriotic version that they recited for decades prior to the enactment of the 1954 religious amendment.
The majority, however, seeks to avoid Wallace's dispositive effect, employing three different tactics in its effort to escape the necessary consequence of its reasoning and holding. First, the majority argues that the plaintiffs here lack the standing to challenge the 1954 amendment that added "under God" to the Pledge. Maj. op. at 3880-81. Second, it implies that Wallace has been effectively overruled. Id. at 3887-92. Finally, it purports to apply Wallace without ever actually applying its reasoning or holding. Id. at 3892-93. Each of these tactics is more contorted than the one that precedes it, and none even colorably provides any basis for freeing the majority from its obligation to follow binding Supreme Court law.
The majority's first attempt to avoid the result compelled
by Wallace is simply a diversion. The majority haplessly
argues that Jan Roe and her daughter lack the standing to
challenge the 1954 amendment "because nothing in the
Pledge actually requires anyone to recite it," and therefore
plaintiffs cannot show that its wording "causes them to suffer
any concrete and particularized injury." Maj. op. at 3881.62
The majority repeatedly emphasizes that no direct challenge
to the wording of the Pledge is before us on appeal, and
explains that "[o]nly California Education Code " 52720 and
the School District's Policy are at issue in this case." Id. at
3880. How, then, does the majority manage to "hold that the
Pledge of Allegiance does not violate the Establishment
Clause"? Id. at 3877 (emphasis added). Has the majority
admitted to rendering an unconstitutional advisory opinion?
The answer, of course, is that the plaintiffs have challenged the "under God" version of the Pledge as applied to them through the School District's policy. Accord maj. op. at 3884 ("Because the School District's Policy states that recitation of the Pledge will fulfill the policy, we also examine the Pledge itself."). Accordingly, all of the effort the majority expends discussing the Roes' standing with respect to the 1954 amendment is entirely beside the point. No one disputes that Jan Roe and her daughter do have standing to challenge the application to them of the amendment at issue: the state-directed, teacher-led, daily recitation of the religious version of the Pledge in California's public schools. "The Supreme Court has repeatedly found federal jurisdiction for challenges to the activities of state agencies administering federal programs . . . . It has not mattered a jurisdictional whit that the agency was enforcing federal statutes, as well as pursuing state ends."63 Green v. Dumke, 480 F.2d 624, 628 (9th Cir. 1973) (citing cases). Here, Congress explicitly intended the "under God" version of the Pledge of Allegiance to be employed as a tool of religious indoctrination by state employees in state institutions " i.e., public school teachers in public schools. In so doing, it embarked on "a federal-state cooperative venture," id.; see also id. at n.6, a venture that when carried out every morning in Roe's daughter's classroom creates precisely the constitutional injury Roe and her daughter allege. The majority's confused and internally inconsistent discussion of standing thus at best misperceives the nature of the inquiry before us. At worst, it is a deliberate attempt to obfuscate the fact that Wallace squarely controls the merits of this case.
Before embarking on its second effort to avoid Wallace, the majority notes that the Wallace Court found evidence of an impermissible religious purpose not only in the "textual difference" between the original statute and the subsequent amendment, but also in the legislative history of the amendment; the amendment sponsor's testimony in district court; the court documents filed by the governor who signed the amendment into law; and a prayer statute passed one year after the amendment's adoption. Maj. op. at 3886. One might expect, based on this explanation of Wallace, that the majority would go on to examine not only the textual difference between the 1954 amendment and the original Pledge statute, but also the legislative history of the 1954 amendment; the public comments of Representative Rabaut, the amendment's sponsor, and the statements of President Eisenhower, who signed the amendment into law; as well as the other religiously-motivated laws passed within two years of the amendment's adoption. See infra Part IV.A.2; see also supra Parts III.B-C. Each of those sources compels the same conclusion: the 1954 Congress added "under God" to the Pledge for an overwhelmingly religious purpose. None of these sources, however, is examined by the majority.
Unwilling to reach the result that Wallace would dictate, the majority, after ignoring the sources of information that Wallace identified as relevant, goes even further. It abandons its acknowledgment that Wallace requires an examination of the two words introduced by the Pledge amendment, and reverts to its original claim that we must "examine the Pledge as a whole." Maj. op. at 3886. Although the majority does not provide a coherent explanation for its abrupt change in course, it appears to contend that Wallace has been tacitly overruled by later Supreme Court decisions. Specifically, the majority appears to assert that more recent Supreme Court cases have made "context" the touchstone of the Lemon analysis and that "context" now refers solely to the objects or words immediately surrounding the religious item or phrase being challenged " here, the twenty-nine other words in the Pledge of Allegiance surrounding the words "under God." In short, the majority's statement that the issue is the constitutionality of the Pledge as a whole, rather than the constitutionality of the amendment, is directly contrary to Wallace.
As an initial matter, I note that it is the Supreme Court's "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). My colleagues have no authority to "conclude [that the Supreme Court's] more recent cases have, by implication, overruled an earlier precedent." Agostini v. Felton, 521 U.S. 203, 237 (1997). To the contrary, "the Court of Appeals on its own authority should [not] take[ ] the step of renouncing" Supreme Court decisions; "[i]f a precedent of th[e Supreme] Court has direct application in a case . . . the Court of Appeals should follow the case which directly controls," even if it believes, mistakenly or otherwise, that the controlling Supreme Court authority "appears to rest on reasons rejected in some other line of decisions."64 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Here, far from being implicitly "rejected in some other line of decisions," Wallace's reasoning and holding as to how to evaluate, for Establishment Clause purposes, an amendment to a statute, has been consistently and repeatedly reaffirmed by the Supreme Court in the intervening decades since it was decided.65 So, disregarding all those cases, my colleagues simply proceed with their untenable argument in derogation of another set of controlling Supreme Court decisions.
In suggesting, probably out of a feeling of necessity, that Wallace has been overruled by some new definition of "context," my colleagues do not rely on a majority opinion from the Supreme Court, or even on an opinion by a minority composed of one or more justices, involving an amendment to a statute. Rather, they rely on Justice Breyer's one-judge opinion concurring in the judgment in Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring in the judgment), relating to an entirely different matter. Maj. op. at 3891, 3893. In Van Orden, Justice Breyer analyzed the constitutionality of the placement of a monument of the Ten Commandments on government property and considered a number of factors, such as its relationship to other monuments on the same property. However, that case is in no way relevant to the question presented in Wallace or to the case presently before us. Justice Breyer's concurrence did not relate to the interpretation of a statute and certainly not to how courts should determine the purpose and intent of amendments to statutory provisions, which, of course, was the question in Wallace and is the question here. Indeed, given that hanging copies of the Ten Commandments in public-school classrooms indisputably violates the Constitution, see Stone v. Graham, 449 U.S. 39 (1980) (per curiam), it is clear that Justice Breyer's concurrence in Van Orden regarding the placement of a monument containing those commandments on the grounds of the Texas State Capitol has no bearing whatsoever on the state-directed, teacher-led daily recitation of the religious version of the
Pledge in public schools. Moreover, this court has already held in Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir. 2008), that Van Orden must be limited to facts "closely analogous" to the placement of monuments on public land. Not only are the facts in Van Orden wholly unlike the facts in the case before us, but the legal questions involved are far different. Thus, the factors to which we look in our consideration of context must, as our court has already held, id., necessarily be considerably different.
Under the majority's new constitutional definition of "context," the government may undertake any religious act so long as the preexisting nonreligious acts that are somehow related to the new act remain in effect. This approach is entirely inconsistent with common sense as well as with Establishment Clause jurisprudence.66 For example, if Congress decided to carve the face of Jesus onto Mount Rushmore, that act would certainly be unconstitutional despite the presence on that Mount of four nonreligious faces. It is the religious nature of the governmental action, not the previously secular context within which that action is placed, that determines the constitutionality of such a change. Under the majority's reasoning, it would be of no consequence whether Congress had inserted the words "under God," or the words "under Jesus," or "under the Father, the Son, and the Holy Ghost" into the Pledge of Allegiance, given the Pledge's otherwise secular or patriotic context. The Pledge is a patriotic not a religious exercise, the majority tells us, and therefore a religious message may be inserted. Yet surely, not even the majority would hold that the insertion of the two additional religious phrases set forth above would be consistent with the Establishment Clause.
Finally, after spending eight pages attempting to replace Wallace's reasoning with its new definition of "context," and a total of twenty-nine pages arguing that we must examine the Pledge "as a whole," the majority ultimately purports to acknowledge that it must apply Wallace to the "under God" amendment itself " an effort to which it devotes a mere two sentences. Maj. op at 3893-94. One "who has a good conscience doesn't walk so fast."67 Indeed, the only two sentences in which the majority explains how Wallace applies to this case are rife with error and without legal support:68
Focusing, as we must, on how the text of the statute
is used, Van Orden, 545 U.S. at 701 (Breyer, J. con-
curring), we see that the addition of "or voluntary
prayer" to the statute in Wallace was used to encour-
age students to participate in a religious exercise "
the very prayer enacted [one year later]. Here, the
addition of "under God" was used to describe an
attribute of the Republic, "one Nation under God" "
a reference to the historical and religious traditions
of our country, not a personal affirmation through
prayer or invocation that the speaker believes in
God.
Id. In the end, the majority's "analysis" consists only of a
conclusion announced ex cathedra.
