This case concerns a challenge to the insertion of the two words, "under God," into the Pledge of Allegiance, now codified as 4 U.S.C. § 4. On June 26, 2002, a three-judge panel of the Court of Appeals for the Ninth Circuit ruled that:

(1) the 1954 Act adding the words "under God" to the Pledge, and (2) EGUSD’s policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause.

In response, Defendant the Elk Grove Unified School District (EGUSD) – on August 5, 2002 – requested a panel rehearing pursuant to Federal Rules of Appellate Procedure 40, or a rehearing en banc pursuant to Fed. R. App. P. 35 and Circuit Rule 35-1. The questions presented were: (1) does Plaintiff/Appellant (hereafter "Newdow") have standing, and (2) was the ruling correct?

On August 12, 2002, Defendant United States responded as well, requesting a rehearing en banc, as well as a panel rehearing to examine the standing issue.

On December 3, 2002, the panel ordered Newdow to file a response to the petitions for rehearing and the petitions for rehearing en banc "within 21 days of the date of this order." This submission is respectfully submitted to comply with that order. Because the standing issue was disposed of in an opinion rendered on December 4, 2002, it is no longer of concern, and will not be discussed herein.

HAS THE SUPREME COURT "SPECIFICALLY APPROV[ED] THE REFERENCE TO GOD IN THE PLEDGE OF ALLEGIANCE?"

The United States contends that "the Supreme Court has specifically stated that Congress’s inclusion of the words ‘under God’ in the Pledge of Allegiance statute is constitutional." (US-Pet:4.) This is not correct. In Lynch v. Donnelly, 465 U.S. 668 (1984), for instance – cited by the Defendant – "under God" in the Pledge was merely acknowledged as "a reference to our religious heritage." Inasmuch as it was stated in that very same case that:

[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded.

Lynch, at 694 (O’Connor, J., concurring), it is completely disingenuous to suggest that Lynch "specifically approved of" the current version of the Pledge.

Justice Blackmun’s dictum from County of Allegheny v. ACLU, 492 U.S. 573 (1989) – also raised by the Defendants – has previously been discussed in depth, and Newdow has demonstrated how that one statement, also, cannot

legitimately be utilized to support the position taken by Defendants here. (Appendix I.) This is especially true in view of the endless number of other Supreme Court dicta showing that the words "under God" unquestionably violate the Establishment Clause’s mandates.

The panel majority was perfectly correct in stating that "the [Supreme] Court has never been presented with the question directly, and has always clearly refrained from deciding it." Newdow v. United States Cong., 292 F.3d 597, 611 (9th Cir. Cal. 2002) (note 12). The Defendants’ suggestion that the dicta in Lynch and Allegheny provide "a principle directly and explicitly stated by the Supreme Court" sufficient to uphold the intrusion of purely religious words into the Pledge of Allegiance is ludicrous. The only principles "directly and explicitly stated" –hundreds of times over – are those demonstrating the Pledge’s unconstitutionality. The Defendants make additional strained attempts to find support for their position by analyzing the "tests" utilized in Establishment Clause jurisprudence. Starting with the "historical test" of Marsh v. Chambers, 463 U.S. 783 (1983), it

can be seen how desperate they must be. Action taken in 1954 – changing a pledge that had previously existed in secular form for sixty-two years – cannot, by even the wildest imagination, be said to comprise the "unambiguous and unbroken history of more than 200 years" (463 U.S. at 792) required by Marsh.

The criticisms of the panel’s applications of the Lemon test and the endorsement test fall just as short. In regard to Lemon, both the "purpose prong" and the "effects prong" are failed miserably in this case. And to say that reciting we are "one Nation under God" (with every pledge to our flag) doesn’t endorse the purely religious idea that there is a God is beyond absurd.

Last to be discussed is the "coercion test." Appendix III makes it abundantly clear that far more "coercion" is involved in Pledge recitations than in the graduation prayers held to be coercive in Lee v. Weisman, 505 U.S. 577 (1992)). Nevertheless, the United States attempts to dispute this by citing Engel v. Vitale, 370 U.S. 421 (1962). Engel is the Supreme Court case most on point, recognizing that governmental homage to even a "non-denominational" God violates the Establishment Clause. The lower courts are required to follow this dictate.

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.

370 U.S. at 431 (emphasis added) – also from Engel – shows further that the now-religious Pledge cannot pass the "coercion test."

