the court my name is gregory cats are some here on behalf of the united states the appellant's today will be dividing their time among three counsel who will take ten minutes each and we would voluntary recitation of the pledge of allegiance in public schools does not violate the establishment clause i'd like to begin by addressing the rationale of the district court that this court's prior decision in new gal which the supreme court reversed for lack of credential standing is a finding establishment clause precedent on the merits and then time permitting i'd like to address the with respect to the precedent point whatever may be the case with respect to reversals are vacant on other grounds generally the salient point here is that this cour nougat decision was reversed for lack of prevention standing and the supposed the supreme court and this court have made clear that the existence of prudential standing versailles on the but also by the judge made rules to prevent standing consistent with that general principle the supreme court in elk grove in reversing on credential standing grounds i'm said that it was improper improper for this court to entertain mr new das claim in light of his lack of production standing and it's a little bit difficult to reconcile the proposition that was  improper for this court to reach the merits with the district court's conclusion that the merits resolution is nonetheless a binding precedent now the district court to overcome all of that relied on the sequencing rules under the still code use asian nothing in those rules undercuts the key proposition that prudential standing bears on the exercise of subject matter jurisdiction in a footnote in steel co the supreme court held that you know very limited circumstances courts could decide merits see issues before credential standing issues but only on the theory that what the with respect to the issue being discussed the particular merits the issue under consideration whether there was a cause of action under a federal statute essentially overlapped and merged into the prudential standing inquiry of whether the plaintiffs was in the zone of interest under the statute and the supreme court said that given the essential merging of the two issues in that circumstance and that circumstance only a court could do american issue decided merrick's issue before preventable standing issue none of that fairly elaborate complex discussion would have been necessary if preventable standing were simply a merits issue that could be decided in whatever sequence a court wanted there are some lower courts including the eleventh circuit in the decision cited by the district court which have treated credential standing as subject to the same hypothetical jurisdiction rules that apply to steel co that apply to article three jurisdiction before steele co and recognized a limited ability to decide merits issues before credential standing issues when the merits issues are significantly easier and the outcome is  unchanged i'm not sure i agree with those decisions but the key points for this court's consideration are that the existence of that doctrine like the priest eelco article three doctrine just not render the standing question any less jurisdictional number one and number two whatever the proper scope of hypothetical jurisdiction with respect to preventable standing but one thing that no court has ever done is hold that may assume credential standing in order to rule in favor of the party invoking the subject matter jurisdiction of the article three court and certainly no court may render a decision on the merits of the prior panel decision the theory on which this panel rested was that the recitation of the pledge was going to the marathon as a matter of general vacated opinion and i know i'm assuming it's not priming correct you could be consulted for whatever persuasive value it has or doesn't have just as any non binding opinion on the reason why with respect the prior panel opinion is not persuasive that the recitation of the pledge in public schools is not a kin to the prayer at issue in we in the case that we relied on they gave birth to the prohibition on prayer in public schools namely angle the supreme court itself drew a fundamental distinction between prayer which it said was obviously inappropriate in public school classrooms and patriotic exercises such as saying the declaration reciting the declaration of makes angle it's self made clear that students in civics class could be encouraged through discussion of documents like the declaration of independence which presuppose a supreme being as a first principles justification for our system of limited government democracy and individual rights and recitation of singing of the national anthem which presupposes and acknowledges the existence of a god and i don't think the establishment clause inquiry turns on stanza one verse of stanza four students could be encouraged to embrace those documents they couldn't be compelled under barnatt they could be encouraged now the question is whether anything in we changes any of that the issue before you is the line between prayer and patriotic exercises where he isn't one of the issues one have coersion the school children who feel the site under god with respect judge nelson the issue is the classification of the pledge either as a of i think what we is significant if you think of if you think of the question of prayer in public schools try heart leap does not have anything it does not have any bearing on the activities in cases like good news club addresses we address it the nature of the graduation ceremony it does not address the line between prayer and appropriate patriotic exercises i'm which have been recognized as permissible by court decisions and validated by two hundred years of unbroken tradition one of what i want you to lisa is a graduation ceremony is an important part important a violation of the constitution where it mentions god once in the same in a similar format if the god of the free hope of the grave and then goes on about directed to god and gives thanks to god throughout trying hard one two three four times at the end of every invocation the