IN THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF
CALIFORNIA
Civil
Action No.
THE
REV. DR. MICHAEL A. NEWDOW, IN PRO PER;
Plaintiff,
v.
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 (“EGUSD”);
DAVID
W. GORDON, SUPERINTENDENT, EGUSD;
THE
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT (“SCUSD”);
DR.
JIM SWEENEY, SUPERINTENDENT, SCUSD;
Defendants.
ORIGINAL COMPLAINT
Plaintiff
alleges as follows:
1.
This is a civil action claiming
violations of the First, Fifth and Fourteenth Amendments of the Constitution of
the United States of America. As such,
this Court has jurisdiction under 28 U.S.C. § 1331.
2.
This action is founded upon the
Constitution of the Unites States of America.
As such, this Court has jurisdiction over Defendant United States of
America under 28 U.S.C. § 1346(a)(2).
3.
This action is in the nature of
mandamus, and seeks to compel the Congress of the United States of America, the
President of the United States of America, the United States of America, its
agents and its officers to perform their duties owed Plaintiff[1] under the terms of the First and
Fifth Amendments of the Constitution of the United States. As such, this Court has jurisdiction under
28 U.S.C. § 1361.
4.
This action alleges that Defendants
the State of California; the Elk Grove Unified School District; David W.
Gordon, Superintendent, Elk Grove Unified School District; the Sacramento City
Unified School District; and Dr. Jim Sweeney, Superintendent, Sacramento City
Unified School District have deprived Plaintiff1 of rights secured by the First, Fifth and
Fourteenth Amendments to the Constitution of the United States of America. As
such, this Court has jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §
1343 (3).
5.
Defendants the Congress of the United
States of America; the United States of America; and William Jefferson Clinton,
President of the United States; is each an officer or employee of the United
States or an agency thereof acting in his official capacity or under color of
legal authority, or an agency of the United States, or the United States. Plaintiff resides in this judicial
district. Venue is therefore proper
under 28 U.S.C. § 1391(e).
6.
A substantial part of the events or
omissions giving rise to this claim occurred, occur or will occur in the
Eastern District of California. Venue
is therefore proper under 28 U.S.C. § 1391(b)(2).
7.
Defendants the State of California;
the Elk Grove Unified School District; David W. Gordon, Superintendent, EGUSD;
the Sacramento City Unified School District; and Dr. Jim Sweeney, Superintendent,
SCUSD, reside in Sacramento County, California. Venue is therefore proper under 28 U.S.C. § 1391(b)(3).
PARTIES
8.
Plaintiff Michael A. Newdow is a
citizen of the United States, and a resident of the State of California.
9.
Plaintiff’s daughter, an unnamed
plaintiff whom he represents as “next friend,” is a citizen of the United
States, and a resident of the State of California.
10.
Defendant
the Congress of the United States of America is the branch of government in
which all legislative Powers are granted under Article I, Section 1 of the
United States Constitution.
11.
Defendant
the United States of America is the constitutionally established government of
the United States of America.
12.
Defendant
William Jefferson Clinton is the President of the United States, in whom is
vested the executive Power under Article II, Section 1 of the United States
Constitution. He is also the Commander
in Chief of the Armed Forces of the United States under Article II, Section 2.
13.
Defendant
the State of California is one of the fifty sovereign United States. It has its
own established government, subject to its own State Constitution. Both its
government and its State Constitution are subject to the Constitution and the
laws of the United States of America.
14.
Defendant
the Elk Grove Unified School District (“EGUSD”) is the governing body
responsible for operating, controlling and supervising all free public schools
within the School District of Elk Grove, California.
15.
Defendant
David W. Gordon is the Superintendent of Schools for the Elk Grove Unified
School District. He is responsible for the administration and management of the
schools of the School District.
16.
Defendant
the Sacramento City Unified School District (“SCUSD”) is the governing body
responsible for operating, controlling and supervising all free public schools
within the School District of the City of Sacramento, California.
17.
Defendant
Dr. Jim Sweeney is the Superintendent of Schools for the Sacramento City
Unified School District. He is responsible for the administration and
management of the schools of the School District.
18.
This
action is one of first impression, charging that the Congress of the United
States of America violated the Religion Clauses of the First Amendment by
altering the Pledge of Allegiance to include the words “under God.” The
pertinent facts follow.
I pledge allegiance to my
Flag and to the Republic for which it stands: one Nation indivisible, with
Liberty and Justice for all.
20. With the support of
President Benjamin Harrison, schools throughout the nation were encouraged to
use that “pledge” that year as part of their Columbus Day festivities.
21. Subsequently, the nation’s
schools adopted this pledge to be recited daily (by the students, led by their
teachers).
22. As increasing numbers of
immigrants flowed into the country, “my Flag” became somewhat ambiguous. Thus,
in 1923, those two words were replaced by “the flag of the United States.” The phrase “of America” was appended a year
later.
23. In 1942, Congress sent a
joint resolution regarding an official Code of Flag Etiquette to President
Franklin D. Roosevelt. The president approved the resolution and Public Law No.
622, 56 Stat. 380 took effect on June 22 of that year. Section (7) of that law
contained the Pledge of Allegiance to the Flag of the United States of America
(hereinafter “the Pledge”). It read:
I pledge allegiance to the
flag of the United States of America and to the Republic for which it stands,
one Nation indivisible, with liberty and justice for all.
24. It is to be noted that there
is and was nothing religious in the 1942 version of the Pledge.
26.
In
1951, the Board of Directors of the Knights of Columbus – a proselytizing
Catholic group – inserted “under God” after “one Nation” for their members to
recite when uttering the Pledge.
27.
Subsequent
lobbying by the Knights of Columbus and other religious parties persuaded the
United States Congress to pass its Act of June 14, 1954, Pub. L. No. 396, 68
Stat. 249 (hereinafter “Act of 1954”).
The sole legislative effect of that Act – as stated by Congress, itself
– was to insert the two words “under God” into the previously secular Pledge.[2] As codified in 36 U.S.C. § 172, the Pledge of Allegiance to the Flag
of the United States of America now reads:
I pledge allegiance to the flag of the United States of America, and to
the Republic for which it stands, one Nation under God, indivisible, with
liberty and justice for all.
28.
Any
law that involves nothing but the endorsement of a religious ideal is
unconstitutional on its face. (“A
law lacks facial neutrality if it refers to a religious practice without a
secular meaning discernible from the language or context.” Church of Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993).)
29.
On
its face, the Act of 1954 did nothing except insert the words “under God” into
the Pledge of
Allegiance. It was and is,
therefore, facially unconstitutional.
30.
A
law violates the Constitution if it is promulgated for a religious purpose. (“If there is to be assurance that the
Establishment Clause retains its force in guarding against those governmental
actions it was intended to prohibit, we must in each case inquire first into
the purpose and object of the governmental action in question.” Rosenberger
v. University of Virginia, 515 U.S. 819, 838-839 (1995).)
31.
The
religious motivation behind this act can be readily appreciated by reading
Congress’s own narrative:
Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. 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. At the same time it would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual.
H.R. 1693, 83rd Cong., 2nd Sess. (1954) (emphasis added).
32.
Appendix
B contains quotes from the Congressional Record.[3]
These quotes further demonstrate that Congress’s purpose in passing the Act of
1954 was incontrovertibly religious in nature.[4]
Any governmental act passed with such a religious purpose is unconstitutional.
