v.

þ

Appeal from the United States District Court

for the Eastern District of California

Edward J. Schwartz, Senior Judge, Presiding

Argued and Submitted

March 14, 2002—San Francisco, California

Filed June 26, 2002

Before: Alfred T. Goodwin, Stephen Reinhardt and

Ferdinand F. Fernandez, Circuit Judges

Opinion by Judge Goodwin,

Partial Concurrence and Partial Dissent by Judge Fernandez

9105

Michael Newdow, Pro Se, Sacramento, California, the

plaintiff-appellant.

Kristin S. Door, Assistant United States Attorney, Sacra-mento,

California, Lowell V. Sturgill, Jr., Department of Jus-tice,

Washington, D.C., for federal government defendants-appellees;

A. Irving Scott, Terence J. Cassidy, Porter, Scott,

Weiberg & Delehant, Sacramento, California, for school dis-trict

defendants-appellees.

GOODWIN, Circuit Judge:

Michael Newdow appeals a judgment dismissing his chal-lenge

to the constitutionality of the words "under God" in the

Pledge of Allegiance to the Flag. Newdow argues that the

addition of these words by a 1954 federal statute to the previ-ous

version of the Pledge of Allegiance (which made no refer-ence

to God) and the daily recitation in the classroom of the

Pledge of Allegiance, with the added words included, by his

daughter’s public school teacher are violations of the Estab-lishment

Clause of the First Amendment to the United States

Constitution.

Newdow is an atheist whose daughter attends public ele-mentary

school in the Elk Grove Unified School District

("EGUSD") in California. In accordance with state law and a

school district rule, EGUSD teachers begin each school day

by leading their students in a recitation of the Pledge of Alle-giance

("the Pledge"). The California Education Code

requires that public schools begin each school day with "ap-propriate

patriotic exercises" and that "[t]he giving of the

Pledge of Allegiance to the Flag of the United States of

America shall satisfy" this requirement. Cal. Educ. Code

§ 52720 (1989) (hereinafter "California statute").

To imple-ment

the California statute, the school district that Newdow’s

daughter attends has promulgated a policy that states, in perti-nent

part: "Each elementary school class [shall] recite the

pledge of allegiance to the flag once each day."

In every public elementary school each day during the school

year at the beginning of the first regularly scheduled class or

activity period at which the majority of the pupils of the school

normally begin the schoolday, there shall be conducted appropri-ate

patriotic exercises. The giving of the Pledge of Allegiance to

the Flag of the United States of America shall satisfy the require-ments

of this section.

in the future attend, has promulgated a similar rule: "Each school shall

conduct patriotic exercises daily . . . . The Pledge of Allegiance to the flag

standing to challenge the SCUSD’s rule requiring recitation of the Pledge.

The classmates of Newdow’s daughter in the EGUSD are

led by their teacher in reciting the Pledge codified in federal

law. On June 22, 1942, Congress first codified the Pledge as

"I pledge allegiance to the flag of the United States of Amer-ica

and to the Republic for which it stands, one Nation indi-visible,

with liberty and justice for all." Pub. L. No. 623, Ch.

435, § 7, 56 Stat. 380 (1942) (codified at 36 U.S.C. § 1972).

On June 14, 1954, Congress amended Section 1972 to add the

words "under God" after the word "Nation." Pub. L. No. 396,

Ch. 297, 68 Stat. 249 (1954) ("1954 Act"). The Pledge is cur-rently

codified as "I pledge allegiance to the Flag of the

United States of America, and to the Republic for which it

stands, one nation under God, indivisible, with liberty and jus-tice

for all." 4 U.S.C. § 4 (1998) (Title 36 was revised and

recodified by Pub. L. No. 105-225, § 2(a), 112 Stat. 1494

(1998). Section 172 was abolished, and the Pledge is now

found in Title 4.)

Newdow does not allege that his daughter’s teacher or

school district requires his daughter to participate in reciting

the Pledge.

Rather, he claims that his daughter is injured

when she is compelled to "watch and listen as her state-employed

teacher in her state-run school leads her classmates

in a ritual proclaiming that there is a God, and that our’s [sic]

is ‘one nation under God.’ "

Newdow’s complaint in the district court challenged the

constitutionality, under the First Amendment, of the 1954

Act, the California statute, and the school district’s policy

requiring teachers to lead willing students in recitation of the

U.S. 624, 642 (1943) ("[T]he action of the local authorities in compelling

the flag salute and pledge transcends constitutional limitations on their

power and invades the sphere of intellect and spirit which it is the purpose

of the First Amendment to our Constitution to reserve from all official

"under God" to the Pledge.

