Lucas D. Sayre

Religion & the Constitution

Professor Donald P. Kommers

 

 

The U.S. vs. Newdow, Pledge of Allegiance Case: a Mock Opinion

12/18/03

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE

Supreme Court of the United States of America

 

 

 

 

THE UNITED STATES OF AMERICA, petitioner

 

v.

 

MICHAEL A. NEWDOW, ET AL., respondents

 

 

 

 

 

 

Main opinion of the Court: Justice Lucas D. Sayre

I. FACTS

 

The State of California Education Code (henceforth “California statute”), § 52720 (1989), mandates the following:

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 appropriate patriotic exercises. The giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy the requirements of this section. [1]

 

In compliance with this law, the Elk Grove Unified School District (henceforth “EGUSD”) developed the policy that “Each elementary school class [shall] recite the pledge of allegiance to the flag once per day.” EGUSD teachers implement this policy by leading willing students in the recital of the Pledge of Allegiance, as it is codified in federal law.[2]

The Pledge was first codified by Congress on June 22, 1942. Then, in 1954, Congress amended it to include the phrase “under God” as follows: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.” [emphasis added] 4 U.S.C. § 4 (1998).[3] (Henceforward, the “1954 Act”)

The respondent Michael Newdow, an atheist, has challenged the constitutionality of the 1954 Act, the California Statute, and the EGUSD school board policy under the Establishment Clause of the First Amendment. Newdow’s daughter attends Elk Grove and he seeks declaratory and injunctive relief. Respondent stipulates that his daughter was not required to recite the Pledge; rather, his complaint lies with the claim 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.’”[4]

 

II. LOWER COURT ACTION

            Once the case reached the District Court, the United States Congress, the President of the United States (then William Jefferson Clinton, now George W. Bush), joined as the “federal defendants” in the motion to dismiss filed by the EGUSD defendants. The State of California chose not to join the motion to dismiss; nevertheless, it will be bound by whatever result this case reaches. The magistrate judge reported a recommendation to the District Court that the codified Pledge and its recital in public elementary schools did not amount to an unconstitutional violation of the Establishment Clause. District Court Judge Edward J. Schwartz agreed and dismissed Newdow’s complaint. The case then moved to the United States 9^th Circuit Court, where, in an opinion by Circuit Judge Goodwin, the District Court decision was reversed.[5] We now hear the case on final appeal.

 

 

 

III. STANDING

            The petitioner continues to challenge respondent’s standing in this case. We defer to the 9^th Circuit’s ruling on this matter.

 

 

IV. OPINION

A.

            Two questions face this Court. First: is the Pledge of Allegiance, as codified in the 1954 Act including “under God,” an unconstitutional breech by Congress of the First Amendment’s Establishment Clause, “Congress shall make no law respecting the establishment of religion….”[6] If answered in the negative, a second question arises: does the California Act, in conjunction with the EGUSD policy mandating teachers to say the Pledge in elementary schools, amount to a breech of same Establishment Clause by the State of California?

 

B.

            The complaint in this case clearly involves state action. With the first question, an act of Congress is challenged, and state action is direct. With the second question, the State of California Education Code directly references the Pledge as a fulfillment of its “patriotic exercises” requirement, and the Elk Grove Unified School District, a public school system, requires its state-employed teachers to recite the Pledge at the beginning of each school day, when a majority of students are present. Furthermore, this Court readily acknowledges that the First Amendment Establishment Clause does apply at the State level. Everson v. Board of Education. Recently, critics have challenged our incorporation of the Establishment Clause into the 14^th Amendment protection of individual liberties. Their charge is contingent on their claim that the Establishment Clause involves only government’s own conduct and not the protection of individual liberties, of which precedent supports the doctrine of incorporation. This claim fails to acknowledge the nature of the First Amendment, and indeed the nature of most of the Bill of Rights. The very mechanism that protects individual liberties is the prohibition of government action. In the same manner that the government is forbidden from restricting speech, press, and assembly, it is also so bound by the Free Exercise and Establishment clauses.

