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108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     108-41

======================================================================



 
  EXPRESSING THE SENSE OF THE HOUSE OF REPRESENTATIVES THAT THE NINTH 
CIRCUIT COURT OF APPEALS RULING IN NEWDOW V. UNITED STATES CONGRESS IS 
   INCONSISTENT WITH THE SUPREME COURT'S INTERPRETATION OF THE FIRST 
       AMENDMENT AND SHOULD BE OVERTURNED, AND FOR OTHER PURPOSES

                                _______
                                

   March 18, 2003.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                     MINORITY AND ADDITIONAL VIEWS

                       [To accompany H. Res. 132]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 132) expressing the sense of the House of 
Representatives that the Ninth Circuit Court of Appeals ruling 
in Newdow v. United States Congress is inconsistent with the 
Supreme Court's interpretation of the first amendment and 
should be overturned, and for other purposes, having considered 
the same, reports favorably thereon without amendment and 
recommends that the resolution be agreed to.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    16
Committee Consideration..........................................    16
Vote of the Committee............................................    16
Committee Oversight Findings.....................................    17
Performance Goals and Objectives.................................    17
New Budget Authority and Tax Expenditures........................    17
Committee Cost Estimate..........................................    17
Constitutional Authority Statement...............................    17
Section-by-Section Analysis and Discussion.......................    17
Markup Transcript................................................    20
Minority Views...................................................    45
Additional Views.................................................    49
Additional Views.................................................    51

                          PURPOSE AND SUMMARY

    The purpose of H. Res. 132, introduced by Rep. Doug Ose on 
March 6, 2003, is to express the sense of the House of 
Representatives that the phrase, ``one Nation under God,'' 
should remain in the Pledge of Allegiance \1\; that the Ninth 
Circuit Court of Appeals ruling in Newdow v. U.S. Congress \2\ 
is inconsistent with the Supreme Court's interpretation of the 
First Amendment; that the Attorney General of the United States 
should appeal the Ninth Circuit's ruling; and that the 
President should nominate, and the Senate confirm, Federal 
circuit court judges who will interpret the Constitution 
consistent with the Constitution's text. It also encourages 
school districts across the Nation to continue reciting the 
Pledge daily and praises the Elk Grove, California School 
District for its defense of the Pledge of Allegiance against 
this constitutional challenge.
---------------------------------------------------------------------------
    \1\ The Pledge reads, ``I pledge allegiance to the Flag of the 
United States of America, and to the Republic for which it stands, one 
Nation under God, indivisible, with liberty and justice for all.'' 4 
U.S.C. Sec. 4.
    \2\ No. 00-16423, 2003 WL 554742, (9th Cir. Feb. 28, 2003) (Newdow 
II).
---------------------------------------------------------------------------

                Background and Need for the Legislation

         THE NINTH CIRCUIT'S RULINGS IN NEWDOW V. U.S. CONGRESS

    Michael Newdow is an atheist whose daughter attends Elk 
Grove Unified School District (``EGUSD'') in California. Under 
California's Education Code, public schools are required to 
begin each school day with an ``appropriate patriotic 
exercise[s].'' \3\ Accordingly, EGUSD instituted a policy under 
which `` `[e]ach elementary school class shall recite the 
pledge of allegiance to the flag once each day.' '' \4\ Under 
these policies, the Pledge of Allegiance was recited at the 
start of each school day in EGUSD classrooms, including 
Newdow's daughter's class.
---------------------------------------------------------------------------
    \3\ ``In every public elementary school each day during the school 
year at the beginning of the first regularly scheduled class or 
activity period at which the majority of the pupils of the school 
normally begin the school day, there shall be conducted appropriate 
patriotic exercises. The giving of the Pledge of Allegiance to the Flag 
of the United States of America shall satisfy the requirements of this 
section.'' Cal. Educ. Code Sec. 52720 (1989).
    \4\ Newdow II at 14.
---------------------------------------------------------------------------
    Objecting to this practice, Newdow filed suit, seeking 
declaratory and injunctive relief, against the U.S. Congress, 
the United States of America, the President, the State of 
California, and the EGUSD, challenging the constitutionality of 
the 1954 Act amending the Pledge to include the phrase, ``one 
Nation under God,'' the California Statute, and the school 
district's policy of requiring teachers to lead willing 
students in the recitation of the Pledge.\5\ Newdow's suit, 
however, did not assert that his daughter was required to 
recite the Pledge but, rather, that her First Amendment rights 
were violated by her being required to ``watch and listen as 
her state-employed teacher in her state-run school leads her 
classmates in a ritual proclaiming that there is a God, and 
that our's [sic] is `one nation under God.' '' \6\
---------------------------------------------------------------------------
    \5\ See Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002) 
(Newdow I).
    \6\ Newdow II at *14.
---------------------------------------------------------------------------
    The U.S. Congress, the United States, and the President of 
the United States joined in the motion to dismiss filed by the 
EGUSD. The Federal district court granted this motion to 
dismiss, Newdow appealed, and on June 26, 2002, a panel of the 
Ninth Circuit, in Newdow I, reversed this dismissal.\7\ As to 
Newdow's standing to challenge the recitation of the Pledge, 
the panel concluded that Newdow had standing ``as a parent to 
challenge a practice that interferes with his right to direct 
the religious education of his daughter'' \8\; that he may 
challenge the EGUSD's policy and practice regarding the Pledge 
because his daughter currently attends one of the school 
district's schools \9\; and that he has suffered an `` `injury 
in fact' that is `fairly traceable' to the enactment of the 
1954 Act.'' \10\
---------------------------------------------------------------------------
    \7\ See Newdow I. The panel, however, did affirm the district 
court's dismissal of the U.S. Congress and the President as parties. 
See id. The State of California did not join the motion to dismiss nor 
did it otherwise participate in the district court proceedings so the 
Newdow I panel declined to address the validity, separately, of the 
California Statute. See id. at 602. The panel's decision was not 
unanimous. Circuit Judge Goodwin authored the panel's opinion and 
Circuit Judge Reinhardt joined in that opinion. Circuit Judge Fernandez 
concurred with the panel opinion on the issues of jurisdiction and 
standing but dissented from the panel's Establishment Clause holding. 
See id. at 612.
    \8\ Id. at 602.
    \9\ See id. at 603.
    \10\ See id. at 605.
---------------------------------------------------------------------------
    As for its Establishment Clause analysis, the panel held 
that the Pledge of Allegiance as currently written to include 
the phrase, ``one Nation under God,'' was unconstitutional for 
three reasons: the inclusion of ``one Nation under God,'' 
unconstitutionally endorses religion,\11\ the phrase was added 
to the Pledge in 1954 only to advance religion in violation of 
the Establishment Clause,\12\ and that the recitation of the 
Pledge in public schools at the start of every school day 
coerces students who choose not to recite the Pledge into 
participating in a religious exercise in violation of the 
Establishment Clause of the First Amendment.\13\ The panel also 
held the EGUSD's policy of reciting the Pledge unconstitutional 
as having the effect of endorsing the existence of a 
``monotheistic God.'' \14\ Thus the panel reversed the Federal 
district court's dismissal and the case was remanded for 
further proceedings.
---------------------------------------------------------------------------
    \11\ ``In the context of the Pledge, the statement that the United 
States is a nation `under God' is an endorsement of religion. It is a 
profession of a religious belief, namely, a belief in monotheism. The 
recitation that ours is a nation `under God' is not a mere 
acknowledgment that many Americans believe in a deity. Nor is it merely 
descriptive of the undeniable historical significance of religion in 
the founding of the Republic. Rather, the phrase `one nation under God' 
in the context of the Pledge is normative. To recite the Pledge is not 
to describe the United States; instead, it is to swear allegiance to 
the values for which the flag stands: unity, indivisibility, liberty, 
justice, and--since 1954--monotheism. The text of the official Pledge, 
codified in Federal law, impermissibly takes a position with respect to 
the purely religious question of the existence and identity of God.'' 
Id. at 607.
    \12\ ``[T]he legislative history of the 1954 Act reveals that the 
Act's sole purpose was to advance religion, in order to differentiate 
the United States from nations under communist rule'' and to ``take a 
position on the question of theism, namely, to support the existence 
and moral authority of God, while `deny[ing] . . . atheistic and 
materialistic concepts.' Such a purpose runs counter to the 
Establishment Clause, which prohibits the government's endorsement or 
advancement not only of one particular religion at the expense of other 
religions, but also of religion at the expense of atheism.'' Id. at 
610.
    \13\ ``[T]he policy and the Act place students in the untenable 
position of choosing between participating in an exercise with 
religious content or protesting.'' Id. at 608. The panel reasoned that, 
``[a]lthough the defendants argue that the religious content of `one 
nation under God' is minimal, to an atheist or a believer in certain 
non-Judeo-Christian religions or philosophies, it may reasonably appear 
to be an attempt to enforce a `religious orthodoxy' of monotheism, and 
is therefore impermissible. The coercive effect of this policy is 
particularly pronounced in the school setting given the age and 
impressionability of schoolchildren, and their understanding that they 
are required to adhere to the norms set by their school, their teacher, 
and their fellow students. Furthermore, under Lee, the fact that 
students are not required to participate is no basis for distinguishing 
Barnette from the case at bar because, even without a recitation 
requirement for each child, the mere fact that a pupil is required to 
listen every day to the statement `one nation under God' has a coercive 
effect.'' Id. at 609.
    \14\ ``Given the age and impressionability of schoolchildren, as 
discussed above, particularly within the confined environment of the 
classroom, the policy is highly likely to convey an impermissible 
message of endorsement to some and disapproval to others of their 
beliefs regarding the existence of a monotheistic God.'' Id. at *611.
---------------------------------------------------------------------------
    Following its June 2002 ruling, the Ninth Circuit 
immediately issued a stay to allow parties to file rehearing 
petitions. In August 2002, the defendants filed a petition for 
rehearing and a petition for a rehearing en banc. On February 
28, 2003, the panel denied these petitions and amended its June 
26, 2002, ruling.\15\ In its amended ruling, Newdow II, the 
panel held that the EGUSD's policy and practice of opening each 
school day with the voluntary recitation of the Pledge 
``impermissibly coerces a religious act'' on the part of those 
students who choose not to recite the Pledge and thus violates 
the [E]stablishment [C]lause of the [F]irst [A]mendment.\16\
---------------------------------------------------------------------------
    \15\ See Newdow II. There are 24 active judges sitting on the Ninth 
Circuit Court of Appeals. The case would have been reheard if a 
majority, in this case thirteen, of the active judges voted in favor of 
a rehearing. In addition to the panel's amended ruling, including an 
amended concurrence and partial dissent from Judge Fernandez, Judge 
O'Scannlain issued a dissent from the court's denial of rehearing en 
banc in which five judges joined. Judge Reinhardt filed an opinion 
concurring in the order.
    \16\ ``We are free to apply any or all of the three tests, and to 
invalidate any measure that fails any one of them. Because we conclude 
that the school district policy impermissibly coerces a religious act 
and accordingly hold the policy unconstitutional, we need not consider 
whether the policy fails the endorsement test or the Lemon Test as 
well.'' Id. at *18.
---------------------------------------------------------------------------
    Citing to Lee v. Weisman \17\ in which the U.S. Supreme 
Court held unconstitutional the practice of public schools 
assisting in the composition of a graduation prayer that was 
later led by a member of the clergy, the panel in Newdow II 
concluded that, ``The school district's policy here, like the 
school's action in Lee, places students in the untenable 
position of choosing between participating in an exercise with 
religious content or protesting.'' \18\ The panel reasoned 
that,
---------------------------------------------------------------------------
    \17\ 505 U.S. 577 (1992).
    \18\ Newdow II at *19.

        ``[t]he coercive effect of the policy here is 
        particularly pronounced in the school setting given the 
        age and impressionability of schoolchildren, and their 
        understanding that they are required to adhere to the 
        norms set by their school, their teacher and their 
        fellow students. Furthermore, under Lee, non-compulsory 
        participation is no basis for distinguishing Barnette 
        from the case at bar because, even without a recitation 
        requirement for each child, the mere presence in the 
        classroom every day as peers recite the statement `one 
        nation under God' has a coercive effect.'' \19\
---------------------------------------------------------------------------
    \19\ Id. at *20.

