The Constitutional Principle: Separation of Church and State
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Latest Developments in the Pledge Case

As of March 28, 2004

And Some of Our Thoughts and Comments

On Wednesday, March 24, 2004, Michael Newdow, a medical doctor (specializing in emergency medicine) and licensed attorney in the state of California became one of only a handful of people who have ever argued their own case before the United States Supreme Court

From most accounts by the cynical, experienced reporters present, while he might lose out to politics from this very political High Court, Michael Newdow "kicked some butt" as he gave his argument and replied to questions asked by the 8 Justices hearing this case.

In late August, 2002 I received the following email:

Dear Mr. Allison,

By way of introduction, I'm the fellow who (so far) has gotten "under God" our of the Pledge of Allegiance in the Ninth Circuit.

I've also just (this week) filed to have Marsh v. Chambers overturned. (Let me know if you'd care for me to e-mail a copy of the Complaint to you). And I just found your website, which has some great information! Can you tell me your sources? Also, can I call on you for advice and information as I write my future briefs in the case? You obviously know the history far better than I.

I look forward to hearing from you.

The email was from Michael Newdow and it began a working relationship between us. From that Email until he filed his last brief in the Pledge case in February 2004, I answered historical questions he asked by email or telephone.

At times I had to trot off to a local library (Pat Robertson's Regent University School of Law, Law Library -- hehehehe) to do some research. He was demanding, always wanting my source, always wanting me to back up what I was sending him, to verify it. Lots of questions, especially when he didn't understand something I had sent him. Frequently wanting more information in order to better understand the point. /p>

I enjoyed that a lot. In retun he frequently sent me copies of the briefs he was filing in the various cases he had before the courts and would always answer any questions I had with regards to the cases as they were working their way though the system. He also asked my opinion of the briefs, which I offered in regards to the historical citations in the briefs, though not the legal. In the final brief to the United States Supreme Court, Mike cited this web site, and we greatly appreciate that.

While I have never had the honor of meeting Michael Newdow in person, I have come to respect him. Regardless how this turns out, I am happy to have been a part of this process. I like Mike Newdow. It has been enjoyable and educational as well. Thank you Mike and good luck! If you need any more help, give a yell.

We firmly believe in Mike's position in that it does represent strict separation of church and state as advocated by Madison, Jefferson, Rev. Leland and hosts of others.

[Further comments at the end ]

by Jim Allison.


February 28, 2003

United States Court of Appeals For The Ninth Circuit

Michael A. Newdow, V. U. S. Congress; United States of Cv 00-00495- America;

Argued and Submitted

March 14, 2002 -- San Francisco, California

Filed June 26, 2002

Amended February 28, 2003

http://caselaw.lp.findlaw.com/data2/circs/9th/0016423p.pdf

[excerpt pp 2778-2780 ]

I also feel compelled to discuss a disturbingly wrongheaded approach to constitutional law manifested in the dissent authored by Judge O'Scannlain. The dissent suggests that this court should be able to conclude that the panel's holding was erroneous by observing the "public and political reaction" to its decision. Dissent at 2783. This is not the first time that the magnitude of the political response regarding an issue has distracted certain members of this court. An equally disturbing misunderstanding of the nature of our Constitution and the role of the federal judiciary was manifested in Coalition for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), a case involving a California initiative on the subject of affirmative action. There, the three-judge panel, in a case that unfortunately was not taken en banc, notwithstanding its exceptional importance, made the following remarkable statement: "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy." Id. at 699 (O'Scannlain, J.).

The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties.

As Justice Jackson recognized: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

. . . W. Va. State Bd. of Educ. v. Barnette, 319 U. S. 624, 638 (1943). It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote. The constitutional system that vests such power in an independent judiciary does not "test[ ] the integrity of . . . democracy." It makes democracy vital, and is one of our proudest heritages.