In sum, the majority fails in its duty to follow Wallace; it cannot declare the case overruled or replace the Court's reasoning with its own contrary rationale. Under Wallace, the majority is required to examine, rather than ignore, the text of the amendment. An examination of that text and the plain meaning of its words clearly reveals the explicitly religious purpose motivating the amendment to the Pledge. The words "under God" are undeniably religious, and the addition to the Pledge of Allegiance of words with so plain a religious meaning cannot be said, simply because it might assist the majority in obtaining its objective, to be for a purpose that is predominantly secular. The words certainly were not inserted for the purpose of "reinforc[ing] the idea that our nation is founded upon the concept of a limited government." Maj. op. at 3909. As I have stated earlier in this dissent and as I reiterate here, the suggestion by the majority that the purpose of inserting the phrase "under God" into the Pledge was to remind us that we have a "limited government" finds no support in the record and is wholly without merit.
Wallace explicitly requires us to compare the original statute to the amended form and to examine what the amendment has added. Where the addition is religious, the addition must be invalidated. Here, Wallace unquestionably requires us to strike down as unconstitutional the state-directed, teacher-led daily recitation of the "under God" language in the Pledge of Allegiance in the public schools. Omitting the two words added by the 1954 amendment and returning to the recitation of the secular version of the Pledge that was used in public schools for decades prior to the adoption of the amendment would cure the violation of the Establishment Clause at issue here.
2.
As I have explained above, the majority, in determining the purpose of the amendment, refuses to give the words "under God" their plain meaning, as required by Wallace, 472 U.S. at 58, by Edwards, 482 U.S. at 594, and by McCreary, 545 U.S. at 862, and indeed by elementary principles of statutory interpretation. As I have also explained, the majority has refused to follow controlling Supreme Court law with respect to examining the "context" of the amendment. Compare Wallace, 472 U.S. at 58-61 with maj. op. at 3886-92. In addition, the majority's treatment of legislative history, which would alone be dispositive of the constitutionality of the "under God" amendment as applied, is even more startling, and is at least as defiant of binding precedent. Fully cognizant of the damning evidence contained in the pages of the Congressional Record and of the conclusion that the evidence compels, the majority boldly asserts that we are legally prohibited from so much as considering the numerous, indeed unanimous, proreligion statements offered by every senator and representative who spoke on the subject of including the words "under God" in the Pledge of Allegiance. Maj. op. at 3895, 3912. All who spoke, as noted earlier, favored the insertion of the words and none opposed the proposal. The majority cites McCreary, 545 U.S. at 867-68, for the proposition that we may not consider "the statement of one or more individual members of Congress, but [only] what the committees putting forth the amendment actually stated."69 Maj. op. at 3912. Nothing in McCreary remotely supports that assertion. What that binding Supreme Court precedent does state is that we must "rel[y] on a statute's text and the detailed public comments of its sponsor[s], when we [examine] the purpose of a state law" challenged on Establishment Clause grounds.70 McCreary, 545 U.S. at 862 (emphasis added) (citing Edwards, 482 U.S. at 586-88). I agree with the majority that "[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it." Maj. op. at 3911 n.27 (quoting United States v. O'Brien, 391 U.S. 367, 384 (1968)). However, the Supreme Court has stated that in the ordinary course of determining "the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature."71 O'Brien, 391 U.S. at 383 (emphasis added). Accordingly, when not only one legislator makes a speech expressing an explicitly religious purpose for enacting a law but "scores of others" unanimously, vociferously and zealously echo that very same purpose, we are not permitted to ignore such powerful evidence of legislative intent. When "openly available data support[ ] a commonsense conclusion that a religious objective permeated the government's action," McCreary, 545 U.S. at 863, the congressional purpose may be said to be undeniably religious.
Were the majority willing to follow controlling Supreme Court precedent and to acknowledge the legislative history of the Pledge that is detailed in this opinion, it could not deny that the history uniformly and overwhelmingly demonstrates a predominant religious purpose for the 1954 amendment. Here, the legislative history shows lockstep unanimity " each and every senator and representative to comment on the addition of the words "under God" to the Pledge unequivocally and zealously proclaimed religious motivations for his actions. See supra Part II. The unanimous, uncontradicted words of our legislators are clear: "under God" was inserted in the Pledge to further the religious views and principles of millions of Americans, to reinforce their belief that God exists and to promote faith in his Being, indeed to reflect that we are subordinate to his Will. To those citizens who might be in doubt, the words were intended to let them know that such were the views and principles of all "true Americans," to indoctrinate them firmly in those American beliefs, and to try to resolve the doubts they might possess. Most pertinent here, the words were inserted in the Pledge so that schoolchildren throughout the land would repeat them daily and become imbued with the religious concepts that guided the authors and sponsors of the amendment, the other members of Congress, and the President of the United States. As Senator Wiley proclaimed, the lawmakers believed that there could be no "better training for our youngsters . . . than to have them, each time they pledge allegiance to Old Glory, reassert their belief, like that of their fathers and their fathers before them, in the all-present, all-knowing, all-seeing, all-powerful Creator." 100 Cong. Rec. 5915. Accordingly, as President Eisenhower declared when he signed the Pledge amendment into law, the lawmakers intended that "[f]rom [that] day forward, the millions of our school children [would] daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty." Id. at 8618.
Indeed, when the drafters of the enactment offered a legal justification in defense of that statute's validity under the First Amendment, they did not deny that the amendment was religious in nature, but simply contended that the religious act on the part of the government was not prohibited by the Establishment Clause. Specifically, the Senate Report asserts:
Adoption of the resolution would in no way run con-
trary to the provisions of the first amendment to the
Constitution. This is not an act establishing a reli-
gion. A distinction exists between the church as an
institution and a belief in the sovereignty of God.
The phrase "under God" recognizes only the guid-
ance of God in our national affairs . . . . Neither will
this resolution violate the right of any person to dis-
believe in God or reject the existence of God. The
recognition of God in the pledge of allegiance to the
flag of our Nation does not compel any individual to
make a positive affirmation in the existence of God
in whom one does not believe.72
As any law student will quickly recognize, both of the justifications put forward in the Senate Report declaring the enactment constitutional have since that time been flatly rejected by the Supreme Court: It is indisputable that the First Amendment prevents more than simply the establishment of a statesponsored "Church as an institution" and that the Bill of Rights' protections extend beyond those instances in which the government actually "compels an individual to make a positive affirmation" of a religious belief. See, e.g., Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947); Abington, 374 U.S. at 233 (Brennan, J., concurring)("[N]othing in the text of the Establishment Clause supports the view that the prevention of the setting up of an official church was meant to be the full extent of the prohibitions against official involvements in religion."); see also Engel v. Vitale, 370 U.S. 421, 430 (1962) ("The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated . . . whether . . . laws operate directly to coerce nonobserving individuals or not."). Moreover, when we consider, as we do here, the application of the amendment to the state-directed, teacher-led, daily recitation of the amended Pledge in public schools, it is clear that the plaintiff and other like-minded children are compelled "to make a positive affirmation in the existence of God in whom [they do] not believe," or to become "outsiders, not full members of the . . . community."73 Either way, they are deprived of their constitutional rights. See infra Part III.C. When the unconstitutional rationales for Congress's enactment are stripped away, nothing remains, and the explanation in the Senate Report as to why including the religious phrase "under God" in the Pledge is constitutional is shown to be without legal foundation.74
Finally, to the extent that "the circumstances surrounding [the] enactment," Santa Fe, 530 U.S. at 315, are relevant here, the circumstances further support the obvious conclusion that the words "under God" exist in the Pledge to serve an overwhelmingly religious purpose. For starters, we have an enactment that was literally drafted in the pulpit: As the primary legislative sponsors of the 1954 Act all proudly proclaimed, Reverend Docherty "put God in [the] Pledge."75 There can be no denying the tremendous impact of the Reverend who declared "theological war . . . against modern, secularized, godless humanity", a war that Congress adopted as its own when it rewrote the Pledge of Allegiance. The majority dismisses the impact Docherty had on his powerful congregation, which included the man who wrote the primary "under God" bill as well as the President who signed it " because "Reverend Docherty was never elected to office." Maj. op. at 3911 n.27. He was never elected, but Congress enthusiastically endorsed his proposal and wrote it into law, telling the nation plainly and clearly that it was his, and why it was adopting it. Moreover, in directing us to look at the "circumstances surrounding" a statute's enactment, Santa Fe, 530 U.S. at 315 (emphasis added), the Supreme Court tells us not to limit our inquiry to the motivations of the elected officials who actually enacted the statute. Nor are we supposed to ignore the socio-political climate of the time: During the two years surrounding the adoption of the revised version of the Pledge, Congress passed a law adding the words "In God We Trust" to all paper money, replaced "E Pluribus Unum" with "In God We Trust" as the national motto, mandated an annual National Day of Prayer that continues to this day,76 constructed a prayer room onsite at the Capitol building, and entertained, though it ultimately rejected, a constitutional amendment that read: "This nation devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of Nations, through whom are bestowed the blessings of Almighty God." See ELLIS, supra note 5, at 126. In this historical context, "[i]nserting the words `under God' into the Pledge of Allegiance . . . must be understood as only one of many actions taken in the early years of the Eisenhower presidency that were designed to inject religious faith into public life." Id. at 126-27. The public recognized this reality far more clearly than do my two colleagues in the majority: Thousands of citizens wrote to their congressmen expressing their view that the new version of the Pledge "reflected a spiritual awakening in our country." 100 Cong. Rec. 7761.77
In sum, even aside from the plain meaning of the words "under God" and the context in which we are required to examine them, the legislative history of the amendment to the Pledge and the surrounding circumstances provide overwhelming evidence that the state-directed, teacher-led, daily recitation of its religious version in public schools cannot possibly pass muster under any sound application of the Lemon test. The unanimous statements made by every legislator to speak in the House and Senate and included in the official legislative reports unabashedly announced that the purpose of including the words "under God" in the Pledge was to "acknowledge the dependence of our people and our Government upon the moral directions of the Creator." See H.R. Rep. No. 83-1693, at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. In light of the clear and open declaration of purpose, there can be no denying that "the enactment exceeds the scope of legislative power as circumscribed by the Constitution," Abington, 374 U.S. at 222, or at the least does so when and as it is applied to state-directed, teacher-led, daily recitation of the amended Pledge in public schools.