The panel responded to the dissent's criticism that Newdow II's 
holding is inconsistent with Supreme Court precedent by boldly 
stating, ``[t]he Supreme Court has addressed the Pledge in 
passing, and we owe due deference to its dicta. . . . Our 
opinion, however, is not inconsistent with this dicta.'' \20\ 
The panel attempted to distinguish the Pledge from the recital 
of other historical documents, ``[t]he Pledge differs from the 
Declaration and the anthem in that its reference to God, in 
textual and historical context, is not merely a reflection of 
the author's profession of faith. It is, by design, an 
affirmation by the person reciting it,'' \21\ and the 
recitation of the Pledge by adults in other public contexts, 
``[w]e may assume arguendo that public officials do not 
unconstitutionally endorse religion when they recite the 
Pledge, yet it does not follow that schools may coerce 
impressionable young schoolchildren to recite it, or even to 
stand mute while it is being recited by their classmates.'' 
\22\
---------------------------------------------------------------------------
    \20\ Id.
    \21\ Id.
    \22\ Id.
---------------------------------------------------------------------------
    The panel then proceeded to attack the Seventh Circuit 
Court of Appeals' conclusion in Sherman v. Community 
Consolidated School District 21,\23\ the only other circuit to 
consider the recitation of the Pledge of Allegiance by public 
school students at the commencement of the school day. It 
concludes that the Seventh Circuit's holding was flawed because 
it did not apply Lee's coercion test.\24\
---------------------------------------------------------------------------
    \23\ 980 F.2d 437 (7th Cir. 1992).
    \24\ ``Instead of applying any of the tests announced by the 
Supreme Court, the Seventh Circuit simply frames the question as 
follows: `Must ceremonial references in civic life to a deity be 
understood as prayer, or support for all monotheistic religions, to the 
exclusion of atheists and those who worship multiple gods?' 980 F.2d at 
445. For the reasons we have already explained, this question is simply 
not dispositive of whether the school district policy impermissibly 
coerces a religious act.'' Newdow II at *21.
---------------------------------------------------------------------------
    In contrast to Newdow I, Newdow II fails to address 
plaintiff-appellant Newdow's standing to challenge the 1954 
act.\25\ Although the court refused to reach the question of 
Newdow's standing to challenge the 1954 statute, the statute, 
in a practical sense must be considered unconstitutional, at 
least as applied to its voluntary recitation in the public 
school classroom; the inclusion of ``under God'' no longer 
renders that statute, on its face, suspect as an 
unconstitutional endorsement of religion but its mere 
recitation in the presence of children, or dissenting children, 
is unconstitutional.\26\
---------------------------------------------------------------------------
    \25\ Because the amended ruling did not dismiss the United States 
as a party or rule conclusively that Newdow lacked jurisdiction to 
challenge the 1954 statute, it should be assumed that the United States 
is still a party to the suit and as such retains an interest in the 
outcome of the litigation and will have standing to appeal the ruling 
in Newdow II. In addition, the United States operates several schools 
that fall within the territory of the Ninth Circuit and thus retains 
standing in its capacity of operating those schools.
    \26\ As Justice O'Scannlain stated, ``the Pledge was 
unconstitutional for everybody; in Newdow II the Pledge is only 
unconstitutional for public school children and teachers.'' Newdow II 
at *4 (O'Scannlain, J., dissenting.
---------------------------------------------------------------------------
    On March 4, 2003, the panel issued a 90-day stay of its 
order in Newdow II. The ruling affects public school systems at 
which the Pledge is recited in Alaska, Arizona, California, 
Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and 
the Norther Mariana. The 9.6 million public school students in 
these states and territories account for approximately one-
fifth of the Nation's public school students.\27\
---------------------------------------------------------------------------
    \27\ See U.S. Dept. of Ed., Nat'l. Ctr. For Ed. Statistics, 
available at http://nces.ed.gov/pubs2002/snf--report/table--01--1.asp.
---------------------------------------------------------------------------

           CONGRESSIONAL RESPONSE TO NEWDOW V. U.S. CONGRESS

    Congressional reaction to the Ninth Circuit's ruling in 
Newdow I was immediate. On June 26, 2002, Judiciary Committee 
Chairman F. James Sensenbrenner introduced H. Res. 459, in 
which the House reaffirmed the Pledge as currently written, to 
include the phrase, ``one Nation under God,'' and urged the 
Ninth Circuit to rehear the panel's ruling. H. Res. 459 passed 
by a 416 to 3 vote, with 11 Members voting present. On June 26, 
2002, the Senate approved S. Res. 292, reaffirming its support 
for the Pledge of Allegiance, by a 99 to 0 vote. Similarly, on 
June 27, 2002, Sen. Tim Hutchinson introduced and the Senate 
approved, by a 99 to 0 vote, S. 2690 which reaffirmed that the 
language of the Pledge of Allegiance should continue to include 
the phrase ``one Nation under God'' and that the national motto 
should remain, ``In God we trust.'' The Judiciary Committee 
considered S. 2690 in a markup session on September 12, 2002, 
and reported out the bill with an amendment.\28\ S. 2690 was 
then approved by the House by a 401 to 5 vote, with 4 Members 
voting present.
---------------------------------------------------------------------------
    \28\ Mr. Nadler and Mr. Scott offered an amendment to S. 2690 to 
clarify that section 4 of title 4's requirement that men, who are not 
in uniform, `remove their headdress with their right hand and hold it 
at the left shoulder, the hand being over the heart' prior to reciting 
the Pledge only applies to a `non-religious' headdress. The amendment 
was agreed to by a voice vote. See H.R. Rep. No. 107-659, at 8 (2002).
---------------------------------------------------------------------------
    In the days following the Ninth Circuit panel's issuance of 
its amended ruling, the Senate approved S. Res. 71, expressing 
its support for the Pledge of Allegiance, stating that the 
Senate ``strongly disapproves'' of the panel's amended ruling, 
Newdow II, and the decision of the Ninth Circuit not to rehear 
the case, and authorizing and instructing Senate Legal Counsel 
to seek to intervene in the case or to file an amicus curiae 
brief in support of the constitutionality of the Pledge as 
currently drafted. S. Res. 71 passed the Senate on March 4, 
2003, by a 94 to 0 vote.

                        CONSTITUTIONAL ANALYSIS

    The Ninth Circuit clearly erred when it concluded, as a 
matter of Supreme Court precedent, that the voluntary 
recitation of the Pledge of Allegiance is a religious act. To 
conclude otherwise is to have misinterpreted the last 40 years 
of Supreme Court precedent.\29\ Justice O'Scannlain, dissenting 
in Newdow II, summarized the numerous instances in which the 
Court has distinguished the Pledge from otherwise prohibited 
activity:
---------------------------------------------------------------------------
    \29\ See Newdow II. See also id. at *4 (O'Scannlain, J., 
dissenting) (``With grim insistence, the majority in Newdow II 
continues to stand by its original error--that voluntary recitation of 
the Pledge of Allegiance in public school violates the Establishment 
Clause because, according to the two-judge panel majority, it is `a 
religious act.' '').

        Several other Supreme Court cases contain explicit 
        references to the constitutionality of the Pledge. See 
        Engel, 370 U.S. at 440 n.5 (Douglas, J., concurring) 
        (``[The Pledge] in no way run[s] contrary to the First 
        Amendment'') (quoting H.R. Rep. No. 1693, 83d Cong., 2d 
        Sess., p. 3); Schempp, 374 U.S. at 304 (Brennan, J., 
        concurring) (``[R]eciting the Pledge may be no more of 
        a religious exercise than the reading aloud of 
        Lincoln's Gettysburg Address.''); Wallace, 472 U.S. at 
        78 n.5 (O'Connor, J., concurring) (``[T]he words `under 
        God' in the Pledge . . . serve as an acknowledgment of 
        religion.''); Co. of Allegheny v. ACLU, 492 U.S. 573, 
        602-03, 109 S.Ct. 3086, 106 L.Ed.2d 472 (Blackmun, J., 
        for the court) (``Our previous opinions have considered 
        in dicta . . . the Pledge, characterizing [it] as 
        consistent with the proposition that government may not 
        communicate an endorsement of religious belief.''); 
        Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 
        L.Ed.2d 604, 676 (1984) (Burger, C.J., for the court) 
        (``Other examples of reference to our religious 
        heritage are found . . . in the language ``One nation 
        under God,'' as part of the Pledge of Allegiance to the 
        American flag. That Pledge is recited by many thousands 
        of public school children--and adults--every 
        year.'').\30\
---------------------------------------------------------------------------
    \30\ Newdow II at *11.
---------------------------------------------------------------------------
Is the Pledge of Allegiance A Religious Act?
    Simply put, reciting the Pledge of Allegiance is not a 
religious act. To conclude otherwise is to misinterpret the 
last 40 years of Supreme Court precedent. Yet, ``[w]ith grim 
insistence, the majority in Newdow II continues to stand by its 
original error--that voluntary recitation of the Pledge of 
Allegiance in public school violates the Establishment Clause 
because, according to the two-judge panel majority, it is `a 
religious act.' '' \31\ In the words of Judge O'Scannlain in 
dissent, ``[n]o court, state or federal, has ever held that the 
Supreme Court's school prayer cases apply outside a context of 
state-sanctioned formal religious observance.'' \32\ The 
importance of this distinction is that as a result, no court 
has ever applied the indirect coercion analysis to public 
school activities that are not a formal religious exercise. 
This is the crucial mistake made by the Newdow II panel, 
``[t]he panel majority simply ignores . . . the `dominant and 
controlling facts' '' in the school prayer cases ``that 
Establishment Clause violations in public schools are triggered 
only when `State officials direct the performance of a formal 
religious exercise.' 505 U.S. at 586.'' \33\
---------------------------------------------------------------------------
    \31\ Id. at *4 (O'Scannlain, J., dissenting).
    \32\ Id. at *9 (O'Scannlain, dissenting).
    \33\ Id. (emphasis in original).
---------------------------------------------------------------------------
    It's instructive to look at the circumstances under which 
the Pledge is recited in American culture. The Pledge is 
recited in schools and at most public government ceremonies 
including naturalization ceremonies. One can recall from 
personal experience, however, that the Pledge is never, or very 
rarely, recited at religious worship ceremonies held in houses 
of worship. Unlike reciting the Pledge, ``to pray is to speak 
directly to God, with bowed head, on bended knee, or some other 
reverent disposition. It is a solemn and humble approach to the 
divine in order to give thanks, to petition, to praise, to 
supplicate or to ask for guidance.'' \34\
---------------------------------------------------------------------------
    \34\ Id. at *10.
---------------------------------------------------------------------------
    In Engel v. Vitale \35\ the Court considered a school 
policy under which public school children were required to 
recite a state composed prayer at the commencement of each 
school day. It's instructive to review the Court's analysis of 
what it ultimately determined was proscribed by the 
Establishment Clause of the First Amendment. In Engel, the 
state-composed prayer read, `` `Almighty God, we acknowledge 
our dependence upon Thee, and we beg Thy blessings upon us, our 
parents, our teachers and our Country.' '' \36\ Of this prayer, 
the recitation of which is clearly a religious activity, the 
Court stated, ``[t]here can, of course, be no doubt that New 
York's program of daily classroom invocation of God's 
blessings, as prescribed in the Regents' prayer, is a religious 
activity. It is a solemn avowal of divine faith and 
supplication for the blessings of the Almighty.'' \37\ 
Throughout its opinion in Engel, the Court referred to the 
prayer as the offending act. In fact, the Court made this 
distinction quite clear:
---------------------------------------------------------------------------
    \35\ 370 U.S. 421 (1962).
    \36\ Id. at 422.
    \37\ Id. at 424.

        There is of course nothing in the decision reached here 
        that is inconsistent with the fact that schoolchildren 
        and others are officially encouraged to express love 
        for our country by reciting historical documents such 
        as the Declaration of Independence which contain 
        references to the Deity or by singing officially 
        espoused anthems which include the composer's 
        professions of faith in a Supreme Being, or with the 
        fact that there are many manifestations in our public 
        life of belief in God. Such patriotic or ceremonial 
        occasions bear no true resemblance to the unquestioned 
        religious exercise that the State of New York has 
        sponsored in this instance.\38\
---------------------------------------------------------------------------
    \38\ Id. at 435 n.21 (emphasis added).

This statement would certainly support the assertion that 
California's statute and the EGUSD's policy, under which the 
pledge is recited daily, directs schools to do just as the 
Engel court suggested that it could, ``encourage[d] [students] 
to express love for our country,'' and there should be little 
doubt that such policies are within the bounds of 
constitutionally accepted activity under the Establishment 
Clause.
    In School District of Abington Township v. Schempp \39\ the 
Court held that a Pennsylvania statute under which Bible verses 
were required to be read aloud at the opening of each public 
school day and a school district's policy under which this was 
followed by the Lord's prayer, unconstitutional. \40\ 
Significantly, the Bible reading and prayer at issue in Schempp 
were followed by a recitation of the Pledge of Allegiance which 
was not challenged by plaintiffs and was not questioned by the 
Court. The Schempp court, affirming the holding of the district 
court, cited from the findings of fact in Schempp:
---------------------------------------------------------------------------
    \39\ 374 U.S. 203 (1963).
    \40\ Characterizing the practice at issue in Schempp as the 
majority opinion referred to the ``pervading religious character of the 
ceremony.'' Id. at 224.

        The reading of the verses, even without comment, 
        possesses a devotional and religious character and 
        constitutes in effect a religious observance. The 
        devotional and religious nature of the morning 
        exercises is made all the more apparent by the fact 
        that the Bible reading is followed immediately by a 
        recital in unison by the pupils of the Lord's Prayer.'' 
        \41\
---------------------------------------------------------------------------
    \41\ Id. at 210. See also id. at 277-78 (Brennan, J., concurring) 
(``the panorama of history permits no other conclusion than that daily 
prayers and Bible readings in the public schools have always been 
designed to be, and have been regarded as, essentially religious 
exercises'').

It is difficult to argue that reciting the Pledge of Allegiance 
``possesses a devotional and religious character'' similar to 
that of reading the Bible, of which the majority opinion in 
Schempp observed, ``[s]urely the place of the Bible as an 
instrument of religion cannot be gainsaid.'' \42\ Furthermore, 
if the Bible reading was suspect in part because of the context 
surrounding its recital, the recitation of the Lord's Prayer 
immediately following, then certainly the Court should have, 
and would have, included the Pledge as another contextual 
element making the Bible reading suspect and, similarly, found 
the Pledge equally suspect as another religious exercise. Yet, 
the Court made absolutely no mention of the practice in its 
analysis.
---------------------------------------------------------------------------
    \42\ Id. at 224.
---------------------------------------------------------------------------
    Justice Brennan, concurring in Schempp, was also of the 
opinion that the Pledge was not a religious act, the recitation 
of which in a public school classroom would have to thus be 
prohibited by the Establishment Clause. Speaking of ``less 
sensitive materials'' that ``might equally well serve'' the 
purpose of ``fostering harmony and tolerance among the pupils, 
enhancing the authority of the teacher, and inspiring better 
discipline,'' Brennan declared that, ``readings from the 
speeches and messages of great Americans, for example, or from 
the documents of our heritage of liberty, daily recitation of 
the Pledge of Allegiance, or even the observance of a moment of 
reverent silence at the opening of class'' might ``adequately 
serve the solely secular purposes of the devotional 
activities'' that had been found unconstitutional in the 
Schempp case.\43\ Justice Brennan expanded,
---------------------------------------------------------------------------
    \43\ Id. at 280-81.

