IN THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF
CALIFORNIA
Civil
Action No. CIV. S-00-0495 MLS PAN PS
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.
PLAINTIFF’S OPPOSING
MEMORANDUM OF LAW IN RESPONSE TO
SCHOOL DISTRICT DEFENDANTS'
MOTION TO DISMISS, ETC.
Plaintiff files this memorandum of law opposing the Motion to Dismiss submitted by the last four of the above-mentioned Defendants (i.e., the Elk Grove Unified School District (“EGUSD”); David W. Gordon, Superintendent, EGUSD; the Sacramento City Unified School District (“SCUSD”); and Dr. Jim Sweeney, Superintendent, SCUSD. These defendants shall hereinafter be referred to as “the School District Defendants.”
(1)
As
a Matter of Law, There is No Establishment Clause Violation by Allowing the
Pledge of Allegiance in Public Schools.
The School District Defendants
cite Smith v. Denny, 280 F. Supp. 651 (E.D. Cal., 1968) as binding
precedent and proof for their assertion that their Rules AR 6115 and AR 6115 (b) (requiring the daily recitation of the Pledge of
Allegiance in the classroom) involve no Establishment Clause violations.
Plaintiff here readily admits that the case at bar involves essentially the
same claim as that presented in Smith. However, it must be recognized
that Smith was handed down more than three decades ago, and its author
(Judge MacBride) specifically stated that he was basing his opinion on the
Supreme Court dicta that existed at the time:
While, as stated previously, the Supreme Court has not been faced with
the precise issue here, the pronouncements of the Court set forth above provide
me with sufficient guidance
Smith, at 654. However, as can be seen from the myriad
examples provided by Plaintiff in his Complaint, the views of the Supreme Court
have changed significantly in the many years since 1968. Dicta from the
numerous Religion Clauses cases decided since then clearly show that the Pledge
cannot comport with the guarantees of the Bill of Rights.
For instance, we can look at Judge MacBride’s first
footnote, in which he affirmatively stated that it was proper to disregard “the feelings of ostracism”
that the Smith Plaintiffs alleged (Smith, at 653 (n. 1)). Since at least
1984, the Supreme Court has repeatedly declared that these feelings – in and of
themselves – are sufficient to show an Establishment Clause violation:
The second and
more direct infringement is government endorsement or disapproval of religion.
Endorsement sends a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to adherents
that they are insiders, favored members of the political community.
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring). See, also, Allegheny
County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989); Capitol Square
Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995).
Similarly, Judge MacBride did not have the benefit
of either of the two tests now most often used in Establishment Clause
jurisprudence: the Lemon test (Lemon v. Kurtzman, 411 U.S. 192 (1973)) and the
endorsement test (see, e.g., Lynch
v. Donnelly, 465
U.S. 668 (1984); Grand Rapids School District v. Ball, 473 U.S. 373
(1985); Wallace v. Jaffree, 472 U.S. 38 (1985); Allegheny County v.
Greater Pittsburgh ACLU, 492 U.S. 573 (1989); Westside Community Bd. of
Ed. V. Mergens, 496 U.S. 226 (1990); Lee v. Weisman, 505 U.S. 577
(1992); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753
(1995); Agostini v. Felton, 521 U.S. 203 (1997); ). Under either
of these tests, Smith would undoubtedly have been decided differently.
The Lemon test consists of three prongs –
purpose, effect and entanglement – which are employed to determine a statute’s
constitutionality. If any one of these prongs is violated, the law fails under
the Establishment Clause’s mandates.
Although it is without question that Congress – the
first-named Defendants in the instant action – had a religious purpose for
instituting the Act of 1954 (which placed the words “under God” into the
previously secular Pledge), Plaintiff will stipulate that the School District
Defendants do not have any similar religious motives underlying their actions.
Nonetheless, the constitutional inquiry does not end by looking only at that
one prong. To meet Lemon’s requirements, EGUSD’s Rule AR 6115 and
SCUSD’s Rule AR 6115(b) must meet all of the prongs. Ignoring entanglement for
now, it is obvious – as Plaintiff will easily be able to demonstrate – that the
effect of those rules is to inculcate into the Districts’ students the
religious notions that (a) there is a god, and (b) we are “one Nation under God.”
Thus, the School District Defendants must admit – especially in a Rule 12 (b)
Motion for Dismissal (where each of Plaintiff’s allegations must be accepted as
true) – that they cannot pass Lemon’s “Effects” test, and the suggestion
that “As a Matter of Law, There is No Establishment Clause Violation by
Allowing the Pledge of Allegiance in Public Schools” is without merit.
The
same conclusion is readily reached under the endorsement inquiry:
[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. The inquiry into this kind of effect must
be conducted with particular care when many of the citizens perceiving the
governmental message are children in their formative years.
Grand Rapids
School District v. Ball, 473 U.S. 373, 390 (1985). This idea of endorsement was
also key to the Supreme Court’s decision in Lee v. Weisman, 505 U.S. 577 (1992), a case in which two concurrences
paid special attention to this factor:
[O]ur cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.”