3.
The majority argues that the purpose of the amendment of the Pledge of Allegiance in 1954 was not predominantly religious because the words "under God" are simply a reference to the limited powers of our national government. That is, of course, an argument dreamt up by my colleagues that can nowhere be found in the Congressional Record. In addition, my colleagues have apparently forgotten that it is the Constitution that sets forth the limitations on government power, not, as far as our laws are concerned, God. The limitations on the power of our government are found in the Ninth and Tenth Amendments, which reserve certain powers to the states and reserve all other powers not granted to the federal government to "We the People." See U.S. CONST. pmbl., art. I "" 8, 9, amends. IX, X. The Bill of Rights also limits the actions the government may take. There is, however, no mention of God in the Constitution, nor of the theory that the government has limited powers because it is "under God." Indeed, the words "limited government," as the majority uses them, appear to constitute an assertion that God granted certain rights to the people and limited the rights that government could possess. Maj. op. at 3904-05. Right or wrong, this is in itself an expression of a religious viewpoint, perhaps one with which most people might agree, but an expression that nevertheless would not further the majority's argument that the purpose of adding "under God" to the Pledge was secular and not religious.
The "omission of a reference to the Deity [from the Constitution] was not inadvertent; nor did it remain unnoticed." Leo Pfeffer, The Deity in American Constitutional History, 23 J. CHURCH & STATE 215, 217 (1981). Although many early Americans strenuously opposed the Framers' commitment to secularism and their decision to break with tradition by omitting God from the text of the Constitution, "[t]he advocates of the secular state won, and it is their Constitution we revere today." ISAAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION 28 (2d ed. 1997).78 The decision by the Founding Fathers cannot be reversed, nor the structure of the Constitution changed, as the majority suggests Congress did by inserting two words into the Pledge of Allegiance. Nor, certainly, was that the intent of Congress when it sought to promote a belief in God by making that belief a part of the Pledge.
The majority's contrived efforts to distort both history and binding Supreme Court law are inconsistent with our duty as judges, as defined by the Court. "[I]t is . . . the duty of the courts to `distinguis[h] a sham secular purpose from a sincere one.' " Santa Fe, 530 U.S. at 308 (second alteration in original) (quoting Wallace, 472 U.S. at 75 (O'Connor, J., concurring in the judgment)). This duty necessarily bars the courts themselves from superimposing a sham secular purpose onto an explicitly religious statute, as the majority does today.79 Twenty years ago, Justice O'Connor declared that she had "little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one." Wallace, 472 U.S. at 75 (O'Connor, J., concurring in the judgment). Little did she anticipate that it would be a court that would create the sham secular purpose. The majority opinion demonstrates either that Justice O'Connor's confidence in the ability of the courts to distinguish a religious from a secular purpose was misplaced, or that, even though their constitutional duty is clear, courts will in some circumstances not only be unwilling to perform it, but will themselves engage in the very actions against which she was confident that they would protect us.80
To the extent that, notwithstanding all the controlling legal principles to the contrary, one could accept the concept advanced by the majority that a purpose of the insertion of the words "under God" in the Pledge was to somehow celebrate our history or remind us that we have a "limited government" (and it is unlikely that a reasonable judge could do so) it defies reason to contend that the use of the term God did not have a religious purpose as well. One would have to ignore all the applicable law and all the relevant facts to reach such a conclusion. That the predominant purpose was religious is demonstrated beyond dispute by the legislative history of the amendment. See supra Part II.A-C. Such a conclusion is also evident from simple logic and reason. The term "God" is a religious term in every sense of the word, as the majority admits. Moreover, the majority suggests no other instance in which the word "God" was used by a legislative body for a predominantly non-religious purpose. To conclude that Congress would use the term "God" for a predominantly secular purpose when amending the Pledge of allegiance surely defies common sense.
Under the plain meaning of the words of the amendment to the Pledge, its context, the legislative history of its enactment, and all of the surrounding circumstances, there can be no doubt that the purpose of adding the words "under God" to the Pledge of Allegiance was predominantly, if not exclusively, religious and that the daily recitation in public schools of the Pledge in its amended form violates the Lemon test,81 and thus the Establishment Clause.
B. The Endorsement Test and the "Under God"
Amendment
Although an objective application of the Lemon test that adheres to Supreme Court precedent requires, without more, a ruling in favor of Jan Roe and her child, I turn now to the remaining Establishment Clause tests to show that the Roes would prevail under each of them as well, and that with respect to each the majority's reasoning seriously misperceives or misrepresents the nature and function of the First Amendment. The second Establishment Clause test announced by the Supreme Court, the endorsement test, is in essence "a gloss on Lemon that encompasse[s] both the purpose and effect prongs." Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 714 (M.D. Pa. 2005). Under the endorsement test, "we must examine both what [the government] intended to communicate . . . and what message [it] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government's] action . . . . An [impermissible] answer to either question should render the challenged practice invalid." Lynch v. Donelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). Accordingly, where, as here, a clear violation of the first Lemon prong exists, so too does a violation of the endorsement test. Still, the endorsement test is valuable in that it captures even more forcefully than Lemon the powerful sense of alienation nonadherents experience when the government embraces and broadcasts a religious belief:
[T]he religious liberty protected by the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents 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."
Wallace v. Jaffree, 472 U.S., 38, 69 (1985) (O'Connor, J., concurring in the judgment) (emphases added) (quoting Lynch, 465 U.S. at 688 (O'Connor, J., concurring)); accord Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10 (2000) (same). How much greater must be the sense of exclusion in the case of a child in a schoolroom " a schoolroom where his classmates are the insiders and, because he is a non-adherent, he will no longer be a "full member of the . . . community." Id.
In conducting the endorsement analysis, "[t]he relevant question[ ] is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion]." Santa Fe, 530 U.S. at 308 (quoting Wallace, 472 U.S. at 76 (O'Connor, J., concurring in the judgment)). How could anyone "acquainted with the text and legislative history" of the statute that amended the Pledge in order to indoctrinate our children conclude anything other than that the state-directed, teacher-led daily recitation of the "under God" version of the Pledge "conveys a message of exclusion to all those who do not adhere to the favored beliefs"? Lee v. Weisman, 505 U.S. 577, 606 (1992) (Blackmun, J., concurring). An atheist familiar with the Pledge's legislative history could hardly ignore the legislation's chief proponents' statements that "[a]n atheistic American is . . . a contradiction in terms," 100 Cong. Rec. 1700, that "the forces of anti-God and antireligion . . . spread . . . dangerous and insidious propaganda," id. at 7760, or that "evil" stems "[f]rom the root of atheism," id. at 1700. How could atheist, agnostic, Hindu, or Buddhist children asked every day by their state employed teachers to recite the amended version of the Pledge feel anything but "that they are outsiders,"82 Santa Fe, 530 U.S. at 309, when an author of the "under God" amendment to the Pledge publicly proclaimed that people's "citizenship is of no real value . . . unless [they] can open [their] souls before God and before Him conscientiously say, `I am an American,' " or when the President of the United States has declared that anyone who "truly loves America" will proudly say the Pledge as amended? 100 Cong. Rec. 7765, 8618 (emphases added). The effect on young schoolchildren of the amendment under the policy of the Rio Linda school district, and the policies of school districts
throughout the nation, is undeniable.
The majority agrees that some schoolchildren may perceive the amended Pledge as an endorsement of religion, but argues that under Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001), "a child's understanding cannot be the basis for our constitutional analysis." Maj. op. at 3922. The majority's reliance on Good News is directly contrary to that opinion's express rationale. In Good News, the Court held that a private group's use of a public school's facilities for afterschool religious events would not violate the Establishment Clause, despite "the possibility that elementary school children may witness the [group's] activities on school premises." Good News, 533 U.S. at 119. It expressly distinguished cases involving messages conveyed "by state teachers during the schoolday to children required to attend." Id. at 117 (emphasis original). Unlike in those cases, because "members of the public writ large [were] permitted in the school after hours pursuant to [its] community use policy," the Court did not limit its analysis to whether endorsement would be perceived by children, but also considered the perception of the school's activities among the adult members of the community. Id. at 118. In short, Good News looked to the entire audience, not just to the children voluntarily in it.
Here, young Roe's state-employed teachers conduct the state-directed daily recitation of the Pledge in a public school classroom during school hours. Five-year-olds are not the "youngest members of the audience," they are the entire audience; "the public writ large" does not attend kindergarten classes. In fact, as the Supreme Court pointed out in Good News, "in the normal classroom setting" the children are "all the same age." 533 U.S. at 118. In an as-applied challenge like the one before us, a practice must be analyzed in terms of those who actually experience its effects. As the majority is well aware, we are here examining only the effects of the daily classroom recitation of the religious version of the Pledge on public schoolchildren and are not considering the constitutionality of the use of that version of the Pledge in other circumstances. Indeed, because it is alleged that the recitation of the Pledge in the classroom is designed to indoctrinate schoolchildren with a religious belief, see supra Part II.C, it would make no sense to analyze its constitutionality in terms of its hypothetical effect on adults.