Pledge. He sought declaratory and injunctive relief, but did

not seek damages.

The school districts and their superintendents (collectively,

"school district defendants") filed a Federal Rule of Civil Pro-cedure

12(b)(6) motion to dismiss for failure to state a claim.

Magistrate Judge Peter A. Nowinski held a hearing at which

the school district defendants requested that the court rule

only on the constitutionality of the Pledge, and defer any rul-ing

on sovereign immunity. The United States Congress, the

United States, and the President of the United States (collec-tively,

"the federal defendants") joined in the motion to dis-miss

filed by the school district defendants. The magistrate

judge reported findings and a recommendation; District Judge

Edward J. Schwartz approved the recommendation and

entered a judgment of dismissal. This appeal followed.

Newdow asks the district court to order the President of the

United States ("the President") to "alter, modify or repeal" the

Pledge by removing the words "under God"; and to order the

United States Congress ("Congress") "immediately to act to

remove the words ‘under God’ from the Pledge." The Presi-dent,

however, is not an appropriate defendant in an action

(observing that a court of the United States " ‘has no

jurisdiction of a bill to enjoin the President in the performance

U.S. 475, 501 (1866)).

Similarly, in light of the Speech and Debate Clause of the

Constitution, Art. I, § 6, cl. 1, the federal courts lack jurisdic-tion

to issue orders directing Congress to enact or amend leg-islation.

421 U.S. 491, 503 (1975). Because the words that amended

the Pledge were enacted into law by statute, the district court

may not direct Congress to delete those words any more than

it may order the President to take such action. All this, of

course, is aside from the fact that the President has no author-ity

to amend a statute or declare a law unconstitutional, those

functions being reserved to Congress and the federal judiciary

respectively.

Newdow nevertheless argues that because the 1954 Act

violates the Establishment Clause, Congress should not be

protected by the Speech and Debate Clause. This argument

misses the jurisdictional, or separation of powers, point. As

acts of members of Congress are protected by the Speech and

Debate Clause, the court looks solely to whether or not the

acts fall within the legitimate legislative sphere; if they do,

Congress is protected by the absolute prohibition of the

501. "If the mere allegation that a valid legislative act was

undertaken for an unworthy purpose would lift the protection

of the Clause, then the Clause simply would not provide the

Although the district court lacks jurisdiction over the Presi-dent

and the Congress, the question of the constitutionality of

the 1954 Act remains before us. While the court correctly dis-missed

the claim against those parties, it survives against oth-ers.

The State of California did not join in the motion to dismiss

or otherwise participate in the district court proceedings. It

court’s ruling dismissing the complaint. Accordingly, a rever-sal

of the order would result in the reinstatement of the com-plaint

against the state. With respect to the validity of the

California statute, however, unlike in the case of the Congres-

sional enactment and the school district policy, no arguments,

legal or otherwise, were advanced by the parties either below

or here. Thus, we do not address separately the validity of the

California statute.

Accordingly, it "may be raised at any stage of the proceed-ings,

standing requirements, a plaintiff must prove that "(1) it has

suffered an ‘injury in fact’ that is (a) concrete and particular-ized

and (b) actual or imminent, not conjectural or hypotheti-cal;

(2) the injury is fairly traceable to the challenged action

of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

Newdow has standing as a parent to challenge a practice

that interferes with his right to direct the religious education

of his daughter. "Parents have a right to direct the religious

upbringing of their children and, on that basis, have standing

("Appellants have standing to challenge alleged violations of

the establishment clause of the First Amendment if they are

directly affected by use of [the challenged book] in the

English curriculum. [Appellant] has standing as a parent

whose right to direct the religious training of her child is

allegedly affected.") (citation omitted).

Newdow has standing to challenge the EGUSD’s policy

and practice regarding the recitation of the Pledge because his

daughter is currently enrolled in elementary school in the

EGUSD. However, Newdow has no standing to challenge the

SCUSD’s policy and practice because his daughter is not cur-rently

a student there. The SCUSD and its superintendent

have not caused Newdow or his daughter an "injury in fact"

that is "actual or imminent, not conjectural or hypothetical."

