UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Case No. 00-16423
THE REVEREND MICHAEL A. NEWDOW,
Plaintiff/Appellant,
vs.
THE CONGRESS OF THE UNITED STATES OF AMERICA;
THE UNITED STATES OF AMERICA;
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES;
THE STATE OF CALIFORNIA;
THE ELK GROVE UNIFIED SCHOOL DISTRICT;
DAVID W. GORDON, SUPERINTENDENT;
THE SACRAMENTO CITY UNIFIED SCHOOL DISTRICT;
DR. JIM SWEENEY, SUPERINTENDENT,
Defendants/Appellees,
_____
Appeal from the United States District Court
for the Eastern District of California
Case No. CIV S-00-0495 MLS/PAN/PS
The Honorable Milton S. Schwartz, District Judge
DEFENDANTS/APPELLEES ANSWERING BRIEF
A. Irving Scott, State Bar No. 045919
Michael W. Pott, State Bar No. 186156
PORTER, SCOTT, WEIBERG & DELEHANT
350 University Avenue, Suite 200
Sacramento, CA 95865
Telephone: (916) 929-1481
Attorneys for Defendants/Appellees
ELK GROVE UNIFIED SCHOOL DISTRICT;
DAVID W. GORDON, SUPERINTENDENT,
ELK GROVE UNIFIED SCHOOL DISTRICT;
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT;
DR. JIM SWEENEY, SUPERINTENDENT,
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT
00064380.WPD
TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION ..................................................
1
1. District Court Jurisdiction .............................................................
1
2. Jurisdiction of the Court of Appeals ............................................
1
3. Appealability................................................................................
1
4. Timeliness....................................................................................
1
5. Attorney's Fees ............................................................................
1
II. STATEMENT OF ISSUES ..............................................................
1
III. STATEMENT OF THE CASE ........................................................
1
IV. STATEMENT OF FACTS ...............................................................
2
V. ARGUMENT...................................................................................
3
A. Standard of Review ....................................................................
3
B. Courts have Held that the Term "under God" in the Pledge of Allegiance does
not Violate the Establishment Clause..........
4
VI. CONCLUSION................................................................................
00065750.WPD
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TABLE OF AUTHORITIES
FEDERAL CASES
Allegheny County v. Greater Pittsburgh ACLU
492 U.S. 573 (1984)....................................................
5, 6, 7, 8
Lemon v. Kurtzman
403 U.S. 602 (1971)....................................................
4
Lynch v. Donnelly
465 U.S. 668 (1984).....................................................
Sherman v. Community Consolidated School District
980 F.2d 437 (7th Cir. 1992).........................................
Smith v. Penny
280 F.Supp. 651 ...........................................................
Steckman v. Hart Brewing. Inc.
143 F.3d 1293, 1295 (9th Cir. 1998).............................
Walz v. Tax Commissioner
397 U.S. 664, 671 (1970).............................................
5, 6, 7
4
4
3
6
FEDERAL STATUTES
28 U.S.C. § 1291 .......................................................................1
28 U.S.C. § 1343(3)................................................................... 1
42 U.S.C. § 1983 .......................................................................1
STATE STATUTES
California Education Code § 52720 ....................................... 2,4
California Education Code § 5521 .......................................... 4
00065766.WPD
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I.
STATEMENT OF JURISDICTION
1.
District Court Jurisdiction: Subject matter jurisdiction in the district
court to consider plaintiff Michael A. Newdow's (hereinafter "Newdow") claims
against Elk Grove Unified School District, David W. Gordon, Superintendent of
the Elk Grove Unified School, the Sacramento City Unified School District and Dr.
Jim Sweeney, Superintendent of the Sacramento City Unified School District,
rested on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).
2. Jurisdiction of the Court of Appeals: This court's jurisdiction rests on
28 U.S.C. § 1291.
3.
Appealability: The judgment of the district court finally disposed of
all claims between the parties.
4. Timeliness: The judgment of the district court was entered on July 21,
2000. Plaintiffs Excerpt of Record (hereinafter "ER") at 243. Newdow filed a
Notice of Appeal on July 26, 2000. ER 256. The notice of appeal was, therefore,
timely filed. Fed. R. App. Proc. 4(a)(l).
