II. Historical and Factual Background

(Link to the PDF)

To begin with, this case concerns the daily recitation of a state-directed, teacher-led, religious version of the Pledge of Allegiance in public schools, a setting that the Supreme Court has always considered especially significant to its Establish­ment Clause analysis. A proper constitutional analysis must give substantial weight to the critical fact that we are dealing with “young impressionable children whose school attendance is statutorily compelled.” Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (same). We must also bear in mind that the issue before us is whether those children may, regardless of their own fundamental views, be subjected to a daily Pledge that includes a religious component, as opposed to simply reciting the historic version of the Pledge that contained no reference to God. However, before discussing the complex case law regarding the Estab­lishment Clause, or the less complex case law regarding the relationship between the Establishment Clause and public schoolchildren, it is important to have a full understanding of the words at the heart of this controversy, the added two words of the amended Pledge, and the history of how the Pledge grew from twenty-nine to thirty-one words in 1954.

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.^{4 4}See, for example, the words of former Governor Sarah Palin of Alaska: “If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me . . . .” Eagle Forum Alaska, 2006 Gubernatorial Candidate Questionnaire, July 31, 2006, http://irregulartimes.com/eagle-forum-2006­gubernatorial-candidate.html. But those of us who attended school before the 1950s, includ­ing at least two members of this panel, may remember a dif­ferent Pledge of Allegiance, a wholly secular pledge that was based solely on patriotism and not on any attempt at religious indoctrination. That version of the Pledge, the original ver­sion, was written by Francis Bellamy in 1892. It read: “I pledge allegiance, to my flag, and to the Republic for which  it stands — one Nation indivisible — with Liberty and Justice for all.” The Pledge achieved such popularity and acceptabil­ity that in 1942, Congress codified it, departing only slightly from Bellamy’s words by replacing “my flag” with “the flag of the United States of America,” thereby recognizing offi­cially the minor change that had been made in practice a gen­eration earlier.^5
5Act of June 22, 1942, Pub. L. No. 77-623, §7, 56 Stat. 377, 380 (1942) (codified as amended at 4 U.S.C. § 4 (2006)). The change from “my flag” to “the flag of the United States” had already taken place informally in the 1920s when the American Legion and the Daughters of the American Revolution, “[c]oncern[ed] over the number of immigrants living in the United States,” modified the then-unofficial Pledge to emphasize that “my flag” meant the American flag. See Linda P. McKenzie, Note, The Pledge of Allegiance: One Nation Under God?, 46 ARIZ. L. REV. 379, 387 (2004); see also RICHARD J. ELLIS, TO THE FLAG: THE UNLIKELY HISTORY OF THE PLEDGE OF ALLEGIANCE 66 (2005) (noting that the central proponent of the change “felt that the ambiguity of ‘my flag’ allowed devious or disloyal immigrants to avoid pledging their allegiance to the United States”).Neither Bellamy’s version nor the slightly modified official version, recited for many years by school­children throughout the land, contained any language even remotely associated with religious beliefs.

It was not until 1954 that the provision amending the Pledge was enacted, inserting the words “under God” into the Pledge of Allegiance, and it is at this point that the majority’s version of history diverges sharply from the facts. In the majority’s view, the words “under God” were added to the Pledge for a predominantly secular purpose. That is simply not the case. Seizing on the fact that the amendment to the Pledge was adopted during the Cold War, the majority asserts that the “words ‘under God’ were added . . . to reinforce the idea that our nation is founded upon a concept of a limited government, in stark contrast to . . . communist forms of gov­ernment.” Maj. op. at 3909 (emphasis added).⁶⁶The majority asserts that “under God” conveys the secular principle of “limited government” because it refers to “the Founding Fathers’ belief that the people of this nation are endowed by their Creator with certain inalienable rights.” Maj. op. at 3873. The majority’s explanation of the phrase bears a suspicious resemblance to the platform of the Tea Party movement, which proclaims itself to be a “group of like-minded people who desire our God given Individual Freedoms which were written out by the Founding Fathers. We believe in Limited Government[!]” Tea Party Nation, http://www.teapartynation.com (last visited February 26, 2010) (emphasis added). But even the Tea Party has not suggested previously that the phrase “under God” was intended to refer presciently to its plat­form. In the majority’s version of the facts, religion played at most only a minor part in the effort to amend the Pledge. Nothing could be fur­ther from the truth. As anyone with a whit of common sense will readily acknowledge, the word “God” carries predomi­nantly, indeed exclusively, religious significance. While dif­ferentiating the United States from the Soviet Union was certainly a factor motivating the amendment of the Pledge, even that differentiation was based largely on the Soviets’ purported belief in atheism and America’s belief in religion, and particularly in God. Indeed, the overwhelmingly predomi­nant purpose motivating the amendment of the Pledge was unqualifiedly religious in nature: Congress declared that “true” Americans believe in God and sought to imprint this belief on the minds of schoolchildren across the country.

Were the majority to engage seriously with the history of the Pledge, it would be compelled to recognize beyond any doubt that the words “under God” were inserted with the explicit and deliberate intention of endorsing a particular reli­gious belief, of compelling nonadherents to that belief to pro­nounce the belief publicly or be labeled un-American, and of instilling the particular religious view in America’s youth through daily indoctrination in the public schools.

For want of a respectable constitutional argument, the majority seeks to persuade us that “[i]t is the 2002 statute . . . that sets forth our current Pledge.” Maj. op. at 3894. That statement is, at best, misleading: the “current Pledge” was enacted in 1954, and its language has not changed in any respect since the words “under God” were added at that time. As I shall explain, see infra Part III, the majority’s attempt to use the 2002 legislation as the legal basis for the incorporation of the two additional words into the Pledge in 1954 is patently without merit and is contrary to logic, reason, and binding Supreme Court law. The “reaffirmation” by the later Congress does not in any way affect the constitutionality of the “under God” amendment as recited by public schoolchildren in the present or in any other circumstances.

A. Religious Origins of the “Under God” Amendment

For most of its 117 year existence, the Pledge of Allegiance existed, and was recited across the nation, in a purely secular form. The overwhelmingly religious purpose driving the deci­sion to amend the Pledge into its current form is apparent from the earliest efforts to do so. Those efforts began in 1951, when the Knights of Columbus, a “major Roman Catholic fra­ternal order,”^7
7EDWIN S. GAUSTAD, A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 189 (1986).  adopted a resolution requiring that the words “under God” be included in the Pledge of Allegiance when said at organizational meetings.^8
8See JOHN W. BAER, THE PLEDGE oF ALLEGIANCE: A CENTENNIAL HISTORY, 1892-1992 at 62 (1992). The following year, the Supreme Council of the organization passed a resolution urg­ing the United States Congress to adopt the Knights’ version of the Pledge, and within a few months Representative Louis Rabaut, a Catholic congressman from Michigan, sponsored a bill to do just that.

That first bill, however, did not gain much traction, perhaps because the group backing its adoption was composed of Roman Catholics, who were, at the time, disdained as both foreign and ignorant by many segments of American society.^9
9See, e.g., JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY 166-88 (2003) (describing the view of American intellectuals in the 1950s that Catholicism and Catholic culture were anti-scientific and anti-democratic); John M. Breen, Justice and Jesuit Legal Education: A Critique, 36 LOY. U. CHI. L.J. 383, 405 n.93 (2005) (noting “the virulently anti-Catholic” sentiment of the 1940s); Thomas C. Berg, Anti-Catholicism and Modern Church-State Relations, 33 Loy. U. Chi. L.J. 121, 168-69 (2001) (noting that “explicit dislike of Catholicism” played an “over­whelming role in church-state debates . . . in the 1940s and 1950s”). For arguments that anti-Catholicism is still a strong force in American culture, see PHILIP JENKINS, THE NEW ANTI-CATHOLICISM: THE LAST ACCEPTABLE PREJUDICE(2003); MARK S. MASSA, ANTI-CATHOLICISM IN AMERICA: THE LAST ACCEPT­ABLE PREJUDICE (2003).