The allusions to Justice Brennan’s opinion in Abington School District v. Schempp, 374 U.S. 203 (1963), are no more reasonable. All of his thoughts are written in the subjunctive, accentuating the fact that none of the issues had ever been addressed. That these sorts of dicta are the best that the Defendants can find highlight that nothing in the panel’s majority ruling "conflicts with the Supreme Court’s pronouncements on this issue." (US-Pet:14.)

DO ARONOW OR SHERMAN HOLD SWAY IN THE PANEL’S DECISION?

Thirty years ago – before even Lemon v. Kurtzman, 403 U.S. 602 (1971) – the Ninth Circuit decided Aronow v. United States, 432 F.2d 242 (9th Cir. 1970). Aronow, of course, involved the National Motto ("In God we Trust"), which differs substantially from the Pledge of Allegiance. Again, "[e]very government practice must be judged in its unique circumstances." Furthermore – with all due respect – the Aronow opinion is deeply flawed from an atheistic perspective. To claim that, "‘In God We Trust’ ... is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise" (432 F.2d at 243) evidences the difficulty in these cases: people don’t appreciate their own religious biases. As the panel majority here courageously recognized:

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.

Newdow, 292 F.3d at 607-608. In precisely the same manner, "In God we Trust" is "identical, for Establishment Clause purposes," to "In Jesus we Trust," "In Vishnu we Trust," or, for that matter, "We Trust in no god." Does anyone seriously contend that any of these versions of the Motto – especially the last – would ever be considered "of a patriotic or ceremonial character?"

Sherman v. Community Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992) does not justify a rehearing en banc. The plaintiffs in Sherman never challenged Congress’s activity, limiting their attack only to the laws of Illinois. Thus, there was no "purpose prong" violation, and "the primary effect of the [state] statute neither advance[d] nor inhibit[ed] religion." 758 F. Supp. 1244, 1248 (emphasis added). The Act of 1954, however – which did nothing but intrude the words "under God" into the previously-secular Pledge – had both the purpose and primary effect of indoctrinating citizens with the purely religious notion that our nation worships God. Because Sherman never analyzed the federal statute using this key test, its holding cannot truly be said to conflict with the panel’s here.

The "endorsement" inquiry was never utilized in Sherman, either. In fact, only the coercion test was applied, with "logic" that anyone who reads the case would agree, "[w]e have some difficulty understanding." 292 F.3d 611 (n. 12).

After spending most of its opinion "treating the Pledge as a patriotic expression" (980 F.2d at 444), the Seventh Circuit cast the religiosity of "under God" as a "ceremonial referenc[e] in civic life to a deity." 980 F.2d at 445. But the legislative history (see Appendix II) clearly reveals that the insertion of "under God" was meant to be anything but a "ceremonial reference."

Divining the founders’ intent – always a hazardous process in Establishment Clause jurisprudence – was next employed. Although he cited Madison’s Detached Memoranda, Judge Easterbrook did not mention this quote:

The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all is an imposing idea. But ... a universal act of religion ... ought to be effected thro’ the intervention of ... religious not of ... political representatives.

Fleet, Madison’s "Detached Memoranda," 3 Wm. & Mary Q. 534, 560-561 (1946). And, despite his notation that the "Creator" was referenced in the Declaration of Independence, the Judge did not mention that the word was not Jefferson’s. Other criticisms of Sherman have already been provided by Newdow. Appendix IV.

JUDGE FERNANDEZ’S DISSENT

To read Judge Fernandez’s panel dissent through the eyes of an atheist is to have the Establishment Clause fully explained. That an obviously thoughtful and considerate jurist could ever write that "what the religion clauses of the First Amendment require is neutrality" (292 F.3d at 613 (Fernandez, J., dissenting)) while simultaneously upholding the insertion of purely religious dogma into the nation’s Pledge reveals the genius of instituting the Religion Clauses.

With a significant number of our states having constitutional provisions denying to atheists the right to even hold public office, Judge Fernandez says there is a "lack of danger." Ibid. He terms "exiguous" the harms he has never experienced. But if – in public school each day – his child was led in reciting that we are "one Nation under Mohammed" or "one Nation that denies the existence of God," would he consider it only a "feel-good concept?" Id. at 614 (italics in original).