        The truth is that we have simply interwoven the motto 
        so deeply into the fabric of our civil polity that its 
        present use may well not present that type of 
        involvement which the First Amendment prohibits. This 
        general principle might also serve to insulate the 
        various patriotic exercises and activities used in the 
        public schools and elsewhere which, whatever may have 
        been their origins, no longer have a religious purpose 
        or meaning. The reference to divinity in the revised 
        pledge of allegiance, for example, may merely recognize 
        the historical fact that our Nation was believed to 
        have been founded `under God.' Thus reciting the pledge 
        may be no more of a religious exercise than the reading 
        aloud of Lincoln's Gettysburg Address, which contains 
        an allusion to the same historical fact.'' \44\
---------------------------------------------------------------------------
    \44\ Id. at 303-04 (emphasis added). A review of the House of 
Representatives Committee Report filed in conjunction with the passage 
of legislation adding ``under God'' to the Pledge of Allegiance only 
adds support to Brennan's analysis,

      At this moment of our history the principles underlying our 
      American Government and the American way of life are under 
      attack by a system whose philosophy is at direct odds with 
      our own. Our American Government is founded on the concept 
      of the individuality and the dignity of the human being. 
      Underlying this concept is the belief that the human person 
      is important because he was created by God and endowed by 
      Him with certain inalienable rights which no civil 
---------------------------------------------------------------------------
      authority may usurp.

H.R. Rep. 83-396 (1954).

Even if the recitation of the Pledge and various other founding 
documents containing religious references or statements of the 
religious beliefs of the authors does become an act of 
religious worship for some public school students, the 
government cannot prohibit certain non-religious activities 
simply because some participants may privately use the act of 
reciting these documents as an opportunity for a spiritual, 
religious exercise.
    Justice Douglas, concurring in Schempp, agreed that the 
activity at issue in the case was constitutionally suspect 
because ``the State is conducting a religious exercise.'' \45\ 
Justice Goldberg, similarly, described the constitutionally 
suspect activity at issue in Schempp as follows, ``[t]he state 
has ordained and has utilized its facilities to engage in 
unmistakably religious exercises--the devotional reading and 
recitation of the Holy Bible.'' \46\ Goldberg continued and 
described the ``pervasive religiosity . . . inhering in the 
prescription of prayer and Bible reading in the public schools, 
during and as part of the curricular day.'' \47\
---------------------------------------------------------------------------
    \45\ Id. at 229 (Douglas, J., concurring) (emphasis added).
    \46\ Id. at 307.
    \47\ Id.IIII
---------------------------------------------------------------------------
    Justice O'Connor is also of the opinion that the inclusion 
of ``under God'' in the Pledge reflects a historical fact and 
does not turn the pledge into a statement of religious faith or 
belief, ``In my view, the words `under God' in the Pledge . . . 
serve as an acknowledgment of religion with `the legitimate 
secular purposes of solemnizing public occasions, [and] 
expressing confidence in the future.' '' \48\ Referring to the 
Court's opinion in both Engel and Schempp O'Connor has stated,
---------------------------------------------------------------------------
    \48\ Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) quoting Lynch 
v. Donnelly, 465 U.S. 668, 693 (1984) (O'Connor, J., concurring).

        The Engel and Abington decisions are not dispositive on 
        the constitutionality of moment of silence laws. In 
        those cases, public school teachers and students led 
        their classes in devotional exercises. In Engel, a New 
        York statute required teachers to lead their classes in 
        a vocal prayer. The Court concluded that ``it is no 
        part of the business of government to compose official 
        prayers for any group of the American people to recite 
        as part of a religious program carried on by the 
        government.'' 370 U.S., at 425, 82 S.Ct., at 1264. In 
        Abington, the Court addressed Pennsylvania and Maryland 
        statutes that authorized morning Bible readings in 
        public schools. The Court reviewed the purpose and 
        effect of the statutes, concluded that they required 
        religious exercises, and therefore found them to 
        violate the Establishment Clause. 374 U.S., at 223-224, 
        83 S.Ct., at 1572. Under all of these statutes, a 
        student who did not share the religious beliefs 
        expressed in the course of the exercise was left with 
        the choice of participating, thereby compromising the 
        nonadherent's beliefs, or withdrawing, thereby calling 
        attention to his or her nonconformity. The decisions 
        acknowledged the coercion implicit under the statutory 
        schemes, see Engel, supra, at 431, 82 S.Ct., at 1267, 
        but they expressly turned only on the fact that the 
        government was sponsoring a manifestly religious 
        exercise.'' \49\
---------------------------------------------------------------------------
    \49\ Wallace v. Jaffree, 472 U.S. 38, 71-2 (1985) (O'Connor, J., 
concurring) (emphasis added).

For O'Connor, Alabama's moment of silence law, which was struck 
down as violating the Establishment Clause in Jaffree, was 
constitutionally suspect because the State ``intentionally 
crossed the line between creating a quiet moment during which 
those so inclined may pray, and affirmatively endorsing the 
particular religious practice of prayer.'' \50\
---------------------------------------------------------------------------
    \50\ Id. at 84.
---------------------------------------------------------------------------
    Finally, in Lee v. Weisman,\51\ the case the Newdow II 
panel relied so heavily upon, in which the Court struck down a 
school district's practice of inviting a clergy member to give 
a graduation prayer authored with the assistance of school 
officials, the Court continued to clearly limit its holding to 
the facts at hand, the formal religious exercise of prayer. As 
in Schempp, the activity at issue in Lee occurred in 
conjunction with the recitation of the Pledge of 
Allegiance.\52\ Justice Kennedy, writing for the majority, 
began his analysis stating that ``the significance of the 
prayers lies . . . at the heart'' of the case.\53\ Kennedy 
continued,
---------------------------------------------------------------------------
    \51\ 505 U.S. 577 (1992).
    \52\ ``There the students stood for the Pledge of Allegiance and 
remained standing during the rabbi's prayers.'' Lee at 583.
    \53\ Id. at 584.

        These dominant facts mark and control the confines of 
        our decision: State officials direct the performance of 
        a formal religious exercise at promotional and 
        graduation ceremonies for secondary schools. Even for 
        those students who object to the religious exercise, 
        their attendance and participation in the state-
        sponsored religious activity are in a fair and real 
        sense obligatory, though the school district does not 
        require attendance as a condition for receipt of the 
        diploma.\54\
---------------------------------------------------------------------------
    \54\ Id. at 586. Justice Kennedy continued, ``Conducting this 
formal religious observance conflicts with settled rules pertaining to 
prayer exercises for students, and that suffices to determine the 
question before us.'' Id. at 587.

Significantly, for the Newdow II panel's holding, the Lee court 
stated, ``We do not hold that every state action implicating 
religion is invalid if one or a few citizens find it offensive. 
People may take offense at all manner of religious as well as 
nonreligious messages, but offense alone does not in every case 
show a violation. We know too that sometimes to endure social 
isolation or even anger may be the price of conscience or 
nonconformity.'' \55\ That the Newdow II panel would not even 
acknowledge the clear distinctions between the facts at issue 
in Newdow and those at issue in Lee understandably causes 
observers to question the Newdow II panel's willingness or 
ability to interpret the Constitution and apply U.S. Supreme 
Court precedent.
---------------------------------------------------------------------------
    \55\ Id. at 597-98.
---------------------------------------------------------------------------
The Constitution Prohibits Compelling Public School Students To Recite 
        the Pledge of Allegiance
    It's important that we recognize the right of those who do 
not share the beliefs expressed in the Pledge to refrain from 
its recitation, and under West Virginia Board of Education v. 
Barnette individuals cannot be compelled to recite the Pledge 
of Allegiance or to engage in any speech with which they 
disagree.\56\ In Barnette, the Board of Education passed a 
resolution which required that all teachers and pupils 
participate in the salute to the flag.\57\ Barnette, a 
Jehovah's Witness, brought suit claiming that the resolution 
denied him ``freedom of speech'' and ``freedom of worship'' 
under the First Amendment, because it required him to bow to a 
``graven image'' which is prohibited under the Jehovah's 
teachings.\58\ Writing for the majority, Justice Frankfurter 
contended, ``If there is any fixed star in our constitutional 
constellation, it is that no official, high or petty, can 
prescribe what shall be orthodox in politics, nationalism, 
religion, or other matters of opinion or force citizens to 
confess by word or act their faith therein.\59\ The Court 
concluded that the resolution amounted to compelled speech 
which ``invades the sphere of intellect and spirit which it is 
the purpose of the First Amendment to our Constitution to 
reserve from all official control.'' \60\
---------------------------------------------------------------------------
    \56\ See 319 U.S. 624 (1943).
    \57\ See id. at 627.
    \58\ See id. at 630. ``The Jehovah's Witnesses' religious beliefs 
include a literal version of Exodus, Chapter 20, verses 4 and 5, which 
says: `Thou shalt not make unto thee any graven image, or any likeness 
of anything that is in heaven above, or that is in the earth beneath, 
or that is in the water under the earth; thou shalt not bow down 
thyself to them nor serve them.' They consider that the flag is an 
`image' within this command. For this reason they refuse to salute it. 
Id.
    \59\ Id. at 643.
    \60\ See id.
---------------------------------------------------------------------------
    While we affirm the principles of Barnette, the Newdow case 
did not involve compelled speech and accordingly, does not 
implicate Barnette. Thus, the Ninth Circuit's conclusion is 
troubling because it appears to reflect the flawed belief that 
any religious reference presents an inherent danger to 
individuals who hear it, the result of which would be the 
banishment of all such references from the public arena. 
Clearly, this is inconsistent with any reasonable 
interpretation of the Establishment Clause of the First 
Amendment. Thus it has become necessary for Congress to 
reaffirm its understanding that the text of both the Pledge and 
our national motto are legally and historically consistent with 
a reasonable interpretation of the First Amendment.
The Effect of Newdow II on The Voluntary Recitation of Other Founding 
        Documents in the Public School Context
    The constitutionality of the voluntary recitation by public 
school students of numerous historical and founding documents, 
such as the Declaration of Independence, the Constitution, and 
the Gettysburg Address, has been placed into serious doubt by 
the Ninth Circuit's decision in Newdow II.\61\ As Judge 
O'Scannlain stated in his dissent, ``[i]f reciting the Pledge 
is truly `a religious act' in violation of the Establishment 
Clause, then so is the recitation of the Constitution itself, 
the Declaration of Independence, the Gettysburg Address, the 
National Motto, or the singing of the National Anthem.'' \62\ 
The Founders based their right to ``dissolve the Political 
Bands which [have] connected them with another'' on the ``Laws 
of Nature and of Nature's God.'' They then went on to proclaim 
that men ``are endowed by their Creator with certain 
unalienable Rights,'' appealed to ``the Supreme Judge of the 
World for the Rectitude'' of their intentions, and with ``a 
firm Reliance on the Protection of divine Providence,'' 
``mutually pledge[d] to each other'' their ``Lives,'' 
``Fortunes,'' and ``sacred Honor.'' \63\ Article VII in the 
U.S. Constitution refers to ``the Year of Our Lord.'' \64\ On 
November 19, 1863, President Lincoln stated ``that this Nation, 
under God, shall have a new birth of freedom--and that 
Government of the people, by the people, for the people, shall 
not perish from the earth.'' \65\ Our national motto is ``in 
God we trust'' \66\ and the fourth stanza of the statutorily 
prescribed National Anthem includes in part the following, 
``Blest with victory and peace, may the heaven-rescued land, 
Praise the Power that hath made and preserved us a nation. Then 
conquer we must, when our cause is just, And this be our motto: 
` in God is our trust.' '' \67\
---------------------------------------------------------------------------
    \61\ ``[O]nly the purest exercise in sophistry could save multiple 
references to our religious heritage in our national life from Newdow 
II's axe.'' Newdow II at *10.
    \62\ Id. at *4.
    \63\ The Declaration of Independence.
    \64\ U.S. Const. art. VII.
    \65\ Gettysburg Address. There are 14 references to God in the 669 
words comprising the Gettysburg Address.
    \66\ 36 U.S.C. Sec. 302.
    \67\ 36 U.S.C. Sec. 301(a).
---------------------------------------------------------------------------
    Thus the U.S. Supreme Court has recognized the similarities 
between the Pledge, the Declaration of Independence, the 
Constitution and the Gettysburg Address in that they represent 
the authors' reference to the history of the Nation's founding 
which is clearly intertwined with fervent faith in God and 
religious beliefs. For example, Justice Brennan, in Schempp, 
offered that ``[t]he reference to divinity in the revised 
pledge of allegiance, for example, may merely recognize the 
historical fact that our Nation was believed to have been 
founded 'under God.' Thus reciting the pledge may be no more of 
a religious exercise than the reading aloud of Lincoln's 
Gettysburg Address, which contains an allusion to the same 
historical fact.'' \68\
---------------------------------------------------------------------------
    \68\ School District of Abington Township v. Pennsylvania, 374 U.S. 
203, 303-04 (1963).
---------------------------------------------------------------------------
    To conclude otherwise, would clearly lead to an 
interpretation of the Constitution that would call into 
question the meaning of the First Amendment given to it by our 
Nation's founders. Judge O'Scannlain's dissent is, again, 
instructive on this point,