No Catholic had been nominated for President of the United States by a major political party until 1928, when the Catholi­cism of Al Smith, the first member of that religion to become his party’s standard bearer, was a major issue in the presiden­tial campaign. Smith lost the election to Herbert Hoover by nearly twenty percentage points, and no other Catholic was again nominated until after the Pledge had been amended. Following Rabaut’s introduction of his bill, the Knights sent a second, identical resolution to every member of the House and Senate. ELLIS, supra note, at 131. Yet, “despite the [Knights’] best efforts . . . the movement to have the ‘under God’ clause added to the Pledge languished throughout 1953.” Id. at 132. Thus, the Catholic effort to place God in the Pledge appeared to be dead.

The next year, however, the words “under God” received a full-throated endorsement from members of a more main­stream and popular Christian denomination — a major Protes­tant religion. On February 7, 1954, the Reverend George M. Docherty, a highly regarded Presbyterian minister, delivered a sermon on “the American way of life” to an august congre­gation at Washington’s prestigious New York Avenue Pres­byterian Church: many members of Congress were present, and seated in President Lincoln’s former pew were President and Mrs. Eisenhower. See 100 Cong. Rec. 1700 (1954). Rev­erend Docherty seized this opportunity to encourage the assembled national leaders to add the words “under God” to the Pledge of Allegiance, arguing that such a phrase was nec­essary to distinguish America from “militantly atheistic commu­nism,”^10
10All quotations from the sermon are from George M. Docherty, Pastor, The New York Avenue Presbyterian Church, Sermon Marking Lincoln Sunday (Feb. 7, 1954), available at http://tinyurl.com/DochertySermon. All emphases have been added. and, more specifically, to distinguish the “Judaio-Christian” beliefs governing this nation from the “secularized Godless” philosophy that motivated our opponents in the “theological war” in which we were engaged. Contrary to the majority’s characterization of the purpose underlying the pro­posed insertion as predominantly secular, Reverend Docherty explicitly denied that the phrase “under God” emphasized a difference in political philosophies as the majority contends. Rather, he said:

We face today a theological war. It is not basically a conflict between two political philosophies — Thomas Jefferson’s political democracy over against Lenin’s communistic state.

Nor is it a conflict fundamentally between two economic systems[,] between, shall we say, Adam Smith[’s] “Wealth of Nations” and Karl Marx[’s] “Das Capital.”

It is a fight for the freedom of the human personal­ity. It is not simply, “Man’s inhumanity to man.” It is Armageddon, a battle of the gods. It is the view of man as it comes down to us from the Judaio-Christian civilization in mortal combat against mod­ern, secularized, godless humanity.

. . . [T]he pledge of allegiance . . . seems to me to omit this theological implication that is inherent within the “American Way of Life.” It should be
“One nation, indivisible, Under God.” Once “Under God,” then we can define what we mean by “liberty and justice for all.” To omit the words “under God” in the pledge of allegiance is to omit the definitive character of the “American Way of Life.”

Diverging for a moment from his theological thesis, Rever­end Docherty then paused to address those who “might assert this [proposed alteration] to be a violation of the First Amend­ment to the Constitution.” Reverend Docherty had at least some specific critics in mind, seeing as when he had made a similar proposal to amend the Pledge in a sermon two years earlier “several of [his] colleagues” in the clergy “declared it would violate the principle of separation of church and state.”^11
11Kenneth Dole, Dr. Docherty Originated “Under God” in Flag Pledge, WASH. POST, Mar. 12, 1955, at 10. In the Reverend’s view, however, as expressed in his church lecture to the President and the assembled members of Con­gress, it was “quite the opposite,” as the proposed insertion would not create a “state church in this land such as exists in England” nor would it discriminate between “the great Jewish Community, and the people of the Moslem faith, and the myr­iad denominations of Christians in the land.”^12
12This statement demonstrates that the Reverend was a far better theolo­gian than he was a constitutional scholar, as the Supreme Court had explicitly held that the First Amendment prohibits more than simply the official establishment of a state church or the discrimination between vari­ous sects of Judeo-Christianity. Almost six years to the day before Docherty’s sermon, the Supreme Court had held that “[t]he ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government . . . . can pass laws which aid one reli­gion, aid all religions, or prefer one religion over another.” Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) (emphasis added).

The Reverend was mindful, however, that he omitted a group from his list: “What then of the honest atheist?” he asked rhetorically. Here his answer was simple:

[A]n atheistic American is a contradiction in terms. . . .

[T]hey really are spiritual parasites. . . . [They] are living upon the accumulated spiritual capital of a Judaio-Christian civilization, and at the same time, deny the God who revealed the divine principles upon which the ethics of this Country grow. . . .

. . . .

[I]f he denies the Christian ethic, [the atheist] falls short of the American ideal of life.

The Reverend’s central message was clear: the American way of life “is defined by a fundamental belief in God. [It is a] way of life that sees man, not as the ultimate outcome of a mysterious concatenation of evolutionary process, but a sen­tient being created by God and seeking to know His will . . . .” Only by adding the words “under God” to the Pledge of Alle­giance could that oath truly be a pledge “to the United States of America.”

The assembled legislators in Reverend Docherty’s pews were enraptured by his sermon. One was so inspired that he felt compelled to break the Sabbath in order to draft the his­toric bill amending the Pledge of Allegiance in time to intro­duce it the next morning: “The following day, one of Docherty’s petitioners [sic], Representative Charles Oakman, introduced a resolution in the House that would codify the inclusion of ‘under God’ in the Pledge. Two days later, Sena­tor Homer Ferguson presented an identical resolution to the Sen­ate.”^13
13Brian Wheeler, Note, The Pledge of Allegiance in the Classroom and the Court: An Epic Struggle over the Meaning of the Establishment Clause of the First Amendment, 2008 B.Y.U. EDUC. & L. J. 281, 286 (footnote omitted).  Both legislators explicitly stated that they introduced  their proposed bills in direct response to Reverend Docherty’s sermon. See 100 Cong. Rec. 7759 (Rep. Oakman); id. at 6231 (Sen. Ferguson). Later that same week, Representative Rabaut, who had introduced the bill a year earlier that was “the grandaddy of them all,” id. at 7758, took to the floor of the House to comment on the inspiring impact of Docherty’s “eloquently” delivered sermon. See id. at 1700. Indeed, Docherty’s “sermon was so powerful that in its wake no fewer than seventeen bills were introduced to incorporate God into the Pledge of Allegiance.”^14
14Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2119 (1996) (citing MARK SILK, SPIRITUAL POLITICS: RELIGION AND AMERICA SINCE WORLD WAR II 96 (1988)). All of the tributes paid to Reverend Docherty caused at least one group to feel slighted: “The [attention] drew a protest from Luke E. Hart, Supreme Knight of the Knights of Columbus . . . who pointed out that the Knights of Columbus was the first organization to use the modified pledge.” Who Placed “Under God” in Pledge to the Flag? WASH. POST, Mar. 26, 1955, at 8.

