NINTH CIRCUIT COURT OF APPEALS DECISION
(Senate - June 26, 2002)

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[Pages S6100-S6105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                NINTH CIRCUIT COURT OF APPEALS DECISION

  Mr. LIEBERMAN. Madam President, I yield the floor to the Senator from 
Florida.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Madam President, I wanted to ask this of my 
friend from Connecticut, who I think has variously served in so many 
different role models to the Senate, variously described as the Senator 
who is the conscience of the Senate, certainly as a former attorney 
general of his State, someone who understands the legal ramifications 
of arguments such as this.
  In my earlier comments today, I had said that I thought there was in 
law, and the development of law, and the development of the 
Constitution, which you and I both quoted from, the Declaration, a 
clear distinction, as the distinguished Senator has noted, of the 
freedom of religion. And that part of that body of law that would make 
up that freedom, that religious freedom, would be a freedom to worship 
as one would want, if at all, and that that is a right we jealously 
protect, just as we protect the other freedoms--freedom of speech, 
freedom of the press, freedom of assembly, and so forth--and that when 
you look at this freedom, there is a distinct difference, as the case 
law has developed, of the separation of church and state which would 
embody that idea that we don't cram religion down anybody's throat, 
that we leave it up to them individually to express their own beliefs, 
if they want to at all, and to believe as they want to, if at all. That 
is the concept of separation of church and state, as distinguished from 
there not being necessarily a separation of the state and of God.
  Quite to the contrary, on these historical documents, as I pointed 
out in that statement above the center door, in the fact that we 
elevate the Chaplain in the opening prayer, in the very formal and 
dignified opening ceremonies of the Senate, that the Chaplain is 
elevated on the top level and the Presiding Officer, while the Chaplain 
offers the prayer, is on a lower level, the fact that we have minted in 
our coins, ``In God we trust.''

  I would ask the distinguished Senator from the great State of 
Connecticut if he would share with us his commentary about that 
separation of those two concepts.

[[Page S6101]]

  Mr. LIEBERMAN. I thank my friend from Florida.
  We have worked our way along a jurisprudential path that has taken us 
in our time to a result that I believe was totally unintended by the 
Framers of the Constitution, by the writers of the Declaration of 
Independence, by the drafters of the Bill of Rights particularly. This 
decision today is the most extreme and senseless expression of it.
  We believe in the separation of church and state. We believe in 
freedom of religion. We believe in every individual's freedom to 
observe and worship as he or she is moved in his or her heart to do so. 
We have always respected nonbelievers. But we have asked that the great 
majority of Americans who may approach the altar from different paths, 
nonetheless worship the same God, that we not be deprived of our rights 
to do so, and to do so in a public context that does not diminish the 
rights of any one of us but enlarges and strengthens the rights of the 
whole. That has been the gift of this country.
  I heard it once described, I read it once described by someone, as 
America's civic religion, nondenominational, deistic, God centered, 
inclusive, and tolerant. There is a great book that had a profound 
effect on me, written by Father Neuhaus, which was called ``The Naked 
Public Square.'' It commented on some of the earlier generation of 
decisions that had put the expressions of this civic religion, this 
shared faith in God, out of our public places and said we would suffer 
from that because the vacuum doesn't remain for long; other forces, 
less humane, less moral, less unifying, tend to fill the public square.
  I always believed this pledge, with this simple statement that was 
added under President Eisenhower, that we pledge our loyalty to this 
one Nation under God, was beyond question, beyond rebuke. It is the 
baseline, most accessible statement of the source of this country's 
values and strengths.
  To my way of thinking, it obviously in no way compromises the most 
important freedom of religion, which is the most important aspect of 
the religion clause--the freedom of religion. It doesn't compromise any 
single American's ability to worship God or not to worship God as they 
choose. It certainly does not establish religion in the sense that the 
Framers clearly intended because they came from a country that had an 
official religion and discriminated against them because of their 
religion. In this sense, the American people have not lost their way. I 
think a lot of our judges have in their decisions. This one is so far 
out, so offensive, that I hope it draws a reaction that is unifying and 
constructive.
  Again, I say to my friend from Florida, my expectation is that this 
decision will be appealed. My hope is that the Supreme Court will 
overturn this decision. If they do not, then we will all join as one, I 
would guess, to offer a constitutional amendment.
  Mr. NELSON of Florida. Will the Senator further yield?
  Mr. LIEBERMAN. Yes, I will.
  Mr. NELSON of Florida. I would hope also, as he has accurately 
outlined the legal course of appeal, that there would be a rush to the 
judicial chambers to stay that ruling, as it applies to the Ninth 
Circuit, because under existing law that would mean people could not 
pledge allegiance anywhere in that circuit, which includes the great 
State of California, and others in the immediate vicinity. I would 
certainly hope there would be a stay of that ruling until it would come 
up to the U.S. Supreme Court so that they could render their decision.
  Then, as the Senator says, God forbid that they should rule that it 
were constitutional; then we could start our process here of adding to 
the Constitution that would allow that.
  I just want to associate my thoughts with those articulated so 
eloquently by the Senator from Connecticut, who comes from a different 
faith perspective than mine but with whom we are joined in the 
historical development of this Nation to which, as he pointed out, so 
many people fled from a country of established religion, and, indeed, 
even documented in the Mayflower Compact, and then memorialized in the 
Declaration of Independence, that there was something different about 
this country. It was not going to have a state-sponsored religion; 
rather, it was going to be an enclave, an oasis, a place to which 
people of all faiths could come, and those with no faith, and within 
the protection of the laws they could believe and express their beliefs 
as they so chose.