"[I]t is difficult to detect any signs of incipient theocracy" (Ibid.) only when it is ignored. The offensiveness of "under God" is not only found in the Pledge; it is located in judicial opinions where unpopular religious beliefs are trivialized or discounted. To Newdow and his religious brethren, it is the ultimate disrespect to attribute "the awe we all must feel at the immenseness of the universe" (Id. at 615) to a fairy tale. How closed must be an educated mind to deny that possibility?

One President, ninety-nine senators and four hundred sixteen house members felt it was important enough to take time from their official duties to decry a decision to remove religious dogma from the midst of government. Yet, according to Judge Fernandez, the insertion of that dogma into the government – which the Constitution forbids – is a "de minimis" (Ibid.) harm. The Framers understood that only religion could account for such thought processes. One wonders what more they could have done to safeguard the nation against it.

FAMILY LAW

Any lingering doubts as the correctness of the panel majority’s opinion must yield upon consideration of the events which followed its release. The mother’s attempted intervention revealed how – by acts such as inserting the words, "under God," into the Pledge – government enters the most hallowed ground in our American scheme: that landscape where parents determine the religious upbringing of their children. The court has now seen first-hand that official religious dogma impacts upon private familial debates. That should never occur, and it never would have occurred here had Congress left the Pledge in its original secular condition. It is not uncommon for two parents to hold differing religious views, and government is forbidden from taking sides and advocating for either position. In fact, if ever there has ever been a place where the First Amendment protects our citizens from "the power, prestige and financial support of government [being] placed behind a particular religious belief," it must be in the midst of a child’s upbringing by her parents.

THE SUPREME COURT

The School District Defendants refer to the panel’s ruling as one "that substantially affects a rule of national application which bears an overriding need for national uniformity." EG-Pet:1. With this, Newdow agrees, and the way to achieve that uniformity is to allow this case to proceed to the Supreme Court. With their "Establishment Clause jurisprudence ... in hopeless disarray" (Rosenberger v. University of Virginia, 515 U.S. 819, 861 (1995) (Thomas, J., concurring)) – and with a decision as legally sound as that provided by the panel majority – it is incumbent upon this Circuit to send this case to the High Court for clarification of their rules in this jurisprudential field. Only in that way will the lower courts – and the citizenry – have the guidance they need to deal with these situations. Do the Religion Clauses – or do they not – prohibit the majority from establishing its religious preferences within the structure of government? Are atheists to be merely tolerated, or do their religious beliefs merit the same respect as all others? If "liberty and justice for all" – in the religious realm – means only "for all who believe in God," then that declaration by the Supreme Court should not be delayed by forcing this same litigation through the other circuits. Rehearing en banc should be denied so that this critical issue can finally – and, hopefully, in a manner that honors all the diverse religious opinion in our nation – be decided.

Perhaps the most telling aspect of this case is what has not been said by the Defendants. Recalling that the rights at issue are fundamental constitutional rights, nowhere do they tell us the compelling interest served by having "under God" in the Pledge. Rather we have a claim (and a bogus one at that) of "history." Nowhere do we find any denial that atheistic citizens such as Newdow have been turned into "outsiders." On the contrary, despite the repeated Supreme Court pronouncements that it is prohibited, the Defendants have admitted to causing this harm. And nowhere is the truth underlying this litigation – i.e., that what is really at issue is the purely religious wishes of the majority – ever acknowledged. Rather, the "national uproar" – known by all to have been due solely to the withdrawal of favored religious dogma from within the government – is used to justify the fact that "the reference to God in the Pledge is interwoven into the ‘fabric of our society.’" Isn’t interweaving religious dogma into society – by government – the very definition of "an establishment of religion?"

The School Board Defendants ask for a "flexible analysis" (EG-Pet:5), claiming that "this matter should be reheard or reheard en banc so that the Court can apply the correct Establishment Clause analysis as set forth in Marsh." EG-Pet:10. In other words, adherence to principle should yield to "a special nook -- a narrow space tightly sealed off from otherwise applicable first amendment doctrine" and "[t]he one exception to th[e] consistent application of the Lemon test." Their argument would be a lot more truthful if they simply said what they really wanted: a rehearing to keep their predominant religious ideal within government. Unfortunately for them, that’s what the Constitution forbids, and their dissatisfaction with the panel majority’s approach – i.e., adhering to the principles behind the Establishment Clause – is not a reason to give them another bite at the apple. They should be told in clear terms that neither different nor more judges from this circuit will join them in their quest to maintain religious oppression.