rabbi is giving thanks to god a prayer is a direct address to the divine that is fundamentally different from standing at attention not to an altar but to the flag of the united states of america pledging allegiance to the country and then describing the country among other things as  bearing a relation to god a kin to the one posited by thomas jefferson when he invoked the existence of god as a justification for rebelling against great britain and instituting a system of three was not binding precedent we believe that this court should review the pledge of allegiance with respect to the school district policy of allowing daily recitation of the pledge by willing students to be constitutional and not viol null and void based upon the lack of jurisdiction of this court in deciding that if you were to give a persuasive value to that opinion and that would be a fostering of allowing advisory or hypothetical opinions and i believe the supreme court taking great lengths to say that it should stay its hand in deciding important constitutional issues when used against there being any persuasive value of that decision is in general that whe school district policy allowing for daily recitation of the pledge by willing students we respectfully submit that while there is no certain test defined with respect to how to determine whether there is a violation of  clause there being many separate tests evolved over time by the courts we find that the pledge policy in this case meets all of those tests let me just ask you a question even if we  in the pledge we have to take the overall context and that's what was stressed i believe by justice o'connor recurring opinion in elk grove but likewise we look to all the different the various cases that have determined whether the pledge is constitutional when compared against other types of claimed establishment clause violations the pledge has been found to be constitutional and nonviolent that perhaps that is because it's ceremonial deism but more importantly i think for the context of our case is that the school district policy reflects an overall educational curriculum with respect to the state education code that provides for a patriotic exercise with respect to  the content history content as set forth in the excerpt joining service of record that establish that throughout the learning period of kindergarten through twelfth grade our students in california learn about the necessarily but what we would look to is we be leaving out an important element of our founding fathers which was set forth in the declaration of independence and that yes there are certain unalienable rights that have been fostered upon us by a divine creator we cannot escape that in the context of the school district curriculums as set forth in the education code we find that you know eleventh grade in fact the students do study the declaration of independence and particularly study the fact that there are unalienable rights based upon a divine creator so we can't escape the fact that god has been traditionally part of our country independence under a christian god if we're talking about history well i think your honor two points one we're talking a more modernized version of the pledge which we believe over time over the past fifty years having been reciting that it loses some of the religious character that might have been referred to by the founders and even those found in the fifty four act in fact similar to the sunday closing laws we find that there has been some dilution of that a factor of a religious content what we look to is the fact that students are taught on a daily basis to provide loyalty and patriotism to our country and it is the context in which they do so that is the importance in this case and why when the pledge is recited in the context of the education code and the teaching curriculum by the teachers that in fact it becomes constitutional and not a violation of the establishment clause in this case so i'm not quite sure i fact there barnatt analysis cures any potential evil that could occur because students are allowed to opt out we're not coercing them different question you know are you is it coercive if you're required to stand there and keep silent and be singled out by your classmates is an atheist i thought just kind of the answer that quite clearly and weissman i think not your honor and i believe that clearly we know now from the outgrowth decision by the majority that this is compelled to use and to bring the students together and teach tolerance and acceptance which is exactly what they do and have done since the decision of barnett i think we think that's appropriate i reserve my time thank you god who was the source of those rights but it wasn't the christian god it wasn't the jewish god and it wasn't the muslim guy it was the philosopher's god precisely because that in failed we needed to base this philosophical argument on the philosophers guy who is the philosophers guy that is the god that ever since the time of their startle going off to the middle ages and kind of the  guard is not a religious figure for purposes of the establishment clause right that earth is for good for other purposes for purposes of bestowing rights i suppose you madison was writing his declaration of rights for the commonwealth of virginia and based the equivalent of the bill of rights were genius on natural rights theory based on the philosopher's god a creator creator is created everything and by the shape of the creation we can determine that people have rights you needn't put in thomas jefferson's famous line because almighty god has created the mind free or whatever to human being out of that it just happened through the forces of science that are god are there philosophers who would say that there is a causal principle behind th natural forces of gas explosions well that's that god your honor however however any individual believer in the philosophers god wants to can conceive of that argument and the nineteen fifties and the but it was set on the floor then was faced a godless enemy in russia where i guess they didn't believe in the scientific forces i don't believe in the philosopher's guard and we ha even