Id., at 609
(Blackmun, J., concurring); and
Over the years,
this Court has declared the invalidity of many noncoercive state laws and
practices conveying a message of religious endorsement.
Id., at 618 (Souter, J., concurring). Again, Plaintiff can provide evidence
of what is obvious on its face: that the words “under God” in the Pledge of
Allegiance convey the exact “message of religious endorsement” that they were
intended to convey– namely, that there is a god and that ours is “one Nation
under God.”
It also needs to be kept in mind that the plaintiffs
in Smith were never afforded an opportunity to appeal Judge MacBride’s
decision. By the time the case reached the Court of Appeals, it was deemed
moot. Smith v. Denny, 417 F.2d 614 (9th Cir. Cal.
1969). Thus Defendants’ res judicata argument – especially in view of the above
– is of minimal merit.
The School District Defendants next, almost in passing,
mention Sherman v. Community
Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7th
Cir. 1992), cert. denied, 508 U.S. 950 (1993),
which, like Smith, also involved the same issues[2]
as the case at bar. This cursory
treatment is appropriate, inasmuch as the logic and underlying bases for the Sherman
decision are astounding. However, since the School District Defendants have
brought it up, Plaintiff will demonstrate that case’s infirmities here.
Quoting Justice Jackson’s
famous passage from West Virginia Board of Education v. Barnette, 319
U.S. 624 (1943), the Sherman court began by recognizing that:
[N]o official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein.
319 U.S., at 642. One notes
immediately that this statement is comprised of two clauses: (1) no official
can prescribe what shall be orthodox, and (2) no official can force citizens to
confess. Amazingly, despite the fact
that it is the first of these two clauses that is implicated with the words
“under God” in the Pledge, the Sherman court totally disregarded that
issue, concentrating instead only on the second clause.
Even the manner in which it did this is
extraordinary. Having, as just noted, chosen to not even look at the matter of
official prescription of orthodoxy,[3]
the court continued by prematurely announcing the demise of the Lemon
test.[4]
Thus, in what was supposed to have been a de novo review, the unjustified
finding by the lower court that all three prongs of Lemon had been
satisfied was simply ignored.
With the true issues eliminated, and with nothing
really left to discuss, the Sherman court then focused on the question of “coercion.” Plaintiff will address
this more thoroughly below. For now suffice it to say that – as was already
pointed out in Plaintiff’s Complaint (paragraphs 96-101) – coercion (a) is not a necessary element to
demonstrate a First Amendment violation,[5]
and (b) exists by definition whenever an impressionable schoolchild is placed
in such situations.[6] The truly fantastic aspect of the decision
is that the Sherman court actually recognized these facts, alluding to
Supreme Court opinions that set them forth (i.e., Allegheny, Lee
and Engel). The Seventh Circuit even enunciated the rule:
If as Barnette holds no state may require
anyone to recite the Pledge, and if as the prayer cases hold the recitation by
a teacher or rabbi of unwelcome words is
coercion, the Pledge of Allegiance becomes unconstitutional under all
circumstances.
980 F.2d at 444. Can we do that one again? If what the Supreme Court held in one case
is true, and if what the Supreme Court held in another case is true, then there
is no escaping the conclusion that the Pledge of Allegiance is
unconstitutional. And yet, the Sherman
court goes on to escape that exact conclusion!
How this is done is
astonishing. First, using the technique
alluded to in Plaintiff’s Complaint, paragraph 81, it “treat[s] the Pledge as a
patriotic expression” (980 F.2d at 444), thereby ignoring the religious
component that forms the basis of the litigation. Then, disregarding multiple Supreme Court
statements on this issue,[7]
it characterizes the Pledge as part of “the prescribed curriculum of the public
schools.” (As if the daily
indoctrination of children in a rote exercise could be equated with “books,
essays, tests and discussions.” Id.)
The best, however, is yet to
come. Completely confusing the Free Exercise Clause (that affords individuals
the right to engage in religious behavior as they please) with the
Establishment Clause (that forbids government from any form of religious behavior)
the court makes the absolutely incredible statement that:
Government nonetheless retains the right to set the
curriculum in its own schools and insist that those who cannot accept the
result exercise their right under Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and
select private education at their own expense. The private market
supports a profusion of schools, many tailored to religious or cultural
minorities, making the majoritarian curriculum of the public schools less
oppressive.
980 F.2d at 445. This is from a federal Court of Appeals?!
What a novel approach to the Bill of Rights: “You don't like it here? You can
go somewhere else.”
Whether due to intentional
deceit or simply due to a failure to understand the issues, the arguments in
this opinion are simply beyond belief.
Although the plaintiffs clearly objected only to “under God” in the
Pledge, the court continued, writing that:
Objection by the few does not reduce to silence the
many who want to pledge allegiance to
the flag ‘and to the republic for which it stands.’
980 F.2d at 445 (emphasis in
the original). This is an absolute deception that totally skirts the issue.