Moreover, Article III judges are by constitutional design insulated from the political pressures governing members of the other two branches of government. We are given life tenure and a secured salary so that, in our unique capacity to "say what the law is," Marbury v. Madison, 5 U. S. (1 Cranch) 137, 177 (1803), we may decide constitutional issues without regard to popular vote, political consequence, or the prospect of future career advancement.3 Most federal judges do not


3. Alexander Hamilton was admirably cognizant of the danger of relying on temporary political whimsy:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

THE FEDERALIST NO. 78, at 437 (Alexander Hamilton) (Clinton Rossiter ed., 1999).


question the wisdom of this approach. When the federal judiciary is so firmly separated by constitutional structure from the direct influence of politics, we must not undermine that structure by allowing political pressures, polls, or "focus groups" to influence our opinions, even indirectly. This is not to say that federal judges should be completely sequestered from the attitudes of the nation we serve, even though our service is accomplished not through channeling popular sentiment but through strict adherence to established constitutional principles. The Constitution contemplates occasions when we must be responsive to long-term societal trends — when determining, for example, that which is "cruel and unusual," see Hudson v. McMillian, 503 U. S. 1, 9 (1992), whether in the execution of the mentally retarded, see Atkins v. Virginia, 536 U. S. 304, ___, 122 S. Ct. 2242, 2247 (2002), or the execution of juvenile offenders, see In re Stanford, 123 S.Ct. 472, 474 (2002) (Stevens, J., dissenting from the denial of an application for an original writ of habeas corpus). This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not — we must not — allow public sentiment or outcry to guide our decisions. It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril. Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.

[end of excerpt]


See other pledge related articles in the current events section of this web site as well


From Under God. (October, 2003). Retrieved March 28, 2004, from http://rationalamerican.com/defined

When the American Founders pledged to each other "our Lives, our Fortunes, and our sacred Honor" they did so with a full and rational understanding of the risks and rewards they faced. Today, when young school children pledge allegiance to our flag, they do so more out of forced habit than full understanding. Up until at least the upper elementary grades, they lack the intellectual development, life experience, and knowledge to truly make such a pledge in earnest. A strong argument could be made for waiting to introduce the Pledge of Allegiance until later years and for making it a true choice if we are indeed interested in producing strong and loyal American citizens. However, that is an argument for another essay. Here, we will assume the current state of affairs to be acceptable and instead examine one aspect of the Pledge of Allegiance: the phrase "under God". The issue of God in the Pledge, soon to be examined by our Supreme Court as of this writing, flows within a wonderful conflux of interesting issues, including the role of public institutions, the role of religion in government, the role of government in parenting, the nature of intellectual and emotional development in children, the psychology of groups, and a whole bunch more besides. The subject could be so wide and meaty, that we must, by necessity, limit ourselves to the narrowest explanations in order to confine this writing to the status of an essay! Should the language "under God" stand, or should, as the 9th U. S. Circuit Court of Appeals decision of February 2003 suggests, the Pledge of Allegiance be cleansed of such a reference if it is used in public schools?

The 9th Court of Appeals decision was actually quite well researched and written, so it is recommended reading for those on either side of the issue. Here, though, we will concern ourselves with three broad themes: the perils of children in a public school system, the parental prerogative, and the meaning of religion in government.

[SNIP]

Are we a nation "under God"? No. We are a nation founded on an understanding of the nature of humans and the kind of government that supports the natural rights of man. Such a nation is not incompatible with religious observance, in fact, such a nation is the only way that government and religion can coexist together in a society without corrupting each other. The words "under God" do not belong in a Pledge forced upon the children of American citizens. We must resist at every turn the advocates of religious thought who would insert their will into our government policy. To do anything less will allow entropy to kill the last great hope of man.

Copyright 2003, rationalamerican.com. To cite this article: Under God. (October 2003). Retrieved March 28, 2004, from http://rationalamerican.com/defined


All the briefs filed in this case from both sides can be found here as well as some articles and other Pledge related material:
The Pew Forum on Religion and Public Life: Pledge of Allegiance Resources


Additional Information

Restore Our Pledge Allegiance


Godless Americans Support Dr. Michael Newdow This site has photos of the rally in support of Michael Newdow and separation of state/church.