        The majority's unpersuasive and problematic disclaimers 
        notwithstanding, Newdow II precipitates a ``war with 
        our national tradition,'' McCollum v. Bd. of Ed., 333 
        U.S. 203, 211, 68 S.Ct. 461, 92 L.Ed. 649 (1948), and 
        as Judge Fernandez so eloquently points out in dissent, 
        only the purest exercise in sophistry could save 
        multiple references to our religious heritage in our 
        national life from Newdow II's axe. Of course, the 
        Constitution itself explicitly mentions God, as does 
        the Declaration of Independence, the document which 
        marked us as a separate people. The Gettysburg Address, 
        inconveniently for the majority, contains the same 
        precise phrase--``under God''--found to constitute an 
        Establishment Clause violation in the Pledge. After 
        Newdow II, are we to suppose that, were a school to 
        permit--not require--the recitation of the 
        Constitution, the Declaration of Independence, or the 
        Gettysburg Address in public schools, that too would 
        violate the Constitution? Were the ``founders of the 
        United States . . . unable to understand their own 
        handiwork[?]'' Sherman, 980 F.2d at 445. Indeed, the 
        recitation of the Declaration of Independence would 
        seem to be the better candidate for the chopping block 
        than the Pledge, since the Pledge does not require 
        anyone to acknowledge the personal relationship with 
        God to which the Declaration speaks. So too with our 
        National Anthem and our National Motto. \69\
---------------------------------------------------------------------------
    \69\ Newdow II at *10.
---------------------------------------------------------------------------
The Ninth Circuit's Ruling in Newdow II Has Created A Split Among the 
        Circuits
    The Ninth Circuit's ruling in Newdow II has placed the 
circuit in direct conflict with the Seventh Circuit Court of 
Appeals which, in Sherman v. Community Consolidated School 
District,\70\ held that a school district's policy allowing for 
the voluntary recitation of the Pledge of Allegiance in public 
schools does not violate the Establishment Clause of the First 
Amendment.
---------------------------------------------------------------------------
    \70\ 980 F.2d 437 (7th Cir. 1992).
---------------------------------------------------------------------------
    The Seventh Circuit in Sherman concluded that the voluntary 
recitation of the Pledge in public schools is not a violation 
of the Establishment Clause of the First Amendment. That court 
did not make the analytical mistake so fatal to the Newdow II 
panel's analysis. Describing the practice that it was about to 
review it stated,

        Recall that for now we are treating the Pledge as a 
        patriotic expression, even though the objections to 
        public patriotism may be religious (as they were in 
        Barnette). Patriotism is an effort by the state to 
        promote its own survival, and along the way to teach 
        those virtues that justify its survival. Public schools 
        help to transmit those virtues and values. Separation 
        of church from state does not imply separation of state 
        from state. Schools are entitled to hold their causes 
        and values out as worthy subjects of approval and 
        adoption, to persuade even though they cannot compel, 
        and even though those who resist persuasion may feel at 
        odds with those who embrace the values they are 
        taught.\71\
---------------------------------------------------------------------------
    \71\ Sherman v. Community Consolidated School District, 980 F.2d 
437, 444 (7th Cir. 1992).

In response to the assertion that the voluntary recitation of 
the Pledge is offensive to those student who don't choose to 
---------------------------------------------------------------------------
recite it, that court stated,

        Students not only read books that question or conflict 
        with their tenets but also write essays about them and 
        take tests--questions for which their teachers 
        prescribe right answers, which the students must give 
        if they are to receive their degrees. The diversity of 
        religious tenets in the United States ensures that 
        anything a school teaches will offend the scruples and 
        contradict the principles of some if not many persons. 
        The problem extends past government and literature to 
        the domain of science; the religious debate about 
        heliocentric astronomy is over, but religious debates 
        about geology and evolution continue. An extension of 
        the school-prayer cases could not stop with the Pledge 
        of Allegiance. It would extend to the books, essays, 
        tests, and discussions in every classroom.\72\
---------------------------------------------------------------------------
    \72\ Id. (emphasis added).

Recognizing that its analysis presumed that the Pledge was not 
a ``prayer or other sign of religious devotion,'' the court 
then proceeded to discuss whether the Pledge was in fact a 
religious or patriotic exercise.\73\ After extensive discussion 
about the founding documents and other religious references 
sprinkled throughout the Nation's history and civic discourse, 
the Sherman panel concluded, ``Unless we are to treat the 
[F]ounders of the United States as unable to understand their 
handiwork (or, worse, hypocrites about it), we must ask whether 
those present at the creation deemed ceremonial invocations of 
God as `establishment.' They did not.'' \74\
---------------------------------------------------------------------------
    \73\ Id. at 445.
    \74\ Id.
---------------------------------------------------------------------------
Newdow II and The Nomination of Federal Court Judges
    The clearly erroneous nature of the panel's ruling 
highlights not only the need for the U.S. Supreme Court to 
correct this incorrect interpretation of its holdings by a 
lower court, but also the importance of nominating and 
appointing Federal judges who will interpret the Constitution 
consistent with its text. There has been much debate, both on 
the Court and within the legal community, surrounding the 
Court's recent jurisprudence regarding the Establishment 
Clause. Yet, despite what is admittedly a confused area of the 
law, the Court has shown clear consistency with regard to the 
recitation of the Pledge. The Ninth Circuit's failure to follow 
the Supreme Court's pronouncements and precedent in this area 
of the law will justifiably lead many to question whether the 
judges sitting on this panel have made a good faith attempt to 
interpret the Constitution consistent with its text.
    The following testimony was submitted by the Honorable Alan 
G. Lance, Attorney General, State of Idaho, on July 23, 2002, 
at the Judiciary Committee's Subcommittee on Courts, the 
Internet and Intellectual Property's Legislative Hearing on 
H.R. 1203, the ``Ninth Circuit Court of Appeals Reorganization 
Act of 2001'':

        The Ninth Circuit has earned a national reputation as a 
        frequently reversed court. This reputation has factual 
        support. Consider the following:

        1. LFrom 1990 to 1996, the Supreme Court struck down 
        73% of the Ninth Circuit decisions it reviewed. The 
        other circuits averaged 46%. Jeff Bleich, The Reversed 
        Circuit: The Supreme Court versus the Ninth Circuit, 57 
        Oregon State Bar Bulletin 17 (May 1997).

        2. LIn 1997, the Supreme Court reversed 27 out of 28 
        Ninth Circuit decisions.

        3. LSince 1998, the Supreme Court has granted review in 
        103 Ninth Circuit cases, affirming only 13. Moreover, 
        the Supreme Court has unanimously reversed or vacated 
        26 Ninth Circuit decisions since 1998.

        The Ninth Circuit's number and rate of reversals is 
        troubling. The number of unanimous reversals is perhaps 
        even more troubling. Make no mistake about this--the 
        reputation, which is founded in fact, has caused 
        serious erosion in confidence for our Federal circuit 
        court.

        The New York Times, generally considered to be the 
        newspaper of record for the country, began its recent 
        story on the pledge of allegiance decision with the 
        following line: ``Over the last 20 years, the Court of 
        Appeals for the Ninth Circuit has developed a 
        reputation for being wrong more often than any other 
        Federal appeals court.'' Adam Liptak, Court that Ruled 
        on Pledge often Runs Afoul of Justices, N.Y. Times, 
        July 1, 2002.

        In response to a question about the high number of 
        unanimous reversals by the Supreme Court, Yale 
        University law professor Akhil Amar bluntly stated: 
        ``When you're not picking up the votes of anyone on the 
        Court, something is screwy.'' Id.

        In response to three former Chief Judges of the Ninth 
        Circuit who denied that the Ninth Circuit has a poor 
        track record in the Supreme Court, Justice Scalia said: 
        ``There is no doubt that the Ninth Circuit has a 
        singularly (and, I had thought, notoriously) poor 
        record on appeal. That this is unknown to its chief 
        judges may be yet another sign of an unmanageably 
        oversized circuit.'' Id.\75\
---------------------------------------------------------------------------
    \75\ Ninth Circuit Court of Appeals Reorganization Act of 2001: 
Hearing on H.R. 1203 Before the House Comm. on the Judiciary, Subcomm. 
on Courts, the Internet, and Intellectual Property, 107th Cong. 15 
(2002) (statement of the Honorable Alan Lance, Attorney General, State 
of Idaho).

Recent reports indicate that the Ninth Circuit's reversal rate 
last term, 2001-02, was 71%, consistent with the average 
reversal rate of the other circuits.\76\ However, the Newdow II 
panel's disregard for Supreme Court precedent will certainly 
serve to further its reputation as the Federal circuit most in 
need of Supreme Court reversal.
---------------------------------------------------------------------------
    \76\ See Marisa Taylor, Influential Ninth Circuit Assembles in 
S.D.: Weighty Issues are on Agenda for Judges Who Defy Consensus, San 
Diego Union Tribune, July 15, 2002, at A1.
---------------------------------------------------------------------------

                                Hearings

    No hearings were held on H. Res. 132.

                        Committee Consideration

    On March 12, 2003, the Committee met in open session and 
ordered favorably reported the bill H. Res. 132, without 
amendment, by a recorded vote of 22 to 2, with 8 members voting 
present, a quorum being present.

                         Vote of the Committee

    The motion to report H. Res. 132 favorably passed by a 
rollcall vote of 22 yeas, 2 nays and 8 voting present.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................                                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                                              X
Ms. Lofgren.....................................................                                              X
Ms. Jackson Lee.................................................                                              X
Ms. Waters......................................................                                              X
Mr. Meehan......................................................                                              X
Mr. Delahunt....................................................                                              X
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................                                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             22               2               8
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H. Res. 132 does not authorize funding. Therefore, clause 
3(c) of rule XII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee believes that 
the resolution will have no budget effect.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, clause 18 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    H. Res. 132 expresses the sense of the House of 
Representatives that the Ninth Circuit Court of Appeals ruling 
in Newdow v. United States Congress is inconsistent with the 
Supreme Court's interpretation of the First Amendment and 
should be overturned, and for other purposes.
    In paragraph one, Congress finds that on June 26, 2002, the 
Ninth Circuit Court of Appeals, in Newdow v. United States 
Congress (292 F.3d 597; 9th Cir. 2002) (Newdow I), held that 
the Pledge of Allegiance to the Flag as currently written to 
include the phrase, ``one Nation, under God'', 
unconstitutionally endorses religion, that such phrase was 
added to the pledge in 1954 only to advance religion in 
violation of the Establishment Clause, and that the recitation 
of the pledge in public schools at the start of every school 
day coerces students who choose not to recite the pledge into 
participating in a religious exercise in violation of the 
Establishment Clause of the First Amendment.
    In paragraph two, Congress finds that on February 28, 2003, 
the Ninth Circuit Court of Appeals amended its ruling in this 
case, and held (in Newdow II) that a California public school 
district's policy of opening each school day with the voluntary 
recitation of the Pledge of Allegiance to the Flag 
``impermissibly coerces a religious act'' on the part of those 
students who choose not to recite the pledge and thus violates 
the Establishment Clause of the First Amendment.
    In paragraph three, Congress finds that the Ninth Circuit's 
ruling in Newdow II contradicts the clear implication of the 
holdings in various Supreme Court cases, and the spirit of 
numerous other Supreme Court cases in which members of the 
Court have explicitly stated, that the voluntary recitation of 
the Pledge of Allegiance to the Flag is consistent with the 
First Amendment.
    In paragraph four, Congress finds that the phrase, ``one 
Nation, under God'', as included in the Pledge of Allegiance to 
the Flag, reflects the notion that the Nation's founding was 
largely motivated by and inspired by the Founding Fathers' 
religious beliefs.
    In paragraph five, Congress finds that the Pledge of 
Allegiance to the Flag is not a prayer or statement of 
religious faith, and its recitation is not a religious 
exercise, but rather, it is a patriotic exercise in which one 
expresses support for the United States and pledges allegiance 
to the flag, the principles for which the flag stands, and the 
Nation.
    In paragraph six, Congress finds that the House of 
Representatives recognizes the right of those who do not share 
the beliefs expressed in the pledge or who do not wish to 
pledge allegiance to the flag to refrain from its recitation.
    In paragraph seven, Congress finds that the effect of the 
Ninth Circuit's ruling in Newdow II will prohibit the 
recitation of the pledge at every public school in 9 states, 
schooling over 9.6 million students, and could lead to the 
prohibition of, or severe restrictions on, other voluntary 
speech containing religious references in these classrooms.
    In paragraph eight, Congress finds that rather than 
promoting neutrality on the question of religious belief, this 
decision requires public school districts to adopt a preference 
against speech containing religious references.
    In paragraph nine, Congress finds that the 
constitutionality of the voluntary recitation by public school 
students of numerous historical and founding documents, such as 
the Declaration of Independence, the Constitution, and the 
Gettysburg Address, has been placed into serious doubt by the 
ninth circuit's decision in Newdow II.
    In paragraph ten, Congress finds that the Ninth Circuit's 
interpretation of the First Amendment in Newdow II is clearly 
inconsistent with the Founders' vision of the Establishment 
Clause and the Free Exercise Clause of the First Amendment, 
Supreme Court precedent interpreting the First Amendment, and 
any reasonable interpretation of the First Amendment.
    In paragraph eleven, Congress finds that this decision 
places the Ninth Circuit in direct conflict with the Seventh 
Circuit Court of Appeals which, in Sherman v. Community 
Consolidated School District (980 F.2d 437; 7th Cir. 1992), 
held that a school district's policy allowing for the voluntary 
recitation of the Pledge of Allegiance to the Flag in public 
schools does not violate the Establishment Clause of the First 
Amendment.
    In paragraph twelve, Congress finds that it has 
consistently supported the Pledge of Allegiance to the Flag by 
starting each session with its recitation.
    In paragraph thirteen, Congress finds that the House of 
Representatives reaffirmed its support for the Pledge of 
Allegiance to the Flag in 107th Congress by adopting House 
Resolution 459 on June 26, 2002, by a vote of 416-3.
    In paragraph fourteen, Congress finds that the Senate 
reaffirmed support for the Pledge of Allegiance to the Flag in 
the 107th Congress by adopting Senate Resolution 292 on June 
26, 2002, by a vote of 99-0.
    Congress adopts the following resolutions:
    In section (1), Congress resolves that the phrase ``one 
Nation, under God,'' in the Pledge of Allegiance to the Flag 
reflects that religious faith was central to the Founding 
Fathers and
    thus to the founding of the Nation.
    In section (2), Congress resolves that the recitation of 
the Pledge of Allegiance to the Flag, including the phrase, 
``one Nation, under God,'' is a patriotic act, not an act or 
statement of religious faith or belief.
    In section (3), Congress resolves that the phrase ``one 
Nation, under God'' should remain in the Pledge of Allegiance 
to the Flag and the practice of voluntarily reciting the pledge 
in public school classrooms should not only continue but should 
be encouraged by the policies of Congress, the various States, 
municipalities, and public school officials.
    In section (4), Congress resolves that despite being the 
school district where the legal challenge to the pledge 
originated, the Elk Grove Unified School District in Elk Grove, 
California, should be recognized and commended for their 
continued support of the Pledge of Allegiance to the Flag.
    In section (5), Congress resolves that the Ninth Circuit 
Court of Appeals ruling in Newdow v. United States Congress has 
created a split among the circuit courts, and is inconsistent 
with the Supreme Court's interpretation of the first amendment, 
which indicates that the voluntary recitation of the pledge and 
similar patriotic expressions is consistent with the first 
amendment.
    In section (6), Congress resolves that the attorney general 
should appeal the ruling in Newdow v. United States Congress, 
and the Supreme Court should review this ruling in order to 
correct this constitutionally infirm and historically incorrect 
holding.
    In section (7), Congress resolves that the President should 
nominate and the Senate should confirm Federal circuit court 
judges who interpret the Constitution consistent with the 
Constitution's text.