  As a result, we have this wonderful, and sometimes messy, experience 
of democracy. Sometimes we make mistakes, but we have the ability under 
this document to correct those mistakes, because of all the checks and 
balances that are inherent within this document.
  So I appreciate very much the Senator's comments. They will mean a 
lot to the rest of us.
  Mr. LIEBERMAN. I thank my friend from Florida very much for his 
leadership and eloquence. I will yield to the Senator from Nevada in a 
moment.
  Mr. WARNER. Before the Senator yields the floor, I would like to 
associate myself with this colloquy, before we close this extraordinary 
chapter of Senate history.
  I say to my colleagues, let us not wait for the Supreme Court to act. 
Why don't we go ahead and formulate this amendment, put it together, 
have it in place, presumably with all 100 U.S. Senators, and they can 
take judicial cognizance of what is about to happen. I think that might 
not be a bad idea. The Senators have initiated it, so let us join and 
we will start the recruiting today.
  Mr. LIEBERMAN. I accept the challenge and the opportunity. We will 
work on that together.
  A final thought on Senator Nelson's comments. This decision is so 
twisted. We both referred to the Declaration of Independence. There it 
is stated that the rights we enjoy as Americans are the endowment of 
our Creator or are a gift from God. So this court has interpreted the 
rights that we have to mean that we cannot join to pledge our 
allegiance to the one nation under God, whose endowment was the source 
of the rights. It is just a twisted piece of logic that is offensive to 
our values and, I believe, also to our minds.
  I thank my colleagues. I am delighted to see my friend and colleague 
from Nevada. I yield the floor to him at this time.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. Madam President, I thank my colleagues for coming to the 
floor so quickly to respond to what I believe to be an outrageous 
judicial decision by the Ninth Circuit Court of Appeals.
  Let me read from the Declaration of Independence:

       We hold these truths to be self-evident, that all men are 
     created equal, that they are endowed by their Creator with 
     certain unalienable rights.

  The fact that our Founders referred to a Creator means that they 
understood that we were a Nation founded under God.
  In the judicial decision, which I have with me--Mr. Newdow's daughter 
was the subject of this decision--it says:

       Mr. Newdow does not allege that his daughter's teacher or 
     the school district requires his daughter to participate in 
     reciting the Pledge of Allegiance. Rather, he claims that his 
     daughter is injured when she is compelled to ``watch and 
     listen'' as her state-employed teacher and her state-run 
     school leads her classmates in a ritual proclaiming that 
     there is a God and that ours is ``one nation under God.''

  It goes on further to say in a footnote that:

       Compelling the students to recite the pledge was held to be 
     a first amendment violation in the West Virginia Board of 
     Education v. Barnette in 1943.

