Michael A. Newdow v. U.S. Congress United States of America George W. Bush, President of the United States State of California Elk Grove Unified School District David W. Gordon, Superintendent Egusd Sacramento City Unified School District Jim Sweeney, Superintendent Scusd
Docket: 00-16423
Court: Court of Appeals for the Ninth Circuit; February 27, 2003; Federal Appellate Court
Michael A. Newdow filed an appeal against multiple defendants, including the U.S. Congress, President George W. Bush, and various California school districts regarding a case heard by the Ninth Circuit Court of Appeals. The appeal was submitted on March 14, 2002, and an amended opinion was filed on February 28, 2003. The court denied all petitions for rehearing and rehearing en banc, indicating that the case would not be reconsidered by the full court. Judge Goodwin authored the opinion, with Judge Fernandez providing a partial concurrence and dissent. Judge Reinhardt concurred in the order and expressed disagreement with the dissenting opinion's view that exceptional importance alone justifies en banc rehearing. He emphasized that a majority of active judges must support en banc consideration, as stipulated by Federal Rule of Appellate Procedure 35. The court's order instructed the Clerk to file the amended opinions and not accept any new petitions related to this case.
The court should rehear a case en banc when it is of exceptional importance and necessitates correction, as established in United States v. Burdeau. Generally, the court reviews three-judge panel opinions to determine if a legal error led to an erroneous judgment, adhering to the principle that such decisions represent the court unless deemed incorrect or conflicting with established circuit law. While three-judge panels often address significant issues—such as constitutional challenges or fundamental rights—their decisions should not be revisited en banc solely because of the importance of the issues involved, as this could undermine the efficiency of the three-judge panel system. Statistics indicate that over 98% of cases are resolved by these panels, which should provide finality unless extraordinary circumstances arise.
Concerns are raised about a dissenting opinion that suggests public and political reactions should influence the assessment of a panel's correctness, highlighting that such perspectives can detract from a proper understanding of constitutional law and the judiciary's role. An example cited is the Coalition for Economic Equity v. Wilson case, where a panel's decision underscored the tension between judicial authority and public sentiment regarding enacted laws.
The Bill of Rights is designed to safeguard minority rights from majority rule, as articulated by Justice Jackson, who emphasized that certain rights should be insulated from political debates and established as legal principles enforceable by the courts. Fundamental rights, including life, liberty, free speech, and assembly, cannot be subjected to popular vote or political influence. Federal judges have a crucial role in upholding the Constitution by rejecting unlawful actions of the majority and striking down infringing statutes, irrespective of their origin—legislative or popular. This judicial independence is constitutionally mandated, with judges protected from political pressures through life tenure and secured salaries, enabling them to make decisions based solely on constitutional law rather than public opinion or political consequences.
While judges should remain aware of societal trends, their decisions must adhere strictly to constitutional principles without succumbing to immediate political pressures. The text stresses that in times of national crisis, the integrity of judicial obligations becomes even more critical, and judges must resist any notion that their decisions should align with majority approval or be swayed by public sentiment. Any such encouragement or deterrence based on popular opinion contradicts the Constitution and must be firmly opposed. Additionally, the excerpt notes procedural matters regarding the substitution of the President and mentions considerations related to en banc review of court opinions.
The Supreme Court has the authority to review decisions from the Court of Appeals but has chosen to hear a limited number of cases, with only 88 arguments heard out of 7,852 filings in the 2001 term. Alexander Hamilton warned against the dangers of judicial independence being compromised by political whims, emphasizing its role in protecting the Constitution and individual rights.
A dissenting opinion by Circuit Judge O'Scannlain, joined by several colleagues, criticizes a three-judge panel's ruling declaring the Pledge of Allegiance unconstitutional due to the phrase "under God." This decision has sparked public outcry, and the court's majority opted not to rehear the case en banc, which O'Scannlain argues is a serious error. He contends the ruling lacks defensibility, conflicts with Supreme Court precedents, and contradicts decisions in other circuits, particularly regarding the nature of the Pledge as a non-religious act.
The ruling, now revised, still effectively bans the voluntary recitation of the Pledge in public schools across nine western states, affecting over 9.6 million students. It implies the unconstitutionality of both a 1954 Act of Congress and a California law, creating legal conflicts and potential financial repercussions for school districts and educators under civil rights statutes.