It is, in fact, the children's lackof understanding of the full
meaning of the Pledge that renders it such a powerful tool of
indoctrination. A study conducted twenty years after the
Pledge was amended to include the words "under God" found
that "grade school children make sense of the Pledge of Alle-
giance by focusing on a word they understand, most com-
monly `God,' which leads them to such conclusions as `The
most important part is . . . talking about God,' or `We better
be good cause God is watching us even if He is invisible.' "83
This result is precisely what the members of Congress who
amended the Pledge intended when they confidently stated
that "each time the[ children] pledge allegiance to Old Glory,
[they will] reassert their belief . . . in the all-present, all-
knowing, all-seeing, all-powerful Creator." 100 Cong. Rec.
5915. It is also precisely what the Establishment Clause seeks
to prohibit. For under our Constitution, the indoctrination of
religious beliefs, including belief in God, is "committed to the
private sphere," Lee, 505 U.S. at 589 " i.e., to family and the
Church (read, Synagogue, Mosque, Temple, et al.). Under no
circumstances is that function to be commandeered by the
State.
It was over a half-century ago that Justice Jackson wrote the words that transformed the relationship of the state to the individual, words that have ever since marked our First Amendment jurisprudence: "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, [or] religion . . . ." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Unfortunately, today the majority is clearly charting its course by a far different constellation with a far less enduring First Amendment.
C. The Coercion Test and the "Under God" Amendment
Because the state-directed, teacher-led daily recitation of the "under God" version of the Pledge "violate[s] both the Lemon test and the Endorsement test, we are not required to determine that [it] also run[s] afoul of the Coercion Test to hold [it] antithetical to the Establishment Clause." Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 818 (5th Cir. 1999), aff'd 530 U.S. 290 (2000) (applying Establishment Clause tests independently). The coercion test, set forth in Lee v. Weisman, 505 U.S. 577 (1992), did not replace the Lemon analysis or the endorsement test. See id. at 587 ("[W]e do not accept the invitation . . . to reconsider our decision in Lemon v. Kurtzman."); id. at 604 (Blackmun, J., concurring) ("[N]othing in [Lee is] inconsistent with the essential precepts of the Establishment Clause developed in our precedents."). Rather, Lee created a third test with a separate threshold that a statute or practice must also meet in order to comply with the Establishment Clause: "[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. . . ." Id. at 587 (majority opinion) (emphasis added). Accordingly, if a statute or practice fails to pass the coercion test, that is reason enough to hold it unconstitutional. See id. at 604 (Blackmun, J., concurring) ("Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient.").
1.
The Supreme Court has been especially sensitive to the use
of coercion in cases involving "young impressionable chil-
dren" in public school. Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 307 (Goldberg, J., concurring). As it
stated in Edwards v. Aguillard, 482 U.S. 578, 585 (1987),
when evaluating state-sponsored religious activity in the
classroom we "must [be] mindful of the particular concerns
that arise in the context of public elementary and secondary
schools." The Supreme Court has never lost sight of the spe-
cial danger presented by the promotion of religious views by
public school teachers: In over six decades of adjudicating
Establishment Clause challenges, the Supreme Court has
never once upheld a statute or practice that promotes religion
or religious beliefs in public schools or that coerces students
to express or adopt any religious views.84
In Lee, the Supreme Court emphasized the "heightened
concerns with protecting freedom of conscience from subtle
coercive pressure in the elementary and secondary public
schools." 505 U.S. at 592. The coercive pressure inherent in
the school setting played a central role in the Court's analysis:
Our decisions in [Engel and Abington] recognize,
among other things, that prayer exercises in public
schools carry a particular risk of indirect coercion.
The concern may not be limited to the context of
schools, but it is most pronounced there. . . . What
to most believers may seem nothing more than a rea-
sonable request that the nonbeliever respect their
religious practices, in a school context may appear to
the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce a reli-
gious orthodoxy.
Id. (emphasis added; citations omitted). Because of that inherent pressure, the Court's solicitude for the injury experienced by "the dissenter of high school age" was not lessened by the fact that it occurred at a graduation ceremony for which attendance was ostensibly voluntary. Id. at 593-94.
Here, the plaintiff on appeal is a five-year-old child compelled by law to attend school. Every day her teacher, a state employee, leads her and her classmates in a state-directed exercise explicitly designed to inculcate a religious belief in each of them " a belief in God. Such deliberate indoctrination exploits the fact "that children mimic the behavior they observe[,] or at least the behavior that is presented to them as normal and appropriate," FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1813 (2009), and "that children are disinclined at this age to step out of line or to flout `peer group norms,' " Abington, 374 U.S. at 290 (Brennan, J., concurring). As the Supreme Court has repeatedly explained, the very nature of coercive activity is that it exerts enormous "pressure upon religious minorities to conform to the prevailing officially approved religion" and its practices, even though they reject that officially endorsed religious belief. Engel, 370 U.S. at 431 (emphasis added).
A child subjected to state-sponsored, teacher-led religious indoctrination has two choices: participation or refusal. The fact that a young, impressionable schoolchild recites the religious Pledge does not necessarily mean that he does so "willingly." Contra maj. op. at 3874. To the contrary, rather than label himself an oddball, a troublemaker, and an outcast, rather than subject himself to humiliating name calling, harassment and derision, he may simply prefer to conform, formally pledging his adherence to a religious belief that is antithetical to his true philosophical views. For these children who conform unwillingly, coercion has had its effect: They have chosen to forego their constitutional rights rather than to face the consequences of not doing so. But the coercive effect is no less severe for those students who adhere to their principles and refuse to affirm a state-held religious belief that is contrary to their own. Those students, including Jan Roe's daughter, must either remain silent or leave the classroom, neither of which options avoids the injury they suffer or cures the constitutional violation to which they have been subjected. See Abington, 374 U.S. at 224-25. Rather, children who choose either of these options are separated from their classmates either literally or by the silence they maintain, and, as a result, every day are in fact " `outsiders, not full members of the . . . community.' " Santa Fe, 530 U.S. at 309 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)).
The majority takes inconsistent positions regarding the coercive effect of religious indoctrination in public school classrooms. First, it asserts that allowing children the option of "participating in . . . religious exercises" in public schools demonstrates "one of the great principles of our nation." Maj. op. at 3919. Later, however, it acknowledges that providing such an "option" does not render the state's conducting of a religious practice constitutional, because the coercive pressure still remains. Id. at 3923. Under binding Supreme Court law, the latter position is unquestionably correct. The Free Exercise Clause "has never meant that a majority could use the machinery of the State to practice its beliefs." Abington, 374 U.S. at 226. If it attempts to do so, "the fact that individual students may absent themselves [or remain silent] . . . furnishes no defense to a claim of unconstitutionality under the Establishment Clause." Id. at 224-25 (emphasis added). As the Court expressly stated in Lee, the government may not "place objectors in the dilemma of participating, with all that implies, or protesting. . . . . To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means." Lee, 505 U.S. at 593-94.
The intense social and psychological pressure at issue, pressure that is enormous when brought to bear against a five-year-old child, leaves no doubt that a public school classroom is a coercive environment, as defined in Lee. Indeed, the majority ultimately concedes that every day that young Roe goes to school she is "coerced to participate" in the state-directed, teacher-led recitation of the "under God" version of the Pledge of Allegiance. Maj. op. at 3923. And so it must, as all nine of the Justices in Lee agreed that impermissible coercion occurs in a public-school classroom where attendance is mandatory, if that classroom is used to promote religious beliefs or expression.85
2.
Given that the majority inevitably concedes, as it must, that
the classroom environment at issue in this case exerts signifi-
cant coercive pressure to conform on children such as young
Roe, and that allowing her the option of remaining silent or
leaving the room would not cure the constitutional violation,
it is left with only two equally unpersuasive arguments as to
why the daily recitation of the "under God" version of the
Pledge does not violate the coercion rule. First, the majority
contends that the Pledge is not a "religious exercise." Accord
Elk Grove, 542 U.S. at 31 (Rehnquist, C.J., concurring in the
judgment). Second, the majority argues that the recitation of
the Pledge is a "patriotic activity." Maj. op. at 3926-27
(emphasis added).
The majority's analysis can in fact be boiled down to one
sentence: "the Pledge is not a prayer." Maj. op. at 3923. To
meet the coercion standard, my colleagues first conclude that
"Lee's indirect coercion analysis" applies "only if the govern-
ment coerces students to engage in a religious exercise." Id.
at 3926 (emphasis added). This may be the majority's deter-
mination in this case, but it most certainly is not the holding
of the Supreme Court in Lee.
To the contrary, in Lee the Court held that "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise . . . ." Lee, 505 U.S. at 587 (emphasis added). Apparently the same convenient willful blindness that prevents the majority from reading the Pledge's legislative history prevents it from reading the word "or" in the preceding sentence. Otherwise, it would surely be forced to concede that Lee's coercion analysis applies when the government coerces someone "to support or participate in religion," and not just "to [participate in] religious exercises." If the Lee majority's word is not good enough for the majority in this case, Justice Scalia's dissent, one part of which reflected the agreement of all members of the Court, should be sufficient. In that part, Justice Scalia said, "I have no quarrel with the Court's general proposition that the Establishment Clause `guarantees that government may not coerce anyone to support or participate in religion . . . .' " Id. at 642 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)).