  That has been clear. They were not alleging that she was forced to 
recite the pledge; she was just injured for having to sit there and 
listen to the Pledge of Allegiance.
  I think that our courts are completely out of control. If we study 
the history of our country, the founding principles of our country, we 
read about the proceedings of the Continental Congress. We read that 
our Founders would actually stop in the middle of a session when they 
would be in a logjam, and that they would get down on their knees right 
by their desks and pray together--pray for divine guidance for the 
decisions they were about to make.
  Does anybody really believe that our Founders, when they were 
drafting the Bill of Rights and the first amendment, where it says that 
``Congress shall make no law,'' forbidding the establishment of a 
state-run religion, that this

[[Page S6102]]

Ninth Circuit Court decision is what they meant? No, our founding 
fathers explicitly ensured the free exercise of religion. Do we think 
that the Founders believed that a Pledge of Allegiance saying that our 
Nation is ``under God,'' or that we see up here ``in God we trust,'' or 
that we see on our money ``in God we trust,'' that was a State-
established religion?
  The beautiful thing about our Creator is that he gave us the freedom 
to worship him or not. In America, we have the freedom to worship or 
not, according to what our conscience tells us.
  But to somehow say that having a child listen to the Pledge of 
Allegiance is establishing a religion and impeding on an individuals 
free exercise of religion, is outrageous.
  Let me read from part of the dissenting opinion of the circuit, 
according to Judge Fernandez:

       Such phrases as ``in God we trust'' or ``under God'' have 
     no tendency to establish a religion in this country, or to 
     suppress anyone's exercise or non-exercise of religion, 
     except in the fevered eye of persons who most fervently would 
     like to drive all tincture of religion out of public life or 
     our polity. Those expressions have not caused any real harm 
     of that sort over the years since 1791, and are not likely to 
     do so in the future.

  I think it is up to this body to take it upon itself to correct what 
the Ninth Circuit has done. I agree with the senior Senator from 
Virginia that we need to reestablish in this country what this 
document--the Constitution of the United States--really says and really 
was about. Part of that is studying the history of the founding of this 
country.
  What did the Founders intend when they wrote this document? Based on 
their practices, they did not want the state to say this is how you 
will practice a religion. The Baptists are not going to be our official 
religion, nor the Methodists, who came from Europe, where they had an 
official state religion. They, our Founders, wanted the free exercise 
to practice their religion, not according to how the state dictated, 
but to recognize that individuals have rights given by our Creator to 
worship as they, as individuals, see fit, as they were given by our 
Creator. To say that these Founders would have somehow said that it 
would be against the Constitution they were writing to recognize the 
rights given to an individual by the Creator is outrageous.
  So I hope that all Americans will be as outraged as I am by this 
decision. I think they are going to be. I was on an aircraft carrier 
this last weekend talking to a lot of the sailors that sacrifice so 
much for this country. It was during the middle of a training session 
on the U.S.S. Constellation that I was visiting with them. Like we in 
Congress do, they take an oath to defend the Constitution. I would have 
liked to have heard what their opinions would have been regarding this 
judicial decision.
  As my father taught me when I was a young man, there are no atheists 
in foxholes.
  Any time our young men and women go in to battle, God is there to 
comfort them. We have chaplains in our military to counsel people 
because we recognize that during times of battle and war, people need 
spiritual guidance, not to establish a religion, but to understand that 
we have a Creator who has blessed this country and that we need His 
guidance.
  In conclusion, Madam President, I believe this country needs to 
reestablish that we are one nation under God. Madam President, you 
experienced that in New York City on September 11. We saw the people of 
your state and the rest of the people in the United States turn to God 
for guidance. We saw posters everywhere: ``One nation under God,'' 
``United we stand, under God.''
  This country recognizes its history, and because we have been 
established under God, and remain under God, we have been blessed. If 
we abandon that now and allow the courts to abandon that, I believe 
this country will be in trouble. We simply cannot allow that to happen.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Madam President, I wanted to come to the floor to share 
with our colleagues my intent to bring a resolution to the floor this 
afternoon expressing our strong disagreement with the decision the 
Senator from Nevada has just addressed.
  I will soon propound a unanimous consent request to bring the 
resolution to the floor and to have a rollcall vote and then to allow 
Senators to express themselves once the vote has been cast. Just as 
soon as we can get agreement to set the time--I would like to do it 
within the next 15 or 20 minutes, if we can reach an agreement with the 
managers of the bill.
  Madam President, I have not had the opportunity to hear all of what 
the Senator from Nevada said, but this decision is nuts. This decision 
is just nuts. We ought to recognize that there are those who differ 
with the overwhelming sentiment expressed by Americans of all stripes, 
of all regions of the country, young and old.
  We added the language, ``under God'' in 1954. Then-President Dwight 
Eisenhower said:

       In this way, we are reaffirming the transcendence of 
     religious faith in America's heritage and future; in this 
     way, we shall constantly strengthen those spiritual weapons 
     which forever will be our country's most powerful resource in 
     peace and war.