this time it's actually very enlightening there was a statement after statement on the floor of the dignity of the human person and why the dignity of the human person is protected in the united states because we hold our rights to be located in a place high above the government's reach coming from a source prior to that higher than the state that the state must respect our rights guaranteed us to government might violate them from time to time with can ever repeal them where the community of american schools and then said edwards be aguilar that we have been particularly vigilant in monitoring compliance with the establishment clause we're talking today about in this case about anything you can screw the environment asking little children to stand up led by their government agency church or i mean stall their friends or look at that flag place your hand over your heart and affirm that we are a nation under god this ruled out specifically this case we harmed by being indoctrinated that's the word was used indoctrinated in a system of belief in which he did not share all right ok now as i mean they are six one on five which is the policy  the child can refuse to participate in this exercise on personal reasons there's no indication that there's any compulsion of the type used in barnett there's no fifty dollar fine for the child not saying the pledge right now what's wrong with the child stepping outside the classroom and not participating in the pledge under the facts of this case where there is no allegation or anything actual basis that the child would feel like an outsider or that being an outsider would cause any psychological damage to this child was the sole claim of injury is indoctrination in the structure of a school prayer to a child who either says or does not say school prayer at graduation ceremony i think that's exactly right but i would point out just to follow up on that since the didn't see any in the in the excerpts of record about whether or not those children were damaged in any way or felt discriminated against or felt  not the freethinkers priest that was submitted to this court where you have a number of children who said this really damaged me and put that into words how they were damaged so i think that's clearly the case i mean your majesty that i hear it all the time that you know children are there out on the playground graduation or didn't justice kennedy make it clear what everybody stands if you're forced to attend a prayer session as a student and you have to remain silent that that's a that as far as the philosophy discussion that was just tried before me on concepts concerning god or supreme being or some sort of manifestly religious these concepts do not shed that religiosity merely because they are presented as a philosophy or a science that's from edwards the one up mentions of the pledge of allegiance by supreme court justices and pro and con as whether they are constitutional or have you agree on that last night i probably have in the past i don't recall the number i think it's  talking about the context of the creche cases in which they found the question to be constitutionally ok and allegheny they found the question not to be constitutionally ok there's some people say the only difference away a lot of its persuasive weight and what he was saying is this is different basically it's the only as a matter fact exams are different it's ok well he discussed in the national day of prayer he mentioned that that looks ok but he says while that is not before us we make no judgment on its constitutional certainly was no further before the national day of prayer it was a mention and a he was trying to get a can play ality he had five separate opinions nobody agreed with anything on anything and when there's an objection saying well what about the player she says ok well that's kind of we will throw that out yeah ok that's ok for now i think we need to have an analysis and as justice thomas said clearly as a matter of our precedent the pledge policy is unconstitutional again we have those other cases we was mentioned about where you don't need prayer stone are for right and notice they didn't say the phrase under god they said god that entity the inclusion of god in the pledge therefore further acknowledges the dependence of our people and our government upon the moral directions of the creator sounds to me like that's talking about acknowledg  dependence on the creator and then they further continued and deny the atheist the concepts of communism they were saying we don't like belief in god we don't like atheism they can't do that as a number as under the establishment clause the president of the united states like the eisenhower as he signed a bill into law so the from the space for the millions of our school children will delhi proclaimed their dedication of the nation and the people to the almighty proclaiming dedication is pure where i would say and president bush says the same thing president bush says that when we pledge allegiance we humbly seek the wisdom and blessing of divine providence i don't think there's a better definition for prayer than to humbly seek the wisdom blessing of divine providence so we have a lot of people congress two presidents saying they think it's prayer philosophical in the supreme court if he said that i missed that i'm sorry and i don't know of any so he's not a fact all i know is the opposite of god is god and that's been recent four of our current supreme court justices that mentions of god are clearly religious so including justice scalia you want the other test the endorsement test clearly this endorsers the idea that there's a god when we say we are a nation under god especially in the context of the school we have children six years old i think that's child was when i ob deism and is not an endorsement of religion yet she did and she was alone in that opinion mentioned she's no longer on the court and i'll mention that it also contradicts everything she said before that she said when government action should not gauge in a practice that all citizens do not share she also said here's what we're going to do before the new doc a case what she said is here's