United States Of America Petitioner

[Arrow]

V.
MICHAEL A. NEWDOW, ET AL., Respondents.
INTEREST OF AMICI*
Amici, Sam Brownback, Saxby Chambliss, John Cornyn, and Lindsey Graham are members of the United States Senate, and Robert Aderholt, Todd Akin, Bob Beauprez, Sanford Bishop, Jr., Marsha Blackburn, Roy Blunt, Chris Cannon, Michael Collins, Jo Ann Davis, John Doolittle, Jeff Flake, Trent Franks, Virgil Goode, Jr., Duncan Hunter, Ernest Istook, Jr., Walter Jones, Jr., Ric Keller, Frank Lucas, Donald Manzullo, Jim Marshall, Jeff Miller C.L. Otter, Charles Pickering, Jr., Joseph Pitts, Jim Ryun, John Shimkus, Mark Souder, John Sullivan, and Dave Weldon, M.D., are members of the United States House of Representatives currently serving in the One Hundred Eighth Congress.

Amicus, American Center for Law and Justice (ACLJ), is a public interest law firm committed to ensuring the on going viability of constitutional freedoms in accordance with principles of justice. Counsel of Record (Jay Sekulow)for the ACLJ has presented oral argument in eight cases before this Court. ACLJ attorneys have also participated as amicus curiae in numerous cases before this Court and the lower federal courts. Amici, 156,597 Americans, are citizens who represent all fifty states. These amici include school-age children, many of whom attend public schools, and desire to recite the Pledge of Allegiance in its entirety.* This brief is filed with the consent of the parties, and letters indicating such consent have been filed with the Court. Pursuant to Rule 37.6, amicus ACLJ discloses that no counsel for any party in this case authored this brief in whole or in part, and no person or entity, other than amicus curiae, its members, or its counsel, made a monetary contribution to the preparation of submission of this brief.

5

Amici urge this Court to grant certiorari in this case bbecause they are convinced that the Ninth Circuit?s decision holding the phrase ?under God? in the Pledge of Allegiance unconstitutional is profoundly wrong. Recitation of the Pledge of Allegiance in public schools is fully consistent with the Establishment Clause of the First Amendment to the United States Constitution. The words of the Pledge echo the conviction held by the Founders of this Nation that our freedoms come from God. Congress placed the phrase ?One Nation Under God? in the Pledge of Allegiance for the express purpose of reaffirming America?s unique understanding of this truth, and to distinguish America from atheistic nations who recognize no higher authority than the State. The First Amendment affords atheists complete freedom to disbelieve; it does not compel the federal judiciary to redact religious references in patriotic exercises in order to suit atheistic sensibilities.
REASONS FOR GRANTING THE WRIT

I. Certiorari Should Be Granted Because This Case

Presents a Constitutional Question of Exceptional

Importance.
The magnitude of the question presented in this case can hardly be overstated. Although the primary issue is whether the Establishment Clause prohibits public schools from leading students in the voluntary recitation of the Pledge of Allegiance, far more is at stake. The Ninth Circuit?s decision renders constitutionally suspect a number of public school practices that traditionally have been considered an important part of American public education. The first casualty of the Ninth Circuit?s decision will be the practice of requiring students to learn and recite
passages from many historical documents reflecting the Nation?s religious heritage and character. If a public school district violates the Establishment Clause by requiring students to recite the Pledge of Allegiance, it is difficult to conceive of a rationale by which compelled study or recitation from the Nation?s founding documents would not also violate the Constitution. The Mayflower Compact,1 the Declaration of Independence,2 and the Gettysburg Address3

1The Mayflower Compact, written by William Bradford in 1620,

provides:

We whose names are underwritten, the loyal subjects of our dread sovereign Lord, King James, by the grace of God, of Great Britain, France and Ireland king, defender of the faith, etc., having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our king and country, a voyage to plant the first colony in the Northern parts of Virginia, do by these presents solemnly and mutually in the presence of God, and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.

Mayflower Compact, available at http://www.project 21.org/MayflowerCo mpact.html (emphasis added).

2 The Declaration of Independence recognizes that human liberties are a gift from God: ?All men are created equal, that they are endowed by their Creator with certain unalienable Rights.? The Declaration of Independence para. 2 (U.S. 1776). Jefferson wrote further that the right to?dissolve the political bands? connecting the Colonies to England derives from Natural Law and ?Nature?s God.? Id. para. 1. The founders also believed that God holds man accountable for his actions as the signers of the Declaration ?appeal to the Supreme Judge of the world to rectify their intentions.? Id. para. 32.

President Lincoln declared ?that this Nation,under God, shall have a new birth of freedom--and that Government of the people, by the people, for the people, shall not perish from the earth.? President Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863).


all contain religious references substantiating the fact thatAmericans are a predominantly ?religious people whose institutions presuppose a Supreme Being.? Zorach v. Clausen, 343 U.S. 306, 313 (1952). See also Newdow v.United States Congress, 321 F.3d 772, 778 (9th Cir. 2003) (O?Scannlain, J., Kleinfeld, J., Gould, J., Tallman, J., Rawlinson, J., and Clifton, J., dissenting from denial of rehearing en banc). Indeed, the references to deity in these historical documents are presumably even more problematic according to the Ninth Circuit?s reasoning because they proclaim not only God?s existence but specific dogma about God ? He is involved in the affairs of men; He holds men accountable for their actions; and He is the Author of human liberty. Additionally, while students may be exempted from reciting the Pledge of Allegiance, see Bd. of Educ. v.Barnette, 319 U.S. 624 (1943), student recitations of passages from historical documents are often treated as a mandatory part of an American history or civics class, not subject to individual exemptions. Equally disturbing is the likelihood that the Ninth Circuit?s decision will eventually foreclose the Nation?s school districts from teaching students to sing and appreciate the Nation?s patriotic music as well as a vast universe of classical music with religious themes. Students might learn about the Nation?s founding documents without being required to recite them. Public school music programs cannot exist, however, without student performance. Thus, patriotic anthems, such as ?America the Beautiful? and ?God Bless America,? will become taboo because they cannot realistically be learned unless they are sung. Such musical treasures as Bach?s choral arrangements and African- American spirituals will also become constitutionally suspect, at least as a part of public school music curricula. According to the Ninth Circuit?s logic, if a group of students sing ?God Bless America,? the Establishment Clause is violated because an atheistic student might feel coerced to sing along (and indeed may well be coerced in as much as music teachers are not constitutionally compelled to exempt students from singing with the class).