L A Times (Free registeration required)

They Pray for Judicial Restraint

Advisors to a volatile atheist hope he is up to the delicate task of arguing his Pledge of Allegiance case before the Supreme Court.

By Maura Dolan, Times Staff Writer

Excerpts:

... USC law professor Erwin Chemerinsky, who has been coaching Newdow, said the neophyte lawyer was willing to accept help.

After Chemerinsky sent Newdow an e-mail criticizing one of his briefs, Newdow made revisions and sent it back under the heading, "Thank you, sir. Hit me again."

"What I have tried to do is encourage him to focus on the issues that are before the Supreme Court," Chemerinsky said.

One of the issues that may come up, and that is particularly problematic for Newdow, is the custody of his daughter. It is a subject that consumes him.

At the time he filed the pledge suit, he had joint legal custody of his daughter, now 9. Then he lost it, and regained it, feuding with her mother over everything from whether the girl should be permitted to use a public restroom to whether she should travel to Washington to hear her father argue before the high court.


Newdow Pre-Argument Forum

The transcript is now available of a very interesting and informative discussion that the Pew Forum hosted last week on the Newdow case, featuring Doug Laycock and Jay Sekulow. Professor Laycock is the author of the amicus brief from which Justice Stevens quoted at the conclusion of oral argument yesterday ("Either government is asking school children to make a sincere statement of belief in the one true God Whom the Nation is under, or it is asking children to take the name of the Lord in vain.").

You can read the transcript it at the above URL


Excerpts From Arguments on the Meaning of 'Under God' in the Pledge of Allegiance

Published: March 25, 2004


Justice Stevens: [Asked Terence J. Cassidy, Lawyer for the School District ]:

...One of the amicus briefs filed in this case has this sentence in it. I'd like you to comment on. If the religious portion of the pledge is not intended as a serious affirmation of faith, then every day government asks millions of school children to take the name of the Lord in vain. Would you comment on that argument?

The reply was pretty lame:


Feedback from some who attended the oral arguments

Pledge to God or country?

Ellen Goodman, Washington Post Writers Group

Friday, March 26, 2004

[Excerpt] [snip]

Nevertheless, on Wednesday morning, the emergency-room doctor and lawyer put on a virtuoso solo performance in the U. S. Supreme Court. He brashly faced eight justices and left them with a tough choice. . . .

[snip]

The solicitor general argued that "under God" is just a ceremonial acknowledgement of the framers' belief that "God gave them the right to declare their independence." Maybe so. But the framers' belief in the separation of church and state created the first secular government in the world.

Justice Sandra Day O'Connor said, "there are so many references to God in the daily lives of this country" that the words in the pledge have no more religious meaning than the words on the coin. Maybe so. But remember that adding "In God We Trust" was also a political sop to opponents after Lincoln rejected their proposal to insert Jesus Christ into the preamble of the Constitution.

Maybe too, as Justice Stephen Breyer pondered, the God in the pledge is so "generic" that it includes everyone, and so vague that it bothers no one. But Newdow was quite right in saying that a pledge to one nation under even the most generic God doesn't include people who believe in "no God." And maybe, as Justice David Souter added, it's "so tepid, so diluted . . . that it should be under the constitutional radar." But if the phrase is so tepid, why all the passion?

[snip]

. . .The men who wrote the Constitution said 'We the People' not 'We the people under God.' ''

[snip]

What a pain this Michael Newdow is. Who needs this in the middle of an election? Why stir up the culture wars? Why make such a big deal of two little words? Aren't there bigger fish to fry?

Here's the problem. God save this honorable court (oops), Newdow is right.


Jefferson, Madison, Newdow?

By KENNETH C. DAVIS

Published: March 26, 2004

(Free registration req'd) © The NY Times

When Michael Newdow stood before the Supreme Court on Wednesday and made the case for atheism, he probably didn't win many converts. But his quixotic crusade to rid the Pledge of Allegiance of the words "under God" is a peculiarly American act of courage. And somewhere the spirits of Jefferson, Madison and Franklin may well be smiling.