                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, MARCH 12, 2003

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:07 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pursuant to notice, I now call up the resolution, H. Res. 
132, a resolution stating the Pledge of Allegiance should be 
upheld, for purposes of markup and move its favorable 
recommendation to the House. Without objection, the resolution 
will be considered as read and open for amendment at any point.
    [The resolution follows:]

    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Ohio, Mr. Chabot, Chairman of the Subcommittee on the 
Constitution, for 5 minutes to explain the resolution.
    Mr. Chabot. Thank you, Mr. Chairman. H. Res. 132 expresses 
the sense of the House of Representatives that the Ninth 
Circuit Court of Appeals ruling in Newdow v. United States 
Congress, is inconsistent with the Supreme Court's 
interpretation, and urging the Attorney General to appeal the 
ruling. Specifically, H. Res. 132 expresses the sense of the 
House of Representatives that the phrase ``One Nation under 
God'' should remain in the Pledge of Allegiance, that the Ninth 
Circuit Court of Appeals ruling in the Newdow v. U.S. Congress 
is inconsistent with the Supreme Court's interpretation of the 
First Amendment, urges the Attorney General of the United 
States to appeal the Ninth Circuit's ruling, and urges the 
President to nominate and the Senate to confirm Federal Circuit 
Court Judges who will interpret the Constitution consistent 
with the Constitution's text.
    It also encourages school districts across the Nation to 
continue reciting the pledge daily, and praises the Elk Grove 
School District for its defense of the Pledge of Allegiance 
against this constitutional challenge.
    On February 28th, 2003 the Ninth Circuit Court of Appeals 
refused to rehear its June 2002 ruling that the Pledge of 
Allegiance as currently written to include the phrase ``One 
Nation under God'' unconstitutionally endorses religion, and 
that the recitation of the Pledge in the public schools at the 
start of every school day coerces students who choose not to 
recite the Pledge, in participating in a religious exercise in 
violation of the establishment clause of the First Amendment.
    Additionally, it amended its opinion in its June ruling, 
and held that a California public school district's policy of 
opening each school day with a voluntary recitation of the 
Pledge of Allegiance to the flag, quote, ``impermissibly 
coerces a religious act,'' unquote, on the part of those 
students who choose not to recite the Pledge and thus violates 
the establishment clause of the First Amendment.
    That the Ninth Circuit's amended Newdow ruling contradicts 
any reasonable interpretation of the First Amendment should be 
clear to the average observer. The Pledge of Allegiance is 
clearly not a religious statement or prayer. It is a statement 
of allegiance to the ideas and principles upon which our Nation 
was founded. It's a historical fact that our Nation's founding 
principles were based upon the founding fathers' deeply held 
religious views. The Pledge of Allegiance simply refers to this 
fact. The reasoning and holding of the Ninth Circuit in its 
recent Newdow ruling turns historical fact, as well as Supreme 
Court precedent, on its head.
    It's interesting to note that this ruling comes from the 
circuit holding the dubious distinction of being reversed by 
the U.S. Supreme Court more than any other circuit in recent 
history.
    Those who do not share the beliefs expressed in the Pledge 
or those who do not wish to pledge allegiance to the flag have 
a right to refrain from its recitation. Indeed, it is a 
cornerstone of the religious faith that the founding fathers 
held dear, that no man can force another to say or believe that 
which their conscience would not allow. Thus, I would hope that 
no court would issue a ruling that tramples upon this right. 
However, the Ninth Circuit in Newdow simply ignored Supreme 
Court precedent, and essentially gave those who don't wish to 
recite the Pledge, and who possess the right to refrain from 
reciting the Pledge, a heckler's veto over those who do wish to 
recite the Pledge.
    The effect of the Ninth Circuit's ruling is to prohibit the 
recitation of the Pledge at every public school in 9 States, 
9.6 million students, and could lead to the prohibition of or 
severe restrictions on other voluntary speech containing 
religious references in these classrooms. Similarly, the 
constitutionality of the voluntary recitation by public school 
students of numerous historical and founding documents, such as 
the Declaration of Independence, the Constitution and the 
Gettysburg Address, has been placed into serious doubt. This 
ruling also places the Ninth Circuit in direct conflict with 
the Seventh Circuit Court of Appeals, which in Sherman v. 
Community Consolidated School District, held that a school 
district's policy allowing for the voluntary recitation of the 
Pledge of Allegiance in public schools does not violate the 
establishment clause of the First Amendment.
    Congress has consistently supported the Pledge of 
Allegiance by starting each session with its recitation. The 
House reaffirmed support for the Pledge, when on June 27, 2002, 
it adopted H. Res. 459 introduced by our Chairman, Chairman 
Sensenbrenner, by a vote of 416 to 3. The House should do the 
same with H. Res. 132. Both the Chairman and I are original co-
sponsors of this resolution introduced by Representative Ose on 
March 6, 2003.
    I urge my colleagues on this Committee to approve this 
resolution so that during this time of international conflict 
in which our young men and women may be days away from going to 
war to fight for those values based upon which our founding 
fathers gave birth to this Nation, our youngest Americans, our 
children, may pledge their allegiance to those same values.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from Michigan informs me that he does not 
wish to make an opening statement. Without objection, opening 
statements by other Members will be included in the record at 
this point.
    Are there amendments?
    The Gentleman from California, Mr. Berman.
    Mr. Berman. Thank you, Mr. Chairman. I appreciate the 
gentleman's comments and----
    Chairman Sensenbrenner. Does the gentleman have an 
amendment?
    Mr. Berman. I do have an amendment.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H. Res. 132, offered by Mr. Berman. 
Amend paragraph 7 beginning at page 5, line 23, to read as 
follows:
    (7) the President should nominate and the Senate should 
confirm Federal judges who interpret the Constitution 
consistent with the Constitution's text, including interpreting 
Section 2 of Article III and Amendment 6 to strictly adhere to 
the actual text of those constitutional provisions.
    Chairman Sensenbrenner. I believe it's amendment 11.
    The Clerk. Yes, sir.
    Chairman Sensenbrenner. XI is 11.
    The Clerk. Excuse me.
    [The amendment follows:]

    
    