There was never any objection in Sherman to the patriotism inherent in
the Pledge. The objection then – as it is now – was only to the religious dogma
that was unconstitutionally inserted in 1954. When, under the government’s
auspices, the Pledge is being made under
God, then the duty of the courts – following the mandates of the Establishment
Clause – is precisely to “reduce to silence the many who want to pledge” in that religious manner. If individuals wish to
worship God in their private spheres, fine, and we have the Free Exercise
Clause to ensure that the government doesn’t abridge that right. But to employ
the machinery of the state to assist them in this exercise is absolutely
forbidden. Engel v. Vitale, 370 U.S. 421 (1962); Abington
School District v. Schempp, 374 U.S. 203 (1963); Lee v. Weisman, 505
U.S. 577 (1992).
Continuing along in its
rogue First Amendment jurisprudence, the Seventh Circuit court quoted Justice
Holmes for the proposition that “a page of history is worth a volume of logic”[8]
(980 F.2d at 445 (citation omitted)). However, under its historical account,
the Congressional record (which, as Plaintiff here has shown, manifestly
details the unconstitutionally religious purposes of the Act of 1954) was
completely disregarded. Instead, the author alluded to the founders, who – more
than two hundred years earlier[9]
- knew nothing of public education or pledges of allegiance to the flag.[10]
From the
foregoing, it is obvious that the Sherman court disregarded key
constitutional principles to reach its conclusion. The government’s assembling
little children every day to pledge their allegiance to the Nation, and then
incorporating “God” into that pledge, clearly violates every principle upon
which the Religion Clauses lie. The
only validity Sherman offers in understanding this matter comes from
Justice Manion who, in concurrence, refused to accept the majority’s
characterization of “under God” as being “sapped of religious significance.”
980 F.2d at 448. With this Plaintiff
concurs … “under God” is clearly religious, and its presence in the Pledge of
Allegiance therefore violates the guarantees of the First Amendment.
It must also be noted that Sherman was argued
before the Seventh Circuit on January 24, 1992. Lee v. Weisman was decided
on June 24, 1992. Thus, the plaintiffs
in Sherman were precluded from utilizing the many points from Lee
that would have been controlling and that unquestionably should have resulted
in a favorable decision.
Leaving Sherman – except to recall that the
Seventh Circuit fell prey to the same confused approach – we now address the
School District Defendants’ next argument, which Plaintiff here predicted[11]
would be made: the issue of coercion.[12]
Why this continues to be debated, Plaintiff simply cannot fathom. The
unequivocal and unwavering words of the United States Supreme Court are really
not that difficult to comprehend.
Perhaps it is the focus on West Virginia Board of Education v.
Barnette, 319 U.S.
624 (1943) that causes the difficulty. In Barnette, the plaintiffs were
Jehovah’s Witnesses who objected to being forced to recite the Pledge of
Allegiance. Although the gravamen of their complaint was based on religious
freedom, the Supreme Court declined to make its ruling on this ground. (“Nor
does the issue as we see it turn on one's possession of particular religious
views or the sincerity with which they are held.” Id., at 634.) Rather,
under free speech analysis, the Court held that individuals cannot be forced to
profess views they do not hold.
The Pledge in 1943 was, of course, secular, and the
Establishment Clause was never implicated in Barnette in any way
whatsoever. Thus, although Barnette also involved the recitation of the
Pledge of Allegiance, it is really unrelated to the case at bar, and this
persistent focus on that particular form of coercion is ludicrous. Plaintiff
readily stipulates that neither he nor his daughter are threatened with any
legal penalties for failure to recite the words of the Pledge.
Putting that issue – i.e., Barnette’s
prohibition against the institution of legal penalties for failing to recite
prose in which one does not believe – hopefully to rest, we can properly
address coercion by again setting out what was clearly proffered in paragraph
97 of the Complaint:
The Supreme Court has unequivocally stated that
coercion is unnecessary to show an Establishment Clause violation. (“The absence of any element of
coercion … is irrelevant to questions arising under the Establishment
Clause. In School District of
Abington Township v. Schempp … it was contended that Bible recitations in
public schools did not violate the Establishment Clause because participation
in such exercises was not coerced. The
Court rejected that argument.” Committee for Public Education &
Religious Liberty v. Nyquist, 413 U.S. 756, 786 (1973).)
To that we can add numerous other unambiguous
statements made by the Supreme Court:
The Establishment
Clause, unlike the Free Exercise Clause, does not depend upon
any showing of direct governmental compulsion and is violated by the enactment
of laws which establish an official religion whether those laws operate
directly to coerce nonobserving individuals or not.
Engel v. Vitale, 370 U.S. 421, 431 (1962);
The right to conscience, in the religious sphere, is
not only implicated when the government engages in direct or indirect coercion. It is also implicated when
the government requires individuals to support the practices of a faith with
which they do not agree.
Marsh v. Chambers, 463 U.S. 783, 803 (1983) (Brennan, J., dissenting). The two Lee v.