Few questions have inspired as much myth and misconception as the place of God in America. For example, when the United States Court of Appeals for the Ninth Circuit struck the words "under God" from the Pledge of Allegiance last year-the decision that is before the Supreme Court now-Attorney General John Ashcroft said that God is mentioned "in our Declaration of Independence, Constitution, national anthem, on our coins and in the Gettysburg Address."

Well, he was 80 percent right- but he was wrong on the most important item. The Constitution is the creation of "we, the people" and never mentions a deity aside from the pro forma phrase "in the year of our Lord." The men who wrote the Constitution labored for months. There's little chance that they simply forgot to mention a higher power. So what were they thinking?


Novice lawyer, atheist gets point across

Gina Holland Associated Press Writer

03-24-2004

Justices gave the 50-year-old Newdow special permission to argue the case because he has not had his law license long enough to qualify. He sparred with several court members, and after 30 minutes seemed to have won their respect.

"I think he surprised a lot of people. He was superb," said Kenneth Starr, a veteran Supreme Court lawyer who opposes Newdow's position.

"I'd give him an `A.' He remained undeterred during intense questioning," said Jay Sekulow, chief attorney with the American Center for Law and Justice, which also supports keeping the Pledge of Allegiance as is.


Experts Predict High Court Reversal in Pledge Case

Marcia Coyle The National Law Journal

03-25-2004

Sometimes even when you're right, you're wrong. And that's likely to be the fate of the 9th U. S. Circuit Court of Appeals when the U. S. Supreme Court finishes its review of the constitutionality of the Pledge of Allegiance.

Despite the outrage following the 9th Circuit's decision, an overwhelming majority of constitutional scholars say the court got the law right -- but will still be reversed.


One Nation, Under Hallmark, Indivisible

Is the God of the Pledge of Allegiance a deity or a greeting card?

By Dahlia Lithwick

Posted Wednesday, March 24, 2004, at 3:53 PM PT

No wonder Chief Justice William H. Rehnquist talks about quitting. He can't keep a lid on things at the Supreme Court. Former Justice Harry Blackmun is leaking secrets from the grave; Justice Antonin Scalia is corresponding with his detractors. And today, at oral argument in the Pledge of Allegiance case, there is an outburst of partisan clapping in the courtroom. Clapping. In church! I mean ... in court! An incensed Rehnquist barks that the "courtroom would be cleared" if he heard any more of this nefarious clapping. Stuff like this just doesn't happen at the Supreme Court.

But then everything about oral argument today in Elk Grove United School District v. Newdow is astonishing. Michael Newdow—the atheist challenging the constitutionality of the words "under God" in the pledge—shatters every one of the inviolate rules of Supreme Court advocacy: The doctor-slash-lawyer represents himself in a performance both passionate and personal. Never having argued a case at the high court, Newdow should have been a sloppy, overzealous mess. But this reviewer gives him five stars. He may still lose this appeal, but he absolutely won the day.

One of the thorns in this case is that supporters of the pledge say the words "under God" are political, historical, ceremonial—anything but religious. But if the protests and demonstrations and national polls reveal anything about the merits of this case, it's that the words "under God" really are about the Jesus-Church-Prayer type of God for most Americans.

[snip]

Michael Newdow gets up, and stuffy reporters like me, who cringe at zealots who insist on being their own oral advocates and wince at the brashness of a man who actually asked for (and got) a Scalia recusal, are rocked back on our heels. Newdow opens with the mental picture of his daughter (not allowed to attend today) with a "hand over her heart, saying her father is wrong."

...

This case is a mess, and not just because of the underlying custody issue, and not just because of the 11,000 outrageous "tests" the court has cooked up for Establishment Clause cases, and not just because of the serious possibility that it all ends in a 4-4 tie. The case is a mess because, whatever you may think about God or the pledge, if you really apply the case law and really think "God" means "God," then Newdow is right. But Newdow can't be right. Can he?