The Free Exercise Clause’s involvement of individual liberties is straight-forward; it is intended to protect the individual’s right to practice in a given religious belief system. The Establishment Clause is not so direct; it has two closely-related purposes. The first is to protect religious institutions from governmental obstruction of their religious activities. This serves to transitively protect religious adherents whose religious exercises are tied to their respective religious institutions. The second is to protect people from having their rights and privileges abridged due to governmental preference of a particular religion or religion in general. In each case the Establishment Clause involves personal liberties; therefore, it is appropriately incorporated in the 14^th Amendment. As such, the actions by the State of California are subject to First Amendment Establishment Clause scrutiny.

 

C.

            The next task is to determine the scope of restriction on state action that the Establishment Clause entails. As this Court is the nation’s highest, its judgment is not only final, but must also provide a consistent standard to be applied across the nation’s judicial system. A reading of this Court’s past Establishment Clause jurisprudence shows our efforts towards this end to be a dismal failure. Our “precedents” in this realm serve not their purpose of providing a clear, precise, and objective rubric, but rather lead to a confusing, inconsistent, and subjective reading of the law. This veritable potpourri of constitutional tests includes two different definitions of “entanglement,” vague questions of legislative intent, a mystical “neutral observer,” insiders versus outsiders, “ceremonial deism,” etc. etc., ad nauseum. The rule of law knows no place in such a fog of confusion.

            In reconstructing Establishment Clause jurisprudence, this Court looks at the ways in which government action may clash with the above two aforementioned purposes of the Establishment Clause. Each purpose and its associated proscribed state actions shall be handled separately. The first purpose of the Establishment Clause is to protect religious institutions from government obstruction of their religious activities. Government action may fail this standard if it overtly interferes with a religion. For instance, if the Federal government or a state government enacted a law requiring the Catholic Church to submit its religious texts to governmental approval, such a law would be clearly unconstitutional under the Establishment Clause. Admittedly, few cases are so transparent. More often, the government may cross this constitutional threshold via discrimination amongst religious institutions. For instance, if a state government chose to subsidize certain textbooks and other classroom materials (such as paper and pencils), it would be forbidden under the Establishment Clause from discriminating between different private-religious schools or between private-religious and private-nonreligious schools. Walz v. Tax Commission[7]. It could not afford Catholic school students the subsidy, while at the same time denying it to students of a Muslim school. Preferential treatment of one religious institution over another, or of religious institutions over nonreligious institutions (and vice versa) is, by its effects, obstruction of given institution, because its ability to function in society is lessened relative to others. Ultimately, religious institutions are either advanced or hindered by such government discrimination, afoul of the Establishment Clause.

            The second purpose of the Establishment Clause is to protect people from having their rights and privileges abridged due to governmental preference of a particular religion or religion in general. While the first purpose focuses on the integrity of religious institutions, the second focuses on each citizen’s access to the government and civic life. Justice O’Connor lists one form of unconstitutional government action in this realm as giving “…the [religious] institutions access to government or governmental powers not fully shared by non-adherents of the religion…”[8] Unfortunately, the esteemed Justice refers to this form of intrusion as “excessive entanglement.” Not only is this particular label inappropriate for the matter at hand (‘entanglement’ is commonly defined as an intricate trap, an intertwining that restricts its members from extracting themselves), it also is inconsistent with this Court’s past use of this phrase, as found in Lemon v. Kurtzman.[9] Lemon described “excessive entanglement” in an administrative sense; in certain situations, the enforcement of a particular law would require the government to involve itself in a religious institution’s daily functions to the extent that the religious institution would begin to lose control over its own religious activities. This concern properly falls under the first purpose of the Establishment Clause, not under the second.

            Another form of constitutionally impermissible state action is governmental inculcation of a particular religion. Inculcation is not merely another word for endorsement. Justice O’Connor introduced the so-called ‘Endorsement Test’ in her concurrence in Lynch v. Donnelly. She wrote:

… [the] more direct infringement [of the Establishment Clause] is government endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.[10]

 