Weisman quotations previously provided in this memorandum can also be
reiterated:
[O]ur cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.”
505 U.S. 577 at 609 (Blackmun, J.,
concurring); and
Over the years,
this Court has declared the invalidity of many noncoercive state laws and
practices conveying a message of religious endorsement.
Id., at 618 (Souter, J., concurring).
Thus we see that
coercion is not required to prove an Establishment Clause violation.
Nonetheless, as defined by the Supreme Court,[13]
coercion is present when the Pledge is recited in the public schools. In Lee
v. Weisman, the court wrote:
The
undeniable fact is that the school district's supervision and control of a high
school graduation ceremony places public pressure, as well as peer pressure, on
attending students to stand as a group or, at least, maintain respectful
silence during the invocation and benediction. This pressure, though subtle and
indirect, can be as real as any overt compulsion.
505 U.S., at 593.
If, as Lee made clear, high school seniors, on a single occasion, with
purely passive peers, at an event that they are legally permitted to forsake
are coerced as a matter of law when listening to the words of an invited guest
who is clearly not a governmental actor, then it is impossible to assert that
five and six year olds, every school day, with peers actively reciting
sectarian dogma in a class that they are legally required to attend are not
coerced when their teachers – agents of the government – lead them in that daily
activity. And since a showing of this coercion is sufficient, on its own, to
prove a violation of the Establishment Clause:
Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient.
505 U.S., at 604
(Blackmun, J., concurring), we see once again that the Defendants’ allegation
that “There is No Establishment Clause Violation” is patently incorrect.
(2)
The
Causes of Action ... are Barred by the Eleventh Amendment.
The School District Defendants’ second claim is that
this action against them is barred by the Eleventh Amendment. Towards this end,
they cite Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Hafer
v. Melo, 502 U.S. 21 (1991); and Sherman
v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7th Cir. 1992).
First of all, despite the Defendants’ claim that “[i]t is uncontroverted that the Elk Grove Unified School District and the Sacramento City Unified School District are both state agencies and therefore are not considered ‘persons’ subject to suit pursuant to 42 U.S.C. 1983,” the Supreme Court in the case the School District Defendants, themselves, cite, explicitly controverted that claim:
Our recognition in Monell
v. New York City Dept. of Social
Services, 436 U.S. 658 (1978), that a municipality is a person under §
1983, is fully consistent with this reasoning. In Owen v. City of
Independence, 445 U.S. 622 (1980), we noted that by the time of the
enactment of § 1983, municipalities no longer retained the sovereign immunity
they had previously shared with the States. "[B]y the end of the 19th
century, courts regularly held that in imposing a specific duty on the
municipality either in its charter or by statute, the State had impliedly
withdrawn the city's immunity from liability for the nonperformance or
misperformance of its obligation," Id., at 646, and, as a result,
municipalities had been held liable for damages "in a multitude of
cases" involving previously immune activities, Id., at 646-647.
Will, at 67, n.7.
Secondly, this is a claim for injunctive relief,
which both Will and Hafer specifically state are covered by §
1983:
[O]ur statement in Will [was] that state
officials sued for injunctive relief in their official capacities are “persons”
subject to liability under § 1983. See Will, supra, at 71, n. 10.
Hafer at 24. That Will
footnote stated:
Of course a state official in his or her official
capacity, when sued for injunctive relief, would be a person under § 1983
because "official-capacity actions for prospective relief are not treated
as actions against the State." Kentucky v. Graham, 473 U.S., at
167, n. 14; Ex parte Young, 209 U.S. 123, 159-160 (1908). This
distinction is "commonplace in sovereign immunity doctrine," L.
Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed. 1988),
Will, at 71, n. 10.
Lastly, to use Sherman for this proposition
(that the causes of action against these School Board Defendants are barred)
seems quite peculiar. In Sherman, the Court dismissed the claim against
the State defendant, the Attorney General of Illinois. However, as required
under Hafer and Will, the Seventh Circuit specifically allowed
the claim against the municipal defendants to proceed.
In conclusion, the School District Defendants
provide three separate cases as legal authority for the proposition that this
proceeding against them is barred. Each of those authorities, however, prove
exactly the opposite.
(3)
There
is No Causal Nexus Between Plaintiff and Defendants SCUSD and Jim Sweeney;
Therefore No Justiciable Controvery Exists as to Those Defendants
Although his child now attends school in the Elk Grove Unified School District, Plaintiff lives in the area covered by the Sacramento City Unified School District. He is currently attempting to enroll his daughter in an elementary school in SCUSD. Should that occur, the necessary “nexus” will be realized on that ground. Meanwhile, as stated in paragraphs 85-90 of his Complaint, Plaintiff has attended and plans to continue to attend meetings of the SCUSD, and he is forced to view himself as an “outsider” when the Pledge is recited at each of those meetings. Furthermore, as stated in paragraph 109 of the Complaint, “Plaintiff pays taxes to the United States, to the State of California and to the County of Sacramento.” As discussed in paragraphs 110-121, some of these moneys are spent by the SCUSD in reciting the now-sectarian Pledge. This provides the necessary nexus.