If the unanimous conclusion reached by the Court in Lee still does not persuade my colleagues that their holding today is erroneous, perhaps they should simply read once again the very cases that they contend support their overly narrow reading of Lee. The majority asserts with regard to those cases that "all" of the activities "have been invalidated by the Supreme Court as unconstitutional school-sponsored religious exercises." Maj. op. at 3888 (emphasis added). But if the anticoercion rule applied only in the case of "religious exercises," as the majority contends, then at least two important decisions would have to be erased from the U.S. Reports.
In Edwards v. Aguillard, which was a coercion case,86 the Supreme Court struck down as violative of the Establishment Clause a statute mandating "instruction in `creation science' " in public schools. 482 U.S. at 581. A lecture in creation science, the Court held, supports religion through "the presentation of a religious viewpoint." Id. at 596. Of course, such a lecture contains none of the attributes of a "religious exercise" that have been identified by the majority. It does not "invite divine intercession," "express personal gratitude," or "ask forgiveness." See maj. op. at 3889. It is "led by a teacher, not by a clergyman or other religious leader." See id. at 3892. Students listening to the instruction "do not kneel, nor don yarmulkes, veils, or rosaries," see id., or make "a solemn avowal of divine faith and supplication for the blessings of the Almighty." See id. at 3926 (quoting Engel, 370 U.S. at 424-25). If there is a definition of "religious exercise" broad enough to encompass the teaching of "scientific critiques of prevailing scientific theories," Edwards, 482 U.S. at 593, the majority has not provided it.
Similarly, Stone v. Graham, 449 U.S. 39 (1980) (per curiam), is another coercion case that did not involve a religious exercise. In that case, the Court struck down a statute that "require[d] the posting of a copy of the Ten Commandments . . . on the wall of each public classroom in the State." Id. at 39. Surely, merely sitting in a room that has a copy of the Ten Commandments hanging on the wall does not constitute a "religious exercise." See maj. op. at 3889 (a religious exercise "is always active"). In fact, the Court held that by being compelled to sit in the classroom with the Ten Commandments affixed to the wall, the students were subjected to a "religious practice." Stone, 449 U.S. at 42. The Court struck down the statute because its "effect" was "to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the [Ten] Commandments." Id. (emphasis added).
Thus, there are at least two Supreme Court cases that inval-
idated state practices supporting religion in the public schools
as coercive, and therefore violative of the Establishment
Clause, even though those practices did not constitute a "reli-
gious exercise." Accordingly, Lee must be understood to hold,
as it explicitly states, "that government may not coerce any-
one to support or participate in religion or its exercise," Lee,
505 U.S. at 587 (emphasis added), and not simply, as the
majority states, that the government may not coerce anyone
to engage in religious exercises.87
What might the Supreme Court have had in mind when it described government action that coerces someone "to support or participate in religion"? Here, too, Lee provides the answer: "The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State." Id. at 589 (emphasis added). The notion that the State cannot coerce religious belief or expression is as old as the Court's first Establishment Clause case, see Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) ("The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government . . . . can force nor influence a person . . . to profess a belief or disbelief in any religion." (emphasis added)), and as current as its most recent decision, see McCreary County v. ACLU of Ky., 545 U.S. 844, 881 (2005) ("This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual." (emphasis added)), with an unbroken line of cases in between. In fact the very first case to strike down religious practices in public schools said, "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Engel, 370 U.S. at 431 (emphases added).
As the Supreme Court has made clear, the Pledge requires an affirmation of a belief. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943) ("[The] pledge requires affirmation of a belief and an attitude of mind."). Until its amendment in 1954, the Pledge was solely an affirmation of belief in, and loyalty to, one's country. But the "under God" amendment added another component. Under the 1954 amendment, there is no conceivable way that the plain text, let alone the history, of the Pledge as amended can be read in any way other than as an affirmation of what the author of the amendment referred to as "the definitive factor in the American way of life[:] . . . belief in God." 100 Cong. Rec. 1700 (emphasis added). One simply cannot in good faith daily affirm loyalty to a nation "under God" if one does not believe that God exists, questions whether there is a God, or believes in polytheism.
No one can deny that the Pledge requires the speaker to engage in a performative act that binds him to a particular belief " a belief in a nation "under God."88 Indeed, even the majority appears to concede that one cannot recite the amended Pledge without "affirming a belief in God." Maj. op. at 3923. A student reciting the Pledge of Allegiance to "one nation, under God" personally adopts that language, which expresses an undeniable and unavoidable religious tenet: God exists, and he is watching over our country. The conception of "God" espoused in that statement is inconsistent even with many theistic, let alone atheistic or agnostic, religious philosophies.89 It is impossible to pledge allegiance to a "nation under God" without professing an unmistakably "religious belief," Lee, 505 U.S. at 589: there is a God whom our nation is under, or to whom our nation is subordinate. Anyone coerced to express such a belief is, by definition, coerced to affirm a belief in God and thus "to support . . . religion." Id. at 587. Thus, the majority's attempt to limit the coercion test to a religious exercise fails.
3.
In its second attempt to avoid the strictures of Lee, the majority argues that the prohibition against coercing school-children to embrace religion does not apply to the recitation of the amended Pledge because that recitation is simply a "patriotic exercise designed to foster national unity and pride." Maj. op. at 3877 (quoting Elk Grove, 542 U.S. at 6); see also id. at 62. I do not dispute that the recitation of the Pledge both as originally written and as amended is a patriotic exercise or that the version codified in 1942 was indeed "designed to foster national unity and pride."90 But where a religious message is inserted into a patriotic exercise, or into any other secular exercise, in order to promote religion and, more particularly, to inculcate in children a religious belief, the exercise as amended runs afoul of the Establishment Clause. Surely, as noted earlier, if Congress had amended the Pledge so as to describe the United States as "one nation under Jesus," "one nation under Jesus Christ," or "one nation under the Father, the Son, and the Holy Ghost," even the majority, one might hope, would not contend that, because the recitation of the Pledge was and is a patriotic exercise, no unconstitutional coercion would result from the state-directed, teacher-led daily recitation of the Pledge in its amended form. The analysis can be no different for the recitation of the amended version of the Pledge, with the inserted phrase "under God."91 In all those instances, the Pledge would be equally patriotic. It is irrelevant for purposes of the Establishment Clause whether a state-directed effort to indoctrinate schoolchildren with a belief in religion, or in this case, more specifically a belief in God, is incorporated into a patriotic or some other secular exercise or constitutes a stand-alone message all by itself. It is the content of the religious message not the vehicle in which it is contained that matters. Government is simply not permitted to engage in the indoctrination of religious beliefs, whatever the means by which it may choose to deliver them. The solution is obvious: excise the offending material from the patriotic or secular message. That is particularly easy to do where, as here, the religious component of the message has been separately inserted by a legislative amendment into existing, non-offending patriotic or other secular material.
The majority's reading of Lee ignores the fundamental principles underlying decades of Establishment Clause jurisprudence. In so doing, the majority deems religious indoctrination in public schools permissible under the coercion test so long as it is not part of a religious activity. This holding is dangerous and far-reaching, as well as unprecedented and unfounded. After today, if this court were to take the majority's holding seriously, or purport to follow it in relevant cases, public-school students in this circuit could be subjected to regular lectures promoting Christianity as the true religion, cf. Edwards, 482 U.S. 578 (creationism instruction), or required to enroll in "character development" programs that extolled the superiority of Jesus over all others as a spiritual leader. They would no longer have a claim under Lee v. Weisman because the practices they would be challenging would be included within otherwise lawful secular programs. Surely this utter evisceration of the coercion test is not what the Supreme Court intended when it vindicated Deborah Weisman's constitutional rights. Moreover, religious minorities of all stripes would quickly suffer under the rule the majority propounds, were we to apply it beyond the narrow confines of the Pledge of Allegiance. It should be apparent to all that regardless of the majority's heart-felt desire to justify the coercive recitation of the amended Pledge by California's public schoolchildren and its willingness to ignore the controlling law in order to reach that objective, a proper application of the coercion test precludes not only religious exercises but all other state sponsored efforts to inculcate religious beliefs in America's public schoolchildren, even if inserted in the middle of a course in mathematics or incorporated in any other secular or patriotic activity.
D. Application of the Tests to the 2002 Legislation
I have explained why the 2002 reaffirmation of the Pledge statute is of no relevance, as it simply sets forth Congress's view that the 1954 amendment was constitutional and that our interpretation of the Constitution in Newdow I was erroneous, and thus it offers no different purpose for the adoption of the amendment. See supra Part III. However, the foregoing review of the Lemon, endorsement, and coercion tests demonstrates why, even had Congress advanced a secular purpose for both the 1954 "under God" amendment and its 2002 reaffirmation, including the secular messages that the majority purports to believe that Congress intended to convey: that we live under "limited government," or more generally that we should recognize our nation's "historical principles of governance", the amendment as applied in the case of the state-directed, teacher-led, daily recitation of the Pledge would still have failed to comply with the Establishment Clause. It would have failed the Lemon test because its principal purpose would still have been religious, and because the "principal or primary effect" of the amendment, the affirmation of a personal belief in God, would still have unquestionably "advance[d] . . . religion." Lemon, 403 U.S. at 612-13 (citation omitted) (emphasis added). It would have failed the endorsement test because such recitations would still have sent the message to nonadherents of religion and to nonadherents of religions that embrace monotheism "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." Santa Fe, 530 U.S. at 309-10 (quoting Lynch, 465 U.S. at 688 (O'Connor, J., concurring)). Finally, it would have failed the coercion test because such recitations would still have coerced schoolchildren "to support or participate in religion," and to profess a belief, whether held by them or not, in God. Lee, 505 U.S. at 587. In short, the "under God" version of the Pledge is, under all three tests, unconstitutional as applied, not only when considered in light of Congress's actual purpose in adopting the amendment in 1954, but even when considered in light of the purpose that the majority would erroneously impute to Congress in reaffirming the amendment in 2002.