(“Under the Lemon
analysis, a statute or practice which touches upon religion, if it is to be
permissible under the Establishment Clause, must have a secular purpose.” Allegheny
County v. Greater Pittsburgh ACLU, 492 U.S. 573, 592 (1989).)
33. In an attempt to publicize
(and politicize) the passage of HJ Res 243 (the joint resolution that added the
words “under God” to the Pledge of Allegiance), Congressman Oliver Bolton – a
chief sponsor of the legislation – recommended that “a Protestant, a Catholic,
and a Jew be in the group” picture of the principal sponsors of the bill as they
joined President Eisenhower in his signing of the measure. (See Appendix C.)
That only clergymen would be recommended to join these politicians provides
further clear cut evidence that the purpose of the resolution was
religious in nature.
34. The use of the words “under God” in the Pledge of
Allegiance is nothing but a religious act. (“To invoke Divine guidance on a
public body ... is nothing but a religious act.” Marsh v. Chambers, 463
U.S. 783, 797 (1983) (Brennan, J, dissenting).)
35.
Other than endorsing theistic religious belief, there can be
no purpose in adding the words “under God” to any prose. (“[I]t is clear that religious belief is the … Act’s ‘reason for existence.’” Edwards v.
Aguillard, 482 U.S. 578, 603 (1987) (Powell, J., concurring).)[5]
36.
Engaging in a ritual that not only declares
the existence of “God,” but declares that this nation exists “under God” is –
by definition, intent and general understanding – religious activity.
37.
President
Eisenhower, in his address marking the passage of the Act of 1954, stated
From this day forward, the millions of our school
children will daily proclaim in every city and town, every village and rural
schoolhouse, the dedication of our Nation and our people to the Almighty.[6]
These words – by the
President of the United States – demonstrate that the Act was not only
promulgated for a religious purpose, but that it was intended to have a
religious effect.
38.
A
law violates the Constitution if it has a religious effect. (“[A]n important concern of the
effects test is whether the symbolic union of church and state effected by the
challenged governmental action is sufficiently likely to be perceived by
adherents of the controlling denominations as an endorsement, and by the
nonadherents as a disapproval, of their individual religious choices.” Grand
Rapids School District v. Ball, 473 U.S. 373, 390 (1985).)
39.
The
effect of the insertion of the words “under God” into the Pledge of Allegiance
has been for theistic Americans to perceive the Pledge as an endorsement of
their theism, and for atheistic Americans, including Plaintiff, to perceive the
Pledge as a disapproval of their atheism.
40. The view put forth in the
Act of 1954 – that ours is a government that endorses a belief in God
(especially one who exists as a “Creator”) and that, as a nation, we “deny ...
atheistic ... concepts” – has consistently been held to violate the First
Amendment. Furthermore, not only is government expressly forbidden from
endorsing any belief in God, but, under our Constitution, atheism is a religious
belief system protected as strongly as theism. (“The idea, as I understand it, was to limit the power
of government to act in religious matters, not to limit the freedom of
religious men to act religiously nor to restrict the freedom of atheists or agnostics.”
McGowan v. Maryland, 366 U.S. 420, 563-564 (1961) (Douglas, J.,
dissenting); “What our Constitution indispensably protects is the freedom of
each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or
Freethinker, to believe or disbelieve, to worship or not worship, to pray or
keep silent, according to his own conscience, uncoerced and unrestrained by
government.” Abington
School District v. Schempp, 374 U.S. 203, 319-320 (1963) (Stewart, J., dissenting); “At one time it
was thought that this right merely proscribed the preference of one Christian
sect over another, but would not require equal respect for the conscience of
the infidel, the atheist, or the adherent of a non-Christian faith such as
Islam or Judaism. But when the
underlying principle has been examined in the crucible of litigation, the Court
has unambiguously concluded that the individual freedom of conscience protected
by the First Amendment embraces the right to select any religious faith or none
at all.” Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985)
(footnotes omitted). “A secular state establishes neither atheism nor religion
as its official creed.” Allegheny County v. Greater Pittsburgh ACLU, 492
U.S. 573, 610 (1989); “This governmental preference for religion, as opposed to
irreligion, is forbidden by the First Amendment.” City of Boerne v. Flores,
Archbishop of San Antonio, 521 U.S. 507, 537 (1997) (Stevens, J.,
concurring).)
An atheistic American … is a
contradiction in terms,[7]
[W]hen Francis Bellamy wrote
this stirring pledge, the pall of atheism had not yet spread its hateful shadow
over the world,[8] and
The sordid records of the
divorce courts, of the juvenile delinquency case histories, the tragedy of
broken homes, wandering families, of the cheap price put on human life, the old
heads on young children, the disrespect for authority, the contempt for law,
the chiseling among those in authority, the lack of honor among the citizenry –
all of this is the shame of America, the open sores of her secularist spirit[9]
into the Congressional record is a horror that exceeds even the most contemptible imaginable
application of the First Amendment.
42.
Plaintiff readily acknowledges that the majority of
Americans – certain of their belief in the existence of a God – are completely
blind to the offensiveness the words “under God” in the Nation’s Pledge of
Allegiance hold for Plaintiff and his religious brethren. Nonetheless, the
rights of religious freedom are fundamental constitutional rights, and, as
such, they must be examined from the perspective of those individuals whose
rights are abridged. (“The
proper focus of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant.” Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 894 (1992).)
43.
Accordingly, with respect to the Religion Clauses, this
“focus” is measured in terms of sectarianism, which – in constitutional terms –
refers not only to beliefs held by any one religious sect, but to all religious
beliefs that are not universal. In other words, any belief that is not adhered
to by all is – from the point of view of the nonadherents – a sectarian belief.
44.
Sectarianism – on the part
of government – is forbidden by the First Amendment. (“[T]he government’s use of religious symbols
is unconstitutional if it effectively endorses sectarian religious belief.” Capitol Square Review and Advisory
Bd. v. Pinette, 515
U.S. 753, 765 (1995) (emphasis in original).)
45.
The phrase “under God” expresses a religious belief that is
not adhered to by a significant segment of the population.[10] Again,
this phrase is constitutionally sectarian, especially in the current American
society which has become increasingly religiously diverse. (“This Nation is heir to a history
and tradition of religious diversity that dates from the settlement of the
North American Continent. Sectarian differences among various Christian
denominations were central to the origins of our Republic. Since then,
adherents of religions too numerous to name have made the United States their
home, as have those whose beliefs expressly exclude religion.” Allegheny
County v. Greater Pittsburgh ACLU, 492 U.S. 573, 589 (1989).)
46.
Sectarianism is often denied as such by legislators,
scholars, “experts” and courts. Viewing themselves as broadminded because they
have embraced religions and sects beyond their own, some such individuals fail
to see that they still are taking a limited view when they don’t embrace all
religions and sects. In colonial New Jersey, for instance, those who set forth:
That there shall be no
establishment of any one religious sect in this Province, in preference to
another; and that no Protestant inhabitant of this Colony shall be denied the
enjoyment of any civil right, merely on account of his religious principles;
but that all persons, professing a belief in the faith of any Protestant sect,
who shall demean themselves peaceably under the government, as hereby
established, shall be capable of being elected into any office of profit or
trust, or being a member of either branch of the Legislature, and shall fully
and freely enjoy every privilege and immunity, enjoyed by others their fellow
subjects.[11]
apparently felt themselves to be advocating nonsectarianism. New
Jersey’s Catholics likely felt otherwise. In Abington School District v.