B. Congressional Enactment of the “Under God” Amendment

The strong religious sentiment driving the amendment to the Pledge only became more pietistic when the topic moved from the pulpit into the halls of Congress. The discussion of the proposed amendment could hardly be called a debate, as no one stood in opposition,¹⁵¹⁵The closest thing to opposition came from Congressman Keating, who “enthusiastically support[ed]” the Pledge amendment but cautioned that “in the future we should tread very lightly in this field” out of respect for the integrity of “American literature” and its “priceless gem[s] of Ameri­can prose.” 100 Cong. Rec. 7760-61. Congressman Keating’s statement reflects the fact that Francis Bellamy’s son, who was Keating’s constitu­ent, strenuously opposed the effort to amend the Pledge his father had authored on the ground that his father would have objected to such a clear conflation of church and state. Id. at 7761; see also ELLIS, supra note 5, at 121, 135. Bellamy’s great-granddaughter later echoed this sentiment, stating that her “great-grandfather . . . . [was a] deeply religious man, [but] was also a strict believer in the separation of church and state . . . . He intended the pledge to be a unifying statement for [our] children. By adding the phrase ‘under God’ to the Pledge of Allegiance in 1954, Con­gress . . . . divided our nation further rather than uniting its citizens.” Sally Wright, Letter to the Editor, Writing the Pledge: The Original Intent, N.Y. TIMES, July 14, 2002, at C14. but a parade of legislators still   rose to offer spirited, deeply religious statements in support of the proposal. While it cannot fully recapture the fervent and undeniable religiosity so evident in the pages of the Congres­sional Record, even the limited report of the discussion that follows is extremely revealing. In an effort at completeness, this report includes statements from each and every legislator who commented on the proposed Pledge amendment in the Congressional Record.^16
16The only legislator not quoted in the text is Congressman Eberharter, author of the 1942 Act that first codified the original Pledge, who rose only for a moment to express his “wholehearted support” for the proposed alteration. 100 Cong. Rec. 7758.

The discussion in Congress began five days after Reverend Docherty’s sermon, when Congressman Rabaut made his way to the floor of the House of Representatives to declare that “[w]ithout these [new] words . . . the pledge ignores a defini­tive factor in the American way of life and that factor is belief in God.” 100 Cong. Rec. 1700 (emphasis added). In the Con­gressman’s view, anyone who did not wholeheartedly endorse that “belief in God” was not a true American. As for Ameri­can atheists, Congressman Rabaut was unsparing in his con­demnation:

From the root of atheism stems the evil weed of communism and its branches of materialism and political dictatorship. Unless we are willing to affirm our belief in the existence of God and His creator-creature relation to man, we drop man himself to the significance of a grain of sand and open the flood­gates to tyranny and oppression.

Id. (emphases added). At the close of the congressman’s jere­miad against non-believers, he let the following words, lifted from Reverend Docherty’s sermon, echo through the hall: “An atheistic American . . . is a contradiction in terms.” Id. (emphasis added).

Once the seventeen separate House bills seeking to amend the Pledge were consolidated and favorably reported by the Judiciary Committee, the House proceeded to a floor discus­sion during which many congressmen rose to express their views. Congressman Angell, who had authored one of the many bills, said, “there should be embodied in the pledge our allegiance and faith in the Almighty God. The addition of the words ‘under God’ will accomplish this worthy purpose.” Id. at 6919 (emphases added). Representative Pillion, author of a separate bill, gave a statement “in support of any and all bills that would serve to recognize the power and the universality of God in our pledge of allegiance. . . . The inclusion of God in our pledge would acknowledge the dependence of our peo­ple, and our Government upon the moral direction and the restraints of religion.” Id. at 7590-91 (emphases added). Con­gressman Bolton, author of yet another of the bills, stated that:

The significant import of our action today . . . is that we are officially recognizing once again this Nation’s adherence to our belief in a divine spirit, and that henceforth millions of our citizens will be acknowledging this belief every time they pledge allegiance to our flag.

Id. at 7757 (emphases added). Congressman Brooks rose to declare that the proposed law “recognizes that all things which we have in the way of life, liberty, constitutional gov­ernment, and rights of man are held by us under the divine benediction of the Almighty.” Id. at 7758 (emphases added). Congressman Keating noted that:

[W]e cannot too often be reminded of the spiritual values which alone have permanence . . . . When the forces of anti-God and antireligion so persistently spread their dangerous and insidious propaganda, it is wholesome for us to have constantly brought to our minds the fact that . . . it is the strength of the spirit . . . to which we must ultimately look for salva­tion . . . .

Id. at 7760 (emphasis added). Congressman Oakman proudly introduced into the record a letter from a constituent praising his authorship of one of the proposed bills, which described the bill as “a realistic recognition of the theological and philo­sophical truth — the existence of a Supreme Being.” Id. Con­gressman O’Hara observed that “what we are engaged in today is a sacred mission” and that in amending the Pledge the legislators were achieving a “victory for God.” Id. at 7762 (emphases added). Congressman Wolverton commented that the proposed amendment “sets forth in a mere two words, but, very strong and meaningful words, the fundamental faith and belief of America in the overruling providence of God and our dependence at all times upon Him.” Id. at 7763 (emphasis added). Congressman Rodino quoted scripture in order to best express “the spirit” of the proposed law, citing David the Psalmist for the proposition that Americans reciting the Pledge (including the public schoolchildren who were expected to recite it every day in the classroom, see infra Part II.C) “shall say to the Lord: Thou art my protector and my refuge: my God, in Him will I trust.” Id. at 7764. Congress­man Bolton rose to observe that the legislation “comes at a time in the world when we do well to once more publicly and officially affirm our faith.” Id. (emphasis added). At the close of the discussion, the final congressman to speak was Repre­sentative Addonizio, who said:

We, who take the pledge of allegiance to the flag of the United States of America and raise our eyes toward that symbol of our faith, should bear in mind that our citizenship is of no real value to us . . . unless we can open our souls before God and before Him conscientiously say, “I am an American.”

Id. at 7765 (emphases added).

The majority asserts that “[t]he words ‘under God’ were added as a description of ‘one Nation’ primarily to reinforce the idea that our nation is founded upon the concept of a lim­ited government, in stark contrast to . . . communist forms of government.” Maj. op. at 3909 (emphasis added). In my col­leagues’ view, any religious purpose associated with the amendment of the Pledge was merely incidental to the patri­otic, anti-Communist purpose driving the law. However, had my colleagues actually acknowledged the existence of the detailed historical record instead of ignoring it, they could not have failed to recognize that their historical assertion is pre­cisely backward: the anti-Communist sentiment associated with the amendment was clearly secondary to the overwhelm­ing and predominant religious purpose motivating the amend­ment. For one thing, the majority’s revisionist account ignores the fact that much of the anti-Soviet sentiment associated with the amendment was itself driven in large part by the congress­men’s religious disagreement with the Soviets’ purported atheism. For example, in rising to endorse the amendment, Congressman Wolverton stated that a virtue of the proposed amendment was that it “plainly denies the atheistic and mate­rialistic concepts of communism with its attendant subservi­ence of the individual.” 100 Cong. Rec. 7762 (emphasis added). Indeed, the original author of the bill to amend the Pledge stated that “the evil weed of communism and its branches of materialism and political dictatorship” stems “[f]rom the root of atheism.” Id. at 1700 (emphasis added). The majority’s revisionism is further refuted by that same original author, Congressman Rabaut, who explicitly stated: “You may argue from dawn to dusk about differing political, economic, and social systems, but the fundamental issue which is the unbridgeable gap between America and Commu­nist Russia is a belief in Almighty God.”^17
17In a hapless attempt to find some iota of support for its “limited gov­ernment” theory in the legislative history, the majority quotes a statement of Congressman Rabaut that was included in the House Report. Maj. op. at 3910. The majority suggests that when Congressman Rabaut discussed “our way of life and its origins,” he was referring to the concept of “lim­ited government.” If his explicit statements on the House floor were not enough to establish that he was instead referring to a belief in God, the sentence in the House Report that immediately follows his statement would make that absolutely clear: “Since our flag is symbolic of our Nation, its constitutional government and the morality of our people, the committee believes it most appropriate that the concept of God be included in the recitations of the pledge of allegiance to the flag.” H.R. REP. No. 83-1693 at 3 (1954) (emphasis added), reprinted in 1954  U.S.C.C.A.N. 2339, 2341. Id. (emphases added). This was seconded by Congressman Brooks, who declared that “One thing separates free peoples of the Western World from the rabid Communist, and this one thing is a belief in God.” Id. at 7758 (emphases added). Indeed, even the official House Report accompanying the bill demonstrates that the desire to underscore a political philosophy of anti-Communism was at most an ancillary aim of the bill, as it was listed as a second and separate rationale following the legisla­tion’s primary stated rationale: to “acknowledge the depen­dence of our people and our Government upon the moral directions of the Creator.” See H.R. REP. NO. 83-1693 at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. More­over, even that ancillary rationale stresses the religious under­pinning of the anti-Soviet sentiment, as the Report goes on to state: “At the same time, [the bill] would serve to deny the atheistic and materialistic concepts of communism . . . . ” Id., 1954 U.S.C.C.A.N. 2340 (emphasis added).