Newdow I has been withdrawn following a failed en banc call, and the current panel majority has shifted its stance on the constitutionality of the Pledge of Allegiance. While Newdow I deemed the Pledge unconstitutional for all, Newdow II restricts this ruling to public school children and teachers. The dissent criticizes the majority for persisting in its view that voluntary recitation of the Pledge in schools constitutes a violation of the Establishment Clause, labeling it "a religious act." The dissent argues this perspective is inconsistent with common sense and suggests it could lead to the exclusion of all references to religious heritage from public life.
The majority's argument relies heavily on the Supreme Court's decision in Lee v. Weisman, which deals with school prayer, but the dissent contends that the majority's interpretation strays significantly from the precedents established in Lee and previous cases. The dissent reviews Engel v. Vitale, where the Court ruled against state-directed prayer in schools, emphasizing that such activities are distinct from patriotic expressions that reference God, like reciting the Declaration of Independence or singing the National Anthem. Engel clarified that patriotic expressions do not equate to religious exercises, thus supporting the notion that the Pledge, as a patriotic invocation, should not be classified as an unconstitutional religious act.
The House Report advocating for the inclusion of "under God" in the Pledge of Allegiance stated that these words do not contradict the First Amendment but acknowledge divine guidance in national affairs. The subsequent Supreme Court case, Abington School Dist. v. Schempp, addressed the constitutionality of a Pennsylvania law mandating the reading of Bible verses in public schools, followed by the Lord's Prayer and the Pledge. The Court ruled against the Bible reading and prayer as they constituted a state-prescribed religious ceremony, violating the Establishment Clause, while refraining from commenting on the Pledge. Justice Clark emphasized the devotional nature of the exercises, leading to the conclusion of their unconstitutionality. Concurring opinions echoed this sentiment, with Justice Douglas asserting that the state was conducting a religious exercise, and Justice Brennan highlighting that public school prayers and Bible readings are inherently religious. Brennan acknowledged that not all religious references in public life violate the Establishment Clause, cautioning against imposing strict limits on mentions of God. He argued that reciting the Pledge, which references a historical belief in the nation's founding "under God," may not constitute a religious exercise, similar to reading Lincoln's Gettysburg Address, which also alludes to divinity.
Justice Goldberg highlighted the compelling nature of religious practices in public schools, arguing that government involvement in prayer and Bible reading cannot simply be seen as accommodation. He noted that not all government actions with religious implications violate the Establishment Clause, referencing Engel's distinction between patriotic and religious exercises. The subsequent case, Wallace v. Jaffree, examined an Alabama law allowing a moment of silence for meditation or prayer. The Court deemed the law's religious intent evident, noting its singular purpose was to reintroduce prayer in schools. Justice Powell concurred due to Alabama's efforts to promote state-sponsored prayer, while Justice O'Connor argued that moment-of-silence statutes are constitutional and framed the Pledge of Allegiance's reference to God as a secular acknowledgment. O'Connor criticized the Alabama statute for overtly endorsing prayer, contrasting it with the Pledge.
In Lee v. Weisman, the Court addressed the inclusion of prayers at school graduation ceremonies. Justice Kennedy emphasized the importance of these prayers, asserting that state officials conduct a formal religious exercise during school events, which can obligate student participation, even if attendance isn't explicitly required for graduation.
The Court in Lee determined that formal religious observances in public schools are unconstitutional, following precedents set by Engel, Schempp, and Wallace. The critical issue was the nature of student participation in these exercises, which were deemed "overt religious exercises" that pose a risk of indirect coercion. The Court emphasized that even if students are not required to participate, the state-sanctioned nature of these exercises creates an unconstitutional environment due to the implicit pressure on religious minorities to conform.
Key principles established include the prohibition of formal religious observances to avoid establishing religion, while noting that not every mention of God in schools is unconstitutional, especially in patriotic or ceremonial contexts. The Court clarified that phrases like "under God" in the Pledge are permissible. Furthermore, the ruling highlights that the obligation to partake in such exercises, even if nominally voluntary, constitutes a violation of the Establishment Clause, marking Lee as a significant statement on indirect coercion in public school settings.