Schempp, 374 U.S. 203 (1963), it was noted that “Dr. Weigle
stated that the Bible was non-sectarian.” Id., at 210. Perhaps it was in
response to Jewish objections that “[h]e later stated that the phrase
‘non-sectarian’ meant to him non-sectarian within the Christian faiths.” Id.
(quoting the trial court’s summary). Similarly, when Representative Overton
Brooks sponsored the introduction of a National Day of Prayer, he must have
felt himself to be quite the liberal by encompassing “Catholics, Jewish and
Protestants” in his definition of “all denominations.” 98 Cong. Rec. 771
(1952). Would Muslim, Hindu and other Americans not take issue with that
proclamation?
47.
For atheists, of course,
exclusion such as that noted in the preceding paragraph 46 is the norm. The endorsement of theism, as a religious belief
system in opposition to atheism, involves sectarianism
exactly as occurs when Catholics are excluded from
other Christians, Jews are excluded from
other Judeo-Christians, and non-Judeo-Christians are excluded from other
theists. Justice Blackmun, in Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 615 (1989), addressed
this exact idea when he wrote that “The simultaneous endorsement of Judaism and
Christianity is no less constitutionally infirm than the endorsement of
Christianity alone.” And, similarly, the simultaneous endorsement of all
theistic religions is no less constitutionally infirm than the endorsement of
any one of those theistic religions alone.
48.
Analogous sectarianism can be illustrated with regard to the
Pledge. “One Nation under Jesus,” for instance, is no different,
constitutionally, from “One Nation under God.”
49.
In an effort to obscure the obvious, some have attempted to
apply the rubric of “ceremonial deism” to phrases such as “under God.” Even
momentarily accepting this as a valid construct,[12]
history shows that this was definitely not the case for the Act of 1954. In
addition to the naked words of the legislators who passed this law, we can look
to House Report 1693,[13]
which included an opinion from W.C. Gilbert, Assistant Director of the Legislative
Reference Service of the Library of Congress. Mr. Gilbert was consulted in
order to determine the appropriate placement of the words and punctuation, and
he did this by determining “the exact meaning intended by the proposed
insertion.” Were “under God” to be used merely for ceremonial purposes, it
would have been placed as a separate clause. Mr. Gilbert found that such
placement was categorically not
correct, and that “the insertion is intended as a general affirmance of the
proposition that the United States of America is ‘founded on a fundamental
belief in God.’” That Congress chose to include Mr. Gilbert’s opinion in its
report proves unequivocally that any “ceremonial deism” claim is without any
foundation.
50.
Not
only were the words “under God” in the Pledge viewed as religious when the Act
of 1954 was passed, they have continued to be viewed in that manner ever since.
In the current presidential election, for instance, potential candidates were
interviewed by the Committee to Restore American Values, a part of the
so-called “religious right.” That committee specifically asked, “Would you
support a removal of the words ‘under God’ from the Pledge of Allegiance?”[14]
Joined by the executive director of the Christian Coalition, there can be no
doubt as to the religious agenda the commission had in posing that question.
This account further demonstrates the illusory notion behind any “ceremonial
deism” claim.
51.
Defendant
William Jefferson Clinton, the President of the United States and Commander in
Chief of the Armed Forces has been granted the power to modify the rules and
customs of Patriotic Societies and Observances under 36 U.S.C. § 178. Despite swearing to “preserve, protect and
defend the Constitution of the United States,” he has permitted and continues
to permit the now-sectarian Pledge of Allegiance to the Flag to remain as
stated in paragraph 27.
52.
Defendant
The Congress of the United States of America not only violated the Religion
Clauses in its Act of 1954, but has – under Article I, Section 1 of the United
States Constitution – permitted and continues to permit the now-sectarian
Pledge of Allegiance to the Flag to remain as stated in paragraph 27. Thus, by not returning the Pledge to a constitutional
form, Congress continues daily to violate the Constitution.
54.
Pursuant
to the beliefs noted in the preceding paragraph 53, Plaintiff and his ministry are grossly offended by
the phrase “under God” in the Pledge of Allegiance to the Flag of the United
States of America. In fact, our
religious beliefs are completely to the contrary, and – were Plaintiff and his
ministry forced to reference God in the nation’s Pledge of Allegiance to the
Flag – they would do so with the phrase, “ … one nation, under no God,
indivisible, with liberty and justice for all.” However, firmly believing in the principle of religious freedom
which underlies the Establishment and Free Exercise Clauses noted in paragraph 25 above, Plaintiff and his ministry would vehemently
fight the inclusion of such a reference.
55.
Plaintiff’s
religious views are protected under the Establishment and Free Exercise Clauses
noted in paragraph 25 above.
56.
The
phrase “under God” (as used in our now-sectarian Pledge of Allegiance to the
Flag) requires a belief in “God” and assumes or implies that “God” occupies
some high position. As such, this phrase is religious and deals with a
theological question as is forbidden under the Federal Constitution. (“[T]he First Amendment[ requires] ...
on the part of all organs of government a strict neutrality toward theological
questions” Abington School District v. Schempp, 374 U.S. 203, 243 (1963)
(Brennan, J., concurring).)
57.
To tell Plaintiff and his daughter that
there is a God and enroll them in a governmentally-sponsored theistic milieu is
no less an affront that it is to tell a Buddhist there is no Buddha, a
Christian there is no Jesus, a Muslim there is no Allah, and so on for every
other faith.
58.
The history, purpose and effect of the Act
of 1954 was to endorse the ideas that (a) there is a God, and (b) that we are
“one Nation under God.” Such an endorsement violates the Federal Constitution.
(“Government promotes religion as effectively when it fosters a close
identification of its powers and responsibilities with those of any – or all –
religious denominations as when it attempts to inculcate specific religious
doctrines. If this identification
conveys a message of government endorsement or disapproval of religion, a core
purpose of the Establishment Clause is violated.” Grand Rapids School
District v. Ball, 473 U.S. 373, 389 (1985).)
59.
The
phrase “under God” is in direct conflict with the views expressed in paragraph 53, which represent the religious views of Plaintiff and
his ministry.
60.
Views
that deny the existence of a God are religious views, and are protected by the
First Amendment as arduously as those views that are based on theism.
61.
Plaintiff
is a citizen of the United States. That
a phrase offensive to the religious beliefs of Plaintiff and his ministry has
been incorporated into the Pledge of Allegiance to the Flag of the United
States of America – a nation whose Bill of Rights begins with the words
“Congress shall make no law respecting an establishment of religion” – is a
ludicrous and unconstitutional affront.
It violates the Establishment Clause by endorsing theism, and it
violates the Free Exercise Clause by interfering with Plaintiff’s ability to
practice his religion free from governmental intrusion.
62.
Plaintiff
is a citizen of the United States of America, often proud of his nation. When he wishes to join his fellow citizens
and pledge allegiance to the country’s flag – as he has done and will continue
to do in the future – extraneous and offensive (to Plaintiff) religious dogma
is imposed as the phrase “one Nation under God” is uttered (as scripted in 36
U.S.C. § 172). This impermissible
interlarding violates the Establishment and Free Exercise Clauses of the very
Bill of Rights underlying that pledge.