The final question of standing relates to the 1954 Act. Spe-cifically,

has Newdow suffered an "injury in fact" that is

We begin our inquiry by noting the general rule that the

standing requirements for an action brought under the Estab-lishment

requirement of standing focuses on the party seeking to get

his complaint before a federal court and not on the issues he

wishes to have adjudicated. Moreover, we know of no princi-pled

basis on which to create a hierarchy of constitutional val-ues

or a complementary ‘sliding scale’ of standing which

might permit respondents to invoke the judicial power of the

the separation of church and state brought suit challenging the

federal government’s grant of surplus federal property to a

church-related college. The suit alleged that this grant of real

property, without any financial payment by the college, was

a violation of the Establishment Clause. The Supreme Court

86. The "psychological consequence presumably produced by

observation of conduct with which one disagrees . . . . is not

an injury sufficient to confer standing under Art. III, even

though the disagreement is phrased in constitutional terms."

that if respondents have no standing to sue, no one would

418 U.S. 208, 227 (1974)).

in more recent opinions has indirectly broadened the notion of

Establishment Clause standing in public education cases by

holding that the mere enactment of a statute may constitute an

U.S. 38 (1985), the Court considered an Establishment Clause

challenge to an Alabama statute that originally had authorized

a one-minute period of silence in public schools "for medita-tion,"

but was later amended to authorize a period of silence

the previous form of the statute specifically allowed students

to use the moment of silence for "meditation," silent prayer

was always an option. "[I]t is undisputed that at the time of

the enactment of [the amended statute] there was no govern-mental

practice impeding students from silently praying for

n.45. Nor were students, under the amended form of the stat-ute,

compelled to use the allotted time for prayer. In sum, the

amendment to the Alabama statute had no discernible effect

on public school students other than to inform them that the

state was encouraging them to engage in prayer during their

daily moment of silence. Because the Supreme Court has

repeatedly held that standing is a jurisdictional requirement,

the existence of which each federal court must determine for

deciding the merits, and that the Court determined that the

schoolchildren’s parents had standing to challenge the

amended Alabama statute.

Court upheld a facial challenge to a school district’s policy of

permitting, but not requiring, prayer initiated and led by a stu-dent

at high school football games. Noting that "the Constitu-tion

also requires that we keep in mind ‘the myriad, subtle

ways in which the Establishment Clause values can be erod-ed,

694 (1984) (O’Connor, J., concurring)), the Court held that

the "mere passage by the District of a policy that has the pur-pose

and perception of government establishment of religion,"

of this policy, with the purpose and perception of school

endorsement of student prayer, was a constitutional viola-tion."

of each statute, the context in which the statute was enacted,

and its legislative history to determine that the challenged

statute caused an injury in violation of the Establishment

Clause. "We refuse to turn a blind eye to the context in which

this policy arose, and that context quells any doubt that this

policy was implemented with the purpose of endorsing school

noted that whether a statute actually conveys a message

of endorsement of religion is "not entirely a question of fact

. . . . The relevant issue is whether an objective observer,

acquainted with the text, legislative history, and implementa-tion

of the statute, would perceive it as state endorsement of

prayer in public schools." 472 U.S. at 76 (O’Connor, J., con-curring

this policy . . . reinforce our objective student’s perception

that the prayer is, in actuality, encouraged by the school." 530

U.S. at 308. In evaluating the purpose of the school district

policy, the Court found "most striking . . . the evolution of the

history led the Court to conclude that enactment of the

amended statute "was not motivated by any clearly secular

Operating within the above-described legal landscape, we

now turn to the question initially posed, namely, does New-dow

have standing to challenge the 1954 Act? Initially, we

note that the 1954 statute challenged by Newdow is similar to

works the traditional type of "injury in fact" that is implicated

when a statute compels or prohibits certain activity, nor do the

amendments brought about by these statutes lend themselves

to "as-applied" constitutional review. Nevertheless, the Court

parents had standing to attack the challenged statute.

Moreover, the legislative history of the 1954 Act shows that

the "under God" language was not meant to sit passively in

the federal code unbeknownst to the public; rather, the spon-sors

of the amendment knew about and capitalized on the

state laws and school district rules that mandate recitation of

the Pledge. The legislation’s House sponsor, Representative

Louis C. Rabaut, testified at the Congressional hearing that

"the children of our land, in the daily recitation of the pledge

in school, will be daily impressed with a true understanding

of our way of life and its origins," and this statement was

incorporated into the report of the House Judiciary Commit-tee.