The panel majority did a magnificent job, following established law to uphold one of the most effulgent documents in all of history: the United States Constitution. We have seen its veneer smeared in the past – as the rights of disenfranchised minorities are abrogated in ways that always just happen to coincide with the desires of those in control. Everyone reading these words is fully aware that "under God" in the Pledge is precisely such a situation, and that this case is about nothing other than finding justifications for defiling the principles underlying the Establishment Clause. Whatever history or tradition can be twisted to reveal, the goal of those ten words was to inform everyone – minority and majority alike – that in this nation, no individual will ever be turned into an "outsider" due to his or her religious beliefs.

More than forty years ago, the Supreme Court informed us all that the Clause may not be read to say that government "shall make no law respecting an establishment of religion (except where belief in God is concerned)." What Congress did in 1954 – placing such completely extraneous language in the midst of the nation’s Pledge, thereby forcing members of a religious minority to confront their own government’s religious bigotry every time they choose to join in what should be a unifying, secular, patriotic exercise – was simply wrong. The Courts exist to right such wrongs, and the Ninth Circuit has done that beautifully. All of its judges – like all Americans – should be proud for what the panel did, and stand firm in the knowledge that our nation has only been strengthened as a result.

The petitions for rehearing should be denied.

Respectfully submitted,

I certify that pursuant to Circuit Rule 35-4 and/or 40-1, the attached Response to the petitions for panel rehearing and for rehearing en banc is proportionately spaced, has a typeface of 14 points, and contains 4164 words (which does not exceed the 4,200 word limit).

Pursuant to Rule 32(a)(7)(B), this word count does not include the Table of Contents, Table of Citations, or this Certificate of Compliance. Nor does it include any cover sheet(s) or appendices.

_____________________________ December 16, 2002

Michael Newdow

JUSTICE BLACKMUN’S DICTUM IN COUNTY OF ALLEGHENY V. ACLU

(From Appellant’s Opening Brief, 11/14/00, pages 42-50)

(Abridged version of Original Complaint, Appendix B)

"Without these words, … the pledge ignores a definitive factor in the American way of life and that factor is belief in God."

"An atheistic American … is a contradiction in terms."

"[T]he American way of life is … ‘a way of life that sees man as a sentient being created by God and seeking to know His will, whose soul is restless till he rests in God.’"

"[T]he fundamental basis of our Government is the recognition that all lawful authority stems from Almighty God."

"The pledge of allegiance should be proclaimed in the spirit … recogni[zing] God as the Creator of mankind, and the ultimate source both of the rights of man and of the powers of government."

"Certainly, in these days of great challenge to America, one can hardly think of a more inspiring symbolic deed than for America to reaffirm its faith in divine providence."

"What better training for our youngsters could there be than to have them, each time they pledge allegiance to Old Glory, reassert their belief, like that of their fathers and their fathers before them, in the all-present, all-knowing, all-seeing, all-powerful Creator."

"[I]n times like these when Godless communism is the greatest peril this Nation faces, it becomes more necessary than ever to avow our faith in God and to affirm the recognition that the core of our strength comes from Him."

"Hence it is fitting that those two profoundly meaningful words "under God" should be included in the pledge of allegiance so that we and our children, who recite the pledge far more often than adults, may be reminded that spiritual strength derived from God is the source of all human liberty."

"[The] principles of the worthwhileness of the individual human being are meaningless unless there exists a Supreme Being."

"He is the God, undivided by creed, to whom we look, in the final analysis, for the well-being of our Nation. Therefore, when we make our pledge to the flag I believe it fitting that we recognize by words what our faith has always been."

"[It is a] fundamental truth … that a government deriving its powers from the consent of the governed must look to God for divine leadership."

"We are asking that only two words be added to the Pledge of Allegiance, but they are very significant words."

"[T]he Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic."

"It is true that under the Constitution no power is lodged anywhere to establish a religion. This is not an attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God, in whom we sincerely repose our trust."

"Appropriations and expenditures for defense will be of value only if the God under whom we live believes that we are in the right. We should at all times recognize God’s province over the lives of our people and over this great Nation."

"[The Pledge] is not only a pledge of words but also of belief."

"[B]elief in God is part of our very lives."

