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

2

1The 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. § 4. 2 No. 00–16423, 2003 WL 554742, (9th Cir. Feb. 28, 2003) (Newdow II). 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 § 52720 (1989). 4 Newdow II at 14. 5See Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002) (Newdow I). 

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. 

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. 

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 stateemployed teacher in her state-run school leads her classmates in 

3

6 Newdow II at *14. 7See 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. 9See id. at 603. 10See id. at 605. 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 requireContinued

a ritual proclaiming that there is a God, and that our’s [sic] is ‘one 

nation under God.’ ’’ 6

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

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 

4

ment 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. 15See 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. 17 505 U.S. 577 (1992). 18 Newdow II at *19. 19 Id. at *20. 20 Id.

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. 

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

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, 

‘‘[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

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, 

5

21 Id. 22 Id. 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. 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. 27See U.S. Dept. of Ed., Nat’l. Ctr. For Ed. Statistics, available at http://nces.ed.gov/pubs2002/

snf—report/table—01—1.asp. 

‘‘[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

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

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

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

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 

6

28Mr. 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). 29See 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.’ ’’).

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. 

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: 

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) 

7

30 Newdow II at *11. 31 Id. at *4 (O’Scannlain, J., dissenting). 32 Id. at *9 (O’Scannlain, dissenting). 33 Id. (emphasis in original). 34 Id. at *10. 35 370 U.S. 421 (1962). 36 Id. at 422. 

(‘‘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

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

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

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 

8

37 Id. at 424. 38 Id. at 435 n.21 (emphasis added). 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. 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’’). 42 Id. at 224. 

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: 

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

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: 

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

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 

9

43 Id. at 280–81. 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). 45 Id. at 229 (Douglas, J., concurring) (emphasis added). 

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. 

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, 

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

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

10

46 Id. at 307. 47 Id.IIII 48Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) quoting Lynch v. Donnelly, 465 U.S. 668, 693 

(1984) (O’Connor, J., concurring). 49Wallace v. Jaffree, 472 U.S. 38, 71–2 (1985) (O’Connor, J., concurring) (emphasis added). 50 Id. at 84. 51 505 U.S. 577 (1992). 

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

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, 

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

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

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 

11

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. 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. 55 Id. at 597–98. 56See 319 U.S. 624 (1943). 57See id. at 627. 58See 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.

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, 

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

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. 

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 WritVerDate Jan 31 2003 02:12 Mar 19, 2003 Jkt 019008 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\HR\OC\HR041P1.XXX HR041P1
12

59 Id. at 643. 60See id. 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. 63The Declaration of Independence. 64 U.S. Const. art. VII. 65Gettysburg Address. There are 14 references to God in the 669 words comprising the Gettysburg Address. 66 36 U.S.C. § 302. 

ing 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

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 

13

67 36 U.S.C. § 301(a). 68School District of Abington Township v. Pennsylvania, 374 U.S. 203, 303–04 (1963). 69 Newdow II at *10. 

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

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

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

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, 

14

70 980 F.2d 437 (7th Cir. 1992). 71Sherman v. Community Consolidated School District, 980 F.2d 437, 444 (7th Cir. 1992). 72 Id. (emphasis added). 73 Id. at 445. 74 Id.

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. 

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

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

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

15

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. From 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. In 1997, the Supreme Court reversed 27 out of 28 Ninth 

Circuit decisions.

3. Since 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.

16

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). 76See 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. 

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

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. 

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 .......................................................................................................

17

ROLLCALL NO. 1—Continued

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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. 

18

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. 

19

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. 

20

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:]

21


132A.eps
22


132B.eps
23


132C.eps
24


132D.eps
25


132E.eps
26


132F.eps
27

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 

28

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. 

29

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 


132G.eps
30

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 EmVerDate Jan 31 2003 02:12 Mar 19, 2003 Jkt 019008 PO 00000 Frm 00030 Fmt 6659 Sfmt 6601 E:\HR\OC\HR041P1.XXX HR041P1
31

ployment 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. 

32

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. 

33

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. 

34

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 

35

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 interVerDate Jan 31 2003 02:12 Mar 19, 2003 Jkt 019008 PO 00000 Frm 00035 Fmt 6659 Sfmt 6601 E:\HR\OC\HR041P1.XXX HR041P1
36

pret 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? 

37

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. 

38

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 

39

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 

40

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 

41

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. 

42

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? 

43

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Present. 

The CLERK. Ms. Sa ́nchez, 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. 

(45)

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) 3Mandatory 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). 4The 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). 6Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992). 

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. 

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. 

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 

46

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). 10Zelman 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). 12Plessy v. Ferguson, 163 U.S. 537 (1896). 13 Brown v. Board of Education, 347 U.S. 483 (1954). 14Penry v. Lynaugh, 492 U.S. 302 (1989). 15 Atkins v. Virginia, No. 00–8452 (2002). 

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. 

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. 

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 

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. 

47

16The Federalist No. 78 at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961) 

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

The fact that the Ninth circuit appears to have gone astray does 

nothing to diminish our respect for our Judiciary.

JOHN CONYERS, JR. 

(49)

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. 

(51)

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.’’

52

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.

Æ