V. The Inapplicability of Alternative Theories
As the foregoing analysis demonstrates, the statesponsored, teacher-led daily recitation of the "under God" version of the Pledge in public schools is unconstitutional under any Establishment Clause doctrine that might be applied. Ordinarily, one would expect an outcome required by binding Supreme Court precedent to end the debate. However, faced with the formidable outcry that would surely arise in defense of the "under God" version of the Pledge were the Constitution to be faithfully applied, judges both on this court and others, in an effort to sustain the unsustainable, have cast about in search of alternative theories " theories not grounded in any Establishment Clause principles announced by the Supreme Court. Such theories include the notions that appellate courts must uphold the state-sponsored recitation of the "under God" version of the Pledge on the basis of statements made in Supreme Court dicta or in individual concurring or dissenting opinions of some of the various justices, on the ground that the religious version of the Pledge is constitutional under the putative doctrine of ceremonial deism, and for the reason that any harm caused by its recitation in public schools is de minimis and therefore not worthy of our attention. These alternative theories, one or two of which today's majority may be relying on, at least in part, and the other of which is relied on by our colleagues on other circuits, provide no legitimate support for holding the "under God" version of the Pledge constitutional as applied. I will start with the least dangerous, the nose-counting dicta and dissents theory. The two which could cause serious harm to the First Amendment rights of minorities, and with at least one of which the majority appears to flirt at times, I will save for last.
A. Supreme Court Dicta
The majority proudly asserts that by its decision today we "join our sister circuits who have held [that] similar school policies do not violate the Establishment Clause." Maj. op. at 3877. My colleagues properly do not, however, embrace the reasoning relied upon by the two other circuits that have so held. Both of those circuits predicate their conclusions on Supreme Court dicta or the views expressed by individual Supreme Court justices. See Myers v. Loudon County Pub. Schs., 418 F.3d 395, 402 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch. Dist., 980 F.2d 437, 446-48 (7th Cir. 1992). Because that is the only basis, other than that on which today's majority relies, on which any circuit court has upheld state-directed, teacher-led daily recitations of the "under God" version of the Pledge, I explain why the majority here could not legitimately "join our sister circuits" in their erroneous reasoning.
The argument set forth by the Fourth and Seventh circuits is essentially this: The Supreme Court has authored "repeated dicta . . . respecting the constitutionality of the Pledge," Myers, 418 F.3d at 402, and those dicta "proclaim[ ] that [the] practice is consistent with the establishment clause," Sherman, 980 F.2d at 448; appellate courts, therefore, should follow the purported rule established in the dicta because "[i]f the Justices are just pulling our leg" we should "let them say so." Sherman, 980 F.2d at 448. Cleverly or not cleverly worded as this argument may be, it fails in both its major and minor premises: First, the so-called dicta "respecting the constitutionality of the Pledge," Myers, 418 F.3d at 402, in fact do not say that the Pledge is "consistent with the establishment clause," Sherman, 980 F.2d at 448. Second, the Supreme Court's holdings issued after each of the dicta was written do not support adherence to the "rule" that our colleagues on the Fourth and Seventh Circuit have read into preexisting dicta. It is those subsequent holdings that must control the reasoning and decisions of the courts of appeals.
The assertion that the Supreme Court has "proclaim[ed] that [the Pledge] is consistent with the establishment clause," id. (emphasis added), is inconsistent with the language of the purported dicta on which that assertion is based. Proponents of the dicta argument assert that "[t]he Supreme Court has spoken repeatedly on the precise issue we address today." Myers, 418 F.3d at 409 (Motz, J., concurring in the judgment); id. at 402 (majority opinion) (relying on "repeated dicta from the Court"). However, in over six decades of Establishment Clause jurisprudence, the Supreme Court has in fact made only two statements regarding the Pledge of Allegiance in its opinions.92 The first of these appeared in Lynch v. Donelly, a case decided in 1984. In that case, the Court simply notes, in a preliminary discussion, that the "under God" language in the Pledge is one among many "examples of reference to our religious heritage" that is reflected in numerous well-established national customs and practices. Lynch v. Donnelly, 465 U.S. 668, 676 (1984). Contrary to what the Fourth and Seventh Circuits assert, the statement in Lynch in no way expresses the view that the Pledge passes any of the three Establishment Clause tests or that the practice of daily, state-directed, teacher-led recitation of the amended Pledge by public schoolchildren is constitutional. The sole mention of the Pledge amounts to no more than a single prefatory historical reference, after which it is not discussed again.93
Moreover, as the author of that historical reference wrote
soon thereafter, in his view intervening Supreme Court law "
specifically, the Supreme Court's decision in Wallace v. Jaf-
free " rendered the version of the Pledge that includes the
phrase "under God" unconstitutional. Dissenting from the
Court's holding in Wallace, a case that ought to govern the
majority's analysis today, Chief Justice Burger wrote just one
year after authoring the opinion in Lynch:
Congress amended the statutory Pledge of Alle-
giance 31 years ago to add the words `under God.'
Do the several opinions in support of the judgment
today render the Pledge unconstitutional? That
would be the consequence of their method of focus-
ing on the difference between [the challenged stat-
ute] and its predecessor statute . . . .
Wallace, 472 U.S. at 88 (Burger, C.J., dissenting) (citation omitted); see also id. at n.3. Thus Wallace rendered any thought that the Chief Justice might have harbored that the amended Pledge was constitutional no longer valid. A dictum, let alone a mere reference, recognized by its own author as having no further validity cannot bind us at all and certainly could not do so in the face of subsequent holdings that strip the reference of any force or effect. Such subsequent opinions include not only Wallace but also Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe, each of which made substantial contributions to Establishment Clause jurisprudence, and each of which contained holdings that conflict with the tenets underlying Chief Justice Burger's "dictum" in Lynch.
The second purported dictum "proclaiming" the Pledge's
constitutionality is the following statement from County of
Allegheny v. ACLU:
Our previous opinions have considered in dicta the
motto and the pledge, characterizing them as consis-
tent with the proposition that government may not
communicate an endorsement of religious belief.
Lynch, 465 U.S., at 693 (O'Connor, J., concurring);
id., at 716-717 (Brennan, J., dissenting). We need
not return to the subject . . . because there is an obvi-
ous distinction between creche displays and refer-
ences to God in the motto and the pledge.
492 U.S. 573, 602-03 (1989) (emphasis added). This passage is a far cry from an assertion by the Supreme Court, in dicta or otherwise, that the Pledge "is consistent with the establishment clause." Sherman, 980 F.2d at 448. To the contrary, despite the Court's unusual characterization of statements in a prior concurrence and dissent as "[o]ur previous opinions," the Supreme Court in Allegheny simply reported the fact that a concurrence and a dissent in Lynch state in dicta that the amended Pledge is constitutional. However, neither that concurrence nor dissent spoke for the Court, and those are the only two opinions Allegheny cites when it refers to "[o]ur previous opinions" characterizing the Pledge, in dicta, as constitutional. The Court in Allegheny itself expressly declined to comment on the validity of those prior "dicta" or on the Pledge's constitutionality, recognizing that the issue was irrelevant to the case before it. Id. Furthermore, like the "dictum" in Lynch, the statement in Allegheny was written in 1989, predating Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe, core holdings that govern our analysis today. Finally, neither the "dictum" in Allegheny nor the "dictum" in Lynch
expressed a view on the merits of the constitutional question before us. A plain reading of the "dicta" and of subsequent Supreme Court decisions makes it apparent that the dicta argument relied upon by the Fourth and Seventh Circuits provides a very slim reed indeed " in fact, no reed at all.
There is also no merit to the minor premise asserted by the Fourth and Seventh Circuits that appellate courts should treat dicta as controlling. As all courts and judges have recognized, Supreme Court dicta, like all others, are not binding, and they certainly cannot serve as a justification for ignoring supervening Supreme Court precedent. Dicta or not, an intermediate court of appeals is required to follow binding Supreme Court cases unless and until the Supreme Court overrules them. Moreover, the only reason Supreme Court dicta enjoy greater weight than the dicta of lower courts is that they are a "prophecy of what the Court might hold." United States v. MonteroCamargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (internal quotations omitted). Prophecies may be of some value when there are no binding precedents that govern the outcome; they are of no relevance, however, when relying on them would require an intermediate appellate court to ignore Supreme Court law that is handed down after those prophecies, that is contrary to them and that controls the decision. If the value of a Supreme Court dictum lies in its forecasting ability, then surely when "what the Court might hold" turns out to be the opposite of what the Court later does hold the dictum must lose whatever authority it might once have had.
Perhaps aware that the author of one of the two "dicta" acknowledged that his view had been rejected in a subsequent opinion of the Court, that the other "dictum," like the first, does not actually speak to the merits of the issue in this case, and that the two dicta together do not carry any weight in light of the various intervening developments in the law, proponents of the dicta argument must rely on other data to bolster their claim that the Supreme Court has implicitly instructed lower courts how to decide the issue presently before us. The Fourth Circuit, in search of such additional data, based its validation of the "under God" version of the Pledge not just on the overruled purported dicta in Lynch and Allegheny, but also on the views of "individual Justices" whom it characterizes as "hav[ing] made clear that the Establishment Clause . . . does not . . . make unconstitutional the daily recitation of the Pledge in public school." Myers, 418 F.3d at 405 (emphasis added). The Fourth Circuit goes on to cite a string of individual concurrences and dissents from various justices before emphatically declaring "not one Justice has ever suggested that the Pledge is unconstitutional." Id. at 406 (emphasis in
original).