The Court Hears Oral Argument in the "Under God" Pledge of Allegiance Case: Why the Court Should Reject This Pledge, and Why the Department of Justice Is Wrong To Support It

Thursday, Mar. 25, 2004

FindLaw columnist and Cardozo law professor Marci Hamilton weighs in on the controversial case that asks the Supreme Court to decide whether having the "under God" pledge of allegiance in public schools violates the Establishment Clause. Hamilton explains the tenor of the recent oral argument before the Court, argues that there is indeed an Establishment Clause violation, and argues that a decision to the contrary would not only be a legal error, but also lower the U. S.'s credibility in the international community.


SOME OF OUR THOUGHTS

These are ours and ours alone and reflect the opinions or thoughts of no one but us.

[one person had posted]

Since this is a political group, here are the questions from the justices. I think you can tell from their questions which way they will rule. I think this will be, as the ACLJ is saying, a slam dunk...unanimous to keep "under God" in the pledge.

[a second person had posted]

That's certainly possible. However, it is interesting to note that the Justices - in their questions - seem to be asking if "under God" is really "worth the bother" of throwing out because it's a meaningless phrase.

[OUR THOUGHTS]

Hmmmm, if it wasn't even "worth the bother" why did they accept the case?

The court should consider the following: Credibility is worth the bother. Doing their job is worth the bother. Doing the right thing, legally speaking is worth the bother.

For this court to rule the way that most observers seem to be predicting that it will probably rule, the members of this court are going to have to contradict things they have written in previous decisions.

Members of this court who have fairly consistently ruled in favor of separation over the past number of years are going to have to abandon that position. Law, precedent and facts of that case are all in Mike Newdow's favor.

In recent years, Justices Stevens, Ginsburg, Breyer and Souter have been fairly consistent in ruling in favor of strict separation in cases before the court. Justices Rehnquist, Scalia and Thomas have voted against strict separation. Justices O'Connor and Kennedy have taken turns voting in favor of accommodation of religion or strict separation at different times.

I think it is fair to say that Mike Newdow figured, based on past voting records he could count on the four which would automatically give him a victory with Scalia recused. But it would be a hollow victory in that it would only apply in the 9th Circuit and would set no precedence.

However, based on comments both O'Connor and Kennedy had written in previous decisions he felt that to be consistent they would have to vote in his favor. Thus he was looking for a 5-3 at the least, a 6-2 probable in his favor. (Though at one time in a email to me he had said he thought he might even be able to win over Rehnquist.)

Voting history of the various members of this court bears that out. It was not an unreasonable expectation on his part.

Legal precedence, some of it set by various members of this court bears out his expectation as well.

The briefs submitted by those opposing Newdow did nothing to really change any of that.

The bulk of the briefs submitted by those supporting Newdow presented the case, the issues, the facts, the history and the law properly. The 9th Circuit ruled properly based on both the standing issue and the law. Most respected scholars that aren't in bed with the religious right agree with that.

This decision, if against Mike Newdow won't be about law, it will be about politics. It will be about bowing down to uninformed incorrect public opinion. It will be about catering to the religious right. It will be about defaulting on properly doing their job, taking the easy way out. It will be a reenactment of Marsh v. Chambers.

While the court's ruling, if it does go against Newdow, will make many happy, it won't fool people who really know what's going on.

If the Court rules against Newdow and the "merits" of the case, they will probably hang their hat on that old "cop-out" standby "Ceremonial Deism," i.e. The words "under God" are a meaningless phrase and that whatever religious meaning or purpose the words may once have had, they now have lost that meaning and are no more religious than "under Pizza" would be. Thus, being meaningless words, they poses no constitutional problem.

One has to wonder how intelligent human beings can be (1) so blind and out of touch or (2) hold the public in such contempt that they feel the public are so gullible that they will accept anything. There is absolutely no doubt that in 1954 the entire reason for adding "under God" was religious.