63.
By
way of the Fourteenth Amendment, the States are subject to the First Amendment
of the Constitution. (“The First Amendment declares that Congress shall make no
law respecting an establishment of religion or prohibiting the free exercise
thereof. The Fourteenth Amendment has rendered the legislatures of the states
as incompetent as Congress to enact such laws.” Cantwell v. Connecticut,
310 U.S. 296, 303-304 (1940)).
64.
Article
I (Declaration of Rights), Section 4 of the California State Constitution
provides, in pertinent part:
Free exercise and enjoyment of religion without
discrimination or preference are guaranteed ... The Legislature shall make no
law respecting an establishment of religion.
65.
Article
IX (Education), Section 8 of the California State Constitution provides, in
pertinent part:
No ... sectarian or denominational doctrine [shall]
be taught, or instruction be permitted, directly or indirectly, in any of the
common schools of this State.
66.
The
California State Education Code, Section 52720, states that:
... each day during the school year ... there shall be conducted appropriate patriotic exercises. The giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy the requirements of this section.”
67.
By
specifically suggesting that the now-sectarian Pledge of Allegiance may be used
in the State’s public schools, Defendant the State of California had
promulgated a rule that violates the Establishment and Free Exercise Clauses of
the First Amendment of the Federal Constitution, and Article I, Section 4 and
Article IX, Section 8 of the California State Constitution.
68.
It
is understood that by adopting Section 52720 of the Education Code, California
has attempted to foster patriotism, and has assumed that the United States
Congress acted constitutionally in its passage of the Act of 1954. However, in
view of the obvious Federal and State Religion Clause violations, the State has
no more right to accept the federal legislature’s Religion Clause transgressions
than it does to accept those of its own legislature. (See, e.g., Walker v.
Superior Court, 47 Cal. 3d 112, 253 Cal. Rptr. 1, 763 P.2d 852 (1988)
(Mosk, J., concurring).)
69.
If
the State wishes to have a patriotic recitation, it can well recommend the
secular, pre-1954 version of the Pledge or use some other nonsectarian prose
altogether. In fact, under the strict scrutiny standard it must follow (“If a
law effects a preference among religions, the governmental policy is
presumptively suspect and subject to strict scrutiny.” Walker v. Superior
Court, 47 Cal. 3d 112, 145 (Mosk, J., concurring) (note 1)), the need to
narrowly tailor legislation to meet any putative compelling interest mandates
such a recommendation.
70.
Defendant
the Elk Grove Unified School District has promulgated its Rule AR 6115, which
states in pertinent part that “Each elementary school class [shall] recite the
pledge of allegiance to the flag once each day.”
71.
Due
to the inclusion of the words “under God” in the Pledge of Allegiance to the
Flag of the United States of America, Rule AR 6115 results in the daily
indoctrination of the Elk Grove Unified School District’s students – including
Plaintiff’s daughter – with religious dogma, as is expressly forbidden by the
Constitution of the United States of America.
72.
Defendant
David W. Gordon, Superintendent of Schools, has permitted and continues to
permit Rule AR 6115 to remain in force.
73.
Defendant
the Sacramento City Unified School District has promulgated its Rule AR 6115
(b), which states in pertinent part that “Each school shall conduct patriotic
exercises daily. At elementary schools, such exercises shall be conducted at
the beginning of each school day. The Pledge of Allegiance to the flag will
fulfill this requirement.”
74.
Due
to the inclusion of the words “under God” in the Pledge of Allegiance to the
Flag of the United States of America, Rule AR 6115 (b) results in the daily
indoctrination of the Sacramento City Unified School District’s students with
religious dogma, as is expressly forbidden by the Constitution of the United
States of America.
75.
Defendant
Dr. Jim Sweeney, Superintendent of Schools, has permitted and continues to
permit Rule AR 6115 (b) to remain in force.
76.
Plaintiff
is the father of a five year old daughter, who – since August, 1999 – has been
enrolled in kindergarten in a public school within the Elk Grove Unified School
District. Current plans are for her to complete her primary and secondary
school years in either that school district or the Sacramento City Unified
School District.
77.
Plaintiff
is an atheist.
78.
Plaintiff,
under the Free Exercise Clause, has an unrestricted right to inculcate in his
daughter – free from governmental interference – the atheistic beliefs he finds
persuasive. The government’s use of the words “under God” in the Nation’s
Pledge of Allegiance infringes upon this right. Such an infringement may not
occur without a compelling state interest. No such compelling interest exists.
79.
Plaintiff’s
daughter has been, currently is, and will in the future be subjected to the
teacher-led recitation of the now-sectarian Pledge of Allegiance every day she
attends the public schools. In other words, every school morning – under the
aegis of the State – this child “of tender years” is compelled to watch and
listen as her state-employed teacher in her state-run school leads her and her
classmates in a ritual proclaiming that there is a God, and that ours is “one
Nation under God.” For the State to ever
subject Plaintiff’s daughter to such dogma – expressing and inculcating purely
religious beliefs that are directly contrary to the religious beliefs of
Plaintiff and the religious ideals he wishes to instill in his child – would be
of questionable constitutionality. For it to do this every single school day for
thirteen years – using Plaintiff’s tax dollars, no less, to accomplish the
affront – is an outrageous and manifest abuse of power in direct violation of
the Religion Clauses of the constitutions of both the United States and the
State of California. (“The State must be certain, given the Religion Clauses,
that subsidized teachers do not inculcate religion.” Lemon v. Kurtzman, 403 U.S. 602, 619 (1971).)
80. Plaintiff at times has
himself attended – and will in the future attend – class with his daughter.
During such times, he has been – and will in the future be – exposed to the
teacher-led recitation of the Pledge of Allegiance. For Plaintiff, himself, to
be subjected to this religious dogma while exercising his right to participate
in his child’s education in the public schools also violates the Religion
Clauses of the Constitutions of both the United States and the State of
California.
81.
Plaintiff is making no objection to the recitation of a
patriotic Pledge of Allegiance. The government is certainly within its right to
foster patriotism, and it may certainly make the determination that recitation
of a Pledge of Allegiance serves that purpose. However, government may not
employ or include sectarian religious dogma towards this end. (“[I]f a state
passed legislation requiring the erection at every other street corner of a
pole containing a stop sign with the word ‘STOP’ and a picture of Jesus Christ
in the background, there is no doubt that a purpose of the statute would be to
regulate the flow of traffic and require vehicles to stop. However, from a
constitutional standpoint, the question that would have to be asked is: why the
picture of Jesus Christ?” Cammack
v. Waihee, 944 F.2d
466, 469 (9th Cir. 1991) (Reinhardt, Circuit Judge, dissenting from the
denial of rehearing en banc).)
82.
In
1998, the United States Department of Education issued a Statement on Religious Expression in Public Schools, which included
a portion holding that “[t]eachers and school administrators, when acting in
those capacities, are representatives of the state and are prohibited by the
Establishment Clause from soliciting or encouraging
religious activity, and from participating in such religious activity with
students.” According to Secretary of Education Richard W. Riley’s letter
accompanying this statement, “schools may not endorse religious activity or
doctrine.” When teachers generally – and Plaintiff’s daughter’s teachers
specifically in the case at bar – lead their students in a daily recitation
that states in part that we are “one Nation under God,” they endorse religious
doctrine and inculcate a belief that not only is there a God, but that we are
one nation “under” that entity. This is unconstitutional. (“As we have
repeatedly recognized, government inculcation of religious beliefs has the
impermissible effect of advancing religion.” Agostini v. Felton, 521 U.S. 203, 223 (1997).)