No court has established that the Supreme Court's school prayer rulings extend beyond state-sanctioned religious observances. The majority in Newdow II obscures this by mischaracterizing the nature of the Pledge of Allegiance and emphasizing indirect coercion. The panel disregards key precedents that state Establishment Clause violations occur only when state officials direct formal religious exercises. The majority must determine whether the inclusion of "under God" in the Pledge constitutes a religious act, a question previously answered negatively by the Seventh Circuit. The Newdow II majority, however, assumes it is a religious act and concludes that the school district's policy coerces such an act, which contradicts common sense. Pledging allegiance is fundamentally a patriotic act, supported by California law emphasizing daily patriotic exercises in schools. The Pledge, recited in various official contexts and ceremonies, is characterized by patriotism, as upheld by the Supreme Court in West Virginia v. Barnette, which ruled against mandatory pledging. In contrast, prayer is a direct communication with God and poses a unique risk of coercion in schools. The majority's classification of the Pledge as a religious act contradicts American history and tradition regarding patriotic references to God, which must align with the historical understanding of the Establishment Clause as indicated by the Supreme Court.
Newdow II is characterized as introducing a conflict with American national tradition, as highlighted in McCollum v. Bd. of Ed., where dissenting opinions argue that the ruling undermines multiple references to religious heritage in U.S. history. The Constitution and the Declaration of Independence explicitly mention God, and the Gettysburg Address includes the phrase "under God," which has been deemed a violation of the Establishment Clause when included in the Pledge of Allegiance. The potential implications are raised about whether reciting foundational documents and national symbols in schools could also be seen as unconstitutional. The dissent argues that a theory of the Establishment Clause that removes divine references from public life is untenable. Historical practices, including the national observance of Thanksgiving and Christmas, which acknowledge God, are questioned in terms of their constitutionality under Newdow II. The dissent emphasizes that the Supreme Court has previously indicated that the Pledge of Allegiance is constitutionally permissible, citing several cases where it was noted alongside school prayer without disapproval, and mentions the Pledge's acknowledgment of religion as non-religious in nature.
The pledge is interpreted as aligning with the principle that the government should not endorse religious beliefs, referencing Lynch v. Donnelly, which highlights the phrase "One nation under God" in the Pledge of Allegiance. The majority opinion dismisses Supreme Court dicta as non-binding, yet such dicta carry significant weight and should not be overlooked. The Newdow II majority faces a dilemma: while reciting the Pledge is not a formal religious act, patriotic references to God do not violate the Establishment Clause either. The majority attempts to navigate these complexities through an indirect coercion analysis, but this approach is criticized for being overly broad and unsuitable in a diverse society where cultural practices may offend some individuals. The opinion suggests that allowing dissenters like Michael Newdow to impose their views does not alleviate discomfort but merely shifts it to another group. The passage also notes that over decades, Americans have grown accustomed to reciting the Pledge without signs of increasing theocracy since its amendment in 1954. Additionally, while acknowledging the Newdow II panel’s claims of neutrality, it points out the Supreme Court’s inconsistent Establishment Clause jurisprudence, which often lacks clear guiding principles.
Supreme Court Justices have acknowledged that strict interpretations of certain reasoning could threaten the continuation of established practices. In the context of the current case, the Court has maintained consistency in its stance that patriotic references to God do not equate to establishing a state religion. Justice Brennan, known for his strong separationist views, conceded that some governmental acknowledgment of God is appropriate to avoid an indifferent approach to the religious sentiments of the populace. The decision in Newdow II, however, is criticized for fostering a biased stance that privileges atheism over religion in public life. This bias is especially pronounced in public schools, which play a crucial role in shaping societal values. The ruling's demand for silence on religious references is argued to convey a negative message about religion’s place in society. The panel's majority decision does not uphold neutrality between belief and non-belief, leading to the question of whether atheism is being treated as the default protected position under the Establishment Clause. The dissent emphasizes that the recitation of the Pledge of Allegiance does not constitute a governmental establishment of religion, suggesting that the court erred in not rehearing the case en banc, which is warranted given the significant constitutional implications affecting many schoolchildren in the Ninth Circuit.