the criteria are going to look at the text the text of the act of one thousand fifty four did nothing but add the words under god she said let's look at th legislative history i've given you the legislative history is purely religious she said let's look at the implementation the implementation at the plank legrand up the flagpole they played onward christian soldiers marching as to war with the cross of jesus going on before i think by her standards that clearly violated the endorsement test then she came up and it seems that she didn't want to rule in that direction she signal to everybody while it remains a close case so i think we know that there was some some component on her part that maybe doubted what she was saying and then she comes up with these meant it meant something that had no religious significance that had no religious value clearly under god in the pledge has religious value as identified by the fact the reaction that we saw when this circuit came out with the initial pledge ruling it has tons of religious significance that's why everyone gets so angry when we discuss treating people fairly and taking it out and then the other person who wrote reef reference terminal the ceremonial deism was just sparkman in allegheny county and he said the same thing it will only apply if there's no religious significance and i don't think anyone can argue that this is no religious have never been brief they've never heard the arguments and i think that i think there's definitely four votes there and i'm not sure there aren't many more we haven't heard from a couple of the justices and i might raise that issue or i justice alito during his confirmation hearings he had a discussion i wouldn't pay please treat us equally and the other freedom that we're talking about is please let us use the government to do our religious bidding that's why we have an establishment clause to prevent that there was no conflicting freedom here they can go out on the public square they can worship under god they want all they want they can in public school i think it's jesus or god or anything else what they can do is get the government to do their religious bidding they can't get the news the machinery of the state to get that message across and that's all i'm asking for so i don't think i need much more time with the court is more questions  basically this is not a case of people who believe in god versus people who don't believe in god it's a case of people who believe in treating people equally versus people who believe that we should be able to treat people on equal especially in that one realm religion which the constitution so wonderfully with respect to the line now we have the supreme court's statement in angle that even in the school context children can be encouraged to recite patriotic by schoolchildren as one of the baseline historic practices against which the crash was invalidated and we have the majority opinion in allegheny which referenced back to the acceptance of the pledge  range we have every concurring opinion or dissenting opinion to have addressed the issue including that of three justices in elk row that of the author of the endorsement test justice o'connor not only in el going all the way back to wallace versus jaffery and indeed justice brennan in sham as well the only disagreement mr newdow can point to with respect to the pledge among the justices is whether one or another of several abstract doctrinal formulations would result in validation of the play some justices say a particular abstract doctrinal formulation would resulting in validation of the pledge and therefore the doctrine must be wrong obvious just to say the abstract formulation would not result in validation of the pledge and therefore doctrine must be fine with respect to the constitutionality of the pledge there is unanimous agreement and vatican remit as judgments recognized in the fourth circuit case is a much more reliable basis to rule concurrences and dissents over and over abstract statements about the endorsement test for the lemon test in lynch the court court applied lemon the lemon passed but in the course of doing so made clear that the lemon test would not invalidate the pledge that's a majority opinion that you can fairly rely on with respect to the word unless the pledge is akin to a prayer and many coercive effects that school children might feel are not constitutionally significant because angle tells us that with respect to patriotic exercises the government can encourage a spouse patriotic values reflected in documents like the declaration of independence and the national anthem and can encourage children to espouse then we submit that the pledge is more akin to the declaration and the national anthem than it is to things like the lord's prayer or the ten commandments thank you very much thank your honour's i'm going to make this very brief i think the issue has been clouded i think the issue today before this court is whether the school district policy needs the establishment clause and it's constitutional and we submit that it is we know that the  there are no guidelines that say references to god have to be time specific they can only be in the past they can also be in the future there's no the least restrictive means test with respect to the establishment clause week the courts have accepted ceremonial deism when in the context of the district policy in this case the state education code and the various content provisions for the that somehow for bed the inclusion of under god which reflects the basis upon which our country was founded in the declaration of independence that's simply fortifies this historical tradition that was already in place for two hundred years and i would respect submit your honor that when that is in the context of a teaching program it is the teaching program as provided by the education code in the context of the education code that allows for any of these tests to be made whether it's the purpose or an endorsement it is the policy which is that issue and if a child ops out let the teacher do its job and teach tolerance and acceptance and if there's a conflict resolve the conflict and explain why some