  I agree with President Eisenhower. I agree with the overwhelming 
number of people who have already expressed themselves in the hours 
since this decision.
  The resolution we are propounding this afternoon really will state 
two things: First, our strong disagreement with the decision; and, 
second, it will authorize the legal counsel of the Senate to intervene 
on behalf of the Senate in the Supreme Court when the case comes before 
the Court. This is not unprecedented; we have done it before.

  I hope overwhelming support will be demonstrated on both sides of the 
aisle. I hope we can do this quickly. I think we need to send a clear 
message that the Congress disagrees, the Congress is going to 
intervene, the Congress is going to do all it can to live up to the 
expectations of the American people.
  We have been drawn together to face a tremendous tragedy in the last 
9 months. In part, that healing process has come by our belief in the 
Supreme Being and our belief in the faith that comes in the strength 
that we draw from our faith.
  I hope our colleagues will support the resolution. I hope we can 
address it within the next few minutes. I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, I commend our distinguished leader, and 
the Republican leader will soon come to the floor and join him on this 
matter. We had a marvelous little debate here. The distinguished 
Senator from Connecticut, the distinguished Senator from Florida, my 
distinguished colleague from Nevada, and I suggested that this body 
take action and take it fast. And here we are, ready to act.
  I respectfully and humbly ask that my name be added as a cosponsor 
behind my colleague from Connecticut and my colleague from Florida, 
wherever they might be on the roster, and those rallying to the cause.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Madam President, I simply wish to respond to the Senator 
from Virginia and thank him for his kind words and tell him I will be 
happy to add his name as a cosponsor to the resolution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Madam President, I have listened with some interest to 
what has been discussed on the floor with respect to the Ninth Circuit 
Court opinion. I have great respect for courts in this country, but it 
raises the question: Is there one ounce of common sense left when you 
hear a decision announced today that suggests that the Pledge of 
Allegiance somehow is in contravention to the principles of the 
Constitution of the United States?
  I do not understand for a moment how a majority of that court could 
have made this ruling. Some people need their collective heads examined 
when we hear opinions such as this.
  We had a celebration on the 200th birthday of the writing of the 
Constitution in that room in Philadelphia. Fifty-five people went back 
to that celebration. I was selected to be 1 of the 55. Two hundred 
years before, 55 white men were in that room in the hot summer of 
Philadelphia, and they wrote the Constitution. Two hundred

[[Page S6103]]

years later, 55 of us went back--men, women, minorities--and we had a 
ceremony and a celebration of the 200th birthday of the writing of that 
wonderful document.
  As my colleague from West Virginia, I think the resident scholar on 
the Constitution, knows, in that room sits the chair where George 
Washington sat as he presided over the Constitutional Convention, and 
Ben Franklin sat on one side, and Mason, and Madison. They debated 
during that summer the provisions of a constitution for this country.
  I sat in that room that day and thought to myself: What a remarkable 
thing it was for a man from a town of 300 people in a farming community 
in southwestern North Dakota to be able to sit in that room and 
celebrate with 54 of my colleagues the 200th birthday of the writing of 
the Constitution.