After all of the congressmen made their intentions clear and the House moved to adopt its final bill, discussion opened across the Capitol in the well of the Senate. Initially, the Sen­ate version of the bill stalled in the Senate Judiciary Commit­tee, where it “seemed dead” because some “senators had concerns about the resolution’s implications for the separation  of church and state.” ELLIS, supra note 5, at 134; see also id. at 257 n.40. However, in light of the zealous and unanimous parade of congressmen who endorsed the bill in the House, the Senate was forced to consider the matter. The senators who remarked on the bill from the floor of that chamber were fewer in number,^18
18Unlike the House, the Senate received and considered only one bill proposing that the words “under God” be inserted into the Pledge. See  S.J.R. 126, 83rd Cong. (1954).though no less fervent in their religiosity than their counterparts in the House. Senator Wiley, rising to congratulate Senator Ferguson for authoring the Senate bill, said that “in these days of great challenge to America, one can hardly think of a more inspiring symbolic deed than for Amer­ica to reaffirm its faith in divine providence, in the process of restating its devotion to the Stars and Stripes.” 100 Cong. Rec. 5915 (emphasis added). When the final resolution was reported to the Senate, Senator Ferguson explained its pur­pose as follows: “the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic.” Id. at 6348 (emphasis added).

Evidence of the legislation’s overt religious purpose was not, as the majority claims, limited to individual statements proclaiming the “religious motives of the legislators who enacted the law.” Maj. op. at 3911 n.27 (citing Bd. of Educ.

v. Mergens, 496 U.S. 226, 249 (1990) (plurality opinion of O’Connor, J.)). To the contrary, the House and Senate Reports accompanying the proposed bills also bear testament to the new Pledge’s indisputably religious purpose. The Sen­ate Report stated that one of the reasons for adopting the “under God” amendment was its recognition of “the funda­mental truth that a government deriving its power from the consent of the governed must look to God for divine leader­ship.” S. REP. NO. 83-1287 at 2 (1954) (emphasis added), reprinted in 100 Cong. Rec. 6231. The House Report empha­sized “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. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Govern­ment upon the moral directions of the Creator.” H.R. REP. No. 83-1693 at 1-2 (1954) (emphasis added), reprinted in 1954 U.S.C.C.A.N. 2339, 2340.

With these official reports attached to the bills, both the Senate and the House unanimously adopted the new Pledge by voice vote and sent it to President Eisenhower for his approval. The culmination of the legislative proceedings was carefully timed so that the joint resolution could be approved in time for the President to sign it on Flag Day, four short months after Reverend Docherty’s sermon. See, e.g., 100 Cong. Rec. 7759 (discussing scheduling of legislation in rela­tion to Flag Day). And so it was that on June 14, 1954, Presi­dent Eisenhower officially added his signature to the bill amending the Pledge of Allegiance, thereby changing funda­mentally the nature and purpose of the oath. After doing so, he proclaimed in his signing statement:

From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty. To anyone who truly loves America, nothing could be more inspiring than to contemplate this rededication of our youth, on each school morning, to our coun­try’s true meaning.^19
19Statement by the President Upon Signing Bill To Include the Words “Under God” in the Pledge to the Flag, PUB. PAPERS 563 (June 14, 1954) (emphases added), available at http://tinyurl.com/PubPapersUnderGod, reprinted in 100 Cong. Rec. 8618.

Once the bill was signed into law, Senator Ferguson, Con­gressman Rabaut, the sixteen other sponsors of the “under  God” resolutions, and the Senate Chaplain gathered before an assembled audience at the Capitol and a national audience watching on television for what Walter Cronkite called a “stirring event.”^{20 20}The Morning Show (CBS television broadcast June 14, 1954), reprinted in 100 Cong. Rec. 8617. As described in the Congressional Record, the legislators who amended the Pledge turned toward “the believer’s flag[,] the witness of a great nation’s faith” and recited the newly minted Pledge of Allegiance to “our Nation [and] to the Almighty.” 100 Cong. Rec. 8617. “Then, appro­priately, as the flag was raised a bugle rang out with the familiar strains of ‘Onward, Christian Soldiers!’ ” Id.:

Onward, Christian soldiers, marching as to war,

With the cross of Jesus going on before.

Christ, the royal Master, leads against the foe;

Forward into battle see His banners go!

C. The 1954 Amendment and America’s Schoolchildren

The foregoing history of the process by which the Pledge was amended — beginning in the pews of New York Avenue Presbyterian Church, continuing through speech after speech in the House and Senate declaring the need for America to “affirm our belief in the existence of God,” id. at 1700, fol­lowed by the President’s remarks regarding schoolchildren daily proclaiming their dedication to the Almighty, and con­cluding with the triumphant playing of Onward Christian Sol­diers on the Capitol steps to baptize the newly amended national oath — demonstrates beyond any shadow of a doubt that the purpose driving the amendment was predominantly, and indeed overwhelmingly, religious in nature. But there is more. Not only was the message underlying the new Pledge clear — “true” Americans believe in God and non-believers are decisively un-American — but so too was its intended audience: America’s schoolchildren.^{21 21}A parallel campaign to influence higher education to become less sec­ular and more religious was led by a brilliant, young, and dedicatedly reli­gious Yale graduate who authored a highly influential book entitled God and Man at Yale. See WILLIAM F. BUCKLEY, GOD AND MAN AT YALE (Regn­ery, 1951). Buckley subsequently became an intellectual leader of the con­servative political movement and a prominent Catholic layman, who died only last year.

The legislators who set out to insert the words “under God” into the Pledge of Allegiance were fully aware that in 1954 the original Pledge was a commonplace scholastic ritual.^22
22Throughout the 1920s and 1930s, a “coordinated national propaganda campaign,” envisioned by Bellamy, the Pledge’s author, and carried out by various educational and civic organizations, transformed the Pledge into “a defining symbol of national patriotism.” ELLIS, supra note 5, at 79; see generally id. at 50-80. Because this campaign followed an earlier movement at the turn of the century to put a “flag over every school­house,” and later in every classroom, see id. at 2-9, by the time Congress turned its attention to amending the Pledge in 1954, regular recitation of the Pledge by schoolchildren across America was a common occurrenceIndeed, a primary rationale for inserting the explicitly reli­gious language into the Pledge of Allegiance, as opposed to into some other national symbol or verse, was that the Pledge was an ideal vehicle for the indoctrination of the country’s youth. The amendment’s chief proponents in Congress were not at all bashful about their intentions. Speaking from the well of the Senate, Senator Wiley endorsed the bill by saying, “What better training for our youngsters could there be than to have them, each time they pledge allegiance to Old Glory, reassert their belief, like that of their fathers and their fathers before them, in the all-present, all-knowing, all-seeing, all-powerful Creator.” Id. at 5915 (emphases added). Senator Ferguson, who authored the Senate bill, agreed that “we should remind the Boy Scouts, the Girl Scouts, and the other young people of America, who take [the] pledge of allegiance to the flag more often than do adults, that it is not only a pledge of words but also of belief.” Id. at 6348 (emphasis added). In the House, Congressman Rabaut, the original author of the first bill to amend the Pledge, declared that “from their earliest childhood our children must know the real meaning of America,” a country whose “way of life . . . sees  man as a sentient being created by God and seeking to know His will.” Id. at 1700 (emphases added). His colleague, Con­gressman Angell, argued that “the schoolchildren of Ameri­ca” should understand that the Pledge of Allegiance “pledge[s] our allegiance and faith in the Almighty God.” Id. at 6919 (emphases added). Similarly, Congressman O’Hara noted that the new Pledge’s “acknowledgment that God is the foundation of our Nation will be of incalculable value, all through the years, of ever keeping vividly before our . . . children[,] who from earliest childhood[ ] pledge their alle­giance to the flag, that the real source of our strength in the future, as in the past, is God.” Id. at 7763 (emphases added). Indeed, the last words said before the House passed the bill inserting “under God” into the Pledge emphasized “the mil­lions of school children who daily repeat the pledge of alle­giance.” Id. at 7766 (emphasis added). And of course, when President Eisenhower signed the law amending the Pledge, he declared that “[f]rom this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty.”²³