Although some might consider a nose count of every justice ever to have sat on the Supreme Court, past or present, alive or dead, an absurd method of deciding a constitutional question concerning fundamental rights " or any other question for that matter " I need not comment on the propriety of the Fourth Circuit's approach because it fails on its own terms.94 Only the judicial equivalent of Enron accounting could yield a conclusion that "not one justice" has ever stated that the Pledge is unconstitutional under the Supreme Court precedents that we, as intermediate court judges, are bound to follow. In fact, quite the opposite: the only current Justice to have ever directly addressed the merits of the issue before us concluded that [a]dherence to Lee would require [a court] to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day.
. . . .
. . . . Whether or not we classify affirming the
existence of God as a "formal religious exercise"
akin to prayer, it must present the same or similar
constitutional problems.
Elk Grove, 542 U.S. at 46, 48 (Thomas, J., concurring in the judgment). Justice Thomas unequivocally rejected the holding issued by today's majority that Lee turns entirely on whether a challenged practice constitutes a "formal religious exercise." Cf. supra Part IV.C. Lest there be any confusion, Justice Thomas made his point crystal clear: "[A]s a matter of our precedent, the Pledge policy is unconstitutional." Elk Grove, 542 U.S. at 49.
Six other Justices have reached the same conclusion, four of them in opinions written after the two "dicta" in Lynch and Allegheny upon which the Fourth and Seventh Circuits so heavily rely. In Lee, Justice Scalia, joined by three of his colleagues, declared: "[S]ince the Pledge of Allegiance has been revised since Barnette to include the phrase `under God,' recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction [invalidated today] . . . . Logically, that ought to be the next project for the Court's bulldozer." See Lee, 505 U.S. at 639 (Scalia, J., dissenting, joined by Rehnquist, C.J., and White and Thomas, JJ.). Similarly, in Allegheny, Justice Kennedy, writing for himself and three other Justices, wrote:
[B]y statute, the Pledge of Allegiance to the Flag
describes the United States as "one Nation under
God." To be sure, no one is obligated to recite this
phrase, but it borders on sophistry to suggest that the
"reasonable" atheist would not feel less than a "full
member of the political community" every time his
fellow Americans recited . . . a phrase he believed to
be false.
492 U.S. at 672 (Kennedy, J., dissenting, joined by Burger, C.J., and White and Scalia, JJ.) (internal citations omitted); see also Wallace, 472 U.S. at 88 (Burger, C.J., dissenting);95 Engel v. Vitale, 370 U.S. 421, 450 & n.9 (1962) (Stewart, J., dissenting).96 For those keeping score, an accurate nose count would thus contain more justices asserting that the Pledge is unconstitutional under existing Supreme Court precedents than justices expressing the contrary view.97 Were these justices to apply currently binding Supreme Court law, they would, without doubt, hold, unlike the majority today or the other two circuits to have decided the issue, that state-sponsored, teacher-led recitation of the "under God" version of the Pledge of Allegiance in public schools does not pass constitutional muster.
How, then, does the Fourth Circuit conclude that "not one Justice has ever suggested that the Pledge is unconstitutional"? Myers, 418 F.3d at 405 (emphasis in original). The answer to this question is quite revealing: The court construes the votes of Justice Thomas and the other justices cited above as "pro-Pledge" votes because those justices disagree with existing Supreme Court precedents, which some of them have stated they would overturn. In other words, these justices believe that intermediate appellate courts are required to hold the Pledge unconstitutional, regardless of whether they would exercise their own prerogative as Supreme Court justices to overrule the precedents that bind us today. Their opinions may not, of course, be counted in favor of the holding reached by the Fourth and Seventh Circuits.
Although my colleagues have not made the error made by
"our sister circuits" that they are proud to join, they could not
have reached the result they do without disregarding clearly
binding Supreme Court law, as recognized by a number of
Supreme Court justices, past and present. Disregarding that
binding Supreme Court law is not within the authority of cir-
cuit court judges. Accordingly, my colleagues seriously err in
reaching the result they do in this case.
B. Ceremonial Deism
It is unclear whether by its vague, disjointed, and indirect allusions to "ceremonial deism" the majority intended to rely on that theory. Ceremonial deism is itself a hazily defined, never formally adopted doctrine under which it may be asserted that phrases that would otherwise constitute unconstitutional establishment of religion have, with respect to the particular usage at issue, become so interwoven into America's social fabric that they no longer convey a religious message of sufficient potency to offend the Constitution. The majority implicitly invokes this "doctrine" when it cites Marsh v. Chambers, 463 U.S. 783 (1983), for the proposition that "the nation's historical practices can outweigh even obvious religious concerns under the Establishment Clause."98 Maj. op. at 3916. It also appears to endorse or at least approve Justice Brennan's dissent in Lynch v. Donelly, which explicitly relied upon ceremonial deism, id. at 22 n.11, although Justice Brennan himself expressed some uncertainty about his position.99
Whatever the merits of the majority's "ceremonial references to God" approach in other contexts, Supreme Court precedent precludes us from applying to this case the doctrine discussed by Justices Brennan and O'Connor and implicitly followed by the Court in Marsh: that in certain circumstances a practice with a sufficient historical acceptance is less susceptible to, or more immune from, challenge on Establishment Clause grounds. Marsh approved the time-honored opening of a legislative session with a chaplain's prayer. A teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools is, however, far different from the opening ceremony of a legislative session, and so the Court made clear in Lee. Lee explained that
[i]nherent differences between the public school sys-
tem and a session of a state legislature distinguish
this case from Marsh v. Chambers, 463 U.S. 783
(1983). . . . The atmosphere at the opening of a ses-
sion of a state legislature where adults are free to
enter and leave with little comment and for any num-
ber of reasons cannot compare with the constraining
potential of the . . . school [environment, where] stu-
dent[s must] attend. The influence and force of a for-
mal exercise in a school . . . are far greater than the
prayer exercise we condoned in Marsh. The Marsh
majority in fact gave specific recognition to this dis-
tinction and placed particular reliance on it in
upholding the prayers at issue there. 463 U.S. at 792.
Today's case is different. [In school], teachers and
principals must and do retain a high degree of con-
trol over the precise contents of the program, . . . the
movements, the dress, and the decorum of the stu-
dents. . . . Our Establishment Clause jurisprudence
remains a delicate and fact-sensitive one, and we
cannot accept the parallel relied upon by petitioners
and the United States between the facts of Marsh
and the case now before us. Our decisions in Engel
v. Vitale and School Dist. of Abington v. Schempp
require us to distinguish the public school context.
505 U.S. at 596-97 (internal citations omitted). Thus, Lee precludes the use of ceremonial deism to justify state-sponsored religious activity in public school classrooms, including teacher-led daily recitations of the "under God" version of the Pledge of Allegiance.
There are two other reasons that the application of ceremonial deism to the amended version of the Pledge is not consistent with the principles underlying that so-called legal doctrine. First, historically speaking, the contention asserted by Justice O'Connor that the Pledge has settled into a secular social niche because it is a "practice [that] has been employed pervasively without engendering significant controversy" is simply inaccurate. Elk Grove, 542 U.S. at 38 (O'Connor, J., concurring in the judgment); cf. Allegheny, 492 U.S. at 631 (O'Connor, J., concurring). When the bill amending the Pledge was first introduced in 1954, thirty-five million Americans opposed the addition of the words "under God" to the traditional oath.100 Today, that number is even larger: When this court issued its opinion in 2002 striking down the daily, teacher-led recitation of the "under God" version of the Pledge as unconstitutional, over thirty-nine million Americans agreed with our decision.101 Moreover, in the five and a half decades since the Pledge was amended to convey an explicitly religious purpose, numerous legal challenges have been filed seeking to remedy the purported constitutional harm suffered by millions of Americans who do not subscribe to a belief in God as prescribed by the "under God" version of the Pledge. Indeed, these challenges began shortly after the Pledge was amended and have been pursued consistently throughout the intervening decades.102 The fact that judges or justices may be willing to ignore the "significant controversy" the Pledge has engendered does not mean that the controversy does not exist or has not continued uninterruptedly over time.103
Second, even if we were free to do so, this court could not reasonably adopt the doctrine of ceremonial deism in this case because that doctrine, at least as it would be applied here, would necessarily be predicated on a fundamentally illogical premise. Specifically, it makes no sense to state that in the context of the daily recitation of the amended Pledge in public schools the phrase "under God" has, over time, "lost through rote repetition any significant religious content." Lynch, 465 U.S. at 716 (Brennan, J., dissenting). Prayers are regularly the subjects of "rote repetition," and, if anything, grow only more religious over time. Those Christians who have recited the Lord's Prayer for the past two thousand years would be shocked to learn that, by virtue of their doing so, the prayer has lost its religious significance. So too would Jews who have recited the Sh'ma, the Jewish declaration of faith, two times a day for approximately the same length of time, or Muslims who turn toward Mecca five times daily and repeat the Shahadah, reciting the words "There is no God but God, and Muhammad is his prophet." The amended Pledge was intended to be regularly recited in schools across the nation in order to teach "the schoolchildren of America" to have "faith in the Almighty God," 100 Cong. Rec. 6919 (1954), and to "train[ ] . . . our youngsters[,] . . . each time they pledge allegiance[,] . . . [to] reassert their belief . . . in the all-present, all-knowing, all-seeing, all-powerful Creator," id. at 5915. Moreover, fifty years after the Pledge was amended to incorporate an explicitly religious message, forty-three state legislatures had passed laws either encouraging or outright requiring daily recitation of the amended version of the Pledge in public schools. Surely the drafters and promoters of the 1954 "under God" amendment, the Congress that so enthusiastically enacted the religious mandate, and the hundreds of state legislators who directed the incorporation into the school day of the religious version of the Pledge, did not promote its daily recitation by public school students in order to have the words "under God" become of less and less religious significance each year.