U.S.C.C.A.N. 2339, 2341. Taken within its context, the 1954

addendum was designed to result in the recitation of the

words "under God" in school classrooms throughout the land

on a daily basis, and therefore constituted as much of an

challenge a practice that interferes with his right to direct the

religious education of his daughter. The mere enactment of

the 1954 Act in its particular context constitutes a religious

recitation policy that interferes with Newdow’s right to direct

the religious education of his daughter. Accordingly, we hold

that Newdow has standing to challenge the 1954 Act.

states that "Congress shall make no law respecting an estab-

lishment of religion," U.S. Const. amend. I, a provision that

"the Fourteenth Amendment makes applicable with full force

U.S. 577, 580 (1992). Over the last three decades, the

Supreme Court has used three interrelated tests to analyze

alleged violations of the Establishment Clause in the realm of

test, first articulated by Justice O’Connor in her concurring

following test for evaluating alleged Establishment Clause

in question (1) must have a secular purpose, (2) must

have a principal or primary effect that neither advances nor

inhibits religion, and (3) must not foster an excessive govern-ment

case it decided between 1971 and 1984, with the excep-tion

upholding legislative prayer.

(Powell, J., concurring).

nativity scene in a city’s Christmas display, Justice O’Connor

wrote a concurring opinion in order to suggest a "clarifica-tion"

of Establishment Clause jurisprudence. 465 U.S. at 687

opening each day’s session with a prayer by a chaplain paid by the State

did not violate the Establishment Clause of the First Amendment. [The]

holding was based upon the historical acceptance of the practice that had

(O’Connor, J., concurring). Justice O’Connor’s "endorse-ment"

test effectively collapsed the first two prongs of the

The Establishment Clause prohibits government

from making adherence to a religion relevant in any

way to a person’s standing in the political commu-nity.

Government can run afoul of that prohibition in

two principal ways. One is excessive entanglement

with religious institutions . . . . The second and more

direct infringement is government endorsement or

disapproval of religion. Endorsement sends a mes-sage

to nonadherents that they are outsiders, not full

members of the political community, and an accom-panying

message to adherents that they are insiders,

favored members of the political community.

unconstitutional the practice of including invocations and

benedictions in the form of "nonsectarian" prayers at public

relied on the principle that "at a minimum, the Constitution

guarantees that government may not coerce anyone to support

or participate in religion or its exercise, or otherwise to act in

a way which establishes a state religion or religious faith, or

Although this formulation is referred to as the "coercion" test, it should

Clause violation. "The Establishment Clause, unlike the Free Exer-cise

Clause, does not depend upon any showing of direct governmental

ment in the prayer, and found that "the graduation prayers

bore the imprint of the State and thus put school-age children

issue the Court considered was "the position of the students,

Noting that "there are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in the

Court held that the school district’s supervision and control of

the graduation ceremony put impermissible pressure on stu-dents

to participate in, or at least show respect during, the

school children may not be placed in the dilemma of

at 594.

Finally, in its most recent school prayer case, the Supreme

coercion test to strike down a school district’s policy of per-mitting

student-led "invocations" before high school football

Court held that "the delivery of a pregame prayer has the

improper effect of coercing those present to participate in an

the Court found that the school district policy was facially

at 314-16. The Court also used language associated with the

has never relied on coercion alone as the touchstone of Establishment

Clause analysis. To require a showing of coercion, even indirect coercion,

as an essential element of an Establishment Clause violation would make

(O’Connor, J., concurring). "Over the years, this Court has declared the

invalidity of many noncoercive state laws and practices conveying a mes-sage

("Government efforts to endorse religion cannot evade consti-tutional

reproach based solely on the remote possibility that

those attempts may fail.").

We are free to apply any or all of the three tests, and to

invalidate any measure that fails any one of them. The

found that the application of each of the three tests provided

an independent ground for invalidating the statute at issue in

on the basis of the coercion test. Although this court has typi-cally

2002), we are not required to apply it if a practice fails one

of the other tests. Nevertheless, for purposes of completeness,

we will analyze the school district policy and the 1954 Act

under all three tests.

We first consider whether the 1954 Act and the EGUSD’s

policy of teacher-led Pledge recitation survive the endorse-ment

test. The magistrate judge found that "the ceremonial

reference to God in the pledge does not convey endorsement

of particular religious beliefs." Supreme Court precedent does

not support that conclusion.