In addition, the outcry by some, the actions of the Congress of the United States, the president, the Attorney General, the prayers, the anger, the outrage, and articles that were and still are being written about all of this came about as a result of the 9th Circuit ruling in June 2002 which flies in the face of any attempt to say those words have no religious meaning.

Anyone with half a working brain can see that the importance that many placed on those words "under God" was the basis of this outrage and anger at Michael Newdow's attempts at trying to have them removed. To even argue anything otherwise is sheer lunacy and for anyone to attempt such an argument with a straight face is one reason why so many hold lawyers in such low regard.

If the words had no meaning those folks wouldn't have been in the courtroom of the USSC.

It is interesting to speculate that probably 95% of those so upset, so outraged are people who probably haven't said the Pledge of Allegiance in years, in fact, by and large, the only ones who have any regular involvement with said Pledge are school teachers and students.

If this court is so out of touch with American or otherwise tries to hang their hat on that they should be a shamed of themselves. (If Ex. President Clinton was impeached for his lie, this entire court should be impeached for that attempted lie).

But then this is the exact same court that gave us Bush v Gore, and the Cleveland voucher ruling.


Comments by those who framed the Act of 1954 (legislative intent)

The following is taken from Appendix II of the "Plaintiff/Appellant's Response to the Petitions for Rehearing and Rehearing En Banc filled by the State and Federal Defendants"

Selected Excerpts from the Congressional Record circa 1954

"Without. these words, ... the pledge ignores a definitive factor in the American way of life and that. factor is belief in God. ,33

"An atheistic American .,. is a contradiction in terms."33

"[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."33

"[T]he fundamental basis of our Government is the recognition that all lawful authority stems from Almighty God. "34

"The pledge of allegiance should be proclaimed in the spirit ... reeogni[zing] God as the Creator of mankind, and the ultimate source both of the rights of man and of the powers of government."35

"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." 36

"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. "36

"[l]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," 37

"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. "37

"[The] principles of the worthwhileness of the individual human being are meaningless unless there exists a Supreme Being."38

"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. "39

"[It is a] fundamental truth ... that a government deriving its powers from the consent of the governed must look to God for divine leadership."40

"We are asking that only two words be added to the Pledge of Allegiance, but they are very significant words"41

"[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."41

"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."41

"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."41

"[The Pledge] is not only a pledge of words but also of belief."41

"[B]elief in God is part of our very lives. "41

"The United States is one of the outstanding nations of the world standing foursquare on the principle that God governs the affairs of men."42

"[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." 42

"[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."43

"Now that pagan philosophies have been introduced by the Soviet Union, there is a necessity for reaffirming belief in God."44

"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."45

"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. "46

"How fitting that we here today should take action to once more affirm our belief in ... the guidance of a divine spirit." 46

"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. "46

"[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."47

"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."47

"Fortify our youth in their allegiance to the flag by their dedication to 'one nation under God.'"48

"Regaining our reverence for God we in America in this 20th century can rediscover our own value and the solid basis on which it rests."49

"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."50

"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. "51

"[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."52

"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."52

"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."52

"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."52

"[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."52

"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."52

"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. "52

"[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."53

"[W]e wish now, with no ambiguity or reservation, to place ourselves under the rule and care of God."53

"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."53

"[W]e do well to once more publicly and officially affirm our faith."54

"[Q]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."55

"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. "55

"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."56

"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."56

"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. "57

"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."58

"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. "59

"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."60

"From this day forward, the millions of our school children will daily proclaim in every city and town, every village anal rural schoolhouse, the dedication of our Nation and our people to the Almighty."61

"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."62

"Today we express ... our national dependence upon almighty God by pledging, as a nation, our allegiance to the Stars and Stripes. "63

"[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."63

"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."64

"The further men move from God and His principles, the worse it will be for America."64

"Our people without God would be a people reading the death warrant to real American freedom."64

"[The] right to profess God-given principles, to practice God-given commandments, and to live Godordered lives ... is America and will always be America. There is no other pattern of life that can bear this trademark."64

"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."64

"Only God-fearing men can guarantee to America her greatness, her survival, and her continued blessings."64