This test, which has been used to varying extents by different justices, is flawed in that it requires of this court, and of lower courts, the impossible—that is, it requires them to ascertain the “message” that a given government action conveys. Problematic to this task, is the fact that not every person is bound to interpret a government action in the same manner, and thus garner the same message. What one individual may see as a governmental endorsement of religion, another might see as just a harmless reference of religion. Hence, to some people, the words “In God We Trust” on our nation’s coins, or a Christmas crèche containing a nativity scene, or the Pledge of Allegiance’s “under God” phrase may seem like a message of endorsement, but to others a mere reference to history or ceremony. Justice Brennan recognizes that these references to religion might lose their meaning for some people, in what he calls “ceremonial deism.” However, this court would be remiss to say that all such government references to religion in ceremonies are necessarily without meaning, because undoubtedly some people find great meaning in them. Further complicating the matter is the use of a “reasonable observer” by some of the justices on this court. Since, as has been established, none of us can place ourselves in the place of a particular individual, certain justices attempt to understand a purported government message from a “reasonable” standpoint. But when the question at hand is whether or not the government is sending a message of endorsement, it is entirely inappropriate for him or her to merely use his own judgment as to what is reasonable or not. In actuality, the question of endorsement itself, as presented in our past jurisprudence, is an ineffective tool, for the very reason that the court lacks an effective means of gauging possible messages of endorsement.

            Inculcation, on the other hand, urges a particular religion upon an individual at the expense of his or her own religious, by means of repetition and/or admonition. In place of endorsement’s subjectivity, inculcation objectively looks at the effects of a particular government action or set of actions upon the individual. The age of the person affected, the frequency of the government action, the pervasiveness of the action, and the degree to which it changes a person’s standing in society, are all factors of inculcation.

 

D.

            In both of the aforementioned purposes of the Establishment Clause, governmental neutrality is key. Justice Black, writing the majority opinion in Everson v. Board of Education captures the essence of neutrality:

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance…. [The First Amendment] requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.[11]

 

Judging this neutrality is not a simple task, especially when religions hybridize themselves with civic institutions, such as schools, charities, etc. Providing tax-funded subsidies to a particular church is a clear example of proscribed government favoritism of religion, but what about the funding of a religious school or some of its activities? The precedent the court has established in this arena is strong. In Everson, we upheld a New Jersey statute providing transportation funding to students, irregardless of what school to which they were being transported. In Walz v. Tax Commission we upheld a state law funding non-religious textbooks for students[12], again irregardless of whether the school they attended was public, private, or sectarian. Agostini, Mitchell, and Zelman[13] are all more recent precedents consistent in this theme. In each case an important distinction was made between aiding an institution and aiding members of that institution. Neutrality applies to benefits that a student may receive from the state. If the aid follows a student instead of the school, then the student or his parents are making the decision of where that aid indirectly benefits. In this manner, no individual is biased against in the reception of government aid based on that person’s religious beliefs or lack thereof, and no religious institution is advanced by government. The tenets of the Establishment Clause, as described by Justice Black, are upheld through these precedents.

            While this is a useful framework for analyzing the constitutional validity of state funding for certain religious-civic institutions, it is nevertheless incomplete in regards to other Establishment Clause domains. It does not cover the other manners in which the state may advance or hinder religion, such as mandatory school prayers, public religious displays, tax-breaks or tax-hikes, etc. Based on Everson and later cases, Chief Justice Burger writing for the majority opinion, established what has become known as the Lemon Test, in a attempt to consolidate the court’s Establishment Clause jurisprudence into one umbrella test. In Lemon v. Kurtzman he lays the test out as follows:

Every analysis in this area must begin with the consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive governmental entanglement with religion.”[14]

 

The task undertaken by Burger in the development of the Lemon Test was monumental indeed—and fairly successful, considering Lemon’s influence in Court opinions in the thirty plus years following. However, this Court has by no means expressed solidarity and full confidence in Lemon. Dissents over the years by Justice Scalia and Chief Justice Rhenquist both have expressed dissatisfaction with the Lemon Test. Some of the dissents have criticized it as overly vague and difficult to apply. Others criticize it as unduly limiting governmental involvement in the religious sphere—actually discriminating against religion by taking it out of our public lives. Rhenquist, especially, has argued that the Establishment Clause should be interpreted more strictly as just limiting government from directly establishing religion, not from merely advancing it. We dismiss that contention in deference to Justice Black’s command of the historical intent behind the First Amendment’s religious clauses:

Not simply an established church, but any law respecting an establishment of religion is forbidden. The Amendment was broadly but not loosely phrased. It is the compact and exact summation of its author’s views formed during his long struggle for religious freedom. In Madison’s own words characterizing Jefferson’s Bill for Establishing Religious Freedom, the guaranty he put in our national charter, like the bill he piloted through the Virginia Assembly, was “a Model of technical precision, and perspicuous brevity.” Madison could not have confused “church” and “religion,” or “an established church” and “an establishment of religion.”[15]

 

Criticism against the Lemon Test has not just come from the dissenters. Ironically, Burger (the author of Lemon) himself has observed the Court’s lack of adherence to Lemon just thirteen years after it was handed down, “…we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area….”[16] Justice O’Connor has certainly taken issue with the Lemon Test; her concurrence (also in Lynch) boils Lemon down into two prongs which she says “clarifies the Lemon test as an analytical device….”[17] As mentioned earlier, we take issue with the manner in which O’Connor reframes the test. Her first prong, which essentially espouses neutrality of government benefits and powers, she deems “excessive entanglement.” As described in part C of this opinion, this Court agrees with the substance of this prong, but not her name for it. Her second prong is ‘endorsement.’ As mentioned in part C, her “outsider” vs. “insider” framework is simply too nebulous to net a useful test.

            The Lemon Test, while substantially upholding the principles underlying Black’s opinion in Everson, also has its failings. Its first prong, the ‘legislative purpose’ criterion, is wholly an unsuitable mode of judiciability. To ascertain a particular law’s legislative purpose, different members of this Court have cited such “evidence” as specific statements by a legislator, transcripts of town hall meetings, and statements by experts at committee hearings. Not only is it nearly impossible to discern some kind of collective legislative purpose behind a statute, it is often a misleading endeavor as to the actual nature of a law. A particular legislator may wish to give religion a prominent role in schools, but the law as drafted may not actually serve to do so. Lemon’s second prong, that a law’s “…principle or primary effect must be one that neither advances nor inhibits religion” more than covers state actions that would be proscribed under the first prong. However, the second prong’s language is overly vague, the reason why some in the Court clung to an Endorsement Test in addition to Lemon. What exactly does the ‘advancement or inhibition of religion’ mean? Finally, Lemon’s third prong, the excessive entanglement criterion, stands strong on its own, and will be incorporated into the new test.

 

E.

            Today this Court has the special privilege, nay responsibility, to clarify our Establishment Clause jurisprudence by developing a new test that is both inclusive, precise, and workable. By referring to the list of constitutionally forbidden state action in section C, we hereby glean the following. First, federal or state laws must not discriminate amongst religious institutions in the application of a restriction or in the conveyance of a privilege. Second, the government must not excessively entangle itself in the functional operations of any religious institution, thus effecting change within that organization. Third, the government may not discriminate between adherents or non-adherents to a religion in the access to its powers and benefits. And finally, the government may not inculcate any particular religious belief system or multiple such systems.

 

F.

            The final task before the Court is to apply our Establishment Clause test to the case at hand, specifically in regards to the two questions before the Court as listed in part A. First, is the Pledge of Allegiance, containing the phrase “under God,” an unconstitutional government codification? To this, we answer that it is not, and apply our test. The Pledge does not violate the first criterion, because no religious institution is being discriminated against by the Pledge’s existence. The Pledge itself, and even the recital of the Pledge, does not place a restriction upon any religious institution nor convey any privileges thereupon. Next, the Pledge does not create any excessive entanglement between government and religion. The recital of the Pledge requires no governmental oversight or controls, or even consultation with, religious officials. In regards to the third criterion, the Pledge does not discriminate against religious adherents or non-adherents in their access to governmental powers and benefits. Citizens are not required to say the Pledge or even to affirm its existence to be entitled to full protection under this nation’s constitution and laws. Finally, the Pledge does not represent government inculcation of religion. With the 1954 Act, Congress merely codified the Pledge with a reference to God; it did not require the Pledge to be said at certain public events or by certain people, or even be recited out loud at all. The fact that the Pledge is said at numerous public events is not a function of government inculcation, but rather of public and private choice. The Pledge’s predominance in society is a function of society’s propensity towards the Pledge. If the Pledge had been codified to include a reference to a higher being other than God, then surely it would not be recited nearly as often, because a vast majority of Americans believe (or claim to believe) in God.