Incidentally, in the event that any of the Defendants in this action plan on attempting to portray the financial impact of the words “under God” as de minimis, Plaintiff will herein demonstrate the mistaken nature of such an assertion. The number of students reportedly enrolled in EGUSD, SCUSD and the entire State of California are 45,000, 52,000 and 5,600,000, respectively. Assuming 30 students to a class, we get 1500, 1700 and 187,000 classrooms each morning during which the Pledge is recited. Adding the words, “under God” to the Pledge, requires approximately 1.25 additional seconds, which, at first blush, admittedly sounds trivial.[14] However, this is time that is taken out of each of those classrooms. This is time that could otherwise be used for secular education, and its brief duration in each class must be balanced with its pervasiveness in terms of the number of classrooms and the frequency of its recitation. Thus, in aggregate, more than 30 minutes per day of class time – every school day of the year – is used solely to say the words “under God” in both EGUSD and SCUSD. For the entire state, the daily time involved is more than 65 hours. If we take an average teacher’s salary as being $40,000 per year, and make an extremely liberal allowance for each teacher of ten hours work per day, the corresponding monetary figures for the year are $2,000 for each of these school districts, and $260,000 for the State.
The preceding methodology is, in fact, a conservative one to make the appropriate estimate. A more accurate approach would be to look at the total budgets of each school district and the entire State Department of Education, and calculate the percentage of time spent on reciting those sectarian words. Annually, for K-12 education, those budgets are $258,000,000 (EGUSD), $338,000,000 (SCUSD) and $40 billion (State). Considering an eight hour day as the standard amount of time spent in school by each student, we find that 1.25 seconds represents .0000434 of each student’s school day. Multiplying this fraction by the respective annual budgets, we find that EGUSD spends more than $11,000 annually, SCUSD spends more than $14,000 annually, and the State Department of Education spends more than $1,700,000 annually solely for the recitation of the words, “under God.” Plaintiff believes that these figures are more than adequate to disprove any “de minimis” allegation and to meet the requirements for taxpayer standing.
One last issue deserves to be addressed with respect
to Plaintiff’s nexus to the SCUSD defendants. This is largely an Establishment
Clause case, and the Establishment Clause is unique as it exists in the Bill of
Rights. All of the other clauses – Free Exercise, Freedom of Speech, Search and
Seizure, and so on – restrict the government from interfering with the rights
of others.[15] But the
Establishment Clause forbids the government – irrespective of its effects –
from any activity in the very special arena of religious establishment. Thus the Article III standing requirements
for Establishment Clause litigation must, of necessity, be quite different from
those of all other claims.
To illustrate this point, consider what would occur
if Congress were to clearly violate the Establishment Clause by passing the
following law:
Be it hereby established that the Church of Jesus
Christ of Latter-day Saints is the official religion of the United States of
America.
No tax dollars are used to build Mormon churches; no
one is forbidden from practicing other religions; no Mormon idols or symbols
are placed in public areas. The only
occurrence is the declaration that that Church is to be the national
religion. Who would be able to state a
cause of action? Would that law survive
all challenges because no individual could cite a specific harm – except to
note the offense of being a citizen of this nation of religious freedom when
its government had violated the ideals underlying the Bill of Rights? A law that cannot be challenged serves no
purpose and has no effect. It is, in
fact, no law at all. Clearly, that
cannot be what the Founding Fathers nor any statesman since had in mind.
(4)
Plaintiff
the Rev. [Dr.] Michael A. Newdow Is an Improper Party Plaintiff
The last
allegation made by the School District Defendants is that “there are no
allegations which would reasonably indicate that Plaintiff himself is an
injured party.” This is odd, since paragraphs 42, 54, 57, 59, 61, 62, 78, 79,
80, 84, 86, 88, 89, 90, 101, 116, 120, 128, 131 and 132 all provide specific
allegations which unquestionably “indicate that Plaintiff himself is an injured
party.” The claim that Plaintiff improperly places himself as “next friend” for
his daughter is equally bizarre. As made clear in paragraph 94, the Supreme
Court has unequivocally stated that parents challenging governmental
establishments of religion affecting their children are proper parties in
interest:
[T]he 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.
(5)
Alternatively,
If the Motion to Dismiss is Not Granted, Defendants Request a More Definite
Statement of Facts Pursuant to F.R.C.P., Rule 8 (a) (1) and F.R.C.P., Rule 12
(e).
In the event that the Court denies their Motion to Dismiss, the School District Defendants request the Court to order Plaintiff to provide “a More Definite Statement of Facts Pursuant to F.R.C.P., Rule 8 (a) (1) and F.R.C.P., Rule 12 (e).”