²³The President’s words echoed the sentiments of his pastor, Reverend Docherty, who four months earlier had stated in his sermon proposing the amendment to the Pledge that the idea “came in a flash one day . . . when [his] children came home from school . . . [and described] what happened at school when they arrived there in the morning.” Docherty, supra note 10, at 4.New Jersey, Id. at 8618 (empha­ses added). These statements reflect the unanimous expecta­tion on the part of both houses of Congress and the President of the United States that the new religious version of the Pledge would be recited regularly by “the schoolchildren of America.” Id. at 6919.

Nor was it only the federal government that promoted the newly amended Pledge through legislation. At the time Con­gress first considered the amendment to the Pledge, only six states — Delaware, Massachusetts, Mississippi,

Rhode Island, and Washington — had statutes requiring stu­dents to recite the Pledge in school,²⁴²⁴See Act of Mar. 15, 1915, ch. 71, 1915 Wash. Sess. Laws 246; Act of April 15, 1925, ch. 180, 34 Del. Laws 440 (1925); Act of Apr 16., 1932, ch. 1927, 1932 R.I. Acts & Resolves 227; Act of May 2, 1932, ch. 145, 1932 N.J. Laws 260, amended by Act of Apr. 21, 1944, ch. 212, 1944 N.J. Laws 750; Act of May 13, 1935, ch. 258, 1935 Mass. Acts 306; Act of Dec. 28, 1953, ch. 26 § 8, 1953 Miss. Laws 120.

A number of other states had laws prior to 1954 that required students to be taught proper respect for the flag. See Act of Jul. 10, 1935, 1935 Ill. Laws. 1345; Act of Apr. 5, 1927, ch. 85, 1927 Neb. Laws 253. Others still had statutes requiring students to perform a “flag salute.” See Act of Apr. 22, 1898, ch. 481, 1898 N.Y. Laws 1191; Act of Mar. 7, 1907, ch. 319, 1907 Kan. Sess. Laws 492; Act of Apr. 10, 1918, ch. 75, 1918 Md. Laws 121; Honoring Flag of U.S., ch. 164, 1923 Colo. Sess. Laws 550. That salute, however, was designed in 1890 by George Balch and was distinct from Bellamy’s pledge of allegiance. See generally ELLIS, supra note 5, at 38-43; see also 100 Cong. Rec. 7761. In fact, New York, which in 1898 became the first state to pass a statute requiring a flag salute, allowed for any one of five different pledges of allegiance to be recited along with the salute, only the last of which was Bellamy’s. ELLIS, supra note 5, at 54. Notably, none of the five pledges contained any reference to God or to religion. Id.

 even though the Pledge had, at that point, existed for over sixty years and had been “a defining symbol of national patriotism” for over three dec­ades. See ELLIS, supra note 5, at 79. However, once Congress inserted the words “under God” into the Pledge in 1954, the number of states statutorily providing for its recitation sky­rocketed: Within a few years of the congressional amend­ment, nine state legislatures passed laws either requiring or encouraging recitation of the Pledge in school with the newly inserted words “under God.”^{25 25}The first states to act were those whose preexisting school-pledge stat­utes were rendered out of date by Congress’s amendment. See Act of June 24, 1954, ch. 83, 1954 N.J. Laws 464; Adding Words “Under God” to Salute to Flag, ch. 51, 51 Del. Laws 66 (1957); Act of Mar. 23, 1960, ch. 391, 1960 Miss. Laws 618; Flag Exercises, Salute, National Anthem, ch. 238, 1961 Wash. Sess. Laws 2066. But see Act of June 14, 1977, ch. 333, 1977 Mass. Acts 345 (inserting “under God” over Governor’s veto); Act of May 20, 1981, ch. 282, 1981 R.I. Pub. Laws 1102. Florida, New York, California, Idaho, and Wisconsin, however, were inspired by Congress’s addition of the words “under God” to enact their very first school-pledge statutes quickly on the heels of Congress’s amendment. See Patriotic Programs, Rules, and Regulations, ch. 29764, sec. 47, § 230.45, 1955 Fla. Laws 390; Act of Mar. 23, 1956, ch. 177, 1956 N.Y. Laws 775; Act of May 1, 1961, ch. 254, 1961 Cal. Stat. 1201; National Flag and Colors, National Anthem, “America,” ch. 13, § 177, 1963 Idaho Sess. Laws 116; Act of May 23, 1963, ch. 65, sec. 2, § 40.47(1)(b), 1963 Wis. Sess. Laws 57.A steady march of legislatures  followed suit so that today all but seven states statutorily pro­vide for the teacher-led daily recitation of the “under God” version of the Pledge.²⁶²⁶Hawaii, Iowa, Maine, Michigan, Nebraska, Vermont, and Wyoming do not have any statutes mentioning the national Pledge of Allegiance, nor do the District of Columbia or the commonwealth of Puerto Rico. The remainder of the states either require or encourage the daily recitation of the religious version of the Pledge in public schools. See ALA. CODE § 16­43-5 (2001); ALASKA STAT. § 14.03.130 (2008); ARIZ. REV. STAT. § 15-506 (2002); ARK. CODE ANN. § 6-16-108 (2007); CAL. EDUC. CODE §§ 52720, 52730 (West 2006); COLO. REV. STAT. § 22-1-106 (2006); CONN. GEN. STAT. ANN. § 10-230 (West 2002); DEL. CODE Ann. tit. 14 § 4105 (2007); FLA. STAT. ANN. § 1003.44 (West 2009); GA. CODE ANN. § 20-2-310 (2005); IDAHO CODE ANN. § 33-1602 (2008); 105 ILL. COMP. STAT. ANN. 5/27-3 (West 2006); IND. CODE ANN. § 20-30-5-0.5 (West 2007); KAN. STAT. ANN. § 72-5308 (West 2008); KY. REV. STAT. ANN. § 158.175 (West 2006); LA. REV. STAT. ANN. § 17:2115 (2001); MD. CODE ANN., EDUC. § 7­105 (West 2002); MASS. GEN. LAWS ch. 71, § 69 (2006); MINN. STAT. § 121A.11 (2008); MISS. CODE ANN. § 37-13-7 (2007); MO. REV. STAT. § 171.021 (Supp. 2008); MONT. CODE ANN. § 20-7-133 (2007); NEV. REV. STAT. § 389.040 (2007); N.H. REV. STAT. ANN. § 194:15-c (2008); N.J. STAT. ANN. § 18A:36-3 (West 1999); N.M. STAT. § 22-5-4.5 (Supp. 2008);  N.Y. EDUC. LAW § 802 (McKinney 2000); N.C. GEN. STAT. §§ 115C­47(29a), 115-238.29F, 116-69.1, 116-235 (2007); N.D. CENT. CODE § 15.1-19-03.1 (2003); OHIO REV. CODE ANN. § 3313.602 (West 2005); OKLA. STAT. tit. 70, § 1210.229-6 (2002 & Supp. 2008); ORE. REV. STAT. § 339.875 (2007); 24 PA. CONS. STAT. ANN. § 7-771 (West 1992); R.I. GEN. LAWS §§ 16-20-4, -22-11 (2001); S.C. CODE ANN. § 59-1-455 (2004);  S.D. CODIFIED LAWS § 13-24-17.2 (2004); TENN. CODE ANN. § 49-6-1001 (2002); TEX. EDUC. CODE ANN. § 25.082 (Vernon 2006); UTAH CODE ANN. § 53A-13-101.6 (West 2004); VA. CODE ANN. § 22.1-202 (2006); WASH. REV. CODE ANN. § 28A.230.140 (West 2006); W. VA. CODE ANN. § 18-5­15b (West 2002); WIS. STAT. § 118.06 (2008). As the proponents of the “under God”  amendment stated early on, such “widespread support [for] the [new Pledge] . . . must bear testimony to a religious revival of significance.”^27
27Clayton Knowles, Big Issue in D.C.: The Oath of Allegiance, N.Y. TIMES, May 23, 1954, at E7 (emphasis added).
Indeed, a number of states incorporate their school-pledge requirements into statutes that simultaneously endorse school prayer. Kentucky pro­vides that, “as an affirmation of the freedom of religion in this country . . . a local school district may authorize the recitation of the traditional Lord’s prayer and the pledge of allegiance to the flag in public elementary schools.” Act of Apr. 9, 1980, ch. 304, 1980 Ky. Acts 1029 (codified at KY. REV. STAT. ANN. § 158.175 (West 2006)). Until recently, New Hamp­shire had a nearly identical statutory provision. See Act of June 3, 1975, ch. 225, 1975 N.H. LAWS 195, amended by Act of May 18, 2002, ch. 77, 2002 N.H. LAWS 501 (codified at N.H. REV. STAT. ANN. §§ 194:15-a, -c (2008)). Similarly, North Dakota incorporates its pledge-recitation requirement into a statute setting aside time for silent prayer. See Act of Apr. 5, 2001, ch. 187, 2001 N.D. Laws 697 (codified at N.D. CENT. CODE § 15.1-19-03.1 (2003)). Louisiana has passed multiple acts over the past thirty years adding and altering school prayer provisions to a statute that also provides “for group recitation of the ‘Pledge of Allegiance to the Flag.’ ” See Act of July 23, 1980, ch. 519, 1980 La. Acts 1242, amended by 1987 La. Acts 1530, amended by 1989 La. Acts 1204, amended by 1992 La. Acts 919, amended by 1999 La. Acts 2527, amended by 2002 La. Acts 1250 (codified at LA. REV. STAT. ANN. § 17:2115 (2001 & Supp. 2008)).