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Berman. Thank you, Mr. Chairman. This amendment is 
focused only on one portion of this resolution, and that is 
paragraph 7 of the ``be it resolved'' clause, whereas the 
gentleman mentioned in his opening statement that Congress 
resolves that the President should nominate and the Senate 
should confirm Federal Circuit Court Judges who interpret the 
Constitution consistent with the Constitution's text.
    My assumption in offering this amendment is that the 
gentleman felt strongly about that principle, not simply as 
applied to this particular issue, but generally in terms of 
court interpretations of constitutional questions in the many 
cases that it gets. And it's because of that that I am offering 
this amendment to help establish that principle I think more 
fully.
    This amendment would make this paragraph apply to all 
Federal judges and would specify Article III, Section 2, and 
the Ninth Amendment as two type of constitutional provisions 
that Federal judges should interpret with strict adherence to 
their text.
    In the series of cases interpreting Section 2 of Article 
III and the Eleventh Amendment, Federal courts have not 
strictly adhered to the plain wording of these constitutional 
provisions. In fact, in many of these cases Federal courts have 
issued decisions that run directly counter to the text of these 
constitutional provisions or have no basis in the text of the 
Constitution itself. Section 2 of article III states that the 
judicial power shall extend to all cases in law or equity 
arising under this Constitution, the laws of the United States 
and treaties made, or which shall be made under their 
authority.
    The eleventh amendment states the judicial power of the 
United States shall not be construed to extend to any suit in 
law or equity commenced or prosecuted against one of the United 
States by citizens of another State or by citizens who are 
subjects of any foreign state. In other words, Article III 
gives full and complete authority to the Judicial Branch to 
determine all cases arising under this Constitution. The 
Eleventh Amendment constrains that general grant by saying that 
the judicial power shall not extend to any suit commenced 
against one of the States of the United States by citizens of 
another State or a foreign nation.
    These words are very plain, and these words are very clear, 
and by that, one is forced to come to the conclusion 
interpreting the text literally and strictly, as the gentleman 
has proposed in this resolution, we do not limit suits against 
a State brought by a citizen of that same State, because the 
Eleventh Amendment simply refers to citizens of other States or 
foreign states. Despite the plain wording of Article III, 
Section 2 and the Eleventh Amendment, Federal courts have 
interpreted these constitutional provisions in ways that 
directly contradict the plain text. In some instances Federal 
courts have entirely abandoned any pretense of textual 
interpretation of those constitutional provisions. Instead 
these courts base their opinion solely on fundamental 
postulates implicit in the constitutional design that can be 
gleaned from the mere existence of those constitutional 
provisions. Relying on these nontextual interpretations of the 
Constitution, these activist Federal judges and courts have 
struck down a wide variety of Federal statutes.
    In Seminole Tribe v. Florida, Chief Justice Rehnquist, 
writing for a 5-4 majority, relied on a non-textual activist 
interpretation of Article III, Section 2 and the Eleventh 
Amendment, to find that the Eleventh Amendment prohibits the 
Seminole Indian tribe, located in the State of Florida, from 
suing the State of Florida under the Indian Gaming Regulatory 
Act of 1988. The majority opinion candidly acknowledged that 
the text of the amendment would appear to restrict only the 
Article III diversity jurisdiction of the Federal court. 
Despite the acknowledged plain meaning of the Eleventh 
Amendment, the 5 Justice majority decided that State sovereign 
immunity bars suits against States based on Federal question 
jurisdiction as well as on diversity jurisdiction.
    In the Florida Prepaid cases, the U.S. Supreme Court 
employed this activist interpretation of Article III, Section 
2----
    Chairman Sensenbrenner. The gentleman's time is----
    Mr. Berman. I would ask unanimous consent for three 
additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Berman. In the Florida Prepaid case the U.s. Supreme 
Court employed this activist interpretation of Article III, 
Section 2, and the Eleventh Amendment. Justice Scalia, writing 
for a 5-4 majority, held that State sovereign immunity 
prohibited Congress's efforts to subject States to liability 
for patent infringement under the Patent and Plat Variety 
Protection Remedy Clarification Act, and for false advertising 
under the Lanham Act.
    Relying on the activist interpretation employed in the 
Florida Prepaid cases, the Fifth Circuit in Chavez found that 
States were immune from suits for copyright infringement.
    In Kimmel, the Supreme Court utilized a particularly 
activist interpretation of the Eleventh Amendment to avoid the 
plain meaning of that amendment. Writing for 5 Justices, 
Justice O'Connor held that the Eleventh Amendment protected 
States against suits by its own citizens under the Federal Age 
Discrimination and Employment Act of 1967. Since Kimmel 
involved ADEA suits brought by citizens of Alabama and Florida 
against the States of Alabama and Florida, it represents an 
egregiously activist interpretation of the Eleventh Amendment 
prohibition on suits in Federal court against a State by 
citizens of another State.
    The Garrett decision also was based on this egregiously 
activist interpretation of the Eleventh Amendment. Writing once 
again for a 5-4 majority, Chief Justice Rehnquist held the 
Eleventh Amendment bars suits to recover monetary damages by 
State employees under Title I of the Americans with 
Disabilities Act. Since this case involved an ADA suit brought 
by citizens of Alabama, again against the State of Alabama, it 
also ignores the plain meaning of the
    Eleventh Amendment.
    In Alden the Supreme Court extended its activist 
interpretation of State sovereign immunity, far beyond the 
bounds of Article III, Section 2, and the Eleventh Amendment. 
Justice Kennedy, writing for a 5-4 majority, held that a 
constitutional doctrine of State sovereign immunity prohibited 
a resident and employee of the State of Maine from suing the 
State of Maine in State Court, not Federal court, in State 
court, under the Federal Fair Labor Standards Act, because 
Article III, Section 2, and the Eleventh Amendment only refer 
to the judicial power of the United States, and thus only 
address Federal court jurisdiction. The Alden majority 
apparently recognized that even the most tortured reading of 
those constitutional provisions could not justify their holding 
with regard to suits in State courts. Thus, the Alden majority 
found that the scope of the State's immunity from suit is 
demarcated not by the text of the Eleventh Amendment alone, but 
by fundamental postulates implicit in the constitutional 
design. Sounds like the penumbra in Griswold that led to Roe v. 
Wade. In other words, the Alden majority decided the case based 
on a theory of State sovereign immunity that is not supported 
by any text in the Constitution, but rather it's by its 
interpretation of the Constitution's unspoken meaning.
    By this resolution that's before us, and by the gentleman's 
decision----
    Chairman Sensenbrenner. The gentleman's time has once 
again----
    Mr. Berman. One additional minute, Mr. Chairman.
    Chairman Sensenbrenner. Reluctantly without objection.
    Mr. Berman. Thank you. The gentleman did not constrain--
confine this resolution to just dealing with this specific 
decision, and I understand why. Because he is not trying to get 
into second guessing each decision of the Court. He is trying 
to establish a broader principle of strict interpretation, and 
that is a fundamental principle, and therefore I am sure that 
the majority side can appreciate that in this particular case 
we have seen a line of decisions which have immunized citizens 
of their States from exercising their Federal rights where 
Congress clearly intended to cover the States from actions by 
the States, and I would hope that they would show the 
consistency of their position and they're serious about the 
language of paragraph 7 of this resolution by adopting this 
amendment.
    Chairman Sensenbrenner. Gentleman from Ohio.
    Mr. Chabot. Thank you, Mr. Chairman. Move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you. If I could address a question to the 
gentleman from California. The gentleman's amendment is a very 
interesting amendment. I would agree with the gentleman in part 
and oppose to the gentlemen's amendment, be opposed in part. 
Would the gentleman consider amending his amendment or 
modifying it to the degree that we do include all Federal 
judges, which I would agree with the gentleman would be an 
improvement. Right now this is limited to just circuit court 
judges. I would agree to expand that to Federal judges.
    On the other hand, I would object to the additional 
language which I find unnecessary. The text of the existing 
resolution says: ``The President should nominate and the Senate 
should confirm Federal Circuit Court Judges''--we would agree 
to including all Federal judges--``who interpret the 
Constitution consistent with the Constitution's text.'' To me 
that's simpler, more understandable and less limited than it 
would be if we should specifically point out other parts of the 
Constitution as the gentleman suggests.
    So just to reiterate, would the gentleman agree to 
modifying his amendment to include Federal judges, in other 
words, the first two lines of your amendment, but striking the 
second two lines, which limits the parts of the Constitution 
that we're referring to? I'll yield to the gentleman.
    Mr. Berman. I thank the gentleman for yielding, and if he 
would permit me, before I answer that question, to understand 
fully what he's talking about, to ask him two questions. The 
first would be: do you disagree with anything that I've said, 
that the general principle of strict interpretation of the 
Constitution is inconsistent with the decisions that I 
mentioned, that keep citizens of the States from suing their 
own States based on Federal statutes and denying jurisdiction, 
not only to Federal courts but even in the most--the last of 
the cases, just State courts, to litigate those Federal 
questions?
    Mr. Chabot. Reclaiming my time, the issue before us today 
is the Newdow case and the Pledge of Allegiance, and that's how 
we got to this point where we're at today. I wed agree with the 
gentleman--I'm not going to say I agree with everything or 
disagree with everything the gentleman said because it was 5 
minutes, plus 3 minutes, plus 1 minute, which was 9 minutes I 
believe, and I agree with much of what the gentleman said, but 
I don't think we need to get into all those side issues. At 
this point our goal here is to protect the rights of children 
and others in this country to pledge allegiance to the flag, 
which the Ninth Circuit has at this point declared 
unconstitutional, and that's over 9 million kids that are going 
to be unable in schools to pledge allegiance to the flag, which 
seems absurd, but that's what the ruling has been thus far.
    What we're trying to do at this point is to, as part of 
this amendment, is to encourage the President to nominate and 
the Senate to confirm judges who strictly--strike strictly--
interpret the Constitution consistent with the Constitution's 
text. The additional items that the gentleman has included in 
his amendment, from our point of view are unnecessary and just 
complicate the matter further.
    And I'd yield to the gentleman if he has anything to say.
    Mr. Berman. I appreciate the gentleman yielding. This 
resolution isn't just limited to the Pledge of Allegiance. The 
gentleman's point is basically----
    Mr. Chabot. Reclaiming my time, that's how we got here and 
that's the principal issue, but I would yield back.
    Mr. Berman. The gentleman chose to include paragraph 7. The 
gentleman is saying, whatever you think about the Pledge, 
whatever you think about that decision, the major error of the 
Ninth Circuit decision was that they not apply the First 
Amendment of the Constitution by its text, and they veered away 
from a literal interpretation of the text of the First 
Amendment, and its free exercise and establishment clauses. 
That's why you include paragraph 7. And I'm just trying to 
understand, is there a general principle here, because if there 
is, if we don't want to get into my addition to the ``be it 
resolved'' clause, would the gentleman accept simply including 
a ``whereas'' clause that makes reference to the Eleventh 
Amendment as well being an amendment for which the text should 
be strictly adhered to.
    Mr. Chabot. Reclaiming my time, and we've got very little 
amount of time here, we're not agreeable at this time to any 
additional verbiage. We are agreeable to expanding this to 
include all Federal judges, not just circuit court judges. And 
if the gentleman is agreeable to that, we could draft an 
amendment, or you can modify it as such.
    Mr. Berman. Well, I--no, I would not----
    Chairman Sensenbrenner. Let the Chair make a constructive 
suggestion. It seems to me there are two individual 
propositions. If either gentleman wants to demand a division of 
the question, we can vote on the first two lines of the Berman 
Amendment first and the second two lines second, and perhaps 
accomplish, allowing everybody to vote the way they wanted to.
    Mr. Chabot. I would move to divide it.
    Mr. Berman. Mr. Chairman, point of order. I'm curious on 
how one can divide my amendment. Is this in a parliamentary 
sense truly a divisible question?
    Chairman Sensenbrenner. The Chair believe it is.
    Mr. Berman. I guess that's just about enough, isn't it? 
[Laughter.]
    Mr. Berman. Is that a strict interpretation of----
    Chairman Sensenbrenner. The time of the gentleman has 
expired. The question is on----
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio's time has 
expired.
    The gentleman from North Carolina, Mr. Watt?
    Mr. Watt. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes, and the question currently is on the first two lines 
of the Berman Amendment.
    Mr. Watt. I don't have any comment on the first two lines 
of the Berman Amendment. I think it's ridiculous to divide the 
question because it's all one sentence, and I think the 
Chairman is abusing the Chairman's rights by dividing the 
question.
    Chairman Sensenbrenner. Okay. Then the Chair will withdraw 
the division of the question and the question now is on the 
Berman Amendment as introduced.
    Mr. Watt. I move to strike the last word. I move to strike 
the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes. 
I think this exercise is so ridiculous that I can't even bear 
the thought of taking 5 minutes to debate it. If I read this 
correctly the First Amendment of the Constitution says that we 
should make no laws, no laws inconsistent with freedom of 
speech. That would be absolutely ridiculous. That would be the 
strict adherence to the actual text of the First Amendment, so 
we're making a mockery of the Constitution that has worked for 
our country for years and years and years, and just in the name 
of making some political point here, which to me is just--
doesn't even warrant the dignity of this Committee.
    I yield back.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose the gentleman from 
New York seek recognition?
    Mr. Nadler. Move to strike the last word.
    Chairman Sensenbrenner. Gentleman's recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, I must confess, I'm not sure how 
I should vote on Mr. Berman's amendment, because the fact of 
the matter is, the courts always interpret the Constitution in 
a way that the courts think, or claim they think at any rate, 
it's consistent with the Constitution's text. So I don't know 
what this amendment does. Now, the question is what does 
``consistent'' mean? Judges interpret that in different ways. 
Some think it means the literal meaning of the words. Justice 
Scalia thinks it means whatever Madison thought it meant in 
1788, what the original framers thought it meant in 1788, if 
you can divine that somehow. Others think it means what a broad 
reading would mean given current conditions, but whatever it 
means, those are interpretations of what ``consistent with the 
Constitution's text'' means.
    Now, it's true that the current majority of the Supreme 
Court has egregiously offended the meaning of Article XI by 
going backwards on it. Article XI says--Eleventh Amendment--
well, the Eleventh Article's amendment to the Constitution.
    The Eleventh Amendment says that the judicial power of the 
United States shall not extend to suits by citizens of one 
State against another. Very clear. The current court has 
interpreted it to mean, well, it also shouldn't extend to suits 
by citizens of a State against the same State. Quite different 
from what the plain text seems to indicate. The current Supreme 
Court has also invented the doctrine that this amendment also 
brings the entire legal structure of sovereign immunity into 
the States, and that the States accede to the power of the King 
of England, because apparently when we rebelled against 
England, sovereignty was not vested, taken away from the King 
and given to the people. It was given to the States rather than 
the people, which is a novel theory. But based on that theory, 
they brought sovereign immunity into the Eleventh Amendment and 
said that therefore people can't sue their own States to 
enforce Federal laws.
    But I'm not sure what this amendment means, and I certainly 
wouldn't want to give it to the tender mercies of the current 
members of the Supreme Court. I think that the Supreme Court 
has made it very difficult by their varying interpretations, 
and frankly, the current majority of the Supreme Court is 
strictly textuous when they want to be and anti-textuous when 
they don't want to be. For example, any Justices adhering to a 
textuous interpretation of the Constitution would have thought 
that the Supreme Court had no business getting involved with 
Florida State Law in the case of Gore v. Bush, but they were 
overriding reasons of politics to deviate from the normal 
constitutional views of the Supreme Court majority there.
    So I think that whether we have this language or not 
doesn't take away from the danger that the Supreme Court poses 
to the Constitution.
    I yield back.
    Mr. Delahunt. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Delahunt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Delahunt. And I will not take my 5 minutes. But I would 
ask the proponent of the resolution if there is a--if he has 
considered, along with others, the filing of an amicus? I yield 
to the gentleman.
    Mr. Chabot. No.
    Mr. Delahunt. Could the gentleman distinguish the rationale 
between the decision issued by the Ninth as opposed to that 
issued by the Seventh Circuit?
    Mr. Chabot. Would the gentleman yield?
    Mr. Delahunt. I do.
    Mr. Chabot. I think the Seventh was right and the Ninth was 
wrong.
    Mr. Delahunt. Well, I understand that, but if you could 
just distinguish the rationale to amplify the logic of it, the 
premise of the rationale.
    Mr. Chabot. Will the gentleman yield?
    Mr. Delahunt. Yes.
    Mr. Chabot. The Ninth Circuit in this case basically 
indicated that the Pledge of Allegiance is unconstitutional, 
that it violates the establishment clause of the United States 
Constitution, which I think is clearly in error. The Seventh 
Circuit, in a different case, came to a very different 
conclusion, and I think that the Seventh Circuit is much more 
consistent with prevailing law, with the Supreme Court's 
rulings over the years with respect to the establishment 
clause, and I just think it's pretty clear that the Ninth in 
this particular instance is out of whack not only with the 
sentiment of the American people, but existing precedent over 
many years, both----
    Mr. Delahunt. Right. Well, reclaiming my time. I mean 
oftentimes the Supreme Court is inconsistent with the sentiment 
of the American people, but clearly it's their constitutional 
duty to interpret the Constitution, so we're not talking about 
sentiment. We're talking about the Constitution. We crafted a 
Constitution, I would suggest, to avoid the popular mood of the 
moment.
    Having said that, I'll yield the time I have remaining to--
--
    Ms. Lofgren. Would the gentleman yield?
    Mr. Delahunt. To the lady from California.
    Ms. Lofgren. I think--thank you for yielding--that the 
issue raised by Mr. Berman is a sound and scholarly one, that I 
understand I could support the amendment. But I'd like to go to 
the underlying bill, which is a complete utter waste of our 
time. I actually disagree with the Ninth Circuit. I think their 
decision is wrong. It will be appealed. I think ultimately it 
will be overturned.
    The bill before us has nothing to do with that. I mean we 
have a lot of work to do, and passing this bill--the House has 
already expressed its opposition to the Ninth Circuit decision. 
Why we are spending time, when we have so many other things to 
do, on this preposterous exercise of grandstanding is beyond 
me. And I yield back.
    Mr. Delahunt. Reclaiming my time, I would yield to the 
gentleman from California, Mr. Berman.
    Mr. Berman. Thank you, Mr. Chairman, Mr. Delahunt.
    And I just want to point out that fundamentally that 
seventh paragraph in the eyes of the majority is nonsense. They 
put it in, but they don't mean it. They're not serious about 
it. And I don't mean this in any personal sense, but in a 
general political sense, there's a tremendous hypocrisy here. 
This isn't about strict interpretation versus activism. This is 
a total result oriented line of thinking that says when we like 
the decision and it's done in the name of strict construction, 
we're for it. And when we want a decision that requires 
activism and a search for nonconstitutional doctrines that 
compel it, then it's fine. And the majority's unwillingness to 
accept this language, evinces I think a broader sense than just 
we want to keep the focus on the Pledge.
    Over in the U.S. Senate now there's a debate about a 
Federal judge. Paragraph 7 here says, ``Whereas the 
decision''--I'm sorry. The seventh clause says, ``The President 
should nominate and the Senate should confirm Federal Circuit 
Judges who interpret the Constitution consistent with the 
Constitution's text.'' The necessary conclusion one draws from 
that language is that they should not confirm judges who do not 
interpret the text strictly. In other words, judicial 
philosophy is a very relevant consideration to the confirmation 
of Federal judges. But when they talk about the hold up in the 
Senate on this judgeship, they say, you shouldn't be judging 
about whether it's judicial philosophy. It's whether he's 
competent to be a judge. You don't mean that. You don't mean 
strict interpretation. It's a total result-oriented philosophy. 
When I like the decision, I'm for it. When I don't like the 
decision, I'm----
    Chairman Sensenbrenner. Time of the gentleman from 
Massachusetts has expired.
    Mr. Berman. Mr. Chairman, I'd like to withdraw the 
amendment.
    Chairman Sensenbrenner. The amendment is withdrawn. Are 
there further amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas seek recognition?
    Ms. Jackson Lee. Mr. Chairman, that was in error. Thank you 
very much.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Virginia?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. Gentleman's recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I come from a State that has a 
long tradition in supporting religious freedom. In fact, it was 
Thomas Jefferson of Virginia who wrote the Virginia State for 
Religious Freedom which precedes the First Amendment to our 
Constitution.
    So as we send our troops overseas to fight for freedoms, 
let us remember the good work of those who wrote the First 
Amendment to the Constitution. Today's exercise is totally 
gratuitous because nothing we do here will change the 
underlying law. This is because we're dealing with 
constitutional issues that cannot be altered by resolution. If 
the Judicial Branch ultimately finds the pledge to be 
constitutional, then nothing needs to be done. On the other 
hand, if the courts ultimately find it to be unconstitutional, 
no law that we pass will change that.
    Whether or not you agree with the decision, the fact is 
that the majority opinion is well reasoned. The appellate court 
applied all three different tests that have been applied in the 
last 50 years in evaluating establishment clause cases, and 
found the constitutional violation based on all three tests. 
One test was whether the phrase ``under God'' in the Pledge 
constitutes an endorsement of religion. The majority opinion 
says that it was an endorsement of one view of religion, 
monotheism, and therefore was an unconstitutional endorsement. 
Another test was whether the individuals were coerced into 
being exposed to the religious message. And again, the majority 
opinion concluded that the Pledge was unconstitutional because 
young children, who are compelled by law to attend school, 
quote, ``may not be placed in the dilemma of either 
participating in a religious ceremony or protesting.'' Finally, 
the Court applied the lemon test, part of which holds that a 
law violates the establishment clause if it has no secular 
purpose or no non-religious purpose. For example, cases 
involving the moment of silence in public schools, some of 
those laws have been upheld if the law allows silent prayer as 
one of many activities which can be done in silence. But courts 
have stricken laws in which a moment of silent prayer is added 
to existing moments of silence because that law has no secular 
purpose. The court concluded that the 1954 law, which added 
``under God'' to the existing Pledge, had no secular purpose 
and therefore was unconstitutional.
    I also believe, Mr. Chairman, that a good argument can be 
made in support of the dissent. The operative language in the 
dissent was, and I quote, ``Legal word abstractions and 
ruminations aside, when all is said and done, the danger that 
'under God' in our Pledge will tend to bring about a theocracy 
or suppress someone's belief is so minuscule as to be de 
minimis. The danger that that phrase represents to our First 
Amendment's freedoms is picayune at best,'' unquote.
    Unfortunately, our actions today may cause the courts to 
review the sentiments behind this because if the courts look at 
the importance that we apparently affix to ``under God,'' these 
terms will--these actions will diminish the argument that the 
phrase has de minimis meaning, and our actions today will 
actually increase the constitutional vulnerability of the use 
of the phrase in the pledge.
    Now, while a Federal Court of Appeals in California 
recently rejected calls to rehear the case, the fact remains 
that this issue is still alive and well in the courts, and 
every hearing we hold chips away at the de minimis meaning 
argument.
    Furthermore, Mr. Chairman, the court may review the 
legislation, this legislation under the lemon test, and find 
that today's exercise has no secular purpose, and therefore 
helps interested constitutional attack. Those attacks will gain 
validity because of our attacks today.
    Mr. Chairman, let me close with a quote from an editorial 
that appeared in the Christian Century, a nondenominational 
Protestant weekly which a good friend was so kind to send to 
me. It reads, and I quote: ``To the extent 'under God' has real 
religious meaning, then it is unconstitutional. The phrase is 
constitutional to the extent that it is religiously innocuous. 
Given that choice, I side with the Ninth Circuit.''
    Mr. Chairman, I would hope that we would not pass this 
resolution and get on to more important work.
    I yield back the balance of my time.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. Strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I wish 
to speak in opposition to this resolution. When we considered a 
very similar resolution on the floor of the House, what was it, 
last year, most of the newspaper columnists, most of the 
speakers on the floor of the House said something that I 
profoundly disagreed with. They said that this was a shocking 
and surprising decision and would almost certainly be 
overturned when the Court heard it en banc.
    If you read the decision, however, as Mr. Scott pointed 
out, it's well reasoned legally, and more to the point, it is 
absolutely mandated, in my opinion, by the school prayer 
jurisprudence of the last 40 years of the Supreme Court. And 
the only way you can get around that is by saying that ``under 
God'' is de minimis, which is an insult to religion. God is not 
de minimis. I hope that this Committee will not vote for this 
resolution, in effect endorsing their opinion of the Court that 
God is de minims. God is not minor, and a declaration of a 
belief in God is not unimportant. And if it is important and 
you coerce students into doing it, and it is coercion, as the 
Court pointed out, the entire jurisdiction of the school prayer 
area in the Supreme Court in the last 40 years says it's 
unconstitutional.
    Now, having said that, you have a conflict of courts 
between the Ninth and the Seventh. Why not let--the Supreme 
Court will have to decide this. I predict they will uphold the 
Ninth Circuit. They will say that the Ninth Circuit was 
correct. But why not let that go forward and see? It will go 
forward in any event. Why should Congress come out--well, I 
know why. It's political grandstanding. But putting that aside, 
Congress has no business telling the courts that they're right 
or wrong.
    Another reason for opposing this resolution is it is simply 
a violation of the separation of powers. It's simply wrong, of 
the spirit. I mean we can say anything we like, but we 
shouldn't go telling courts they're wrong. If we think the 
court did something that we don't appreciate, draft a bill to 
change the law, or draft an amendment to change the 
Constitution if it's a constitutional issue. That's our job. We 
write the laws. We can initiate an amendment to the 
Constitution. But if you're not prepared to do that, a 
resolution that simply says the courts are wrong in how they 
interpret the Constitution, it's none of our business to say 
that. As individuals, but not as the House of Congress.
    So I believe on several grounds, one, the court was right. 
I think the Supreme Court's going to sustain that. Time will 
tell. But it's not our business to change that unless we want 
to wait for the Supreme Court to decide, and if we don't like 
that, you can try to amend the Constitution, which I wouldn't 
suggest in any event, but that's the proper procedure. This is 
simply political grandstanding, and it's dangerous political 
grandstanding, and I challenge anyone to go home and say the 
Ninth Circuit is wrong because the phrase ``under God'' is 
meaningless and unimportant. It's not meaningless. It is not 
unimportant. I have no problem reciting the Pledge, but we 
shouldn't--we shouldn't coerce schoolchildren into doing it, 
for those few who may disagree, who may come from Buddhist 
households or Hindu households or atheist households. They're 
Americans too. They have equal religious liberty with all the 
rest of us. I yield back.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas seek recognition?
    Ms. Jackson Lee. Mr. Chairman, thank you for your kindness. 
I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman's recognized for 5 
minutes.
    Ms. Jackson Lee. Mr. Chairman, I'm going to take a slightly 
different perspective than a number of my colleagues. 
Hopefully, I will be in line with constitutional commentary and 
arguments, and I will make the point that when Members write 
legislation, jurisdiction is, if you will, directed. I imagine 
that we are looking at this legislative initiative because it 
deals with the Constitution and deals with the judicial 
opinion, and so it is appropriately referred to the Judiciary 
Committee.
    I say that because I hope that the resolution that I am 
drafting and one that I've already drafted, that indicates that 
Congress should be the entity under the Constitution, to be the 
vehicle to declare war will be considered by this Committee 
expeditiously. So I'm not going to argue the point about the 
question of H. Res. being before us, because I hope that there 
will be a fair treatment of all Members' resolutions dealing 
with the Constitution, and I believe that this House and this 
Congress has abdicated its responsibility with the allowing of 
a potential preemptive unilateral strike, and I believe that a 
constitutional review should take place of that.
    As it relates to H. Res. 132 I also have a view that will 
cause me to vote present on this, on these accounts. One is 
that I believe that the First Amendment--and since we are here 
speaking about judicial opinions, we all can just give our 
opinion--as an amendment that allows a freedom of expression, 
freedom of religion, freedom of speech. I believe the Pledge of 
Allegiance is an expression of speech. I also believe that it 
is a voluntary expression of speech, and so I have to read this 
legislation to ensure that there is no compulsion on the part 
of anyone in the United States, any elementary, any middle 
school, any high school, public school student being forced to 
say the Pledge of Allegiance. If that is the case then I think 
this is a benign resolution except for its gratuitous comments 
about judicial appointments, which is causing me to oppose the 
resolution as it presently is written, because I'm not sure 
what my colleagues on the other side are trying to say. Are 
they trying to suggest there's a litmus test for the kinds of 
judges that are to be appointed? And I think that is wrong. 
That has no place in this gratuitous resolution.
    But as far as the Pledge of Allegiance is concerned, I 
think that it is a voluntary expression. The ``under God'' is a 
voluntary expression. If you do not want to say it, do not say 
it. It may be a little uncomfortable for you. I think maybe if 
you're in elementary school, the parents should be notified or 
the parents should notify the school. The child should not be 
isolated. We should not categorize any children who do not want 
to say it, but the Pledge of Allegiance is voluntary.
    So from a personal perspective I disagree with the Ninth 
Circuit, and from a personal perspective I think the First 
Amendment protects us in saying ``under God.'' But my personal 
perspective is probably totally irrelevant.
    This Committee, this Chairman and this Committee has chosen 
to accept this resolution, and I have no argument with that in 
terms of being presented to this body. But I will say to my 
colleagues, be fair to those of us who believe that we are 
proceeding with an unconstitutional war because we have not 
actually declared war by way of as vote of this Congress, and 
that you will accept resolutions that we have that says that 
under Article II, Section 8, the Congress is the only body to 
declare war. And I guess as we proceed with this resolution, I 
hope that the First Amendment does protect any of us who desire 
to pledge allegiance to the flag and allow the words ``under 
God'' to be part of our pledge, and as we do so, I would think 
that we would characterize this as a voluntary statement of our 
loyalty to the United States of America, respect for the 
democracy and the Constitution, and this resolution would have 
been better off if it had had one statement, which is, ``We 
believe in the pledge of allegiance to the flag. Here it is, 
and we support it.'' But obviously that was not the intention. 
I hope that as it goes to the floor it will be presented in a 
way that many of us who agree that the First Amendment protects 
saying ``under God'' because it is voluntary, will be able to 
vote for this when it finally arrives at the floor of the 
House.
    With that, Mr. Chairman, I yield back, and I look forward 
to us reviewing the resolutions that I'll be presenting on the 
war and the unconstitutionality of the present posture of the 
United States in preemptive unilateral strike without a 
constitutional declaration of war. I yield back.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes. 
I just wanted to say publicly what I just leaned over and said 
to my colleague, Mr. Scott. I endorse his statement fully, his 
wonderful intellectual statement of what I had to say 
emotionally. I just don't have the patience to say it when 
people politically grandstand, but I have great admiration for 
the manner and content of the way he deals with this. I yield 
back.
    Mr. Delahunt. If I----
    Mr. Watt. I yield to the gentleman from----
    Mr. Delahunt. I just wanted to note that I do believe that 
Congress has the right that I think it has exercised in the 
past in terms of expressing its opinion about the Constitution, 
and I would--clearly, this body in our system is not the 
ultimate arbiter of the interpretation of the Constitution, but 
I think the gentlelady from Texas makes an excellent point. If 
the motion itself, if the resolution itself was restricted to 
an expression about a particular decision, I think there would 
be a different comfort level, if you will, in terms of many of 
us that serve on this Committee as far as a vote is concerned.
    But with the additional language that is in the amendment, 
I daresay that her reference to a litmus test or to that 
language, undermining, if you will, the reality and the basic 
constitutional premise that we have an independent judiciary is 
absolutely on the market. And maybe the gentleman who proposed 
the resolution should review the resolution based on her 
comments. And I yield back.
    Mr. Watt. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. Are there amendments? If not, a 
reporting quorum is present. The question is on agreeing to the 
motion to favorably report House Resolution 132. Those in favor 
will say aye.
    Opposed, no.
    The ayes appear to have it.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio.
    Mr. Chabot. Ask for recorded vote.
    Chairman Sensenbrenner. Recorded vote is requested. Those 
in favor of reporting H. Res. 132 favorably, will, as your 
names are called, answer aye, those opposed no, and the clerk 
will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes.
    [No response.]
    The Clerk. Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    Mr. Berman. Present.
    The Clerk. Mr. Berman, present. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. Present.
    The Clerk. Mr. Watt, present. Ms. Lofgren?
    Ms. Lofgren. Present.
    The Clerk. Ms. Lofgren, present. Ms. Jackson Lee?
    Ms. Jackson Lee. Present.
    The Clerk. Ms. Jackson Lee, present. Ms. Waters?
    Ms. Waters. Present.
    The Clerk. Ms. Waters, present. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    Mr. Delahunt. Present.
    The Clerk. Mr. Delahunt, present. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Present.
    The Clerk. Ms. Sanchez, present. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber, wish to 
cast or change their votes? Gentleman from North Carolina, Mr. 
Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Chairman Sensenbrenner. Gentleman from Virginia, Mr. 
Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Chairman Sensenbrenner. Other Members who wish to cast or 
change their vote? The gentleman from Massachusetts, Mr. 
Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? Mr. Meehan again.
    Mr. Meehan. Can I change my vote to aye or present? 
[Laughter.]
    Chairman Sensenbrenner. Remember, three strikes and you're 
out. [Laughter.]
    Mr. Meehan. Present, please.
    The Clerk. Mr. Meehan, present.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes?
    If not, the clerk will report.
    Mr. Meehan. Can I take my staffer off the payroll? 
[Laughter.]
    Mr. Delahunt. Leave me alone, Marty.
    Chairman Sensenbrenner. And that can be done outside the 
Committee room. The clerk will report.
    The Clerk. Mr. Chairman, there are 22 ayes, 2 nays, and 8 
present.
    Chairman Sensenbrenner. And the motion to report the 
resolution favorably is agreed to. Without objection, the staff 
is directed to make any technical and conforming changes, and 
all Members will be given 2 days as provided by the House rules 
in which to submit additional dissenting supplemental or 
minority views.
                             Minority Views