5. Attorney's Fees: The defendants do not seek attorney's fees for this
appeal.
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II.
STATEMENT OF ISSUES
1.
Does the inclusion of the phrase "under God" in the Pledge of Allegiance violate
the Establishment Clause of the First Amendment to the United States
Constitution?
III.
STATEMENT OF THE CASE
Plaintiff Newdow filed a complaint challenging the inclusion of the phrase
"under God" in the Pledge of Allegiance (hereinafter "the Pledge"). ER 1-82.
Plaintiff seeks declaratory and injunctive relief, but does not seek to recover
damages. ER 36-37.
A motion to dismiss pursuant to 12(b)(6) was filed by defendants Elk Grove
Unified School District; David W. Gordon, Superintendent of Elk Grove Unified
School District; Sacramento City Unified School District; and James Sweeney,
Superintendent of Sacramento City Unified School District. ER 83-92; 115-128. At
the hearing, the federal defendants appeared and all defendants agreed to be bound
by the court's decision. ER 194-197. Also, the state defendants requested the court
to address its ruling solely to the issue of whether or not the Establishment Clause
of the United States Constitution is or is not violated by the inclusion of the term
"under God" in the Pledge of Allegiance without regard to the Eleventh
Amendment issues
00064382.WPD
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raised in the motion to dismiss as to the Elk Grove Unified School District and the
Sacramento City Unified School District. ER 193-194. Magistrate Judge Peter
Nowinski issued Findings and Recommendations that the phrase "under God" in
the Pledge does not violate the Establishment Clause. ER 200-201. The district
court adopted the Findings and Recommendations and dismissed the case. ER 243244.
IV.
STATEMENT OF FACTS
Plaintiff Newdow filed a complaint totaling 39 pages with seven appendices
attached. He sues as "next friend" of his minor daughter who is allegedly presently
attending school in the Elk Grove Unified School District, but may in the future
attend the Sacramento City Unified School District. Plaintiff alleges he is an atheist
and a minister. He further alleges that both school districts have promulgated local
rules consistent with their legal duties to carry out state law set forth in Education
Code § 52720 of the State of California. Said section mandates in pertinent part:
"In every public secondary school there shall be conducted daily appropriate
patriotic exercises. The giving of the Pledge of Allegiance to the Flag of the United
State of America shall satisfy such requirement...."
Plaintiff Newdow generally objects by virtue of his complaint to his daughter
being compelled to "watch and listen as her state-employed teacher in her state-run
school leads her classmates in a ritual proclaiming that there is a God, and that
our's is 'one nation under God.'"
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Newdow does not allege anywhere in his complaint, nor can he, that his
daughter is required to recite the Pledge or that she is in any way punished or
singled out because she does not. To the contrary, he alleges in his complaint that
the Superintendent of the Elk Grove Unified School District, David W. Gordon,
advised him that his daughter was free not to participate. ER 26. Newdow argued at
the hearing before Judge Nowinski on the state defendants' motion to dismiss that
atheism, in his opinion, was a religion. He argued at ER 12 and 14 "his brand of
atheism encompasses a set of beliefs in a way of viewing the world and
relationships just like every other religion, but denied that it is based on a supreme
being." Mr. Newdow also defines an atheist as a "person who has a firm conviction
that God does not exist." ER 2 and 3.
V.
THE COURT PROPERLY DISMISSED NEWDOW'S COMPLAINT
BECAUSE THE PLEDGE OF ALLEGIANCE AND THE INCLUSION OF
THE TERM "UNDER GOD" THEREIN DOES NOT VIOLATE THE
ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT TO THE
UNITED STATES CONSTITUTION.
A.
STANDARD OF REVIEW.
A district court's order granting a motion to dismiss for failure to state a
claim is reviewed de novo. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295
(9th Cir. 1998)
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B.
COURTS HAVE HELD THAT THE TERM "UNDER GOD" IN THE
PLEDGE OF ALLEGIANCE DOES NOT VIOLATE THE
ESTABLISHMENT CLAUSE.
