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Published in Print: March 3, 2004, as Friends of the Court

Friends of the Court

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Excerpts from some of the 50-plus friend-of-the-court briefs filed at the U.S. Supreme Court in Elk Grove Unified School District v. Newdow follow.



National School Boards Association:

"The pledge neither suggests nor requires supplication to a deity, but rather, is a statement of allegiance to the flag, a patriotic symbol."

"The ostensibly simple solution for some critics of the pledge is to eliminate the words 'under God' from the pledge. This is not the question before the court, and this solution is not simple at all. Such parsing invites and practically guarantees future litigation against school districts in matters of educational programming." ...

"More than just a throwaway moment after the ringing of the morning bell, the Pledge of Allegiance represents an opportunity for a classroom of children to reflect on a common purpose and national identity."

National Education Association:

"[W]e take this position because NEA—whose members are in a prime position to assess at first hand the implementation of policies that provide for the recitation of the pledge in public schools—does not consider such a recitation to be a sectarian activity, but rather a patriotic observance that serves the secular purpose of promoting an understanding of and appreciation for our nation's heritage and founding principles." ...

"[A]ny consideration by this court of the question whether public school teachers may be required to recite the pledge, or (if there is a difference) to lead students in reciting the pledge, should await a case in which the question is squarely presented."

The 50 states:

"The amici states have a significant interest in this case because adjudication of the issues presented may directly impact the validity of at least 43 state statutes providing for the recitation of the Pledge of Allegiance by public schoolchildren. In addition to implying that numerous state statutes are unconstitutional, the decision below 'threatens cash- strapped school districts and underpaid teachers with the specter of civil actions for money damages.'"

U.S. House of Representatives:

"When the words 'under God' were added to the pledge in 1954, Congress believed it vital that the pledge reflect a distinction between the United States and the communist Soviet Union. In an attempt to distinguish between the two countries, the legislators focused on the fact that the founders of this nation were theists, whereas the founders of the Soviet Union were nontheists." ...

"The pledge was thus amended to reflect the religious heritage, foundation, and character of the United States—not to promote any sort of religious doctrine."

The Rutherford Institute:

"As a matter of pure judicial logic, divorced from the plenary historical support for the pledge noted by the court in the cases cited above, the 9th Circuit's reading of the court's First Amendment jurisprudence at first glance appears ... on the surface to be defensible." ...

"It has fallen to this court to set the record straight and confirm the unequivocal affirmations of 13 Supreme Court justices across four decades, which clearly indicate that state- led recitation of 'under God' in the Pledge of Allegiance does not violate the establishment clause."


Americans United for Separation of Church and State, American Civil Liberties Union, and Americans for Religious Liberty:

"Schoolchildren would reasonably perceive the pledge as expressing religious belief and affirming a religious ideal. ... Moreover, it would take a very subtle 6-year-old to view the averment that ours is 'one nation under God'— when proclaimed as part of a daily classroom ritual, and beginning with the words 'I pledge'—as simply an 'acknowledgment' of beliefs that other people hold or once held and that might or might not be true." ...

"To make schoolchildren daily proclaim faith in 'God,' and to make religious devotion an official element of national identity, were the 'pre-eminent' and 'predominant' purposes of Congress." ...

"The court has never held that the establishment clause permits ritual recitation of the pledge in public elementary and secondary schools, and the court's dicta do not preclude a holding of its unconstitutionality in the circumstances presented here."

Anti-Defamation League:

"[T]he pledge is a regular patriotic ritual of unique importance, recited with precisely the same words, every morning, year after year, prescribed by school authorities and led by students' classroom teachers—thus powerfully conveying to students that its recitation is the norm to which they are expected to conform." ...

"In addition, daily recitation conveys to dissenters and nonbelievers, and to polytheistic and nontheistic religious students and their families the unmistakable, but unconstitutional message that those who do not believe in the single God to which the pledge refers are outsiders, rather than full members of the political community that otherwise consists of 'one nation ... indivisible.'" ...

"Finally, removal of the words 'under God' from the pledge in the classroom would not bespeak any hostility to religion or undermine establishment clause values; it would, instead, protect the essential postulates of religious liberty that are the underpinnings of this court's decisions in cases involving religious expression in public schools."

Atheist Law Center:

"In this case, the 'political community' is the only one known to schoolchildren: the schoolhouse. ... The court has carefully defined 'willingness' to participate in a group religious affirmation or exercise in this controlled and prescriptive environment, recognizing that it affronts the very idea of separation of church and state to enforce compulsory school-attendance laws and then subject schoolchildren to religious indoctrination there." ...

"It cannot be the case, because it would be unprincipled, that the state which may not post the Ten Commandments in the classroom, a religious promotion which requires no participation by students, may oblige 'willing' students to utter the creed that that nation exists 'under God.'" ...

"Nor can it be the case, because it would be unprincipled, that the state which may not sponsor prayers at school-sponsored events (let alone in the classroom) may nevertheless oblige 'willing' students to utter the creed that the nation exists 'under God.'"

Twenty-two historians and legal scholars:

"[H]aving schoolchildren recite the Pledge of Allegiance— taking an oath, in effect—forces not only nonmonotheists and atheists to choose between expressing love for country or expressing belief in God, but also other citizens who, because of religious scruples, may object to invoking God in such a manner. See, e.g., Matthew 5:34: 'Swear not at all.' Such a policy would have been opposed by the framers of the Constitution, who generally viewed oath- taking as an inherently religious expression ... ."

SOURCE: U.S. Supreme Court filings.

Vol. 23, Issue 25, Pages 24-26

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