United States is a nation "under God" is an endorsement of

religion. It is a profession of a religious belief, namely, a

belief in monotheism. The recitation that ours is a nation

"under God" is not a mere acknowledgment that many Ameri-cans

believe in a deity. Nor is it merely descriptive of the

undeniable historical significance of religion in the founding

of the Republic. Rather, the phrase "one nation under God" in

the context of the Pledge is normative. To recite the Pledge

is not to describe the United States; instead, it is to swear alle-giance

to the values for which the flag stands: unity, indivisi-bility,

liberty, justice, and — since 1954 — monotheism. The

text of the official Pledge, codified in federal law, impermiss-ibly

takes a position with respect to the purely religious ques-tion

of the existence and identity of God. A profession that we

are a nation "under God" is identical, for Establishment

Clause purposes, to a profession that we are a nation "under

Jesus," a nation "under Vishnu," a nation "under Zeus," or a

nation "under no god," because none of these professions can

be neutral with respect to religion. "[T]he government must

472 U.S. at 60. Furthermore, the school district’s prac-tice

of teacher-led recitation of the Pledge aims to inculcate

in students a respect for the ideals set forth in the Pledge, and

thus amounts to state endorsement of these ideals. Although

students cannot be forced to participate in recitation of the

Pledge, the school district is nonetheless conveying a message

of state endorsement of a religious belief when it requires

public school teachers to recite, and lead the recitation of, the

current form of the Pledge.

The Supreme Court recognized the normative and ideologi-cal

Court held unconstitutional a school district’s wartime policy

of punishing students who refused to recite the Pledge and

631, and "requir[ing] the individual to communicate by word

and sign his acceptance of the political ideas [the flag] . . .

pledge requires affirmation of a belief and an attitude of

articulated in the Pledge

were idealistic, not descriptive:

" ‘[L]iberty and justice for all,’ if it must be accepted as

descriptive of the present order rather than an ideal, might to

Court’s discussion was limited to the political ideals contained in the

Pledge.

cluded that: "If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or

other matters of opinion or force citizens to confess by word

government endorsement of religion because it sends a mes-sage

to unbelievers "that they are outsiders, not full members

of the political community, and an accompanying message to

adherents that they are insiders, favored members of the polit-ical

[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

the reasonable atheist would not feel less than a full

member of the political community every time his

fellow Americans recited, as part of their expression

of patriotism and love for country, a phrase he

believed to be false.

and internal quotation marks omitted).

Consequently, the pol-icy

and the Act fail the endorsement test.

untenable position of choosing between participating in an

exercise with religious content or protesting. As the Court

observed with respect to the graduation prayer in that case:

"What to most believers may seem nothing more than a rea-sonable

request that the nonbeliever respect their religious

test.

practices, in a school context may appear to the nonbeliever

or dissenter to be an attempt to employ the machinery of the

Although the defendants argue that the religious content of

"one nation under God" is minimal, to an atheist or a believer

in certain non-Judeo-Christian religions or philosophies, it

may reasonably appear to be an attempt to enforce a "reli-gious

orthodoxy" of monotheism, and is therefore impermissi-ble.

The coercive effect of this policy is particularly

pronounced in the school setting given the age and impres-sionability

of schoolchildren, and their understanding that

they are required to adhere to the norms set by their school,

their teacher and their fellow students.

Furthermore, under

even without a recitation requirement for each child, the mere

fact that a pupil is required to listen every day to the statement

"one nation under God" has a coercive effect.

The coercive

effect of the Act is apparent from its context and legislative

history, which indicate that the Act was designed to result in

the daily recitation of the words "under God" in school class-rooms.

President Eisenhower, during the Act’s signing cere-mony,

stated: "From this day forward, the millions of our

school children will daily proclaim in every city and town,

also renders more acute the message sent to non-believing school-children

"the risk of indirect coercion" from prayer exercises is particularly "pro-nounced"

in elementary and secondary public school because students are

subjected to peer pressure and public pressure which is "as real as any

overt compulsion").

based upon a religious ground. The Pledge in the classroom context

imposes upon schoolchildren the constitutionally unacceptable choice

between participating and protesting. Recognizing the severity of the

stated, "the State may not, consistent with the Establishment Clause, place

primary and secondary school children in this position." 505 U.S. at 593.

every village and rural schoolhouse, the dedication of our

Nation and our people to the Almighty." 100 Cong. Rec. 8618

(1954) (statement of Sen. Ferguson incorporating signing

statement of President Eisenhower). Therefore, the policy and

the Act fail the coercion test.

asks if the challenged policy has a secular purpose. Histori-cally,

the primary purpose of the 1954 Act was to advance

federal defendants "do not dispute that the words ‘under God’

were intended" "to recognize a Supreme Being," at a time

when the government was publicly inveighing against atheis-tic

communism. Nonetheless, the federal defendants argue

that the Pledge must be considered as a whole when assessing

whether it has a secular purpose. They claim that the Pledge

has the secular purpose of "solemnizing public occasions,

expressing confidence in the future, and encouraging the rec-ognition

465 U.S. at 693.

The flaw in defendants’ argument is that it looks at the text

of the Pledge "as a whole," and glosses over the 1954 Act.