This United States District Court for the Eastern District of California ruled
in 1968 in the case of Smith v. Denny, 280 F.Supp. 651, that the recitation of the
Pledge of Allegiance in public schools, including the term "under God," does not
constitute a violation of the Establishment Clause. In Smith, the plaintiff sought a
declaration that Education Code § 5521 was unconstitutional. Education Code §
5521 is the predecessor of Education Code § 52720 of the State of California which
mandates in pertinent part, that school districts are compelled to "conduct
appropriate patriotic exercises." The Pledge of Allegiance is specifically sanctioned
as a method by which this obligation on the part of a school district can be met, but
is it not the exclusive method of meeting this requirement. It was pled in Smith, as
is pled in the case at bar, that there was no penalty attached to the student's failure
to recite the pledge other than alleged ostracism as a result of exercising his or her
alleged constitutional rights. The Smith court held that there was no constitutional
violation and dismissed the case. Subsequent to Smith , other circuits have ruled
similarly. Sherman v. Community Consol. Sch. Dist., 980 F.2d 437 (7th Cir. 1992).
While there is no Supreme Court case that has directly addressed the Pledge
of Allegiance, it has been raised in dicta in a number of cases.
00064382.WPD
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It is undisputed that the courts have looked to the case of Lemon v. Kurfzman,
403 U.S. 602 (1971), and its trilogy of tests to determine whether the Establishment
Clause has been violated in a particular case. Tests articulated in Lemon to
determine whether a statute violates the Establishment Clause are as follows:
(1) The statute must have a secular legislative purpose;
(2) Its principal or primary effect must be one that neither advances nor
inhibits religion; and
(3) The statute must not foster an excessive government entanglement
with religion. Id. at 612-13.
While the Supreme Court of the United States has never ruled directly on the
constitutionality of the Pledge, it has in dicta in several of its decisions referred to
the fact that the inclusion of "under God" in the Pledge passes constitutional
muster. See, Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny County v. Greater
Pittsburgh ACLU, 492 U.S. 573 (1984).
In Lynch, the Court held that the inclusion of a nativity scene in the city's
Christmas display did not violate the Establishment Clause of the First
Amendment. The Court observed that the Constitution does not require a "complete
separation of church and state; it affirmatively mandates accommodation, not
merely tolerance, of
00064382.WPD
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all religions, and forbids hostility toward any." Lynch, 465 U.S. at 673. More
importantly, however, the court recited the "unbroken history of official
acknowledgment by all three branches of government of the role of religion in
American life from at least 1789." Id. at 674. The Court cited the designation of
Thanksgiving and Christmas, two holidays with clear religious origins, as an
example of government recognition of this country's religious heritage. Id. at 676.
Similarly, the Lynch Court observed that Congress employs chaplains; that military
chaplains are paid for with federal funds; that taxpayer-supported national
museums display religious paintings depicting such events as the birth of Christ,
the crucifixion, and the resurrection; and many presidents have issued
proclamations establishing a national day of prayer. Id. at 676. More significantly,
however, the court pointed to the statutorily prescribed national motto "In God We
Trust" and the language "One Nation Under God" in the Pledge as constitutionally
acceptable expressions of this country's religious heritage. Id. Justice 0'Connor, in
her concurring opinion, observed that these various practices "serve, in the only
ways reasonably possible in our culture, the legitimate secular purposes of
solemnizing public occasions, expressing confidence in the future, and encouraging
the recognition of what is worthy of appreciation in society. For that reason, and
because of their history and ubiquity, those practices are not understood as
conveying government approval of particular religious beliefs." Id. at 693.
00064382.WPD
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Later, the Supreme Court in Allegheny dealt with the Establishment Clause
concerning the constitutionality of two recurring holiday displays located on public
property in downtown Pittsburgh. The Court again referred to the national motto and
the Pledge in dicta and stated that they are constitutionally acceptable forms of
"ceremonial deism." Allegheny, 492 U.S. at 602-603. The Allegheny Court went on
to praise Justice O'Connor's concurring opinion in Lynch indicating that Justice
0'Connor's concurring opinion provided a sound analytical framework for evaluating
governmental use of religious symbols. Allegheny, 492 U.S. at 595.