Our founders believed the best way to protect
religious liberty was to first guarantee the right of everyone to believe and
practice religion according to his or her conscience; and second, to prohibit
our government from imposing or sanctioning any particular religious belief.
That’s what they wrote into the First Amendment. They were right then, and
they’re right now.
Read from the perspective of
atheistic Americans (such as Plaintiff), this passage can only be interpreted
as meaning that the current sectarian Pledge – especially as recited daily in
our public schools – is unconstitutional.
84.
The
indoctrination of his child against his will – to occur continuously for
thirteen consecutive years – with a religious viewpoint that Plaintiff feels is
offensive is a violation of Plaintiff’s fundamental constitutional privacy
right of parenthood. Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (“Our law affords constitutional
protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education.” Id.,
at 851); Santosky v. Kramer, 455 U.S. 745 (1982) (“[F]reedom of personal
choice in matters of family life is a fundamental liberty interest protected by
the Fourteenth Amendment. Quilloin v. Walcott, 434 U.S. 246, 255 (1978);
Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977); Moore
v. East Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion); Cleveland
Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Stanley v.
Illinois, 405 U.S. 645, 651-652 (1972); Prince v. Massachusetts, 321
U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510,
534-535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).” Id.,
at 753; “[T]he interest of parents in their relationship with their children is
sufficiently fundamental to come within the finite class of liberty interests
protected by the Fourteenth Amendment.” Id., at 774 (Rehnquist, C.J.,
dissenting).)
85.
Plaintiff
has attended and will continue to attend meetings of EGUSD and SCUSD. During
those meetings – in both locales – the now-sectarian Pledge of Allegiance is
routinely recited.
86.
The
recitation of the now-sectarian Pledge of Allegiance at the EGUSD and SCUSD
meetings – as is the case when Plaintiff is present during the Pledge
recitations in the classrooms or anywhere else – makes Plaintiff feel like an
“outsider” due to his religious beliefs. This is prohibited by the First
Amendment. (“If government is
to be neutral in matters of religion, rather than showing either favoritism or
disapproval towards citizens based on their personal religious choices,
government cannot endorse the religious practices and beliefs of some citizens
without sending a clear message to nonadherents that they are outsiders or less
than full members of the political community.” Allegheny County v. Greater
Pittsburgh ACLU, 492 U.S. 573, 627 (1989) (O’Connor, J., concurring).)
89.
Having the government
place Plaintiff in the situation noted in the preceding paragraph 88 forces Plaintiff to choose between standing up for his
constitutional rights or achieving political success. This unconstitutionally burdens his free
exercise of religion. (“The ruling forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work, on the
other hand. Governmental imposition of
such a choice puts the same kind of burden upon the free exercise of religion
as would a fine imposed against [her] for her Saturday worship.” Sherbert v.
Verner, 374 U.S. 398, 404 (1963).)
90.
Having the government
place Plaintiff in the situation noted in paragraph 88 affects the
political standing of Plaintiff. Such an effect violates the Establishment
Clause. ( “What is crucial is that a government practice not have the effect of
communicating a message of government endorsement or disapproval of religion.
It is only practices having that effect, whether intentionally or
unintentionally, that make religion relevant, in reality or public perception,
to status in the political community.” Lynch v. Donnelly, 465 U.S. 668,
692 (1984) (O’Connor, J., concurring)).
91. The daily, governmentally
mandated recitation, in the public schools, of any pledge containing a
religious statement such as “under God” is a blatant violation of the
Establishment Clause. Abington
School District v. Schempp, 374 U.S. 203 (1963) (“[P]ublic schools serve a uniquely public function:
the training of American citizens in an atmosphere free of parochial, divisive,
or separatist influences of any sort – an atmosphere in which children may
assimilate a heritage common to all American groups and religions. This is a heritage neither theistic nor
atheistic, but simply civic and patriotic.” Id., at 241-242 (cites
omitted) (Brennan, J., concurring))
92. The daily, governmentally
mandated recitation, in the public schools, of any pledge containing a
religious statement such as “under God,” inflicted upon a child who holds
religious beliefs offended by such a statement is a blatant violation of the
Free Exercise Clause. Abington, 374 U.S. 203 (1963) (“In
consequence, even devout children may well avoid claiming their right and
simply continue to participate in exercises distasteful to them because of an
understandable reluctance to be stigmatized as atheists or nonconformists
simply on the basis of their request.” Id., at 290. (Brennan, J.,
concurring)).
93. The Constitutional
requirement that religion be kept separated from government is especially
strict in the public schools. (“Our
public school … is organized on the premise that secular education can be
isolated from all religious teaching so that the school can inculcate all
needed temporal knowledge and also maintain a strict and lofty neutrality as to
religion.” Everson v. Board of Education, 330 U.S. 1, 23-24 (1947)
(Jackson, J., dissenting); “We start down a rough road when we begin to mix
compulsory public education with compulsory godliness.” Zorach v. Clausen,
343 U.S. 306, 325 (1952) (Jackson, J., dissenting); “The sharp confinement of
the public schools to secular education was a recognition of the need of a
democratic society to educate its children, insofar as the State undertook to
do so, in an atmosphere free from pressures in a realm in which pressures are
most resisted and where conflicts are most easily and most bitterly engendered.
Designed to serve as perhaps the most powerful agency for promoting cohesion
among a heterogeneous democratic people, the public school must keep
scrupulously free from entanglement in the strife of sects. The preservation of
the community from divisive conflicts, of Government from irreconcilable
pressures by religious groups, of religion from censorship and coercion however
subtly exercised, requires strict confinement of the State to instruction other
than religious, leaving to the individual’s church and home, indoctrination in
the faith of his choice.” McCollum v. Board of Education, 333 U.S. 203,
216-217 (1948) (Frankfurter, J., concurring); “The vigilant protection of
constitutional freedoms is nowhere more vital than in the community of American
schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960); “[Academic
freedom is] … a special concern of the First Amendment, which does not tolerate
laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Board
of Regents, 385 U.S. 589, 603 (1967)).
94. Plaintiff’s position as the father of a child attending the State’s
public schools grants him standing in this matter in his own right and on
behalf of his daughter. Abington, 374 U.S. 203 (1963) (“First, the
parent is surely the person most directly and immediately concerned about and
affected by the challenged establishment, and to deny him standing either in
his own right or on behalf of his child might effectively foreclose judicial
inquiry into serious breaches of the prohibitions of the First Amendment – even
though no special monetary injury could be shown.” (Id., n. 30)
(Brennan, J., concurring).)
95. Plaintiff has had contact
with officials of his child’s elementary school and the Elk Grove Unified
School District, including Defendant David W. Gordon, Superintendent.
Superintendent Gordon has written that “[o]ur attorneys have advised us that
federal law allows the recitation of the Pledge of Allegiance including the
phrase ‘under God.’” Plaintiff’s disagreement with that assessment is the crux
of this action.