"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."65

"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."65

"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."65

"[O]n June 1 4, 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'."66

"'Under God' in the pledge of allegiance to the flag expresses, aptly and forcefully, a grateful nation's attitude of dependence upon Almighty God. "66

"For under God this Nation lives."66

"These principles of the worthwhileness of the individual human being are meaningless unless there exists a. Supreme Being."66

"Indeed, the one fundamental issue which is the unbridgeable gap between America and Communist Russia is belief in Almighty God."66

"Fortify our youth in their allegiance to the flag by their dedication to one nation under God."66

FOOTNOTES:

33. 100 Cong. Rec. 2, 1700 (Feb. 12, 1954) (Statement of Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

34. 100 Cong. Rec. 17 (Appendix), A2515-A2516 (Apr. 1, 1954) (Statement of Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

35. 10)0 Cong. Rec. 4, 5069 (Apr. 13, 1954) (Statement of Rep. Peter W. Rodino, Jr. in support of the resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

36. 100 Cong. Rec. 5, 5915 (May 4, 1954) (Statement of Sen. Alexander Wiley in support of Sen. Ferguson's resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

37. 100 Cong. Rec. 5, 5915 (May 4, 1954) (Mlilwaukee Sentinel editorial printed in the Congressional Record - with the unanimous consent of the Senate - as requested by Sen. Alexander Wiley in support of Sen. Ferguson's resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

38. 100 ) Cong. Rec. 5, 6077-6078 (May 5, 1954) (Statement of Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

39. 100 Cong. Rec. 5, 6085 (May 5, 1954) (Statement of Rep. Francis E. Dom, supporting passage of House Joint Resolution 502 which sought to insert the words "under God" into the previously secular Pledge of Allegiance)

40. S. Rep. No. 1287, 83" Cong., 2d Sess. 2, reprinted in 100 Cong. Rec. 5, 6231 (May 10, 1954) (Letter of Sen. Homer Ferguson, sponsor of the Senate resolution to insert the words "under God" into the previously secular Pledge of Allegiance, to Sen. William Langer, Chairman of the Senate Judiciary Committee, March 10, 1954)

41. 100 Cong. Rec. 5, 6348 (May 11, 1954) (Sen. Homer Ferguson's explanation of the joint resolution to insert the words "under God" into the previously secular Pledge of Allegiance, to Sen. William Langer, Chairman of the Senate Judiciary Committee, March 10, 1954

42. 100 Cong. Rec. 5, 6919 (May 20, 1954) (Rep. Homer D. Angell's remarks on the joint resolution to insert the words "under God" into the previously secular Pledge of Allegiance)

43. 100 Cong. Rec. 18 (Appendix), A3448 (May 11, 1954) (Letter entered into the record by Rep. George H. Fallon. This was "[p]assed without a single dissenting vote, and later adopted by the DAR., the Flag House Association, the VFW, the DAV, sections of the American Legion ... ,incorporated in the pledge at the 'I Am An American Day' ... etc., etc.")

44. Cong. Rec. 18 (Appendix), A4066 (May 24, 1954) (Newspaper article from the Malden (Ivlass.) Press of May 13, 1954, entered into the record by Rep. Angler L. Goodwin.)

45. 100 Cong. Rec. 6, 7590-7591 (June 2, 1954) (Rep. John R. Pillion's statement provided on May 5, 1954 to Subcommittee No. 5 of the House Committee on the Judiciary.)

46. 100 Cong. Rec. 6, 7757 (June 7, 1954) (Statement of Rep. Oliver P. Bolton in support of the joint resolution to amend the previously secular Pledge.)

47. 100 Cong. Rec. 6, 7758 (June 7, 1954) (Statement of Rep. Brooks in support. of the joint resolution to amend the previously secular Pledge.)

48. 100 Cong. Rec. 6, 7759 (June 7, 1954) (Statement of Rep. Louis C. Rabaut in support of the joint resolution to amend the previously secular Pledge.)