Volume 3 of 4

At the forefront of that revival was the state of California. While many other states, perhaps preoccupied with more pressing legislative business, took a decade or more to endorse state-directed, teacher-led, daily recitation of the reli­gious version of the Pledge in public schools, California did so in 1961, becoming one of the first states to adopt a school-pledge statute after Congress inserted the words “under God.”^{28 28}See Act of May 1, 1961, ch. 254, 1961 Cal. Stat. 1201. Florida and New York were the only states to precede California in enacting new school-pledge statutes following the congressional amendment. See supra note 22. California’s Pledge-recitation bill was introduced on January 12, 1961, following an opening prayer in the California State Assembly to “Jesus Christ, our Lord and Redeemer.”²⁹²⁹1961 CAL. LEG. ASSEMB. DAILY J. 223; see also Assemb. B. 292, 1961 Reg. (Gen.) Sess. (Cal. 1961). Some legislators, apparently concerned over the religious content recently inserted into the Pledge by Congress, attempted to amend the proposed state bill in order to allow “any pupil” to be “excused from giving the pledge” if doing so “conflicts with [his] religious beliefs.”^30
30See Assemb. B. 292, 1961 Reg. (Gen.) Sess. (Cal. 1961) (as amended by S. Comm. on Education, Mar. 29, 1961, and again on Apr. 6, 1961). However, even this modest pro­tection for religious minorities was removed from the final version of the bill, over the dissenting votes of seven members.^{31 31}See Assemb. B. 292, 1961 Reg. (Gen.) Sess. (Cal. 1961) (as amended by Sen. on Apr. 11, 1961); see also 1961 CAL. LEG. SEN. DAILY J. 1559; 1961 CAL. LEG. ASSEMB. DAILY J. 2552. Thus, on May 1, 1961, when the final version of the bill was signed by Governor Edmund G. “Pat” Brown,^32
32Not to be confused with the one-time seminarian and subsequent (and perhaps future) governor, Pat Brown’s son, Edmund G. “Jerry” Brown Jr. California joined those states ensuring by force of law that the state-directed, teacher-led recitation of the “under God” version of the Pledge of Allegiance would occur daily in classrooms throughout the state.

D. The 2002 “Reaffirmation”

Almost immediately after its amendment, the new Pledge was the subject of numerous constitutional challenges. See infra note 102. Those challenges continued consistently over the following decades, but met with little success until June 26, 2002, when this court held that the state-directed recita­tion of the “under God” version of the Pledge of Allegiance in California’s public schools violated the First Amendment. Newdow I, 292 F.3d at 612. In response to that constitutional ruling, lawmakers immediately took to the floor in both houses of Congress to condemn this court’s decision. Among them was Senator Robert Byrd, who proudly announced that he was “the only Member of Congress today, bar none, in either body, who was a Member of the House on June 7, 1954, when the words ‘under God’ were included in the Pledge of Allegiance.” 107 Cong. Rec. S6103. His comments, like those of the other Senators who spoke that day, made clear that his outrage over the Newdow I decision was not based on any devotion to principles of limited government:

I, for one, am not going to stand for this country’s being ruled by a bunch of atheists. If they do not like it, let them leave. They do not have to worship my God, but I will worship my God and no atheist and no court is going to tell me I cannot do so whether at a school commencement or anywhere else.

Id.

That same afternoon, the Senate passed a resolution expressing its “strong[ ] disapprov[al]” of the Newdow I deci­sion. S. Res. 292, 107th Cong. (2002), reprinted in 107 Cong. Rec. S6105. The reason for that disapproval is readily appar­ent from the statements offered in the resolution’s support. Senator Robert Bennet, for example, announced that “[r]egardless of what the courts may say, the American people still trust in God. . . . [I]t is a correct statement of how we feel, and it belongs in the Pledge of Allegiance to our flag.” 107 Cong. Rec. S6106 (emphasis added). Numerous other senators expressed similar views,^{33 33}See also id. at S6107 (statement of Sen. Burns) (“We are a nation founded upon the acknowledgment of a Creator.”); id. at S6112 (statement of Sen. Smith) (“There are countless more examples of religion in Ameri­can public life. . . . . For this court to single out the pledge for including the phrase ‘One Nation, Under God,’ is simply incredible.”). including Senator Sam Brownback, who remarked upon the superiority of the United States, “a nation that honors God,” to North Korea, “a country that does not honor God.” Id. at S6109.