The problem with this approach is apparent when one consid-ers

down Alabama’s statute mandating a moment of silence for

"meditation or voluntary prayer" not because the final version

"as a whole" lacked a primary secular purpose, but because

without reaching the question of standing, upheld the inscription of the

that the majority’s holding leads logically to the conclusion that "In God

is distinguishable in many ways from the present case. The most

important distinction is that school children are not coerced into reciting

or otherwise actively led to participating in an endorsement of the mark-ings

on the money in circulation.

the state legislature had amended the statute specifically and

solely to add the words "or voluntary prayer." 472 U.S. at 59-

60.

God" to the Pledge, not to the Pledge in its final version. As

was the case with the amendment to the Alabama statute in

the United States from nations under communist

rule. "[T]he First Amendment requires that a statute must be

invalidated if it is entirely motivated by a purpose to advance

test). As the legislative history of the 1954 Act sets forth:

At this moment of our history the principles underly-ing

our American Government and the American

way of life are under attack by a system whose phi-losophy

is at direct odds with our own. Our Ameri-can

Government is founded on the concept of the

individuality and the dignity of the human being.

Underlying this concept is the belief that the human

person is important because he was created by God

and endowed by Him with certain inalienable rights

which no civil authority may usurp. The inclusion of

God in our pledge therefore would further acknowl-edge

the dependence of our people and our Govern-ment

upon the moral directions of the Creator. At the

same time it would serve to deny the atheistic and

materialistic concepts of communism with its atten-dant

subservience of the individual.

U.S.C.C.A.N. 2339, 2340. This language reveals that the pur-pose

of the 1954 Act was to take a position on the question

of theism, namely, to support the existence and moral author-ity

of God, while "deny[ing] . . . atheistic and materialistic

Clause, which prohibits the government’s endorsement

or advancement not only of one particular religion at the

expense of other religions, but also of religion at the expense

of atheism.

[T]he Court has unambiguously concluded that the

individual freedom of conscience protected by the

First Amendment embraces the right to select any

religious faith or none at all. This conclusion derives

support not only from the interest in respecting the

individual’s freedom of conscience, but also from

the conviction that religious beliefs worthy of

respect are the product of a free and voluntary choice

by the faithful, and from recognition of the fact that

the political interest in forestalling intolerance

extends beyond intolerance among Christian sects —

or even intolerance among "religions" — to encom-pass

intolerance of the disbeliever and the uncertain.

challenges, the sponsors of the 1954 Act expressly dis-claimed

a religious purpose. "This is not an act establishing

a religion . . . . A distinction must be made between the exis-tence

of a religion as an institution and a belief in the sover-eignty

of God. The phrase ‘under God’ recognizes only the

guidance of God in our national affairs." H.R. Rep. No. 83-

2341-42. This alleged distinction is irrelevant for constitu-tional

purposes. The Act’s affirmation of "a belief in the sov-ereignty

of God" and its recognition of "the guidance of God"

are endorsements by the government of religious beliefs. The

Establishment Clause is not limited to "religion as an institu-tion";

Court struck down student-initiated and student-led prayer at

high school football games. 530 U.S. 310-16. The Establish-

ment Clause guards not only against the establishment of "re-ligion

as an institution," but also against the endorsement of

religious ideology by the government. Because the Act fails

even Newdow concedes, the school district had the secular

purpose of fostering patriotism in enacting the policy, the pol-icy

fails the second prong. As explained by this court in

prong asks whether the challenged government action is suffi-ciently

likely to be perceived by adherents of the controlling

denominations as an endorsement, and by the nonadherents as

a disapproval, of their individual religious choices."

473 U.S. at 390. Given the age and impressionability of

schoolchildren, as discussed above, particularly within the

confined environment of the classroom, the policy is highly

likely to convey an impermissible message of endorsement to

general principles and relevant tests to be used in determining what consti-tutes

an Establishment Clause violation remain intact; only the underlying

factual assumptions and presumptions have changed. In particular, the

(i) any public employee who works on the premises of a reli-gious

school is presumed to inculcate religion in her work; (ii)

the presence of public employees on private school premises

creates a symbolic union between church and state; and (iii) any

and all public aid that directly aids the educational function of

religious schools impermissibly finances religious indoctrination,

even if the aid reaches such schools as a consequence of private

decisionmaking.

some and disapproval to others of their beliefs regarding the

existence of a monotheistic God. Therefore the policy fails the

endorsement and coercion tests.

dicta that the presence of "one nation under God" in the Pledge of Alle-giance

at 435 n. 21. However, the Court has never been presented with the ques-tion

directly, and has always clearly refrained from deciding it. Accord-ingly,

it has never applied any of the three tests to the Act or to any school

policy regarding the recitation of the Pledge. That task falls to us, although

the final word, as always, remains with the Supreme Court.