The Ninth Circuit?s effort to distinguish the Pledge of Allegiance from religious references in historical documents and music fails. The court reasoned that the Pledge of Allegiance is ?performative,? whereas the Declaration of Independence and patriotic music are not. Newdow v. United States Congress, No. 00-16423, 2002 U.S. App. Lexis 28040, at *23 (9th Cir. June 26, 2002). The court?s logic ignores completely the fact that students may refuse to ?perform? the Pledge of Allegiance but they do not have the same constitutional right to refuse to sing ?America the Beautiful? in music class. Worse, however, is the court?s implicit assumption that when students recite the Pledge ofAllegiance, they mean what they say, but when they sing patriotic music or recite historical documents, they are merely mouthing words without mental affirmation of the contents. Id. According to the Ninth Circuit then, constitutional violations hinge on the subjective mental state of the student speakers or singers. Undoubtedly, teachers who take seriously theirresponsibility for inculcating the civic values enshrined in the Nation?s foundational documents would be dismayed to learn that the Constitution now compels them to ensure that students who recite passages from these documents do not actually believe in the values reflected, lest some objecting student feel mentally coerced. Similarly, the Ninth Circuit?s logic would impel public school music directors to ensure that members of the school chorale do not actually agree with the words of Bach?s ?Jesus, Joy of Man?s Desiring,? lest a Hindu soprano be offended.

If allowed to stand, the Ninth Circuit?s decision will threaten a sort of Orwellian reformation of public school curricula by censoring American history and excluding much that is valuable in the world of choral music.

II. Certiorari Should Be Granted Because The Ninth

Circuit?s Decision Is Irreconcilable With What

This Court Has Said About The Pledge Of

Allegiance.
Although purporting to give ?due deference,? Newdow, 2002 U.S. App. Lexis 28040, at *22, to this Court?s numerous statements about the constitutionality of the Pledge of Allegiance, the Ninth Circuit?s decision is patently inconsistent with those statements. In every instance in which the Court or individual Justices have addressed patriotic exercises with religious references, including the Pledge of Allegiance, they have concluded unequivocally that those references pose no Establishment Clause problems. No Member of the Court, past or current, has suggested otherwise. To the contrary, recognizing that certain of its precedents may create the impression that patriotic exercises with religious references would be constitutionally suspect, the Court has taken pains to assure that such is not the case.The Ninth Circuit?s analysis was flawed from the start. Claiming reliance on this Court?s school prayer cases, including Lee v. Weisman, 505 U.S. 577 (1992), the Ninth Circuit lumped together for constitutional analysis religious exercises and patriotic exercises. In every school prayer case, however, this Court consistently has distinguished between religious exercises, such as prayer and Bible reading, and patriotic exercises with religious references. In Engel v. Vitale, 370 U.S. 421 (1962), which struck down New York State?s law requiring school officials to open the school day with prayer, the Court explained: There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country byreciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer?s professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. Id. at 435, n.21. Just one year later, in School District of Abington Township v. Schempp, 374 U.S. 203 (1963), Justice Goldberg distinguished mandatory Bible reading in public schools from patriotic exercises with religious references: The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mereshadow. Id. at 308 (Goldberg, J., concurring).

To be continued:

[SuperScout]

Overwhelming evidence staring them in the face notwithstanding, the 9th Circuit has drawn their rather peculiar line in the sand, with profound implications on us all, should their ruling be upheld. What will rollout of this process possibly will be a mandate to appoint justices who are more closely aligned with the strict constructionist philosophy.

[reconeil]

So much WASTED time and WASTED rhetoric over: "...to suite atheistic sensibilities",...in ironically this nation: "FOUNDED UNDER GOD". To me, such nonsense would be more appropriate in a cartoon,...than in an American Court.

Besides, and since an absurd over-reaction now exists in America towards: "Sensibilities", even though mostly foreign or alien to America,...when will the overwhelmingly vast majority of God Believing and/or God Loving Americans ALSO become privy to such: "Sensibilities"???

After all, and all the cockamamingly-biased interpretations aside,...wasn't America's Constitution ALSO meant to protect the overwhelming vast majority ALSO? It sure doesn't seem so to me. In fact, some enterpretations and decisions seem to have been made more so by biased political zealots or political agenda lobbyists,...rather than by unbiased Judges SUPPOSEDLY(?) seated there to protect ALL THE AMERICAN PEOPLE.

No American Judges by their decrees showing preferentiality or favoring an extremely small minority, should in essence make it The Law of The Land or dictate that the overwhelmingly vast majority must accept being appalled and disgusted by any Court's decisions favoring an extremely small minority of malcontents, while simultaneously alienating the vast majority.
Don't believe that's what judges are hired for.

Hey fools,...what's next? Deny Flag fools? Deny Country fools? Deny Family in favor of The State and/or "The Village" fools? Also,...doesn't America's Counstitution protect the: "Sensibilities" of religious Americans ALSO? One would hope so,...even though one certainly wonders about that lately?

Neil