The case at hand underscores the necessity to correct the panel's misinterpretation of the Constitution, particularly the First Amendment, which prohibits Congress from establishing religion or restricting its free exercise, as well as safeguarding freedom of speech, press, assembly, and petitioning the government. It references various legal and historical contexts, including the Pledge of Allegiance, which is mandated by California education law to be recited at the start of classes. The excerpt highlights the Declaration of Independence's invocation of God and President Lincoln's assertion of a nation "under God." It notes that "In God we trust" is the national motto and emphasizes the religious content of "The Star-Spangled Banner," suggesting that its language is more overtly religious than the Pledge. Additionally, it mentions that even the court's session announcements include a reference to God. The excerpt criticizes some courts for not adequately respecting Supreme Court interpretations regarding the establishment clause and stresses that lower courts should adhere closely to the Supreme Court's guidance on these matters.
The court expresses its obligation to adhere to Supreme Court dicta, especially when it is recent and not contradicted by later rulings, as seen in ACLU v. Capitol Square Review. There is significant consensus regarding the constitutionality of the revised Pledge of Allegiance, particularly in light of the decision in Newdow II. Circuit Judge McKeown, joined by other judges, dissents from the denial of an en banc rehearing, emphasizing that the recitation of the Pledge by schoolchildren raises a constitutional issue of exceptional importance warranting further examination.
Michael Newdow, representing himself, appeals the dismissal of his challenge to the constitutionality of the phrase "under God" in the Pledge of Allegiance, arguing it violates the Establishment Clause of the First Amendment. Newdow, an atheist, contends that the inclusion of "under God" in the Pledge, added by a 1954 federal statute, and its daily recitation in public schools infringe upon his and his daughter’s rights. His daughter attends a public elementary school in California, where state law mandates the daily recitation of the Pledge as part of patriotic exercises. The Pledge was initially codified in 1942 and amended in 1954 to include the controversial phrase, which is now part of federal law.
Newdow does not claim that his daughter's teacher or school district mandates her participation in reciting the Pledge of Allegiance. Instead, he argues that she suffers harm by being compelled to observe her teacher leading classmates in a recitation that asserts the existence of God and the phrase "one nation under God." His complaint contests the constitutionality of the 1954 Act, a California statute, and the school district's policy requiring teachers to lead willing students in the Pledge, seeking declaratory and injunctive relief without damages.
The school district defendants filed a motion to dismiss under Rule 12(b)(6), and the magistrate judge held a hearing where the defendants requested a ruling solely on the constitutionality of the Pledge, postponing matters of sovereign immunity. The federal defendants joined this motion. The magistrate judge recommended that the court find the daily Pledge ceremony constitutional under the Establishment Clause, which the district court upheld, resulting in a dismissal of the case.
Newdow requests the district court to instruct the President to modify or repeal the Pledge by removing "under God" and to compel Congress to take action towards the same. However, the President is not an appropriate defendant for challenging a federal statute's constitutionality, as federal courts lack jurisdiction to enjoin the President's official duties. Additionally, based on the Speech and Debate Clause, the courts cannot order Congress to enact or amend legislation. Newdow's assertion that the 1954 Act's alleged violation of the Establishment Clause should exempt Congress from the Speech and Debate protection is rejected, as the Clause protects legitimate legislative acts regardless of their motives.
The State of California did not participate in the dismissal motion but indirectly benefited from the ruling that dismissed Newdow's complaint.
A reversal of the order would reinstate the complaint against the state, but the validity of the California statute remains unaddressed as no arguments were presented regarding it in the district court. Article III standing is a jurisdictional requirement that can be raised at any stage of proceedings, including on appeal. To establish standing, a plaintiff must demonstrate: (1) an "injury in fact" that is concrete, particularized, and actual or imminent; (2) that the injury is traceable to the defendant’s actions; and (3) that the injury is likely to be redressed by a favorable decision. Newdow, as a parent, has standing to challenge policies affecting his right to direct his daughter's religious education. He can challenge the EGUSD's policy related to reciting the Pledge since his daughter is enrolled there, but lacks standing to challenge the SCUSD's policy because she is not enrolled in that district. The Establishment Clause of the First Amendment, applicable to states via the Fourteenth Amendment, prohibits Congress from establishing religion. The Supreme Court has applied three tests to evaluate Establishment Clause violations in public education: the Lemon test, the endorsement test, and the coercion test.