The only other United States Court of Appeals to consider the issue is

the one before us regarding the recitation of the Pledge of Allegiance con-taining

court first stated that:

Pledge, and if as the prayer cases hold the recitation by a teacher

or rabbi of unwelcome words is coercion, then the Pledge of

Allegiance becomes unconstitutional under all circumstances,

just as no school may read from a holy scripture at the start of

class.

980 F.2d at 444. It then concludes, however, that this reasoning is flawed

because the First Amendment "[does] not establish general rules about

have some difficulty understanding this statement; we do not believe that

compulsory religion as in this case. If government-endorsed religion

is to be treated differently from government-endorsed patriotism, the treat-ment

must be less favorable, not more.

The Seventh Circuit makes an even more serious error, however. It not

the words "under God" to the Pledge, and (2) EGUSD’s pol-icy

and practice of teacher-led recitation of the Pledge, with

the added words included, violate the Establishment Clause.

The judgment of dismissal is vacated with respect to these

two claims, and the cause is remanded for further proceedings

consistent with our holding. Plaintiff is to recover costs on

this appeal.

REVERSED AND REMANDED.

FERNANDEZ, Circuit Judge, concurring and dissenting:

I concur in parts A, B and C

of the majority opinion, but

dissent as to part D.

Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should fol-low

the case which directly controls, leaving to this Court the prerogative

of overruling its own decisions."). Instead of applying any of the tests

announced by the Supreme Court, the Seventh Circuit simply frames the

question as follows: "Must ceremonial references in civic life to a deity

be understood as prayer, or support for all monotheistic religions, to the

exclusion of atheists and those who worship multiple gods?" 980 F.2d at

445. Relying in part on Supreme Court dicta regarding the Pledge, the

court answers this question in the negative, determining that "under God"

is a statement which, taken within its context in the Pledge, is devoid of

48. At the very least, as discussed above in the text, the Supreme Court

requires that any policy alleged to be an Establishment Clause violation

of the tests compels the conclusion that the policy and the Act challenged

here violate the Establishment Clause of the Constitution. Thus, we must

respectfully differ from the Seventh Circuit.

U.S.C. § 4 itself. Congress has not compelled anyone to do anything. It

We are asked to hold that inclusion of the phrase "under

God" in this nation’s Pledge of Allegiance violates the reli-gion

clauses of the Constitution of the United States. We

should do no such thing. We should, instead, recognize that

those clauses were not designed to drive religious expression

out of public thought; they were written to avoid discrimina-tion.

We can run through the litany of tests and concepts which

have floated to the surface from time to time. Were we to do

so, the one that appeals most to me, the one I think to be cor-rect,

is the concept that what the religion clauses of the First

Amendment require is neutrality; that those clauses are, in

effect, an early kind of equal protection provision and assure

that government will neither discriminate for nor discriminate

244 F.3d 1065, 1083-86 (9th Cir.) (en banc) (Fernandez, J.,

concurring). But, legal world abstractions and ruminations

aside, when all is said and done, the danger that "under God"

in our Pledge of Allegiance will tend to bring about a theoc-racy

or suppress somebody’s beliefs is so minuscule as to be

de minimis. The danger that phrase presents to our First

Amendment freedoms is picayune at most.

Judges, including Supreme Court Justices, have recognized

the lack of danger in that and similar expressions for decades,

surely has not directed that the Pledge be recited in class; only the Califor-nia

authorities have done that. Even if a general lack of standing to

directly attack 4 U.S.C. § 4 would deprive federal courts of the opportu-nity

to strike "under God" from that statute, any lament would be no more

than a complaint about the limits on federal judges’ constitutional power.

Nonetheless, that ultimately makes little difference to the resolution of the

First Amendment issue in this case.

if not for centuries, as have presidents

and members of our

573, 602-03, 672-73, 109 S. Ct. 3086, 3106, 3143, 106 L. Ed.