  I do not know the Constitution as my colleague, Senator Byrd, does. I 
have read it many times and studied it as best I can, but I guarantee 
you, there is not any way to creatively read that document that allows 
a court to say that somehow the Pledge of Allegiance abridges that 
document called the U.S. Constitution.
  As my colleague said, that is just plain nuts. I do not for the life 
of me understand where common sense has gone. Is there not a shred of 
common sense left when we hear these kinds of decisions coming out of a 
court, in this case the Ninth Circuit Court of Appeals?
  I am very pleased my colleague from South Dakota, the majority 
leader, will bring a resolution to the floor. I will ask to be a 
cosponsor and to speak on that resolution. We ought to not waste a 
minute in saying to that court, in responding to that opinion that says 
that is not what the Constitution says, it is not the way the 
Constitution is written, and there is not any creative way for a group 
of people to make that judgment.
  I am very pleased the Senate will this afternoon apparently have a 
record vote to say: No; absolutely not; there is not any way on Earth 
we can agree with what this court has determined.
  Madam President, I know the Senator from West Virginia is waiting to 
speak, and I will be anxious to hear his words of wisdom because he, in 
my judgment, knows more about the Constitution than anybody else in the 
Senate. He carries it with him every day, all day. He has studied it 
more than any other Member of the Senate. I know that document is 
revered by all of us, but perhaps revered by none of us quite as much 
as it is by the Senator from West Virginia. Let's hope we find ways in 
this country not to have to turn on the news and discover the next news 
cycle, the next opinion of a majority of a court that defies all common 
sense and something that requires us this afternoon to respond to, to 
restore some faith with the American people that there are some people 
at least who are able to read that Constitution and read what it says 
and understand what it says.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, it would be my suggestion that this judge 
go back and read the Declaration of Independence. I wonder if he can 
hold that Declaration to be unconstitutional--the Declaration of 
Independence.
  This is what it says:

       When in the course of human events, it becomes necessary 
     for one people to dissolve the political bands which have 
     connected them with another, and to assume among the powers 
     of the earth, the separate and equal station to which the 
     Laws of Nature and of Nature's God entitle them, a decent 
     respect to the opinions of mankind requires that they should 
     declare the causes which impel them to the separation.

  Let that judge read further, ``We hold these truths to be self-
evident, that all men are created equal, that they are endowed,''--by 
whom?--``by their Creator.''
  It is in the Declaration of Independence, ``by their Creator with 
certain unalienable Rights, that among these are Life, Liberty and the 
pursuit of Happiness.''
  Let that same judge go a little further and read in this same 
Declaration of Independence, in case he has not read it lately, and let 
him declare it unconstitutional, the reference to ``the Supreme Judge 
of the World.'' Who is this ``Supreme Judge of the World?'' Certainly, 
not some atheist. Nor is it a judge who sits on the Ninth Circuit and 
whose name is Goodwin.
  The final words of the Declaration state, ``with a firm Reliance on 
the Protection of divine Providence.'' Let atheists find something to 
bring before that judge in this Declaration of Independence. Let that 
atheist lawyer do that. Let that judge sit in his black robe and 
address the court and the Constitution and the people of the United 
States as to whether or not the words I have quoted from the 
Declaration of Independence are unconstitutional.
  Here are these words printed in the Declaration of Independence, 
``with a firm reliance on the protection of divine Providence.'' That 
judge should not be a judge in my opinion--and I can say this: I hope 
his name never comes before this Senate, while I am a Member of it, for 
any promotion. He will be remembered. Let him declare this Declaration 
of Independence unconstitutional. Do the words I have quoted offend the 
Constitution?
  I am the only Member of Congress today, bar none, in either body, who 
was a Member of the House on June 7, 1954, when the words ``under God'' 
were included in the Pledge of Allegiance. Coincidentally, may I say, 
on that same day, June 7, one year later, 1955, the House of 
Representatives voted to inscribe the words ``in God we trust'' on the 
currency and coin of the United States. Some of the coins already bore 
the inscription, but on that day, June 7, 1955, the House of 
Representatives, of which I was a member, voted to make that the 
national motto and to have it inscribed on the currency and the coin.
  Let that judge's name ever come before this Senate while I am a 
Member, and he will be blackballed--if Senators know what 
``blackballed'' means--fast. I say the sooner we can pass a 
resolution--and I want my name to be third because I am the only Member 
of Congress--let him who would challenge that stand--in either body 
today who was in Congress on the day we voted to include the words 
``under God'' in the Pledge of Allegiance.
  That same judge ought to go back and read the Mayflower Compact.
  Mr. REID. Will the Senator yield for a unanimous consent request?
  Mr. BYRD. Yes.
  Mr. REID. Madam President, I ask unanimous consent that when the 
resolution is presented, Senator Byrd's name appear third following the 
two leaders.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Madam President, I thank the distinguished Democratic whip.
  That is all I have to say for now. I hope the Senate will waste no 
time in throwing this back in the face of this stupid judge.
  Think of the history of this country, the men and the women who have 
shed their blood for this country. The men who founded this country, 
who wrote the Constitution in Philadelphia, George Washington, James 
Madison, Benjamin Franklin--what would they say if they were living 
today?