It is clear from an analysis of all of the cases that have touched upon this issue
that the acknowledgment of the role of religion in American life is not in and of
itself a violation of the Establishment Clause. After a discussion of the many ways
historically since the drafting of the Constitution there has been official
acknowledgment by all three branches of the government of the role of religion in
American life, the Lynch Court stated in pertinent part:
One cannot look at even this brief resume without finding that
our history is pervaded by expressions of religious beliefs ....
Equally pervasive is the evidence of accommodation of all
faiths and all forms of religious expression, and hostility toward
none. Through this accommodation, as Justice Douglas
observed, governmental action has '[followed] the best of our
traditions' and '[respected] the religious nature of our people’.
Citation omitted.
00064382.WPD
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This history may help explain why the Court consistently has
declined to take a rigid, absolutist view of the Establishment
Clause. We have refused 'to construe the Religion Clauses
with a literalness that would undermine the ultimate
constitutional objectives as illuminated by history.' Walz v.
Tax Commin., 397 U.S. 664, 671 (1970) (emphasis added).
In our modem, complex society, whose traditions and
constitutional underpinnings rest on and encourage diversity
and pluralism in all areas, an absolutist approach in applying
the Establishment Clause is simplistic and has been
uniformly rejected by the Court.
Rather than mechanically invalidating all governmental
conduct or statutes that confer benefits or give special
recognition to religion in general or to one faith-as an
absolutist approach would dictate-the Court has scrutinized
challenged legislation or official conduct to determine
whether, in reality, it establishes a religion or religious faith,
or tends to do so. Lynch, 465 U.S. at 677-678.
Plaintiff would have this Court take an absolutist view of the Establishment
Clause such as was disapproved in both the Lynch and Allegheny cases. If the Court
adopts plaintiffs view, then all other acknowledgments as summarized by Justice
O'Connor in Lynch would be subject to plaintiff’s argument and thus invalid as
being violative of the Establishment Clause.
It is submitted as was submitted to the Eastern District Magistrate Judge that
while there has never been a Supreme Court case directly addressing the issue
presented, the United States Supreme Court and other circuit courts have indicated
00064382.WPD
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that terms such as "under God" are a mere acknowledgment of the religious
history of our nation or ceremonial deism and do not constitute an endorsement of
nor an establishment of religion.
Examination of the term "under God" in the Pledge of Allegiance when taken
in context does not support an analysis that the Establishment Clause is violated. A
fair reading of the Pledge of Allegiance leads one to the conclusion that its purpose
and effect is that of a patriotic exercise and it does not convey an endorsement of
religion. Rather, as indicated by Justice O’Connor in Lynch the term "under God" is
a mere reference to the religious heritage and history of this country and does not
constitute "an excessive entanglement of government sufficient to be violative of the
Establishment Clause. If one analyzes all words of the Pledge of Allegiance, the
logical conclusion is that each word is an affirmation of the heritage of this country.
Clearly, our founding fathers believed we were "one nation". Our founding fathers
believed we were "indivisible". Our founding fathers believed in the heritage of
"liberty and justice for all". All of these terms have historical roots dating back to
the founding of this country. To acknowledge those roots including the term "under
God" cannot, without extreme and rigorous twisting of the language of the many
courts of the United States, come to the conclusion that there is a violation of the
Establishment Clause.
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VI.
CONCLUSION
Taken in its context, the terms of the Pledge of Allegiance are no more the
establishment of a religion or the endorsement of a religion than was a Christmas or
winter solstice display of the menorah combined in a display with a Christmas tree
and a sign saluting liberty as formed the basis of the U.S. Supreme Court decision in
Allegheny.
For the above reasons, the order dismissing Mr. Newdow's complaint should
be affirmed.
Date: February 5,2001
Respectfully submitted,
PORTER, SCOTT, WEIBERG & DELEHANT
A Professional Corporation
00064382.WPD
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CERTIFICATION PURSUANT TO CIRCUIT RULE 32(e)(4)
The brief is proportionately spaced together with the type face, point size and
word count and does not exceed the 50 page limit.
The brief has a word count of 2,308 words.