Although the majority asserts that “virtually all of the members of Congress agreed” that we had misunderstood its purpose when we decided Newdow I, maj. op. at 3913 (emphasis added), not a single Senator expressed the view that our court had misunderstood the 1954 Congress’s pur­pose for enacting the “under God” amendment. Several Sena­tors, however, explicitly stated their disagreement with any interpretation of the Constitution under which that religious purpose would be impermissible. For example, Senator George Allen declared that the Pledge “should remain in our schools” because “the purpose of the Establishment Clause . . . was not to expunge religion or matters of faith from all aspects of public life.” Id. at S6108. Similarly, Senator John Ensign urged the Senate “to take it upon itself to correct what the Ninth Circuit has done” because “we need to reestablish in this country what this document — the Constitution of the United States — really says and really was about.” Id. at S6102.^{34 34}See also id. at S6104 (statement of Sen. Sessions) (“[Newdow I] is a shocking culmination of a decade-long trend of liberal activist courts that have been misreading the first amendment of the Constitution.”); Id. S6106 (statement of Sen. Bennett) (“The word ‘God’ is sufficiently uni­versal and nonspecific as to allow those who use it to ascribe any quality, any gender, any doctrine, any position that those people might wish to ascribe to it. It is inconceivable to me that the Ninth Circuit should suggest that the generic term ‘God’ is somehow endorsement of a specific reli­gion.”); id. at S6109 (statement of Sen. Brownback) (“[T]he Establishment Clause is clearly misinterpreted by the entire legal system today.”).

Recognizing these strong sentiments, Senator Trent Lott stated when he introduced the resolution that additional mea­sures should be taken to reaffirm the actions of the 1954 Con­gress:

[F]or our children to be allowed to invoke God’s blessing on our country in the Pledge of Allegiance is certainly something we want to do.

If there is ever a time when we need this addi­tional blessing, perhaps it is now more than ever in our lifetimes. . . . .

In [this resolution], we state that we disapprove of the decision by the Ninth Circuit . . . .

Beyond that, to further make it clear, the Senate should consider a recodification of the language that was passed in 1954. There was no uncertainty or ambiguity about what was done in 1954. The Con­gress, in fact the American people, spoke through their Congress. We should make it clear once again. 107 Cong. Rec. S6105 (emphasis added).^{35 35}Each of the Senators quoted in the above paragraph and the one pre­ceding it, including in footnotes 33 and 34, co-sponsored the Pledge recodification statute, which was passed by the Senate the day after these statements were made. See 107 Cong. Rec. S6225 (listing co-sponsors). Other Senators went even further in expressing a religious basis for their disapproval of Newdow I and their approval of including the phrase “under God” in the Pledge. For example, Senator Joseph Lieberman stated that it might become necessary “to amend the Constitution to make clear that . . . we are one Nation because of our faith in God, [so] that the American people, children, forever forward will be able to stand and recite the pledge.” Id. at S6091 (emphasis added). Similarly, Senator Mary Landrieu stated that “we as a nation stand under God, acknowledging His presence . . . . [W]e collectively as a nation will in no way back down in acknowl­edging His presence and His divine creation.” Id. at S6107. Not one Senator repudiated the religious motivations of the 1954 law­makers; indeed, more than one explicitly embraced them. Id. at S6102 (statement of Sen. Daschle) (“We added the language, ‘under God,’ in 1954. Then-President Dwight Eisenhower said: ‘In this way, we are reaf­firming the transcendence of religious faith in America’s heritage and future; in this way, we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource in peace and war.’ I agree with President Eisenhower.”); id. at S6109 (statement of Sen. Brownback) (“I thank those sincere leaders who in 1954 sought to reaf­firm . . . our ‘firm Reliance on the Protection of divine Providence.’ ”); id. at S6237 (statement of Sen. Allard) (“When President Eisenhower signed the law adding ‘under God’ to the pledge, . . . . [h]e was affirming that this nation has . . . consistently and thoroughly incorporated belief in and submission to God.”).

And so they did. The next morning, Senator Byrd called the Senate to order and invited the Reverend Lloyd J. Ogilvie, the Senate Chaplain, to lead “[t]he prayer to Almighty God, the supreme Judge of the world.” 107 Cong. Rec. S6177. In his invocation, Reverend Ogilvie declared that “[t]here is no sep­aration between God and State,” and proclaimed God as the “ultimate Sovereign of our Nation.” Id. He then described the Pledge as an expression of America’s trust in God: “It is with reverence that in a moment we will repeat the words of com­mitment to trust You which are part of our Pledge of Alle­giance to our flag: ‘One Nation under God, indivisible.’ ” Id. After the members of the Senate recited the Pledge, Senator Tom Daschle offered the chaplain both thanks and agreement: “I know I speak for all of our colleagues in thanking Chaplain Ogilvie for his wonderful prayer this morning. He spoke for all of us.” Id.

The Senate then considered a recodification bill, entitled “An Act To reaffirm the reference to one Nation under God in the Pledge of Allegiance,” later that day. 107 Cong. Rec. S6225.^{36 36}While the Pledge was the primary focus of the bill, it also contained a section, entitled “reaffirming that God remains in our motto,” that reen­acted the statute declaring “In God we trust” to be the National Motto. See Pub. L. No. 107-293, 116 Stat. 2057, 2060-61 (2002). The recodification bill served two ends: to express  the approval of the 2002 Congress of the 1954 Congress’s inclusion of “under God” in the Pledge, and to express its dis­approval of the constitutional interpretation of the First Amendment by this court in Newdow I. ³⁷³⁷Senator Tim Hutchinson, the sponsor of the bill, explained its purpose: “[The Founders] were not advocating freedom from religion. . . . . By passing this legislation today the Senate will make clear that we under­stand the Founders’ intention.” 107 Cong. Rec. S6226.  It did not make any change to the content of the Pledge or offer any different pur­pose for its adoption than the religious purpose that motivated the 1954 Congress. In support of the legislation, Senator Jeff Sessions made clear that he considered the Pledge an “expres­sion of faith,” that he approved wholeheartedly of what the 1954 Congress had done, and that the Senate should again express its approval of the inclusion of God in the Pledge. He stated that he disagreed not only with Newdow I, but with other limitations on religious expression in public schools:

I am a cosponsor and helped draft this legislation. I would say this: This is not an itty bitty issue. This is a big issue. The Congress and States and cities have been expressing a desire to have, and be allowed to have, an expression of faith in the public life of America. The courts have been on a trend for decades now to constrict that. . . . .

The Supreme Court . . . . has cracked down on some very small instances of public expression of faith. Our courts have made decisions such as con­straining a valedictorian’s address at a high school. Certainly our prayer in schools has been rigorously constricted or eliminated in any kind of normal classroom setting, as has the prayer at football games.

I will just say we hope the courts will reconsider some of their interpretations of the establishment
clause and the free exercise clause of the first amendment and help heal the hurt in this country.

Id. at S6226 (emphasis added).

The Senate’s bill passed without opposition,^{38 38}The vote was 99-0. Senator Jesse Helms was absent, but Senator Don Nickles announced on his behalf “that if present and voting [he] would vote ‘yea.’ ” 107 Cong. Rec. S6226. and was then sent to the House for consideration.³⁹³⁹In the meantime, the House had passed its own resolution condemning Newdow I. See H.R. Res. 459, 107th Cong. (2002) (“[I]t is the sense of the House of Representatives that . . . [t]he Ninth Circuit’s ruling is incon­sistent with the U.S. Supreme Court’s First Amendment jurisprudence . . . [and t]he phrase ‘One Nation, under God,’ should remain in the Pledge of Allegiance . . . .”).  In its report on the bill, the House Judiciary Committee examined the historical events listed in the legislative findings, and explained why those events were relevant. It concluded that our interpreta­tion of the First Amendment was itself unconstitutional:

Clearly, America has a rich history of referring to God in its political and civic discourse and acknowl­edging the important role faith and religion have played throughout our Nation’s history. Thus the Ninth Circuit’s analysis in the Newdow ruling cannot be supported by any reasonable interpretation of the Establishment Clause as their holding is inconsistent with the meaning given the Establishment Clause since America’s founding.

H.R. Rep. 107-659, at 8 (2002).

On October 7, 2002, the Act “To reaffirm the reference to one Nation under God in the Pledge of Allegiance” was brought before the full House of Representatives. 107 Cong. Rec. at H7029. Representative Jim Sensenbrenner, who chaired the Judiciary Committee and submitted the House Report, explained the purpose of the legislation. He, too, expressed his approval of the action of the 1954 Congress in inserting “under God” into the Pledge and said that he thought it necessary for the later Congress to endorse and approve what the earlier Congress had done:

The Newdow ruling is troubling because its analysis . . . . 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.