    Minority Views to H. Res. 132, a resolution to reaffirm the 
reference to one Nation under G-d in the Pledge of Allegiance
    H. Res. 132 is a response to the 9th Circuit's decision in 
Newdow v. U.S. Congress I \1\ and Newdow v. U.S. Congress II. 
\2\ In these rulings, the 9th Circuit held that daily voluntary 
\3\ recitation of the pledge violated the Establishment Clause 
of the Constitution. \4\ Both the House of Representatives and 
the Senate passed resolutions in the 107th Congress immediately 
after the Court handed down its decision in Newdow I. H. Res. 
459 passed by a vote of 416-3, and S. Res. 292 passed by a vote 
of 99-0. \5\ The current resolution is in response to Newdow 
II, recently released on February 28, which reaffirms the first 
holding and denies all petitions for rehearing on the issue.
---------------------------------------------------------------------------
    \1\ 292 F.3d 597 (9th Cir. 2002). http://www.ca9.uscourts.gov/ca9/
newopinions.nsf/FE05EEE79C2A97B688256BE3007FEE32/$file/0 
016423.pdf?openelement
    \2\ No. 00-16423 (9th Cir., February 28, 2003)
    \3\ Mandatory recitation of the Pledge was struck down by the 
Supreme Court in West Virginia State Board of Education v. Barnette, 
319 U.S. 624 (1943).
    \4\ The Court wrote, ``[t]he Pledge, as currently codified, is an 
impermissible government endorsement of religion because it sends a 
message to unbelievers `that they are outsiders, not full members of 
the political community, and an accompanying message to adherents that 
they are insiders, favored members of the political community.' '' 
Newdow I at 9124. The 9th Circuit, relying on the Supreme Court's 
voluntary school prayer jurisprudence stated, ``the phrase `one nation 
under G-d' in the context of the Pledge is normative. To recite the 
Pledge is not to describe the United States; instead, it is to swear 
allegiance to the values for which the flag stands: unity, 
indivisibility, liberty, justice, and--since 1954--monotheism. The text 
of the official Pledge, codified in Federal law, impermissibly takes a 
position with respect to the purely religious question of the existence 
and identity of G-d. A profession that we are a nation `under G-d' 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 g-d,' because none of these professions 
can be neutral with respect to religion.'' Id. at 9123.
    \5\ H. Res. 459, 107th Cong., 148 Cong. Rec. H4125-4136 (June 27, 
2002); S. Res. 292, 107th Cong., 148 Cong. Rec. S6105-6106 (June 26, 
2002).
---------------------------------------------------------------------------
    Although the 9th Circuit has held that the Pledge violates 
the Establishment Clause, the only other Circuit to have 
considered the question, the 7th Circuit, has upheld the 
language of the Pledge, including the 1954 amendment. \6\ 
Although the proposed legislation cites Supreme Court dicta on 
the subject of the Pledge and the national motto, the Court has 
never squarely considered the question of the constitutionality 
of the voluntary recitation of the Pledge in schools.
---------------------------------------------------------------------------
    \6\ Sherman v. Community Consolidated School District 21, 980 F.2d 
437 (7th Cir. 1992).
---------------------------------------------------------------------------
    We voted for the resolution at Committee because we believe 
the Ninth Circuit Court of Appeals ruling runs counter to the 
spirit and precedent surrounding the First Amendment. As 
Members with great respect and reverence for our pledge of 
allegiance, we don't believe its recitation substantively 
infringes on freedom of religion.
    H. Res. 132 should not be interpreted as a means of 
discrediting the judiciary. When Members of Congress argue, as 
they did last Congress, that a decision was written by 
``radical secularists \7\'' and others make assertions 
concerning the judiciary creating a ``G-dless state \8\'' 
little room is left for fair and reasoned debate. However, it 
should be noted that other judicial rulings have been much more 
objectionable and destructive to the ideals of our 
Constitution; for example, the Supreme Court ruling in Bush v. 
Gore in which Five Republican political appointees contorted 
the equal protection clause to stop the counting of votes. \9\ 
Although the Majority now decries judicial activism, there was 
no resolution on the floor in condemnation of that.
---------------------------------------------------------------------------
    \7\ Remarks of Mr. Pence, Cong. Rec. H4074, 107th Congress, June 
27, 2002.
    \8\ Remarks of Mr. Pickering, Cong. Rec. H4129, 107th Congress, 
June 27, 2002.
    \9\ Bush v. Gore, 531 U.S. 98 (2000).
---------------------------------------------------------------------------
    In addition, last June, the Supreme Court ruled in Zelman 
v. Simmons-Harris that taxpayer funds can be used in voucher 
programs to support parochial schools. \10\ This ruling has 
been called the worst church-state ruling in 50 years. The 
Supreme Court also upheld random drug testing of high school 
students who participate in extracurricular activities in Board 
of Education v. Earls, including those students who are not 
suspected of any wrongdoing. \11\ Its hard to imagine an 
opinion that is more objectionable from a privacy standpoint. 
But again, we doubt we will see a congressional referenda on 
those decisions any time soon.
---------------------------------------------------------------------------
    \10\ Zelman v. Simmons-Harris, No. 00-1751(2002).
    \11\ Board of Education of Independent School District No. 92 of 
Pottawatomie County et. al. v. Earls et al., No. 01-332 (2002).
---------------------------------------------------------------------------
    We also take great issue with our friends who came to the 
House Floor claiming that Newdow is a shocking sign of some 
fundamental defect in the judiciary. Unlike Bush v. Gore, this 
decision can be appealed, where it will likely be overturned. 
This is but one step in the judicial process, a process that 
usually and ultimately gets it right. Just as Plessy v. 
Ferguson \12\ (upholding separate but equal) was eventually 
overturned by Brown v. Board of Education \13\, and Penry v. 
Lynaugh \14\ (permitting execution of the mentally retarded) 
was overridden by Atkins v. Virginia \15\, we have seen that 
the courts have often lost their way only to find it again
---------------------------------------------------------------------------
    \12\ Plessy v. Ferguson, 163 U.S. 537 (1896).
    \13\ Brown v. Board of Education, 347 U.S. 483 (1954).
    \14\ Penry v. Lynaugh, 492 U.S. 302 (1989).
    \15\ Atkins v. Virginia, No. 00-8452 (2002).
---------------------------------------------------------------------------
    We are also concerned about new language inserted in this 
Congress' resolution that states ``the President should 
nominate and the Senate should confirm Federal circuit court 
judges who interpret the Constitution consistent with the 
Constitution's text.'' In one sense, this new language is a 
truism--obviously the Constitution needs to be read consistent 
with its text. That is what judges do. We hope this is not read 
as some sort of a litmus test that sitting judges and other 
potential nominees had better tailor their constitutional views 
to a particular or a narrow view of the Constitution.
    Lost in our debate on H. Res. 132 is the value of our 
judicial system, the crown jewel of our democracy. If there is 
any single idea in the Constitution that has separated our 
experiment in democracy from all other nations, it is the 
concept of an independent judiciary.
    The Founding fathers, in their great wisdom, created a 
system of checks and balances. Independent judges with lifetime 
tenure were given the tremendous responsibility of interpreting 
the constitution. It is no surprise that over the years, it is 
the judiciary, more than any other branch of our government, 
that has served as the protector of our precious civil rights 
and civil liberties over the years. We agree with Alexander 
Hamilton that the ``independence of the judges'' enables them 
to stand against the ``ill humors'' of passing political 
majorities. \16\
---------------------------------------------------------------------------
    \16\ The Federalist No. 78 at 469 (Alexander Hamilton) (Clinton 
Rossiter ed., 1961)
---------------------------------------------------------------------------
    The fact that the Ninth circuit appears to have gone astray 
does nothing to diminish our respect for our Judiciary.