96. Superintendent Gordon also
wrote that “that there is no establishment clause violation as long as students
are free not to participate.” This issue of “coercion” is certain to be raised
repeatedly by the defendants. In anticipation, Plaintiff will state here and
now that (a) coercion in not a necessary element for an Establishment Clause
violation, and (b) there is coercion when elementary school students are led by
their teachers in the daily recitation of the Pledge.
98.
Defendant William Jefferson Clinton, in the radio address
noted in paragraph 83, supra,
also stated that students “have the right to be free from coercion to
participate in any kind of religious activity in school.”
99. Even if
coercion were a necessary element to show an Establishment Clause violation,
the Supreme Court has ruled that coercion exists even when an individual is not forced to actively participate in an
activity. In Lee v. Weisman, 505 U.S. 577 (1992), high
school students were found to be coerced as a matter of law when a benediction
was held at their high school graduation ceremonies. If coercion was present in
that situation, it certainly must be present during recitations of the Pledge
of Allegiance where each coercive element is even more forcefully present.
(Please see Appendix D.) (“[W]ithout
exception we have invalidated actions that further the interests of religion
through the coercive power of government. Forbidden involvements include
compelling or coercing participation or
attendance at a religious activity.” Allegheny County v. Greater
Pittsburgh ACLU, 492 U.S. 573, 660 (1989) (Kennedy, J., dissenting in part,
concurring in part) (citations omitted) (emphasis added).)
100.
That
this coercion exists provides proof, on its own, that the Establishment Clause
has been violated. (“Although
our precedents make clear that proof of government coercion is not necessary to
prove an Establishment Clause violation, it is sufficient. Government pressure
to participate in a religious activity is an obvious indication that the
government is endorsing or promoting religion. Lee v. Weisman, 505 U.S. 577, 604 (1992) (Blackmun, J., concurring).)
101.
It
is not an answer to maintain that Plaintiff and his daughter can “opt out” of
the Pledge. To begin with, requiring any citizen to alter his/her behavior in
order to avoid a governmental abridgment of his/her constitutional rights is
itself a violation of those rights. Secondly, Plaintiff has met with his
daughter’s teacher and the school principal to discuss this option. It was
found that it is not possible to accomplish such an “opt out” without his
daughter and her classmates realizing that she is “an outsider,” in direct
violation of the Religion Clauses.
102.
Atheists
are a disenfranchised minority in this nation. National polls have revealed
that 93-96% of Americans believe in God – only 3% to 4% do not.[15],[16] In 1946, 57% of Americans felt that atheists should be denied the
opportunity to even broadcast their religious views on radio.[17] In the 1950’s, three
quarters of the population stated they would not vote for an atheist running
for president even if he[18] were otherwise qualified.[19] In 1965, 27% of the
population stated that they didn’t think atheists should even be allowed to
vote![20]
103.
The numbers given in the preceding paragraph 102 do not just reflect an “unenlightened” populace from
years past; current data reveal that still only a third of the population would
vote for an atheist candidate.[21]
104.
Incredibly, the constitutions of at least six states[22] still have clauses denying to atheists the right to
hold public office and/or testify in a court of law! Although these clauses are
now legal nullities, the fact that they remain – unchanged for all the world to
see – on the most vital document in each of those states, powerfully
demonstrates the extreme political disenfranchisement of atheists.[23]
105.
Each
of the Defendants William Jefferson Clinton, the President of the United
States; David W. Gordon, Superintendent, EGUSD; and Dr. Jim Sweeney,
Superintendent, SCUSD has a sworn duty to uphold and/or abide by the
Constitution of the United States.
Specifically, each must act to prevent the creation, execution or
perpetuation of laws which endorse any form of religion – including theism – in
violation of the Establishment Clause; and each must act to prevent the
creation, execution or perpetuation of laws which interfere with the ability of
Plaintiff and his daughter in practicing their religion(s) free from
governmental intrusion. By the actions
and the circumstances enumerated above, in addition to other actions and
circumstances, each of these Defendants has failed to perform and continues to
fail to perform his sworn duty.
106.
Each
of the Defendants the Congress of the United States of America; the United
States of America; the State of California; the Elk Grove Unified School
District; and the Sacramento City Unified School District is a governmental
entity obligated to ensure that the Constitution of the United States of
America is upheld. By the actions and the circumstances enumerated above, in addition
to other actions and circumstances, each of these Defendants has failed to
maintain and continues to fail to maintain its obligation.
107.
Each
of the Defendants the State of California; the Elk Grove Unified School
District; and the Sacramento City Unified School District is a governmental
entity obligated to ensure that the Constitution of the State of California is
upheld. By the actions and the circumstances enumerated above, in addition to
other actions and circumstances, each of these Defendants has failed to
maintain and continues to fail to maintain its obligation.
108.
Each
of the Defendants David W. Gordon, Superintendent, Elk Grove Unified School
District; and Dr. Jim Sweeney, Superintendent, Sacramento City Unified School
District has an obligation to ensure that the Constitution of the State of
California is upheld. By the actions and the circumstances enumerated above, in
addition to other actions and circumstances, each of these Defendants has
failed to maintain and continues to fail to maintain his obligation.
110.
Numerous
federal, state and local governmental employees – using governmental facilities
– recite the now-sectarian Pledge of Allegiance while being paid from the
government coffers. These employees include, but are not limited to, members of
the United States Senate, members of the United States House of
Representatives, and the school board members and teachers of the Elk Grove and
Sacramento City Unified School Districts.
111.
The
recitation of the now-sectarian Pledge of Allegiance by any of the
above-referenced governmental employees while performing their duties involves
the use of Plaintiff’s tax money in a religious exercise as prohibited by the
First Amendment.
112.
The
tax moneys noted in paragraph 109 are used in the education of the County’s, the
State’s and the Nation’s schoolchildren. Presently included in that “education”
is the repeated recitation of the now-sectarian Pledge of Allegiance, which
indoctrinates all the schoolchildren – including Plaintiff’s daughter – with
the religious dogmas that (a) there exists a god, and that (b) we are “one
Nation under God.” The aforementioned tax moneys are used to pay for (i) the
teachers’ salaries, (ii) the flags and
other items, (iii) the physical plant (including the classrooms), and (iv) the
utilities of the classrooms. (“[I]t is
proper to take alarm at the first experiment on our liberties. . . . Who does not
see that the same authority which can establish Christianity, in exclusion of
all other Religions, may establish with the same ease any particular sect of
Christians, in exclusion of all other Sects? That the same authority which can
force a citizen to contribute three pence only of his property for the support
of any one establishment, may force him to conform to any other establishment
in all cases whatsoever?” James Madison, Memorial
and Remonstrance against Religious Assessments, II Writings of Madison 183,
at 185-186.)
113.
Federal
tax money is used to print the United States Code (including 36 U.S.C. § 172) as well as pamphlets, etc., that contain the Pledge of Allegiance.
114.
Federal,
California State and Sacramento County tax moneys are used when the Pledge is
recited at federal, state and county governmental functions.
115.
Federal
tax money is used to support the “Pause for the Pledge of Allegiance” (Pub. L.
99 Stat. 97) annual festivities.[24]
116.