"The United States is one of the outstanding nations of the world standing foursquare on the principle that God governs the affairs of men."

"[I]t is well that when the pledge of allegiance to the flag is made by every loyal citizen and by the schoolchildren of America, there should be embodied in the pledge our allegiance and faith in Almighty God. The addition of the words ‘under God’ will accomplish this purpose."

"[W]hen Francis Bellamy wrote this stirring pledge, the pall of atheism had not yet spread its hateful shadow over the world, and almost everyone acknowledged the dominion of Almighty God."

"Now that pagan philosophies have been introduced by the Soviet Union, there is a necessity for reaffirming belief in God."

"I appear here today in support of any and all bills that would serve to recognize the power and universality of God in our pledge of allegiance."

"The significant import of our action today … is that we are officially recognizing once again this Nation’s adherence to our belief in a divine spirit, and that henceforth millions of our citizens will be acknowledging this belief every time they pledge allegiance to our flag."

"How fitting that we here today should take action to once more affirm our belief in … the guidance of a divine spirit."

"Once again we are proclaiming to the world that … the flag which flies over our land is a symbol of a nation and of a people under God."

"[T]his measure is more than one of passing importance. It goes to the very fundamentals of life and creation. It recognizes that all things which we have in the way of life, liberty, constitutional government, and rights of man are held by us under the divine benediction of the Almighty. There is a hope and a hereafter in these two words and they, of course, should be included in the pledge of allegiance to Old Glory."

"One thing separates free peoples of the Western World from the rabid Communist, and this one thing is a belief in God. In adding this one phrase to our pledge of allegiance to our flag, we in effect declare openly that we denounce the pagan doctrine of communism and declare ‘under God’ in favor of free government and a free world."

"Fortify our youth in their allegiance to the flag by their dedication to ‘one nation under God.’"

"Regaining our reverence for God we in America in this 20^th century can rediscover our own value and the solid basis on which it rests."

"The first sentence of section 7 of the joint resolution (36 U.S.C. sec. 172), as amended, ‘one Nation indivisible under God,’ is a realistic recognition of the theological and philosophical truth – the existence of a Supreme Being."

"Faith in God … has never been misplaced. House Joint Resolution 243 is a proclamation to all the world and to ourselves, ever to keep us mindful and prayerful, that the United States of America is in truth and in the acknowledged fact, a ‘Nation under God.’"

"[The joint resolution] seems to have struck a note of universal approval, indicating an underlying acknowledgement of our indebtedness to God and our dependence upon Him."

"At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system that does not believe in God. A system that denies the existence of God."

"Thus, the inclusion of God in our pledge of allegiance rightly and most appropriately acknowledges the dependence of our people and our Government upon that divinity that rules over the destinies of nations as well as individuals."

"The God of nations who helped in bringing to a successful conclusion the war of independence, has never ceased to control the destiny of this great Nations, and I trust He never will."

"[O]ne of the greatest differences between the free world and the Communists [is] a belief in God. The spiritual bankruptcy of the Communists is one of our strongest weapons in the struggle for men’s minds and this resolution gives us a new means of using that weapon."

"The use of the phrase ‘under God’ in the pledge of allegiance to the flag sets forth in a mere two words, but, very strong and meaningful words, the fundamental faith and belief of America in the overruling providence of God and our dependence at all times upon Him."

"The recitation of this acknowledgement that God is the foundation of our Nation will be of incalculable value, all through the years, of ever keeping vividly before our people, including our children who from earliest childhood, pledge their allegiance to the flag, that the real source of our strength in the future, as in the past, is God."

"[T]he Government and people of America have recognized the necessity of doing the will of God as we see it, and of relying for our strength and welfare on the protection of His divine providence."

"[W]e wish now, with no ambiguity or reservation, to place ourselves under the rule and care of God."

"We Members of Congress … felt and acted on the popular urge to give expression to the conviction that our deliberations should be publicly and tangibly submitted to the guidance of God."

"[W]e do well to once more publicly and officially affirm our faith."

"[O]ur citizenship is of no real value to us unless our hearts speak in accord with our lips; and unless we can open our souls before God and before Him conscientiously say, ‘I am an American.’"

"The amendment to the pledge of allegiance to the flag, by inserting the words ‘under God,’ is a simple device by which we can verbally proclaim our intense desire to continue this land as ‘one Nation, under God, indivisible.’"