Before
specifically responding to this request, Plaintiff would note that he has – in
the course of researching this action – been struck with the number of times
plaintiffs (especially in Religion Clause cases) have had their actions dismissed
for want of some trivial deficiency or unjustified formality. In Society of
Separationists, Inc. v. Herman, 959 F.2d 1283 (5th Cir. 1992),
for instance, the denial of standing was so tenuous that one of the judges felt
compelled to dissent on this very issue:
This is a case about
the First Amendment, the cornerstone of all other rights and freedoms which we,
as citizens of this great Nation, have come to enjoy, and perhaps even take for
granted. It is very disturbing to think that we would contort the doctrine of
standing and employ it as an evasive device for dodging sensitive
constitutional questions, especially when First Amendment rights are at stake.
Id., at 1297 (Goldberg, Circuit Judge, dissenting).
Gaylor v. United
States, 74 F.3d 214 (10th Cir. 1996) provides another example. There, the plaintiffs had commissioned a survey that demonstrated that the
American public overwhelmingly believes that the phrase, “In God We Trust”
endorses religious belief. Despite this, the defendants’ Rule 12 (b) (6) Motion
to Dismiss was upheld, with Judge Tacha simultaneously writing that “the facts in this case are
insufficient to support the Foundation's claims” (Id., at 216) and “we
reject the Foundation's insistence upon further factfinding at the trial level,
including the introduction of expert testimony and polling data.” (Id.,
at 217). Although it is
well-established that the proper standard on a Rule 12 (b) (6) Motion is for
the Court to view the complaint in the light most favorable to Plaintiff, and
to accept Plaintiff’s allegations as true, the judge’s explanation for not
adhering to that standard was that:
It is instead an objective inquiry that this court
is fully equipped to conduct with the facts at hand. After making that inquiry,
we find that a reasonable observer, aware of the purpose, context, and history
of the phrase "In God we trust," would not consider its use or its
reproduction on U.S. currency to be an endorsement of religion.
These and myriad other cases
have caused Plaintiff to err on the side of providing too much information lest
he have this very important First Amendment case dismissed with no adequate
record for an appeal.
As for the School District Defendants’ request for a
“More Definite Statement of Facts Pursuant to F.R.C.P., Rule 8 (a) (1) and
F.R.C.P., Rule 12 (e),” we can simply look to the Rules, themselves. Rule 8 (a)
(1) states in pertinent part that:
A pleading ... shall contain a short and plain statement of the grounds
upon which the court’s jurisdiction depends.
Plaintiff provided that statement in seven
averments, comprising less than one and a half pages. Certainly that adheres to
the Rule’s requirements.
Rule 12 (e) states:
If a pleading to which a responsive pleading
is permitted is so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading, the party may move for a more definite
statement before interposing a responsive pleading. The motion shall point out
the defects complained of and the details desired.
There is nothing vague or ambiguous about Plaintiff’s Complaint. In fact, the School District Defendants have made it apparent that all the information was quite clearly expressed, for they characterized the issued perfectly in their Motion:
The gist of his complaint appears to be one seeking injunctive relief precluding two local school districts from reciting the Pledge of Allegiance in classrooms.
Defendants Motion, p. 3;
Plaintiff seems to contend that the Pledge of Allegiance with the inclusion of the language “under God” violates the establishment clause of the U.S. Constitution and requests injunctive relief therefor.
Defendants Motion, p. 3; and
Essentially, this appears to be a claim for injunctive relief requesting that the use of the term ‘under God’ be precluded from being utilized within the Sacramento City Unified School District or the Elk Grove Unified School District in the classrooms during the recitation of the Pledge of Allegiance.
Defendants’ Motion, p. 8-9. Seeing as they were able “to frame a responsive pleading,” Plaintiff is uncertain as to how they are now alleging that they are unable “to frame a responsive pleading.”
The School District Defendants also criticize the Complaint for being “neither short nor plain.” However, nowhere in Rule 12 (e) are these adjectives used or implied. Similarly, in their attempt to fulfill the requirement that they lay out the “defects complained of,” they simply state:
Specifically, defendants
refer to as redundant, argumentative, and a mere historical treatise ¶¶ 19
through 69 and 80 through 132.
Again, even if these
adjectives accurately describe the Complaint, nowhere in Rule 8 (a) (1) or 12
(e) is it written that such prose is prohibited. Additionally, Defendants
ignored the requirement that they also provide the “details desired.” This is
understandable ... all the details are evident.
Finally, it must be stated
that the referenced paragraphs are extremely important components of
Plaintiff’s claim. The School District Defendants must realize that there are
other defendants in this case, and the Complaint incorporates issues that are
necessary to proceed against those others, even though those issues might not
pertain to the School Districts. More importantly, Plaintiff is acutely aware
that actions by religious minorities are often viewed as “frivolous” or
“unimportant,” or indicative of some character flaw or eccentricity on the part
of the litigant. This is especially true in regards to atheists, since the
overwhelming majority of our citizens largely equate the denial of god with
some form of immorality. It is, in fact, this very reality that led to the Act
of 1954,[16] the
legislation that lies at the heart of this entire controversy.