            With the first question answered in the negative, we must now turn to the second question: is the teacher-guided recital of the Pledge in public schools an unconstitutional state action? Again, we apply our test. The State of California’s and EGUSD’s policy of saying the Pledge in the classroom does not restrict or benefit any religious institution. Indeed, since public schools are involved, religious institutions are absent from the equation. In the same manner, no excessive entanglement is involved. In regards to the third criterion, the fact that recital of the Pledge is voluntary is germane. Public education of our children is a right and or privilege available to all. Taxes fund public schools and all children are entitled to attend, regardless of their beliefs or creed. If students were required to say the Pledge, with the reference to God, to attend their school or to receive full credit for their work, then that would amount to discrimination based on religious beliefs, a clear constitutional violation. This is a long-standing and well-supported principle in our past constitutional jurisprudence. In 1943 in the Barnette case, Justice Jackson argued that, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”[18] While Barnette dealt specifically with the act of saluting the flag, the essence of the argument would obviously apply to a mandated student recital of the Pledge. Therefore, since the recital of the Pledge is not mandated, the state action here does not violate the third criterion.

And now the final criterion: inculcation. While the Pledge itself is not unconstitutional, any state requirement that the Pledge be said by state employees within certain civic institutions and at certain times, is immediately suspected to scrutiny under grounds of inculcation. In this case, the California statute in conjunction with the EGUSD policy is a clear instance of governmental inculcation of religion; thus we find both to be unconstitutional. While the lack of mandate is relevant to the previous criteria, it is not so relevant to this criteria. Justice Black in Engel v. Vitale, explains this distinction well, “The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion…”[19] I would focus the words, “establish a religion” in this context, to mean the inculcation of a religion or a particular religious belief.

Inculcation is present in this case for several reasons. First, the Pledge is required to be said every school day, so repetition is involved. While a non-adherent may not be overly influenced by the phrase “under God” upon hearing once, or even a handful of times, being subjected to it every day that one attends school, surely has a cumulative and pervasive effect. Second is location. Schools, by definition are places of learning, and teachers more than just guardians. Teachers are not only in the position of authority but also of immense influence. Students, whose opinions of their teachers may vary, almost universally recognize them as having superior intelligence. So, when a state-employed teacher recites the Pledge with the words “under God” present, he or she is exerting a great influence upon the students, possibly inculcating in some of them a religious belief, that their parents wish not to be there. And third is admonition, another quality of inculcation. In the EGUSD school system, students may sit and remain silent during the recital of the Pledge or they may leave the room. However, in each instance, the “rebellious” student is separating him or herself from the majority of his or her peers, thus being subjected to increased peer scrutiny. The student who chooses to leave the room or remain silent is made painfully aware that he or she is separated from the larger peer group solely because of his or her differing religious views. The desire of many students to “fit in” is vastly significant in their lives. Forcing students into a choice between saying the Pledge and being separated amounts to an admonition to those students not wishing to say the Pledge. This admonition forms another component of governmental inculcation of the religious belief in “one God.”

The final and most damning aspect of the California law and EGUSD policy lies in the very nature of the Pledge of Allegiance—or with any pledge, creed, or oath, for that matter. A pledge, by definition, is a statement of one’s beliefs. Neither the handling of U.S. currency, nor the reading of historical documents referencing God require students to affirm a loyalty (allegiance) to a set of beliefs, as the Pledge does. Furthermore, the personal plural language of the Pledge, “We pledge allegiance…,” emphasizes the fact that this statement of allegiance to one’s nation via the beliefs contained therein, is to be done as a community or group. This language reinforces the troubling situation that the recital of the Pledge causes a non-adherent. By not reciting the Pledge, the student is not part of the “we” that affirms his or her allegiance to the flag of the United States of America. No individual must be made to feel like less of an American because he does not profess the same religious beliefs as the majority.

 

 

 

V. JUDGMENT

            The decision by the 9^th Circuit Court of Appeals is hereby overturned in part and affirmed in part. The California Statute is hereby stricken and the EGUSD policy to be amended appropriately.