Id. Only two other congressmen offered remarks on the bill. The first, Representative Robert C. Scott, stated that he “agree[d] with the dissent” in Newdow I, although he feared that the proposed legislation would further jeopardize the legal status of the amended Pledge “because if the courts look at the importance that we apparently affix to ‘one Nation under God’ . . . then it diminishes the argument that the phrase has de minimis meaning.” Id. at 7030. Representative Ronnie Shows then took to the floor to express his view that “[t]he values we teach at home and church are universal and should not be left outside the schoolhouse door . . . . I am happy that we are today considering a measure that reiterates the importance of our National Motto, and the presence of God in our lives.” Id. (emphasis added). The House voted on the legislation the following day, and it passed by an over­whelming margin.^40
40The vote was 401 to 5, with 4 representatives answering “present” and 21 not voting. 107 Cong. Rec. H7186. Id. at H7186. On November 13, 2002, President George W. Bush signed the bill into law.^{41 41}Although President Bush signed the bill into law without comment, he had expressed his views on Newdow I the day after the case was decided:

As this series of events illustrates, “Congress chose to explain in great detail its purpose in reaffirming the language of the Pledge.” Maj. op. at 3896. That 2002 Act’s legislative history makes clear that Congress’s view of the reference to “under God” in the Pledge had little to do with “political phi­losophy,” as the majority disingenuously claims, id. at 3902, and much to do with the concept of religion, including pro­moting the concept of God in the public schools. As the House Report, which even the majority accepts as competent evidence of purpose, see id. at 3912, explicitly states, the Pledge “is a recognition of the fact that many Americans believe in God.” H.R. Rep. 107-659, at 5. The purpose of the 2002 Act could not be clearer: Congress sought to condemn our decision in Newdow I, to defend the constitutionality of the original 1954 amendment that added “under God” to the Pledge, and to reaffirm “the presence of God in our lives,” and in our Pledge.

In the end, the decision that the 2002 Congress went to such great lengths to condemn never took effect — though not, of course, because of Congress’s legislative action. After our circuit declined to rehear the case en banc, without a sin­gle judge so much as suggesting that the 2002 Act had any relevance to the constitutional analysis, the Supreme Court granted certiorari and reversed on prudential standing grounds

— a lack of standing of a non-custodial parent to assert the rights of his minor daughter — without addressing the merits of the Establishment Clause question. See Elk Grove Unified

America is a nation that values our relationship with an almighty. . . . . I think that the Almighty is, obviously, [an] important part of my life, but [an] important part of the life of our country. And that’s why the ruling of the courts was out of step with the tradi­tions and history of America.

Press conference, June 27, 2002, transcript available at http:// transcripts.cnn.com/TRANSCRIPTS/0206/27/bn01.html.

Sch. Dist. v. Newdow, 542 U.S. 1 (2004). As a result, the state-directed, teacher-led recitation of the “under God” ver­sion of the Pledge has ever since 1954 continued, uninter­rupted, in public schools throughout the nation — just as the 1954 Congress intended.

E. Jan Roe and Her Child’s Constitutional Claim

Today, over six million students attend public school in the State of California.^42
42The precise enrollment figure is 6,275,469. See California Dept. of Ed., State of California Education Profile, Fiscal Year 2007-08 available at http://tinyurl.com/CalEdProfile07-08. At least 190,000 of those students are Buddhist, Hindu or followers of a Native American religion and thus do not believe in traditional monotheism — that is, the existence of a single, non-metaphorical, supervisory God.^{43 43}See The Pew Forum on Religion & Public Life, U.S. Religious Land­scape Survey 99 (2008) [hereinafter Pew Survey], available at http:// tinyurl.com/Pew08ReligionSurvey; see also The Pew Forum on Religion & Public Life, U.S. Religion Map and Religious Populations, available at http://religions.pewforum.org/maps [hereinafter Pew Forum Map]. Adher­ents to the Buddhist and Hindu faiths together comprise three percent of the California population. The percentage of Californians who subscribe to these faiths is over three times the national average. See Pew Survey at 5; see also U.S. Census Bureau, The 2007 Statistical Abstract, t. 73, avail­able at http://www.census.gov/prod/2006pubs/07statab/pop.pdf. Over half a million California students come from “secular” families⁴⁴⁴⁴Twenty-one percent of Californians are “unaffiliated” with any reli­gion. Pew Survey at 100. Nationally, forty percent of people who describe themselves as “unaffiliated” further describe themselves as “secular unaf­filiated.” Id. at 5. — a population that has “nearly doubled” across the country over the past two decades.⁴⁵⁴⁵Laurie Goodstein, More Atheists Are Shouting It From the Rooftops, N.Y. TIMES, Apr. 27, 2009, at A1  Most of these individuals “moved away from religious observance because they no lon­ger believe in God or religious teachings.”⁴⁶⁴⁶Duke Helfand, Why Many Americans Change Faiths, L.A. TIMES, Apr. 28, 2009, at A12. Indeed, Califor

nia and the West Coast have “the largest proportion of atheists and agnostics” of any region in the country.⁴⁷⁴⁷Pew Survey at 8.  In California’s public schools, over one million students are not sure whether they believe in God, and fully 439,000 students are avowed atheists.^48
48See Pew Forum Map (seven percent of Californians “do[ ] not believe in God,” five percent are “not too certain, not at all certain,” or “unsure how certain” they are that God exists, and four percent “don’t know”).

One atheist student who attends a California public school is the daughter of Jan Roe. Ms. Roe’s child was born at the turn of the millennium, and so in September of 2004 the time came for Ms. Roe, a resident of the Rio Linda Union School District, to put her five-year-old daughter on a school bus and send her off for her first day of kindergarten. In so doing, Jan Roe joined the millions of parents in California and across the United States who every September “entrust public schools with the education of their children.” Edwards v. Aguillard, 482 U.S. 578, 584 (1987). These parents hope the school teachers will look over their young children and keep them safe, but, just as important, they “condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Id.

When the five-year-old Roe child arrived for her first day of kindergarten, her teacher, a state employee, asked the young students to stand, to place their hands on their hearts, and to pledge their allegiance to “one nation, under God.” Neither young Roe nor her mother, however, believe in God. Thus, having already learned that she should not tell a lie, young Roe simply stood silently, as her classmates recited in unison the version of the Pledge that requires its proponents to express their belief in God. Everyday thereafter, the chil­dren filed into school, and each morning they recited an oath of allegiance to “one nation, under God” — an oath that unde­niably “requires affirmation of a belief and an attitude of mind” to which young Roe does not subscribe: a belief that God exists and is watching over our nation. Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). For eight months, the five-year-old Roe faced, every morning, the daily “dilemma of participating” in the amended Pledge, with all that implies about her religious beliefs, or of being cast as a protester for her silent refusal. Lee v. Weisman, 505 U.S. 577, 593 (1992). On some days she quietly endured the gaze of her teacher and her classmates as she refused to say the Pledge, standing in silence as the classroom’s lone dissenter; on oth­ers she walked out of the room and stood in the hallway by herself, physically removed from the religious “adherents” — the “favored members of the [classroom] community,” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000), who were able to swear their fealty to the United States without simultaneously espousing a state-sponsored belief in God that was antithetical to their personal religious views.

In April, 2005, Jan Roe filed this lawsuit on behalf of her­self and her child. Her claim is straightforward: The Constitu­tion of the United States, a nation founded by exiles who crossed an ocean in search of freedom from state-imposed religious beliefs, prohibits the purposefully designed, teacher-led, state-sponsored daily indoctrination of her child with a religious belief that both she and her daughter reject.