465 U.S. 668, 676, 693, 716, 104 S. Ct. 1355, 1361,

L. Ed. 2d 844 (1963);

3330, 3338, 77 L. Ed. 2d 1019 (1983) (legislative prayer). I

think it is worth stating a little more about two of the cases

602-03, 109 S. Ct. at 3106, the Supreme Court had this to say:

"Our previous opinions have considered in dicta the motto

and the pledge, characterizing them as consistent with the

proposition that government may not communicate an

endorsement of religious belief." The Seventh Circuit, react-ing

in part to that statement, has wisely expressed the follow-ing

thought:

2679-80, 120 L. Ed. 2d 467 (1992) (Scalia, J., dissenting).

majority opinions, concurring opinions, and dissents. Because my point is

that a number of Justices have recognized the lack of danger and because

I hope to avoid untoward complication in the setting out of the citations,

I have not designated which Justices have joined in which opinion. All in

all, however, perusing those opinions indicates that Chief Justice Burger,

Chief Justice Rehnquist, and Justices Harlan, Brennan, White, Goldberg,

Marshall, Blackmun, Powell, Stevens, O’Connor, Scalia, and Kennedy

have so recognized.

Plaintiffs observe that the Court sometimes changes

its tune when it confronts a subject directly. True

enough, but an inferior court had best respect what

the majority says rather than read between the lines.

If the Court proclaims that a practice is consistent

with the establishment clause, we take its assurances

seriously. If the Justices are just pulling our leg, let

them say so.

Some, who rather choke on the notion of de minimis, have

But whatever it is called (I care not), it comes to this:

such phrases as "In God We Trust," or "under God" have no

tendency to establish a religion in this country or to suppress

anyone’s exercise, or non-exercise, of religion, except in the

fevered eye of persons who most fervently would like to drive

all tincture of religion out of the public life of our polity.

Those expressions have not caused any real harm of that sort

over the years since 1791, and are not likely to do so in the

future.

As I see it, that is not because they are drained of mean-ing.

Rather, as I have already indicated, it is because their

tendency to establish religion (or affect its exercise) is exigu-ous.

I recognize that some people may not feel good about

hearing the phrases recited in their presence, but, then, others

might not feel good if they are omitted. At any rate, the Con-stitution

is a practical and balanced charter for the just gover-nance

of a free people in a vast territory. Thus, although we

Those who are somehow beset by residual doubts and fears should find

comfort in the reflection that no baleful religious effects have been gener-ated

by the existence of similar references to a deity throughout our his-tory.

More specifically, it is difficult to detect any signs of incipient

theocracy springing up since the Pledge was amended in 1954.

do feel good when we contemplate the effects of its inspiring

phrasing and majestic promises, it is not primarily a feel-good

prescription.

319 U.S. 624, 630, 642, 63 S. Ct. 1178, 1181, 1187, 87

L. Ed. 1628 (1943), for example, the Supreme Court did not

say that the Pledge could not be recited in the presence of

Jehovah’s Witness children; it merely said that they did not

have to recite it.

That fully protected their constitutional

rights by precluding the government from trenching upon "the

the Court pointed out, their religiously based refusal "to par-ticipate

in the ceremony [would] not interfere with or deny

should not permit Newdow’s feel-good concept to change that

balance.

My reading of the stelliscript suggests that upon Newdow’s

theory of our Constitution, accepted by my colleagues today,

we will soon find ourselves prohibited from using our album

of patriotic songs in many public settings. "God Bless Ameri-ca"

and "America The Beautiful" will be gone for sure, and

while use of the first and second stanzas of the Star Spangled

Banner will still be permissible, we will be precluded from

straying into the third.

And currency beware! Judges can

accept those results if they limit themselves to elements and

tests, while failing to look at the good sense and principles

that animated those tests in the first place. But they do so at

the price of removing a vestige of the awe we all must feel at

2002), which involved governmental conduct that was much more ques-tionable

(Noonan, J., dissenting).

God."

of Thee" for that matter.

the immenseness of the universe and our own small place

within it, as well as the wonder we must feel at the good for-tune

of our country. That will cool the febrile nerves of a few

at the cost of removing the healthy glow conferred upon many

citizens when the forbidden verses, or phrases, are uttered,

read, or seen.

In short, I cannot accept the eliding of the simple phrase

"under God" from our Pledge of Allegiance, when it is obvi-ous

that its tendency to establish religion in this country or to

interfere with the free exercise (or non-exercise) of religion is

de minimis.

Thus, I respectfully concur in part and dissent in part.

is not necessary to say, and I do not say, that there is such a thing as a de

minimis constitutional violation. What I do say is that the de minimis ten-dency

of the Pledge to establish a religion or to interfere with its free exer-cise

is no constitutional violation at all.