The averments made in the
Complaint were each carefully considered, and felt by Plaintiff to be necessary
to present this action in its proper context. For the foregoing reasons –
especially since Defendants’ criticism here is not pertinent to either of the
Rules they cite – Plaintiff
respectfully requests that the Court deny this Motion.
In the conclusion of their Motion to Dismiss, the
School District Defendants state that “this cause of action has been raised
before, not only in the Eastern District but in other district courts throughout the United States” (emphasis
added). This is a bit of an exaggeration; in fact, there have only been three
such lawsuits in the nearly fifty years since the Pledge of Allegiance was
unconstitutionally altered to contain its extraneous sectarian religious dogma.
The first case was Lewis v. Allen, 159 N.Y.S.2d 807 (1957), aff’d 207
N.Y.S.2d 862 (1960), heard before even Engel v. Vitale,
370 U.S. 421 (1962) or Abington School District v. Schempp, 374 U.S. 203
(1963) were decided. The second was Smith
v. Denny, 280 F. Supp. 651
(E.D. Cal., 1968), which – as shown in this memorandum – was not only also
decided under a framework that is no longer valid, but which was dismissed on
appeal due to mootness. The final case was Sherman v. Community Consolidated School District
21 of Wheeling Township, 980
F.2d 437 (7th Cir. 1992), which was argued before the Supreme Court
handed down its decision in Lee v. Weisman, 505 U.S. 577 (1992), and which (as Plaintiff has also
demonstrated in this memorandum) is among the federal judiciary’s most
unprincipled decisions.
It is especially
important to note that none of the courts hearing the three aforementioned
cases ever examined the Pledge from the standpoint of the “effects” prong of Lemon
or under the “endorsement” test. Since these are the standards that the Supreme
Court has enunciated – and that the Ninth Circuit has rightfully followed –
Plaintiff respectfully requests that the Court provide a forum for these
analyses.[17]
The School
District Defendants’ allegations that the “claims and causes of action” against
them “are barred by the Eleventh Amendment” are contradicted by each of the
authorities they cite.
There is no lack
of a causal nexus between Plaintiff and the SCUSD Defendants. Plaintiff is made
to feel like an “outsider” at the School Board meetings, and his tax moneys are
used by SCUSD in an unconstitutional manner.
The Rev. Dr.
Michael Newdow is a proper party plaintiff, with myriad specific harms cited in
the Complaint.
Finally, with
respect to the Defendants’ request for a plain and short statement of the case,
they have provided nothing to even suggest that the Complaint is “so vague or ambiguous that a
party cannot reasonably be required to frame a responsive pleading,” nor have
they indicated that there are any “details desired.” Though perhaps more
comprehensive than usual and requiring slightly more time to read and digest, Plaintiff’s Complaint provides the
exact information necessary for this lawsuit to proceed. If the Defendants feel
that certain of the averments are “redundant, argumentative [or] mere[ly]
historical,” they are free to ignore those at their pleasure.
WHEREFORE, Plaintiff
respectfully requests that the Court deny the School District Defendants’
Motion to Dismiss as well as their request for a mandate for another statement
of the case.
Respectfully submitted,
Rev. Dr. Michael A. 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 Opposing
Memorandum of Law in Response to School District Defendants' Motion to Dismiss,
etc. was/will be mailed on this 20th day of
April,
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 A.
IRVING SCOTT, ATTORNEY
C/O
THE DEPARTMENT OF JUSTICE PORTER,
SCOTT, WEIBERG & DELEHANT
950
PENNSYLVANIA AVENUE, NW PO
BOX 255428
WASHINGTON DC
20530-0001 SACRAMENTO CA
95865
WILLIAM
JEFFERSON CLINTON
PRESIDENT
OF THE UNITED STATES
THE
WHITE HOUSE
WASHINGTON DC
20500
PAUL
L. SEAVE
UNITED
STATES ATTORNEY
501
“I” STREET, SUITE 10-100
SACRAMENTO CA
95814-2322
___________________________________
Rev.
Dr. Michael A. Newdow
FACTS
PO Box 233345
Sacramento CA
92823
[1] The School District Defendants separated their Motion into five sections. Although the division is somewhat confusing (inasmuch as the “Argument” section is begun with a subheading (A), but there are no subheadings (B) or beyond), Plaintiff will address the arguments of the Motion in the order they were presented.
[2] With respect to the School District Defendants only. The issues involving the Congress and the President of the United States are very different and have never previously been litigated.
[3] Which should have provided the plaintiff with an immediate judgment in his favor.
[4] Nearly a decade after Sherman, we find that Lemon – despite criticisms concerning its nature – is still recognized as valid law by the Ninth Circuit. “[B]ecause the [Supreme] Court has not yet reached consensus on Lemon's successor, we continue to apply its test.” Bollard v. California Province of the Soc'y of Jesus, 196 F.3d 940 (9th Cir. Cal. 1999). Likewise, it continues to guide California state courts (see, e.g., DiLoreto v. Board of Education, 74 Cal. App. 4th 267, 87 Cal. Rptr. 2d 791 (2d Dist. 1999); Schmoll v. Chapman Univ., 70 Cal. App. 4th 1434, 83 Cal. Rptr. 2d 426, (4th Dist. 1999)).