  A country that was founded by men and women who believed in a higher 
power--we do not all have to be Baptists, we do not all have to be 
Methodists, we do not all have to be Christians. But the people by and 
large who founded this country, who hewed the forests, who dredged the 
rivers, who built the bridges and who created a country from sea to 
shining sea believed in a higher power.
  What is this country coming to? What is it coming to? ``Blessed is 
the Nation whose God is the Lord.'' He can be your Lord. He can be 
mine. What are we coming to when we cannot speak God's name? Let them 
put me in jail. I will read that Bible right here on this desk. I have 
done it before. I will do it again. I have recited the pledge and so 
has every other Member of this body time and time again. Come, Judge 
Goodwin of the Ninth Circuit, put us in jail.
  I say the people of America are not going to stand for this. I, for 
one, am not going to stand for this country's being ruled by a bunch of 
atheists. If they do not like it, let them leave. They do not have to 
worship my God, but I will worship my God and no atheist and no court 
is going to tell me I

[[Page S6104]]

cannot do so whether at a school commencement or anywhere else. I say 
let's let the people speak.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I say to my friend from West Virginia, the distinguished 
senior Senator, the distinguished Member of this body, I have had the 
good fortune that two of my sons have been law clerks for the chief 
judge of the Ninth Circuit. In fact, one of my sons was his 
administrative assistant. He was a judge from Nevada, served in the 
very prestigious Ninth Circuit.
  I have had calls from my sons today. They are embarrassed about what 
has taken place in that Ninth Circuit. They said: Dad, don't worry 
about it because the court will meet en banc and reverse it.
  These are the two most liberal members of the court. They come up at 
random. It was by chance Goodwin and Reinhardt were thrown together, 
but they have done the mischief they have done to embarrass every 
lawyer in America, every judge in America except those two, and the 
people of this country are repulsed.
  I have great faith that court will reverse itself when they sit en 
banc. If they do not, I applaud the majority leader, whom I now 
understand has the support of the Republican leader, to move forward 
expeditiously tonight to let the world know the Senate is not going to 
stand idly by while these people--I had a little dialogue with Senator 
Lieberman on the floor today, with his experience as attorney general, 
being the legal scholar that I believe he is, who said without question 
that what they did was illogical.

  I agree with what the Senator from West Virginia said--it is stupid.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, this is, indeed, a shocking culmination 
of a decade-long trend of liberal activist courts that have been 
misreading the first amendment of the Constitution. The first amendment 
protects the free exercise of religion. That is what it says. It says 
Congress shall make no law respecting the establishment of a religion 
nor prohibiting the free exercise thereof. There is no word in the 
Constitution, the document ratified by the people of the United States, 
about a wall of separation. There is nothing in the Constitution that 
says we cannot have any reference in public life in America to a higher 
being.
  As the Senator from West Virginia has eloquently stated, our founding 
documents make multiple references to God.
  Indeed, the Declaration says we are created with certain inalienable 
rights. We did not create ourselves but were, indeed, created by a 
higher being. That is a strong part of our belief as a nation.
  Our courts have been on the wrong track for a long time. They have 
consistently gotten this thing wrong. Not all the courts, but the 
Federal courts to a large degree. Particularly the Ninth Circuit is out 
of the main stream, in my view. This trend has been there for some 
time. It is not part of the American tradition. In America, we need to 
respect people's religion. We need to give people a full chance to 
express their faith wherever they may choose. We should not put down or 
laugh or demean somebody else's religious belief. That is a cornerstone 
of our country.
  Madison was passionate that no State had the right to mandate 
somebody's religious faith. However, the entire trend of this country 
and the whole understanding of what we are about is that we have the 
free exercise of religion. We are entitled to exercise that faith in a 
public way. It has been part of our public life since the founding of 
our country. Somehow, the courts have gotten the idea that they should 
reverse this.
  Some say this is just one court and they are out of step. It is 
deeper than that. We have been affirming judges who have shared these 
philosophies without looking into it very closely. We have allowed 
judges to carry on a more activist view of what they think life is 
about.
  We had a recent decision of the Supreme Court, that is activist, when 
the author of the opinion declared that evolving standards call us to 
not execute a retarded person. I am not for executing retarded persons. 
I am willing to support a law to that effect. What is that saying? This 
justice and a majority on the Supreme Court were saying that they could 
change the law if they thought somebody was ``evolving'' and changing 
their views about life in general.
  Who reflects the American people in the changed views? It is the 
legislative branch. Federal judges are given lifetime appointments. 
They hold office for the rest of their life. They are required to 
discipline themselves. If they love the law, if they love the 
Constitution, as all in this country must do, they must discipline 
themselves and simply enforce that law. This trend has been unhealthy. 
We have allowed it to continue unchallenged. It is afoot in our law 
schools. They teach you cannot have any reference to faith.
  Right on the wall we have ``In God We Trust.'' The anteroom has a 
picture of a woman on the wall holding a Bible in her hand. There are 
three words engraved on the sides of the wall: One is ``government,'' 
one is ``philosophy,'' and one is ``religion.'' That is the nature of 
the founding of our country. We never doubted that religion played a 
part in American life. What we did not want was the Government to 
dictate to someone how they ought to worship. We have never done that. 
I defend anyone who thinks they are being forced to do anything with 
which they disagree.