In 1971, the Supreme Court established the "Lemon test" for evaluating Establishment Clause violations, requiring that government conduct must (1) have a secular purpose, (2) not advance or inhibit religion as its primary effect, and (3) not foster excessive government entanglement with religion. This test was consistently applied until 1984, with the exception of Marsh v. Chambers, which upheld legislative prayer. In the 1984 case of Lynch, Justice O'Connor proposed an "endorsement" test that effectively merged the first two prongs of the Lemon test, asserting that the Establishment Clause prohibits government from making religion relevant to an individual's political status. She noted that government endorsement of religion alienates nonadherents and favors adherents.
The "coercion test" emerged from the Court's ruling against nonsectarian prayers at public school graduations in Lee v. Weisman. The Court maintained that it did not need to reassess the Lemon test's validity, finding the practices unconstitutional based on the principle that the government cannot coerce participation in religion. The Court determined that the state's involvement in graduation prayers placed undue pressure on students, particularly in primary and secondary schools, creating a conflict between participating in a religious ceremony and protesting against it.
In Santa Fe Independent School District v. Doe, the Supreme Court invalidated a school district's policy allowing student-led prayers before high school football games by applying the Lemon test, endorsement test, and coercion test. The Court determined that the policy coerced participation in religious worship, citing Lee, and was unconstitutional due to its lack of a secular purpose under the Lemon test. The endorsement test also indicated that the policy was designed to endorse school prayer. The Court emphasized that government endorsement of religion cannot escape constitutional scrutiny based on potential failure of such efforts.
Additionally, the Court analyzed the phrase "one nation under God" in the Pledge of Allegiance, asserting it constitutes a religious profession, comparable to affirming belief in other deities, and that the recitation is normative rather than descriptive. This aligns with the Court's earlier decision in Barnette, which found it unconstitutional to compel students to recite the Pledge, as it imposes a belief system and the ideals of liberty and justice articulated in the Pledge are inherently idealistic. The ruling underscores that no official can mandate orthodoxy in matters of opinion, including politics, nationalism, or religion.
The school district's policy requiring students to recite the phrase "one nation under God" presents a coercive dilemma, forcing students to choose between participating in a religious exercise or protesting against it. Defendants claim the religious connotation is minimal, but for non-monotheistic individuals, it may represent an imposition of religious orthodoxy. The Supreme Court's precedent in Lee illustrates that what is viewed as a benign request by believers can be seen as state-enforced religious conformity by non-believers. The policy's coercive nature is heightened in a school environment due to the impressionability of children and their awareness of social norms set by authority figures. Even without mandatory recitation, the daily exposure to peers reciting the pledge exerts pressure on students. Historical context reveals that the phrase was intentionally included in the Pledge for daily recitation in schools, as noted by President Eisenhower. Ultimately, based on Supreme Court rulings, the school district's policy does not withstand the coercion test. While the Supreme Court has referenced the Pledge in other cases, these discussions do not address the specific concerns of coercion in a school context. The decision aligns with Engel's allowance for the recitation of historical documents that reference a deity, distinguishing it from the coercive implications of the Pledge in schools.
The Pledge of Allegiance is distinct from the Declaration and the national anthem due to its performative nature, as reciting it signifies an individual's affirmation of allegiance rather than merely repeating historical words. The Seventh Circuit's ruling in Sherman v. Community Consolidated School District 21 upheld the constitutionality of policies requiring the Pledge's recitation, including "one nation under God," asserting that the First Amendment does not impose universal rules on speech or schools and that religion should be treated differently. However, the analysis is criticized for failing to apply established legal tests, particularly the Lemon test and the coercion test from Lee, which the Seventh Circuit ignored despite Supreme Court precedent. The critical question posed—whether ceremonial references to a deity are equivalent to prayer—does not adequately address whether the school policy coerces religious acts. Ultimately, it is concluded that the school district's practice of teacher-led recitation of the Pledge, including "under God," violates the Establishment Clause. Furthermore, in light of this ruling, the court must evaluate Newdow's request for a declaration regarding the constitutionality of the 1954 Act, which was not previously addressed by the district court due to its dismissal of Newdow's complaint. The decision on whether to issue a declaratory judgment typically rests with the district court's discretion.
The judgment of dismissal regarding Newdow's claim that the school district's Pledge policy violates the Establishment Clause is vacated and the case is remanded for further proceedings. The court expresses skepticism about the district court's willingness to address additional issues for declaratory relief sought by Newdow. Costs are awarded to the plaintiff for the appeal.