Next, no one would suggest that the remainder of the Pledge has lost its patriotic meaning as the years have gone by. It would seem particularly unreasonable, therefore, to suggest that the religious phrase in the Pledge would somehow lose its meaning through repetition while the patriotic themes would retain their force and continue to grow even stronger over time. See Sherman, 980 F.2d at 448 (Manion, J., concurring); cf. Van Orden, 545 U.S. at 696 (Thomas, J., concurring) ("Repetition does not deprive religious words or symbols of their traditional meaning. Words like `God' are not vulgarities for which the shock value diminishes with each successive utterance."). Perhaps most disappointed of all if the word "God" were to lose its religious significance would be Reverend Docherty, the original proponent of the amendment, and President Eisenhower, who said when he signed the bill incorporating the phrase "under God" in the Pledge that "millions of our school children will daily proclaim . . . the dedication of our Nation and our people to the Almighty" and added that "nothing could be more inspiring than" the "rededication of our youth" that would occur "on each school morning."104 Thus, another argument for ceremonial deism would appear to be wholly without merit here.
The logical flaws inherent in the theory of ceremonial deism as applied to the recitation of the amended Pledge in public schools, as well as the erroneous historical assumptions on which application of that "doctrine" to the issue before us depends, explain why whatever the utility of the doctrine may be in other circumstances, it is of no possible use here. These infirmities may also explain why the theory has never actually been adopted elsewhere. As Thomas Paine so accurately observed, "a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises . . . a formidable outcry in defence of custom." THOMAS PAINE, COMMON SENSE 1 (Courier Dover Pub. 1997) (1776). In most cases, ceremonial deism represents mainly the judiciary's less than courageous response to that outcry. Applying the doctrine makes it possible to conclude that in some instances state-sponsored religious practices are not unconstitutional simply because they enjoy broad and longstanding support from a religious majority. One observer has written that the doctrine can only invite abuse and, over time, will "yield[ ] an ever expanding sphere of activities courts [will] f[i]nd to be permissible forms of" state-sponsored religious endorsement. Epstein, supra note 14, at 2087. Here, fortunately, we need not speculate about the wisdom or availability of such a policy: As described supra at 4055, the Supreme Court has made it clear that the principle of ceremonial deism may not be applied in the case of religious practices in public schools.
C. The De Minimis Theory
The doctrine of ceremonial deism that the majority appears at times to embrace bears a close relationship to a final rescue theory supported by some members of this court and others. See, e.g., Newdow v. U.S. Cong., 328 F.3d 466, 490 (9th Cir. 2003) (Fernandez, J., dissenting);105 Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999). This theory, which is often referred to as the theory of the "de minimis constitutional violation," would, if applicable, support the conclusion that the state-sponsored, teacher-led daily recitation of the "under God" version of the Pledge of Allegiance in public schools constitutes no more than an insignificant violation of the Constitution causing insignificant injury that can be overlooked or ignored. Like ceremonial deism, the de minimis theory operates on an ad hoc basis to protect the religious preferences of the majority when those preferences conflict with the constitutional rights of the minority.106 Of course, the more disenfranchised the religious minority, the more likely it is that such a defense will succeed. But our constitutional protections are of little value if courts refuse to employ them on behalf of members of the most marginalized and detested religious groups, such as atheist children like young Roe. In a 2005 survey conducted by the Pew Research Center, fully fifty percent of Americans said that they had either a "mostly unfavorable" or "very unfavorable" opinion of atheists.107 This is twice the number of people who harbored similar antipathy toward Muslims, the next least appreciated religious minority. Indeed, "atheists are ranked lower than any other minority or religious group when Americans are asked whether they would vote for or approve of their child marrying a member of that group."108 Any plaintiff who has ever pursued an Establishment Clause challenge can attest to the very real prejudice atheists experience in America. See, e.g., ELLIS, supra note 5, at x. It is no accident that today's plaintiffs are known only by aliases; in the United States, in the twenty-first century, members of a religious minority suing for their constitutional rights still face genuine danger of harassment or physical abuse. See id.; cf. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 n.1 (2000) (describing "intimidation" and "harassment" against plaintiffs).
Embracing the de minimis theory here would countenance an injury to the disfavored atheist minority, as well as to others with "different" views, in order to sustain the religious preferences of the God-fearing majority. This illustrates the inevitable result of defining injury in the absence of empathy:109 the harms I suffer justify redress, but the harms you suffer do not; my belief is worthy of constitutional protection, but your belief is of no consequence.
In any event, however tempting it might be to resolve this case under the de minimis theory's simple and direct approach, once again we are not free to do so. The Supreme Court has held that "the embarrassment and the intrusion of [a] religious exercise cannot be refuted by arguing that . . . [it is] of a de minimis character." Lee v. Weisman, 505 U.S. 577, 594 (1992). The reasons for this are self-evident. As was made clear in Abington v. Schempp, "the measure of the seriousness of a breach of the Establishment Clause has never been thought to be the number of people who complain of it," 374 U.S. at 264 (Brennan, J., concurring), nor is it any defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. That amendment is a fragile instrument. "The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, `it is proper to take alarm at the first experiment on our liberties.' " Id. at 225 (majority opinion). For this reason, the "Constitution . . .
requires that we keep in mind `the myriad, subtle ways in which Establishment Clause values can be eroded.' " Santa Fe, 530 U.S. at 314 (quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O'Connor, J., concurring)).
Finally, I note that there are those who would suggest that minor constitutional violations can be countenanced because the judiciary will always stand vigilant in the face of more "significant" threats against our liberty. Indeed, this was the approach that the Supreme Court itself adopted when, at a low point in its Establishment Clause jurisprudence, it announced with "abundant assurance that there is no real threat [to liberty] `while this Court sits.' " Marsh v. Chambers, 463 U.S. 83, 795 (1983) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223) (1928) (Holmes, J., dissenting)). But as the history of the Pledge of Allegiance as well as other more significant events in judicial history demonstrate, that is not always the case. Although some might think that judges are capable of making all of their decisions strictly on the basis of objective legal analyses, today's decision represents but an example of how far they may stray from the governing law. The Marsh statement is at best aspirational. The threat to First Amendment safeguards still exists today. "[I]n the hands of government what might begin as tolerant expression of religious views may end in a policy to indoctrinate and coerce." Lee, 505 U.S. at 591-92. "[T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943). We cannot, sadly, always count on today's courts to protect First Amendment freedoms, at least not those of individuals. Sometimes the reasons are difficult to discern. Here, unfortunately, those reasons would appear to be fairly obvious.
VI. Conclusion
I end where I began. Today's majority opinion will undoubtedly be celebrated by a large number of Americans as a repudiation of activist, liberal, Godless judging. That is its great appeal; it reaches the result favored by a substantial majority of our fellow countrymen and thereby avoids the political outcry that would follow were we to reach the constitutionally required result. Nevertheless, by reaching the result the majority does, we have failed in our constitutional duty as a court. Jan Roe and her child turned to the federal judiciary in the hope that we would vindicate their constitutional rights. There was a time when their faith in us might have been well placed. I can only hope that such a time will return someday.
As a judge of an intermediate appellate court, I would hold that our decision is controlled by the binding Supreme Court precedents governing this case. We are required to follow those precedents regardless of what we believe the law should be or what we think that the Supreme Court may hold in the future. Were today's majority to examine the amended Pledge as applied "through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause." Marsh v. Chambers, 463 U.S. 783, 796 (1983) (Brennan, J., dissenting). Following settled precedents, I conclude that the state-directed, teacher-led daily recitation in public schools of the amended "under God" version of the Pledge of Allegiance, unlike the recitation of the historic secular version, without the two added words, contravenes the rules and principles set forth in Lemon v. Kurtzman, Santa Fe v. Doe, and Lee v. Weisman. Accordingly, we are, in my view, required to hold that the amendment, as applied, violates the Establishment Clause of the United States Constitution. I should add that I firmly believe that the existing Supreme Court cases and doctrine reflect the true purpose and values of the Establishment Clause and of our Constitution as a whole, and that the holding that we should, but do not, reach best ensures the rights and liberties of the schoolchildren of this country. Finally, I firmly believe that any retreat from the existing Supreme Court doctrine and cases would constitute a most unfortunate diminution of the freedom of all our citizens.
Had my views prevailed here, our decision would not preclude daily recitation of the Pledge of Allegiance by public schoolchildren. To the contrary, public schoolchildren would be free to recite the Pledge as it stood for more than sixty years, a patriotic Pledge with which many of us grew up, a patriotic Pledge that is fully consistent with the Establishment Clause. All that would be required would be the deletion of the two words added by an amendment designed to promote religion and to indoctrinate schoolchildren with a religious belief. As has long been agreed in this nation, the teaching of religious views is the function of the family and the Church, not the State and the public school system.
As a judge of this court, I deeply regret the majority's decision to ignore the Pledge's history, the clear intent and purpose of Congress in amending the Pledge, the numerous Supreme Court precedents that render the school district's course of conduct unconstitutional as applied, and the very real constitutional injury suffered by Jan Roe and her child, and others like them throughout this nation.
Accordingly, I dissent.
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