"I believe it to be of great importance that we as a Nation recognize a higher power than ourselves in the guidance of our existence. This joint resolution recognizes that we believe there is a Divine Power, and that we, our children, and our children’s children should always recognize it."

"I believe we should trust in God and we should recognize that God is guiding our destiny and the hopes and aspirations of this Nation."

"It is so fitting that we declare to the world, in our position as leader among the sister nations of the earth, our dependence upon Almighty God."

"I am proud to have been associated with this effort that produced this legislation which recognizes the importance of divine guidance in our national affairs."

"We see the pledge, as it now stands, as a formal declaration of our duty to serve God and our firm reliance, now as in 1776, on the protection of divine providence."

"To put the words ‘under God’ on millions of lips is like running up the believer’s flag as the witness of a great nation’s faith."

"From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty."

"It is my belief that an extensive circulation of these printed copies of the Pledge of Allegiance to the Flag will imprint, indelibly, upon the minds of those who read them, whether they be young or old, that their great Nation, these United States, exists and endures purposefully ‘Under God.’"

"Today we express … our national dependence upon almighty God by pledging, as a nation, our allegiance to the Stars and Stripes."

"[T]he need now is for the Christian ideas to neutralize the preponderance of material know-how. … We cannot afford to capitulate to the atheistic philosophies of godless men – we must strive to ever remind the world that this great Nation has been endowed by a creator."

"If we have no rights under God, then America has no purpose of existence. For America is all that she is simply because she recognizes our rights under God."

"The further men move from God and His principles, the worse it will be for America."

"Our people without God would be a people reading the death warrant to real American freedom."

"[The] right to profess God-given principles, to practice God-given commandments, and to live God-ordered lives … is America and will always be America. There is no other pattern of life that can bear this trademark."

"It is time that we really be neighbors in the Christian sense, that we live as neighbors, and have trust one for the other. This is the American way; this is God’s way."

"Only God-fearing men can guarantee to America her greatness, her survival, and her continued blessings."

"As these words are repeated, ‘one Nation, under God, indivisible, with liberty and justice for all,’ we are reminded not only of our dependence upon God but likewise the assurance of security that can be ours through reliance upon God."

"These words, ‘under God,’ … can be taken as evidence of our faith in that divine source of strength that has meant and always will mean so much to us as a nation."

"Let us never forget that recognition of God by this and the other nations of the free world will mean victory and security against the forces of evil that deny God. May we, as a nation under God, ever recognize Him as the source of our refuge and strength."

"[O]n June 14, Flag Day, 1954, the President signed into law House Joint Resolution 243, which added to the pledge of allegiance to the flag of the United States the compelling and meaningful words ‘under God.’"

"‘Under God’ in the pledge of allegiance to the flag expresses, aptly and forcefully, a grateful nation’s attitude of dependence upon Almighty God."

"For under God this Nation lives."

"These principles of the worthwhileness of the individual human being are meaningless unless there exists a Supreme Being."

"Indeed, the one fundamental issue which is the unbridgeable gap between America and Communist Russia is belief in Almighty God."

"Fortify our youth in their allegiance to the flag by their dedication to one nation under God."

(Redacted version of Original Complaint, Appendix D)

(From Plaintiff/Appellant’s April 26, 2000 Opposing Memorandum (pages 5-9))

Quoting Justice Jackson’s famous passage from West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), the Sherman court began by recognizing that:

[N]o 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.

319 U.S., at 642. One notes immediately that this statement is comprised of two clauses: (1) no official can prescribe what shall be orthodox, and (2) no official can force citizens to confess. Amazingly, despite the fact that it is the first of these two clauses that is implicated with the words "under God" in the Pledge, the Sherman court totally disregarded that issue, concentrating instead only on the second clause.

Even the manner in which it did this is extraordinary. Having, as just noted, chosen to not even look at the matter of official prescription of orthodoxy, the court continued by prematurely announcing the demise of the Lemon test. Thus, in what was supposed to have been a de novo review, the unjustified finding by the lower court that all three prongs of Lemon had been satisfied was simply ignored.