The
preceding examples show that Plaintiff’s tax moneys are used for governmental
functions designed to bolster the use and status of the Pledge of Allegiance to
the Flag. The taking by the government of Plaintiff’s (and the rest of the
citizenry’s) personal wealth to be used to advocate a Pledge that places the
government’s imprimatur on a religious belief to which Plaintiff does not
adhere is a violation of both the Establishment and Free Exercise clauses.
117.
Some
(if not all) of the federal dollars spent in the activities noted in paragraphs
110 through 115 are apportioned under the taxing and spending clause
of Article I, Section 8 of the Constitution of the
United States. (“[F]ederal
taxpayers have standing to raise Establishment Clause claims against exercises
of congressional power under the taxing and spending power of Article I, 8, of
the Constitution.” Bowen v. Kendrick, 487 U.S. 589, 618 (1988).)
118.
Article
XVI (Public Finance), Section 5 of the California State Constitution provides
in pertinent part, that:
Neither the Legislature, nor any county, city and
county, township, school district, or other municipal corporation, shall ever
make an appropriation, or pay from any public fund whatever, or grant anything
to or in aid of any religious sect, church, creed, or sectarian purpose, ... nor shall any grant or donation of personal property
or real estate ever be made by the State, or any city, city and county, town,
or other municipal corporation for any religious creed, church, or sectarian purpose whatever.
119.
By
allowing – and encouraging – the continued use of the now-sectarian Pledge, and
by utilizing tax money as noted above, the State of California is making
appropriations in aid of theistic religious belief, thereby violating
California State Constitution Article XVI, Section 5.
120.
Plaintiff
has considered teaching elementary school students in the EGUSD public schools.
Were he to take such a position, Rule #6115 would require that he violate
either that rule or his conscience. Placing Plaintiff in this untenable
position is exactly the type of harm the Establishment and Free Exercise
Clauses are designed to preclude. Thus,
those Clauses are violated by Rule #6115. Sherbert v. Verner, 374 U.S. 398
(1963).
121.
Were
he to take a job teaching elementary school students in either the EGUSD or the
SCUSD, Plaintiff’s religious beliefs would preclude him from following Rule
#6115 or 6115 (b). Thus, those charged with school administration – government
actors – would become entangled in a religious conflict by monitoring
Plaintiff’s activities. This entanglement is forbidden under the First
Amendment. (“[S]urveillance
creates an entanglement of government and religion which the First Amendment
was designed to avoid.” Tilton v. Richardson, 403 U.S. 672, 694 (1971)
(Douglas, J., concurring in part and dissenting in part).)
122.
Establishment Clause restrictions are
especially austere in elementary schools. Thus, even if there were some
non-religious justification for the placement of the words “under God” into the
Pledge and the daily recitation of those words – which, it must be repeated,
there is not – that justification would never meet the burden necessary to
warrant the abridgment of fundamental Religion Clause liberties. (“The Court
has been particularly vigilant in monitoring compliance with the Establishment
Clause in elementary and secondary schools. Families entrust public schools
with the education of their children, but 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. Students in such institutions are impressionable and their
attendance is involuntary.” Edwards v. Aguillard, 482 U.S. 578, 583-584
(1987).)
123.
There
is an overwhelming amount of dicta that supports Plaintiff’s position in this
case. Appendix E (revealing quotes from twenty-six separate justices), Appendix
F (yielding more than fifty separate statements from Lee v. Weisman alone), and Appendix G (providing two hundred instances) all
demonstrate that the current Pledge is inconsistent with the Constitution’s
guarantees.
124.
Plaintiff
expects that Defendants will make attempts to deflect his challenge by pointing
to the exceedingly rare instances of what, in fact, only appear to be contrary
Supreme Court dicta. It should be appreciated right off that none of those
dicta – as opposed to the myriad quotes that Plaintiff has provide in his
Pleading (including appendices) here – are based on reason, logic or principle,
and Plaintiff will specifically respond to these attempts at the appropriate
time. For now, however, it should be noted that the Ninth Circuit has recently
addressed the issue of insufficient dicta in Batjac Prods. Inc. v. Goodtimes
Home Video Corp., 160 F.3d 1223
(9th Cir. Cal. 1998). In Batjac – a case that (unlike the case at bar)
did not involve fundamental
constitutional rights – Supreme Court dicta were deemed not to be controlling.
Endorsing the approach taken by the Seventh Circuit in United States v. Crawley, 837 F.2d 291 (7th Cir. 1988), the Court
looked at four “reasons for rejecting dicta.” Plaintiff anticipates that each
of those reasons will be present in every instance of dicta brought by
Defendants,
125.
The
mountain of reasoned and principled dicta supporting Plaintiff’s claim stands in
stark contrast to the pimple of opposing statements, and any just analysis of
the issue will easily demonstrate that Plaintiff must prevail in this action.
The phrase “under God” as it exists in the Pledge of Allegiance to the Flag of
the United States of America is violative of the Religion Clauses of the First
Amendment.
126.
Precluding
Plaintiff from making his claims in this case by following the minimal and
poor-quality dicta that Defendants are likely to present would violate the Due
Process Clauses of the Fifth and Fourteenth Amendments.
127.
In
contrast to the questionable deference to be accorded the ancillary dicta
Defendants will likely present, on-point holdings are of the utmost
precedential value. The Supreme Court has ruled in three similar instances
involving public school students, each time finding that the states’
involvement with religion violated the First Amendment. Engel v. Vitale, 370 U.S. 421 (1962) (daily prayer),
Abington School District v. Schempp, 374 U.S. 203 (1963) (daily
Bible-reading) and Lee v. Weisman, 505 U.S. 577 (1992) (annual
graduation benedictions by clergy) provide unequivocal evidence that the
recitation of the words “under God” in the Pledge – as with prayer,
Bible-readings and benedictions – cannot be countenanced under our
Constitution.
128.
The differential treatment of atheists as
compared with theists as it relates to the use of the words “under God” in the
now-sectarian Pledge violates the guarantees of Equal Protection inherent in
the Fifth and Fourteenth Amendments.
129.
In
addition to its constitutional infirmities, the placement of the words “under
God” into the Pledge of Allegiance is void as against public policy. The very
purpose of the Pledge of Allegiance to the Flag – as can be appreciated from
the legislative history behind the initial Act of 1942 – is to provide a means
of demonstrating patriotism and engendering national unity. By placing the
religious words “under God” into the Pledge, Congress not only interfered with
the patriotism and national unity the Pledge was meant to engender, but it
actually fostered divisiveness ... in a manner expressly forbidden by the
Constitution.
131.
The
occurrence noted in the preceding paragraph 130 clearly demonstrates the adverse effect the daily
recitation of the Pledge has on the ability of atheists in general, and
Plaintiff in particular, to raise their children free from religious
governmental interference.
132.
The
occurrence noted in paragraph 130 clearly demonstrates the adverse effect the daily
recitation of the Pledge has on the ability of Plaintiff’s daughter to receive
the message of atheism Plaintiff wishes to instill – and has the right to
instill free from religious governmental interference – in her.
WHEREFORE,
Plaintiff prays for relief and judgment as follows:
I.
To
declare that Congress, in passing the Act of 1954, violated the Establishment
and Free Exercise Clauses of the United States Constitution;
II.
To
declare that by including “under God” in the Pledge of Allegiance to the Flag
of the United States of America, 36 U.S.C. § 172 violates the Establishment and
Free Exercise Clauses of the United States Constitution;
III.