The relevant California Education Code mandates patriotic exercises in public elementary schools, with the Pledge of Allegiance fulfilling this requirement. The precedent set in West Virginia State Board of Education v. Barnette established that compelling students to recite the Pledge is a violation of the First Amendment. The ruling emphasized that such coercion infringes upon the intellectual and spiritual autonomy protected by the First Amendment.
The discussion includes the historical context of the Pledge and its addition of "under God," noting that Barnette predates this amendment. The Supreme Court's ruling in Marsh, which upheld legislative prayer, contrasts with the coercive implications of the Pledge, particularly for non-believing students, as highlighted in Lee v. Weisman.
The objection to the Pledge in Barnette, like Newdow's case, is rooted in religious concerns, illustrating the unconstitutional dilemma faced by schoolchildren who must choose between participation and protest. The legislative history of the 1954 Act reveals an awareness among sponsors of the amendment regarding existing mandates for Pledge recitation in schools. The court also references Aronow v. United States, which upheld the phrase "In God We Trust" on currency, while noting differing opinions on the matter.
The majority's ruling suggests that the phrase "In God We Trust" could be seen as an unconstitutional affirmation of belief. However, the case of Aronow is notably different from the current situation, primarily because school children are not compelled to recite or endorse the currency's inscription. Circuit Judge Fernandez concurs with parts A, B, and C of the majority opinion but dissents on part D, which argues that the inclusion of "under God" in the Pledge of Allegiance breaches the religion clauses of the U.S. Constitution. He contends that these clauses were intended not to eliminate religious expression from public discourse but to prevent discrimination against any religion. Fernandez advocates for a neutral interpretation of the religion clauses, likening them to an early form of equal protection that ensures no preferential treatment for or against any religion.
He argues that the risk of "under God" fostering a theocracy or infringing upon individual beliefs is negligible. Historical perspectives from judges, including Supreme Court Justices, presidents, and legislators have consistently recognized minimal risks associated with such expressions. He cites numerous cases which support the notion that the government may not endorse religious belief, including County of Allegheny and Marsh v. Chambers, while emphasizing the necessity for lower courts to adhere to the majority opinions rather than speculate on underlying intentions.
A court's endorsement of a practice as compliant with the Establishment Clause is taken seriously, and any insincerity from the Justices should be openly addressed. The term "ceremonial deism" is critiqued, asserting that phrases like "In God We Trust" and "under God" do not establish a religion or inhibit religious freedom, despite some opposition desiring a complete removal of religion from public life. These expressions have historically caused no significant harm since 1791, and their religious impact is minimal. While some individuals may feel discomfort hearing these phrases, others would feel similarly if they were omitted. The Constitution is framed as a practical guide for governance rather than primarily a source of emotional comfort. The Supreme Court's decision in West Virginia Board of Education v. Barnette emphasized that students cannot be compelled to recite the Pledge of Allegiance, protecting individual rights without infringing on others' rights to participate. The notion posited by Newdow could lead to the exclusion of patriotic songs from public settings, which would diminish the sense of wonder and appreciation for national identity and history among citizens. Courts risk losing sight of foundational principles if they adhere strictly to legal tests without considering their broader implications.
The author expresses strong opposition to the removal of the phrase "under God" from the Pledge of Allegiance, arguing that its potential to establish religion or interfere with religious freedom is minimal (de minimis). They partially concur with the majority's decision, which deemed the recitation of the Pledge in public classrooms unconstitutional, but caution that this ruling still implies a constitutional issue with the Pledge itself, potentially jeopardizing similar public expressions of faith. The author notes that various Supreme Court Justices have acknowledged the lack of significant danger posed by references to a deity in public life, emphasizing that no adverse religious consequences have arisen since the Pledge's amendment in 1954. They argue that civic references to God do not need to be devoid of religious significance to be constitutional. The author clarifies that while they do not assert a constitutional violation exists, the minimal nature of the Pledge’s impact on religion does not warrant any constitutional concern. They reference several cases to support the notion that de minimis effects on religious freedom are not constitutionally significant and that genuine threats to the establishment of religion should be addressed only when they manifest as serious concerns.