With the true issues eliminated, and with nothing really left to discuss, the Sherman court then focused on the question of "coercion." Plaintiff will address this more thoroughly below. For now suffice it to say that – as was already pointed out in Plaintiff’s Complaint (paragraphs 96-101) – coercion (a) is not a necessary element to demonstrate a First Amendment violation, and (b) exists by definition whenever an impressionable schoolchild is placed in such situations. The truly fantastic aspect of the decision is that the Sherman court actually recognized these facts, alluding to Supreme Court opinions that set them forth (i.e., Allegheny, Lee and Engel). The Seventh Circuit even enunciated the rule:

If as Barnette holds no state may require anyone to recite the Pledge, and if as the prayer cases hold the recitation by a teacher or rabbi of unwelcome words is coercion, the Pledge of Allegiance becomes unconstitutional under all circumstances.

980 F.2d at 444. Can we do that one again? If what the Supreme Court held in one case is true, and if what the Supreme Court held in another case is true, then there is no escaping the conclusion that the Pledge of Allegiance is unconstitutional. And yet, the Sherman court goes on to escape that exact conclusion!

How this is done is astonishing. First, using the technique alluded to in Plaintiff’s Complaint, paragraph 81, it "treat[s] the Pledge as a patriotic expression" (980 F.2d at 444), thereby ignoring the religious component that forms the basis of the litigation. Then, disregarding multiple Supreme Court

statements on this issue, it characterizes the Pledge as part of "the prescribed curriculum of the public schools." (As if the daily indoctrination of children in a rote exercise could be equated with "books, essays, tests and discussions." Id.)

The best, however, is yet to come. Completely confusing the Free Exercise Clause (that affords individuals the right to engage in religious behavior as they please) with the Establishment Clause (that forbids government from any form of religious behavior) the court makes the absolutely incredible statement that:

Government nonetheless retains the right to set the curriculum in its own schools and insist that those who cannot accept the result exercise their right under Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and select private education at their own expense. The private market supports a profusion of schools, many tailored to religious or cultural minorities, making the majoritarian curriculum of the public schools less oppressive.

980 F.2d at 445. This is from a federal Court of Appeals?! What a novel approach to the Bill of Rights: "You don’t like it here? You can go somewhere else."

Whether due to intentional deceit or simply due to a failure to understand the issues, the arguments in this opinion are simply beyond belief. Although the plaintiffs clearly objected only to "under God" in the Pledge, the court continued, writing that:

Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag ‘and to the republic for which it stands.’

980 F.2d at 445 (emphasis in the original). This is an absolute deception that totally skirts the issue. There was never any objection in Sherman to the patriotism inherent in the Pledge. The objection then – as it is now – was only to the religious dogma that was unconstitutionally inserted in 1954. When, under the government’s auspices, the Pledge is being made under God, then the duty of the courts – following the mandates of the Establishment Clause– is precisely to "reduce to silence the many who want to pledge" in that religious manner. If individuals wish to worship God in their private spheres, fine, and we have the Free Exercise Clause to ensure that the government doesn’t abridge that right. But to employ the machinery of the state to assist them in this exercise is absolutely forbidden. Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Lee v. Weisman, 505 U.S. 577 (1992).

Continuing along in its rogue First Amendment jurisprudence, the Seventh Circuit court quoted Justice Holmes for the proposition that "a page of history is worth a volume of logic" (980 F.2d at 445 (citation omitted)). However, under its historical account, the Congressional record (which, as Plaintiff here has shown, manifestly details the unconstitutionally religious purposes of the Act of 1954) was completely disregarded. Instead, the author alluded to the founders, who – more than two hundred years earlier - knew nothing of public education or pledges of allegiance to the flag.

From the foregoing, it is obvious that the Sherman court disregarded key constitutional principles to reach its conclusion. The government’s assembling little children every day to pledge their allegiance to the Nation, and then incorporating "God" into that pledge, clearly violates every principle upon which the Religion Clauses lie. The only validity Sherman offers in understanding this matter comes from Justice Manion who, in concurrence, refused to accept the majority’s characterization of "under God" as being "sapped of religious significance." 980 F.2d at 448. With this Plaintiff concurs … "under God" is clearly religious, and its presence in the Pledge of Allegiance therefore violates the guarantees of the First Amendment.

(Augmented from Original Complaint, paragraph 104)

(From Plaintiff’s Objection (May 31, 2000, page 20)

to Magistrate Judge Nowinski’s Findings and Recommendations)

_________________________________ December 16, 2002

Michael Newdow, Plaintiff/Appellant