  Life is complex. We work together and live together in harmony. If 
someone does not like the Declaration of Independence, if someone does 
not like the Constitution, they do not have to read them. If someone 
does not believe in the Pledge, they do not have to recite it. That is 
clear constitutional law.
  This is a big mistake by the court. I hope this Senate will take 
action to express the views of the people of the United States. I hope 
we will not hear talk that this is something that will be dismissed. It 
is a serious, pernicious, antireligious trend. There is a tendency and 
a trend in America by the courts to eliminate from public life any 
reference to a higher being and anybody who reads the newspapers or 
reads court opinions knows that is true.
  The Ninth Circuit is the worst. One year 27 out of 28 cases were 
reversed. They have consistently been reversed more than any other 
circuit in America.
  The New York Times, in writing about the Ninth Circuit, says a 
majority of the Supreme Court of the United States considers the Ninth 
Circuit to be a rogue circuit.
  I have been the most outspoken Member of this Senate in the years I 
have been here, over 5 years, in expressing my concern about some of 
these trends in the court, particularly in the Ninth Circuit. I have 
talked about the issues in the Ninth Circuit. We have to do better. I 
encouraged President Clinton and I encourage President Bush to send 
nominees to that circuit who will bring it back into the mainstream of 
American law.
  I hope on full rehearing en banc, the court will reverse the opinion. 
I am not absolutely sure it will, because there are others on that 
court I have no doubt will join in this opinion. Then it will go to the 
Supreme Court of the United States. They are going to have to wrestle 
with this a little bit more. They have not yet fully thought through 
their position on the free expression of religious faith in American 
life.
  It is a difficult thing. We have to cherish our freedom of religion, 
our freedom to practice religion, as well as our freedom not to have 
someone coerce any American into any religious belief. That is so much 
a part of our life that so much distinguished America from nations that 
want to have a government founded strictly on their view of faith. That 
is unhealthy.
  I hope we can adopt an expression in this Senate of our disapproval 
of this decision, but, at the same time, we do not need to treat it 
lightly. We need to go back to the grassroots, the initial heritage of 
faith in America. We need to look at some of these decisions of the 
court that have gone beyond prohibiting the establishment of a 
religion, to prohibiting any expression of religious faith at all.
  I remember Judge Griffin Bell, a great judge on the Fifth Circuit 
Court of Appeals, President Carter's Attorney

[[Page S6105]]

General. He was speaking to an Alabama Bar Association meeting when 
President Reagan was in office, not long after he left as Attorney 
General. The bar members asked: Judge Bell, what do you think about 
this litmus test that President Reagan is supposed to be applying to 
judges? I will never forget, he walked up to the microphone and said: 
We need a litmus test for judges. We don't need anybody on the Supreme 
Court who does not believe in prayer at football games.
  This is where we are. We have the courts of the United States 
prepared to send in the 82nd Airborne to some high school that allows a 
voluntary prayer to be said before the ball game starts--an expression 
that there is something more important than who is the biggest, 
meanest, and toughest out on the football field.
  I think we have a serious problem with the understanding of the first 
amendment. I am glad this body is taking it seriously. Hopefully, we 
can do something about it, but it is going to take a longtime effort.
  I yield the floor.

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