                                   John Conyers, Jr.
                            Additional Views

    Judges should not be immune from criticism. Indeed, healthy 
debate on the merits of judicial decisions is an essential 
element of our system of justice. But there is a difference 
between legitimate criticism and pressure tactics that pose a 
threat to judicial independence.
    Like all Americans, Members of Congress are free to 
criticize judicial decisions with which we disagree. In fact, I 
joined most of my colleagues in voting for a resolution during 
the last Congress (H. Res. 459) that expressed disapproval of 
this very decision and urged that it be overruled.
    But I voted ``present'' on this current resolution because 
it goes further in a way that I believe would set an unwise and 
dangerous precedent. It is one thing to urge the Judicial 
Branch to use the normal process of appellate review to correct 
an erroneous decision. It is quite another thing to imply that 
judges who issue unpopular decisions in particular cases are 
unfit for office.
    Unfortunately, that is what the present resolution does. It 
not only expresses disapproval of the court's reasoning in 
Newdow, but states that ``the President should nominate and the 
Senate should confirm Federal circuit court judges who 
interpret the Constitution consistent with the Constitution's 
text.''
    By linking future nominations to a particular ruling with 
which the proponents disagree, the resolution sends a not-so-
subtle message to sitting judges and other potential nominees 
that they had better tailor their constitutional views to those 
of the congressional majority if they wish to be confirmed.
    The framers recognized that an independent Judicial Branch 
is an essential guarantor of freedom in a democracy. For this 
reason, Article III of the Constitution provides that judges 
shall continue in office during good behavior, and that their 
compensation shall not be diminished during their continuance 
in office. For the same reason, those who profess fidelity to 
the Constitution must take great care not to chip away at the 
independence of the judiciary on which our liberty depends.

                                   William D. Delahunt.
                                   Howard L. Berman.
                            Additional Views

    I come from a State that has a long tradition in supporting 
religious freedom. In fact, it was Thomas Jefferson of Virginia 
who wrote the Virginia Statute for Religious Freedom which 
precedes the first amendment of the Constitution.
    H. Res 132 is totally gratuitous, as it will do nothing to 
change the underlying law. This is because we are dealing with 
constitutional issues that cannot be altered by resolution. If 
the Judicial branch ultimately finds the Pledge or the national 
motto to be constitutional, then nothing needs to be done. If, 
on the other hand, the courts ultimately find it to be 
unconstitutional, no law that we pass will change that.
    Although I tend to agree with the dissent in the Newdow vs 
U.S. Congress, 292 F. 3d 597(9th Cir. 2002), case regarding the 
Pledge of Allegiance, I believe the reasoning of the majority 
opinion in that case was sound. In that case, the Supreme Court 
applied three different tests that have been applied for the 
last 50 years in evaluating the establishment clause cases. One 
test was whether the phrase ``under God'' in the Pledge 
constitutes an endorsement of religion. The majority opinion 
says it was an endorsement of one view of religion, monotheism, 
and, therefore, was an unconstitutional endorsement.
    Another test was whether the individuals were coerced into 
being exposed to the religious message, and the majority 
opinion concluded that the Pledge was unconstitutional because 
young children ``may not be placed in the dilemma of either 
participating in a religious ceremony or protesting.''
    Finally, the court applied the Lemon test, part of which 
holds that a law violates the establishment clause if it has no 
secular or nonreligious purpose. For example, cases involving a 
moment of silence in public schools, some of those laws have 
been upheld if the law allows silent prayer as one of the many 
activities that can be done in silence. But courts have 
stricken laws in which a moment of silent prayer is added to 
existing moments of silence because that law has no secular 
purpose. The court concluded that the 1954 law which added 
``under God'' to the existing Pledge had no secular purpose 
and, therefore, was unconstitutional.
    I indicated that I tended to agree with the dissent in the 
Newdow case. The operative language in the dissent which 
persuaded me was the following:

        ``Legal world abstractions and ruminations aside, when 
        all is said and done, the danger that 'under God' in 
        our Pledge of Allegiance will tend to bring about a 
        theocracy or suppress someone's belief is so minuscule 
        as to be de minimis. The danger that phrase represents 
        to our first amendment's freedoms is picayune at 
        best.''

    Unfortunately, our actions in enacting H. Res. 132 may 
cause the courts to review the sentiments behind ``one Nation 
under God'' or ``In God We Trust'' because if the courts look 
at the importance that we apparently affix to ``one Nation 
under God'' or ``In God We Trust,'' then it diminishes the 
argument that the phrase has de minimis meaning and increases 
the constitutional vulnerability of the use of that phrase in 
the Pledge. While, a Federal appeals court in California 
recently rejected calls to rehear the controversial ruling that 
struck down recitation of the Pledge of Allegiance in public 
schools due to its religious content, the fact remains that 
this issue is alive and well and every hearing chips away at 
the de minimis meaning argument.
    Furthermore, the court may look at the legislation under 
the Lemon test and find that this exercise has no secular 
purpose and is, therefore, unconstitutional. The phrase ``In 
God We Trust'', the national motto, appears to be vulnerable to 
the same constitutional attack as the phrase ``under God'' in 
the Pledge. Those attacks gain validity because of our actions 
on H. Res 132.
    A quote from an editorial that appeared in the Christian 
Century, a non-denominational Protestant weekly, Puts this 
matter in perspective:

        ``To the extent `under God' has real religious meaning, 
        then it is unconstitutional. The phrase is 
        constitutional to the extent that it is religiously 
        innocuous. Given that choice, I side with the Ninth 
        Circuit - the government should not link religion and 
        patriotism''

                                   Robert C. Scott.