Respectfully submitted,
Dated: February 5,2001
A. A. Irving Scott - Bar No. 045919
Michael W. Pott - Bar No. 186156
Attorneys for Defendants/Appellees
ELK GROVE UNIFIED SCHOOL DISTRICT;
DAVID W. GORDON, SUPERINTENDENT,
ELK GROVE UNIFIED SCHOOL DISTRICT;
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT; DR. JIM SWEENEY,
SUPERINTENDENT, SACRAMENTO CITY
UNIFIED SCHOOL DISTRICT
00064382.WPD
12
STATEMENT OF RELATED CASES
The undersigned attorney of record for Defendants/Appellees ELK GROVE
UNIFIED SCHOOL DISTRICT, DAVID W. GORDON, SUPERINTENDENT,
ELK GROVE UNIFIED SCHOOL DISTRICT; SACRAMENTO CITY UNIFIED
SCHOOL DISTRICT; DR. JIM SWEENEY, SUPERINTENDENT,
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT hereby states that there are
no related cases.
Dated: February 5, 2001
A. Irving Scott - Bar No. 045919
Michael W. Pott - Bar No. 186156
Attorneys for Defendants/Appellees
ELK GROVE UNIFIED SCHOOL DISTRICT;
DAVID W. GORDON, SUPERINTENDENT,
ELK GROVE UNIFIED SCHOOL DISTRICT;
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT; DR. JIM SWEENEY,
SUPERINTENDENT, SACRAMENTO CITY
UNIFIED SCHOOL DISTRICT
00064382.WPD
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PROOF OF SERVICE
I am a citizen of the United States and employed in Sacramento County,
California;
I am over the age of 18 years and not a party to the within action; my business
address is 350 University Avenue, Suite 200, Sacramento, California 95825.
On the date below I served the attached: DEFENDANTS/APPELLEES
ANSWERING BRIEF
addressed as follows:
MICHAEL NEWDOW
P. 0. Box 233345
Sacramento, CA 95823
(2 copies)
PAUL L. SEAVE
KRISTIN S. DOOR
United States Attorney's Office
501 I Street, Suite 10-100
Sacramento, CA 95814
(2 copies)
X BY MAIL. I caused such envelope with postage thereon fully prepaid to be
placed in the United States mail at Sacramento, California.
_ BY PERSONAL SERVICE. I caused such document to be delivered by hand
to the office of the person(s) listed above.
_ BY FEDERAL EXPRESS. I caused such document to be delivered by Federal
Express to
the office of the person(s) listed above.
_ BY FACSIMILE. I caused such document to be delivered by facsimile to the
office of the person(s) listed above.
I declare under penalty of perjury that the foregoing is true and correct and was
executed on
2 – 5 – 01 in Sacramento, California.
____
____
________
Susan Kern
Newdow v. The Congress of the United States of America, et al, United States
Court of Appeals for the Ninth Circuit Case No. 00-16423
00067020.WPD
PROOF OF SERVICE
I am a citizen of the United States and employed in Sacramento County,
California;
I am over the age of 18 years and not a party to the within action; my business
address is 350 University Avenue, Suite 200, Sacramento, California 95825.
On the date below I served the attached: DEFENDANTS/APPELLEES
ANSWERING BRIEF
addressed as follows:
Clerk of the Court
United States Court of Appeals
P. 0. Box 193939
95 Seventh Street
San Francisco, CA 94119-3939
(Original and 15 copies)
_ BY MAIL. I caused such envelope with postage thereon fully prepaid to be
placed in the United States mail at Sacramento, California.
_ BY PERSONAL SERVICE. I caused such document to be delivered by hand
to the office of the person(s) listed above.
X
BY UPS NEXT DAY AIR. I caused such document to be delivered by UPS
Next Day Air to the office of the person(s) listed above.
_ BY FACSIMILE. I caused such document to be delivered by facsimile to the
office of the person(s) listed above.
I declare under penalty of perjury that the foregoing is true and correct and was
executed on
2 – 5 – 01 in Sacramento, California.
____
____
Susan Kern
Newdow v. The Congress of the United States of America, et al.
United States Court of Appeals for the Ninth Circuit
Case No. 00-16423
00067020.WPO
________