[5] “[T]his Court has never relied on coercion alone as the touchstone of Establishment Clause analysis.” Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 628 (1989) (O’Connor, J., concurring). See, also (in addition to Plaintiff’s Complaint), the quotes previously provided (supra, at page 4) that were issued by Justice Blackmun and Justice Souter in Lee v. Weisman.
[6] “In School District of Abington Township v. Schempp … it was contended that Bible recitations in public schools did not violate the Establishment Clause because participation in such exercises was not coerced. The Court rejected that argument.” Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 786 (1973); “The prayer invalidated in Engel was unquestionably coercive in an indirect manner.” Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (Kennedy, J., concurring in part and dissenting in part) n. 1; “The symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice.” Grand Rapids School District v. Ball, 473 U.S. 373, 390 (1985).
[7] “It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.” Abington School District v. Schempp, 374 U.S. 203, 225 (1963); “This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.” Stone v. Graham, 449 U.S. 39, 42 (1980); “To the extent that petitioners contend that "curriculum related" means anything remotely related to abstract educational goals, however, we reject that argument.” Westside Community Bd. of Ed. V. Mergens, 496 U.S. 226, 244 (1990).
[8] This is an apt quote for the Sherman court, which declared that “[y]ou can’t understand a phrase such as ‘Congress shall make no law respecting an establishment of religion’ by syllogistic reasoning.” 980 F.2d at 445.
[9] In pondering this point, one might consider how much stock we expect the citizens living in this country in the year 2203 will take in our current interpretations of the laws we promulgate today. As if to emphasize this same idea, today’s Sacramento Bee (Thursday, April 13, 2000) quotes Rep. Bob Barr as saying, “It is difficult, if not impossible, to argue that laws written in the 1970s are adequate for today’s technological challenges.” (Page A16, column 6). (2000 – 1975 = 25. 1992 – 1789 = 203.)
[10] In fact, if this “let’s look at what the Founders did” argument is to be made, it must be appreciated that they specifically kept all references to any deity out of the Constitution. This exclusion was extraordinary and unique, and provides overpowering support for the proposition that the Founders would never have allowed the words “under God” into any pledge of allegiance. For example, in 1789, every single state constitutional preamble spoke of the “Creator,” “the great Governor of the universe,” “Almighty God ,” “the great Legislator of the universe,” “the Sovereign Ruler of Nations,” or made some similar divine reference. Yet the Preamble to the Federal Constitution is devoid of any such terminology. Thus, if anything, the message to be gleaned from the history at the time of the Founders must be seen as precluding any theistic reference in the Pledge.
[11] Please see Complaint paragraph 96.
[12] Bizarrely, Defendants make the statement that “at no time does the complaint allege that the districts have compelled plaintiff’s daughter to participate in the Pledge of Allegiance in any manner.” Paragraph 79 explicitly states that his daughter “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.” Furthermore, paragraphs 96-101 of the Complaint do nothing but address that issue of coercion.
[13] As Plaintiff noted in Complaint paragraph 99.
[14] As, for instance, does a property tax rate of 2.74˘ per thousand dollars of value (the current daily rate in California). But upon multiplying this by 365 days to a year, as well as by all of the real property in the State, one realizes this is anything but trivial. In the identical manner, multiplying the 1.25 seconds by every school day, as well as by the number of teachers who leads their students in the now sectarian Pledge, one arrives at a figure which is quite substantial.
[15] Usually these “others” are individuals, although this is not the normal view of “the press.” Similarly, the Tenth Amendment’s reservation of rights to the States does not involve individual liberties.
[16] Please see the Excerpts from the Congressional Record, provided as Appendix B in the Complaint. As a means of corroboration, Plaintiff cites a survey of 1443 individuals which he, himself, performed. Each person was asked (a) if they believed in God, and (b) if they found the words “under God” in the Pledge to be offensive. With a dichotomy that rivals any in the social sciences, 98% of believers felt the words were not offensive, whereas – among atheists – the corresponding figure was only 3%!
[17] It also must be borne in mind that this is a case of first impression, inasmuch as no Plaintiff has ever previously challenged the U.S. Congress. It is that body, after all, that is the true “bad apple” in the scheme that placed “God” into the Nation’s Pledge. Past courts have simply looked at the defendant school districts and said, “Hey, they’re only having their students recite the Nation’s Pledge. What’s wrong with that?” What’s wrong is that it endorses theism, it makes atheists feel like “outsiders,” and it inculcates a specific religious belief. However – focusing instead only on the lack of any unconstitutional purpose on the part of the named defendants, those other harms have simply been ignored. Plaintiff in this case has named the Congress in order to demonstrate that illicit purpose, and will not allow those other harms (resulting from the acts of the School District Defendants) to remain unaddressed.