49. 100 Cong. Rec. 6, 7759 (June 7, 1954) (Statement of Rep. Charles G. Oakman in support of the joint resolution to amend the preciously secular Pledge.)

50. 100 Cong. Rec. 6, 7760 (June 7, 1954) (Letter written by the Chairman of the Department of Political Science at the University of Detroit, placed into the record by Rep. Brooks in support of the joint resolution to amend the previously secular Pledge.)

51. 100 Cong. Rec. 6, 7761-7762 (June 7, 1954) (Statement. of Rep. Barratt O'Hara in support of the joint resolution to amend the previously secular Pledge.)

52. 100 Cong. Rec. 6, 7762-7763 (June 7, 195.1) (Statement. of Rep. Wolverton in support of the joint resolution to amend the previously secular Pledge.)

53 100 Cong. Rec. 6, 7763-7764 (June 7, 1954) (Statement of Rep. Peter W. Rodino, Jr. in support of the joint resolution to amend the previously secular Pledge. Amazingly, included in this statement were the words "I am firmly of the opinion that our Founding Fathers ... meant to prevent . .. any provision of law that could raise one form of religion to a position of preference over others.")

54. 100 Cong. Rec, 6, 7764 (June 7, 1954) (Statement of Rep. Oliver P. Bolton in support of the joint resolution to amend the previously secular Pledge.)

55. 100 Cong. Rec. 6, 7765-7766 (June 7, 1954) (Statement of Rep. Hugh J. Addonizio in support of the joint resolution to amend the previously secular Pledge.)

56. 100 Cong. Rec. 6, 7833-7834 (June 8, 1954) (Statement of Sen. Homer Ferguson in support of the joint resolution to amend the previously secular Pledge.)

57. 100 Cong. Rec. 6, 7935 (June 9, 19'54) (Letter from Rep. Louis C. Rabaut to President Eisenhower, informing him of the passage in Congress of the joint resolution to amend the previously secular Pledge.)

58. 100 Cong. Rec. 6, 7989 (June 10, 1954) (Statement. of Rep. Charles G. Oakman recounting the passage of the joint resolution to amend the previously secular Pledge.)

59 100 Cong. Rec. 7, 8563 (June 22, 1954) (Statement of Sen. Burke, submitting a resolution to provide for printing of the now sectarian Pledge as a Senate document. Sen, Burke also noted that the resolution adding "under God" to the previously secular Pledge had been passed by House and Senate with no opposition.)

60. 100 Cong. Ree. 7, 8617-8618 (June 2'2, 1954) (Statement of Sen. Homer Ferguson, reviewing the meaning of the new law that added "under God" to the previously secular Pledge, and recapping the events of that first Flag Day celebration with the new Pledge.)

61. 1 00 Cong. Rec. 7, 8618 (,June 22, 1954) (Statement by President Dwight D. Eisenhower, as reported by Sen. Ferguson.)

62' 100 Cong. Rec. 7, 8893 (June 24, 1954) (Statement of Rep. Louis C. Rabaut submitting a resolution to provide for printing of the now sectarian Pledge as a House document.)

63. 100 Cong. Rec. 6, 8156 (June 14, 1955) (Rep. Louis C. Rabaut's statement during the 1955 Flag Day ceremonies.)

64. 101 Cong. Rec. 18 (Appendix), A5920 A592l (Aug. 2, 1955) (Article submitted by Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words "under God" into the previously secular Pledge.)

65. 100 Cong. Rec. 11, 14918-14919 (Aug. 17, 1954) (Remarks of Rep. Wolverton entitled "One Nation Under God.")

66. 100 Cong. Ree. 12, 15828-158'29 (Aug. 20, 1954) (Remarks of Rep. Louis C. Rabaut, sponsor of the House resolution placing the words "under God" into the previously secular Pledge.)

Plaintiff/Appellant's Response to the Petitions for Rehearing and Rehearing En Banc filled by the State and Federal Defendants, Respectfully submitted, December 16, 2002, Michael Newdow, Plaintiff/Appellant, First Amendmist Church of True Science, Appendix II

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