To
demand that Defendant the Congress of the United States of America immediately
act to remove the words “under God” from the Pledge of Allegiance to the Flag
as now written in 36 U.S.C. § 172;
IV.
To
demand that Defendant William Jefferson Clinton, the President of the United
States of America, alter, modify or repeal the Pledge of Allegiance to the Flag
by removing the words “under God” as required under 36 U.S.C. § 178 in
conjunction with his oath to defend and uphold the Constitution of the United
States of America;
V.
To
demand that Defendant the State of California immediately act to alter, modify
or repeal Education Code § 52720 so that the use of the now-sectarian Pledge of
Allegiance is forbidden in the public schools.
VI.
To
demand that Defendants the Elk Grove Unified School District; David W. Gordon,
Superintendent, EGUSD; the Sacramento City Unified School District; and Dr. Jim
Sweeney, Superintendent, SCUSD forbid the use of the now-sectarian Pledge of
Allegiance in the public schools within their jurisdictions;
VII.
To
allow Plaintiff to recover costs, expert witness fees, attorney fees, etc. as
may be allowed by law; and
VIII.
To
provide such other and further relief as the Court may deem proper.
Respectfully submitted,
Michael Newdow, Plaintiff
First Amendmist Church of True Science
PO Box 233345
Sacramento
CA 95823
CERTIFICATE OF
SERVICE
I
HEREBY CERTIFY that a true and correct copy of the foregoing was/will be mailed
on this 8th day of March, 2000, to:
C/O
DENNY HASTERT, SPEAKER AG
PUBLIC INQUIRY UNIT
HOUSE
OF REPRESENTATIVES PO
BOX 944255
WASHINGTON DC
20515 SACRAMENTO CA
94244-2550
JANET
RENO, ATTORNEY GENERAL DAVID
GORDON, SUPERINTENDENT
C/O
THE DEPARTMENT OF JUSTICE ELK
GROVE UNIFIED SCHOOL DIST
950
PENNSYLVANIA AVENUE, NW 9510
ELK GROVE – FLORIN ROAD
WASHINGTON DC
20530-0001 ELK
GROVE CA 95624
WILLIAM
JEFFERSON CLINTON DR.
JIM SWEENEY, SUPERINTENDENT
PRESIDENT
OF THE UNITED STATES SAC
CITY UNIFIED SCHOOL DISTRICT
THE
WHITE HOUSE 520
CAPITOL MALL
WASHINGTON DC
20500 SACRAMENTO CA
95814
PAUL
L. SEAVE
UNITED
STATES ATTORNEY
501
“I” STREET, SUITE 10-100
SACRAMENTO CA
95814-2322
___________________________________
Rev.
Dr. Michael Newdow
FACTS
PO Box 233345
Sacramento CA
92823
[1] And his daughter, whom he represents as “next friend”.
[2] “Section 7 of [the Act of June 22, 1942] contains the pledge of allegiance to the flag; and it is the purpose of this proposed legislation to amend that pledge by adding the words ‘under God’ so as to make it read, in appropriate part, ‘one Nation under God, indivisible,’.” H.R. 1693, 83rd Cong., 2d Sess., reprinted in 1954 U.S. Code Cong. & Ad. News, vol. 2: 2339, 2340.
[3] There were no fewer than eighteen separate resolutions introduced in Congress – all with the purpose of inserting the religious words “under God” into the Pledge of Allegiance. These quotes are from the sponsors and supporters of those resolutions.
[4] The single, detestable and abhorrent quote that ““An atheistic American … is a contradiction in terms” – provided by the Congressman who was credited as being the chief sponsor of the resolution – should, by itself, be sufficient to invalidate the Act.
[5] In Aguillard, where the Court struck down a law that required the teaching of “creation science,” the statute did “not contain explicit reference to its religious purpose.” Id., at 604. In the instant case, the religiosity comprised the entire legislation!
[6] 100 Cong. Rec. 7, 8618 (June 22, 1954) (Statement by President Dwight D. Eisenhower, as reported by Sen. Ferguson.)
[7] 100 Cong. Rec. 2, 1700 (Feb. 12, 1954) (Statement of Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words “under God” into the previously secular Pledge of Allegiance.)
[8] 100 Cong. Rec. 18 (Appendix), A3448 (May 11, 1954) (Letter entered into the record by Rep. George H. Fallon in support of the resolution to amend the previously secular Pledge of Allegiance.)
[9] 101 Cong. Rec. 18 (Appendix), A5920-A5921 (Aug. 2, 1955) (Article submitted by Rep. Louis C. Rabaut, sponsor of the House resolution to insert the words “under God” into the previously secular Pledge.)
[10] It is
estimated that approximately 3-4% of Americans are atheists. This is double the
percentage of the population that is Jewish (or a multitude of other
non-Christian religions. For references, please see at footnotes 15 and 16.) The reader might then wonder what,
constitutionally, would be the difference between “One Nation under Jesus”
(endorsing a religious belief adhered to by 86% of the population) as opposed
to “One Nation under God”) (where the endorsed religious belief is adhered to
by 94-96% of the population).
[11] Constitution of the State of New Jersey (1776), Section XIX.
[12] Which, as Plaintiff will demonstrate in a future submission, it is not. The reader, in the meantime – as in footnote 10 above – might contemplate a First Amendment with “ceremonial Christianity,” “ceremonial Catholicism,” “ceremonial Buddhism,” or any other “ceremonial” religious subcategory.
[13] H.R. 1693, 83rd Cong., 2nd Sess. (1954)
[14] Religious Right Queries GOP Rivals, Washington Post, Thursday, February 4, 1999; page A4.
[15] Louis Harris and Associates, August 12, 1998; Opinion Dynamics, December 5, 1997.
[16] Pew Research Center for the People and the Press, May 31 through June 9, 1996.
[17] Gallup Poll – A.I.P.O. (December 18, 1946).
[18] The poll did not, apparently, consider women as potential candidates: “If your party nominated a generally well-qualified man for president and he happened to be an atheist, would you vote for him?” Gallup Poll – A.I.P.O. (September 15, 1958).
[19] The poll looked into other religions and race as well. The results are revealing: Would not vote for a: Baptist (4%), Catholic (27%), Jew (29%), Negro (54%), Atheist (77%). Id.
[20] Gallup Poll – A.I.P.O. (July 21, 1965). In contrast, when asked if “people who have quit school and never completed high school” should be allowed to vote, only 6% of the population felt that group should be excluded.
[21] Jelen T and Wilcox C. Public Attitudes Toward Church and State (M.E. Sharpe, Armonk, NY 1995), page 45.
[22] Arkansas, Maryland, North Carolina, South Carolina, Tennessee, Texas.
[23] If this point needs to more strongly be made, one need only ponder how long phrases such as “No [Jew] shall hold any office under this Constitution” (South Carolina State Constitution, Article XVII, Section 4) or “No [African-American] shall hold any office in the civil department of this state” (Tennessee State Constitution, Article IX, Section 2) would persist in today’s society.
[24] Sponsored by The National Flag Day Foundation, this event involves the participation of thousands of Maryland school children, a high school choir, use of governmental buildings, a concert given by the 229th Maryland Army National Guard band, and a “Fly-over” by jets of the 175th Wing Maryland Air National Guard. The estimated cost to taxpayers of the Fly-over, alone, is on the order of $10,000.00.