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DAVID WALLACE CROFT, PARENTS NEXTFRIEND THEIR MINOR AS AND OF CHILDREN; SHAMVONS T I N CROFT, PARENTS NEXTFRIEND THEIR ~ E AS AND OF MINOR CHILDREN; JOHN DOE,AS PARENTS NEXT AND FRIEND THEIR MINOR OF CHILDREN; DOE,AS PARENTS NEXTFRIEND THEIR MINOR CHILDREN, JANE AND OF Plaintiffs - Appellants,
RICKPERRY, GOVERNOR THE STATE TEXAS, OF OF Defendant - Appellee.
On Appeal from the United States District Court Northern District of Texas, Dallas Division
BRIEF OF GOVERNOR RICK PERRY
GREG ABBOTT Attorney General of Texas C. ANDREW WEBER First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Civil Litigation
JAMES C. HO Solicitor General Texas Bar No. 24052766 REED N. SMITH Assistant Attorney General Texas Bar No. 24067875
OF GENERAL OFFICE THE ATTORNEY P.O. Box 12548 (MC 059) Austin, Texas 787 11-2548 [Tel.] (512) 936-1700 [Fax] (5 12) 474-2697
COUNSEL GOVERNOR PERRY FOR RICK
Counsel certifies that the following listed persons and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.
David Wallace Croft and Shannon Kristine Croft, as parents and next fiiends of their minor children Unknown parties, referenced in the caption as John and Jane Doe, as parents and next fiiends of their minor children
W. Dean Cook OF LAWOFFICE DEAN COOK P.O. Box 260159 Plano, Texas 75026
Rick Perry, Governor of the State of Texas
Counsel for Defendant-Appellee Governor Rick Perry
James C. Ho Adam W. Aston Reed N. Smith GENERAL OFFICE OF THE AITORNEY P.O. Box 12548 (MC 059) Austin, Texas 787 11-2548
STATEMENT REGARDING ORAL ARGUMENT
Although the Court to date has not specifically entered its judgment respecting the constitutionality of the Texas Pledge of Allegiance, well established principles of constitutional law make clear that the Pledge should be upheld and that the judgment below should be affirmed. Accordingly, oral argument is not necessary to the resolution of this case.
. . . .. . . . . 4 Argument I. . . . . . . . . . . . . .. . . 111 . . . . .. . . . . . . . . . . . . . . . . . . .S.. . . 14 The Texas Pledge. . . . . . . . . . 11. . . . . . 7 The Voluntary Recitation of the U. . . . . . . . 9 A. . . . . . . . .. ... . . . .. . . . . .. . . . . .. . . . . . . . . . .. . . . . . . 9 Numerous Federal Courts. . . . .. .. Including the Words "Under God.. . . . .. ... . . . .. . . . . . . . . . . . . .. . . .. . . No Less Than the U. . . . . . . .. . . . . . . .S.. . . . . . .. . . . The Supreme Court Has Repeatedly Endorsed the U. . . . . . . .Pledge . . . . . Pledge of Allegiance. . . . . . . . . . . . . . . vi Issuepresented . .. .. . . . . . . . . . . . . . Pledge . . . .. . . . . . . .S. . . . . . . . . .Certificate of Interested Persons . 3 Statement of Facts . . . . . .S. . .. 11 Statement Regarding Oral Argument . Pledge . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . ... .7 Plaintiffs Challenge the Texas Pledge Only on its Face . . . . . . . .. .. .. . . . . .. ... . . . . . .. . . . .. . .. . . . . .. . . . . The Texas Pledge Is Constitutionally Indistinguishable From the U. . . . . . . . . . . Not Religious. . . . . . . . . 3 Statement of the Case . . ... . . Satisfies Traditional Establishment Clause Jurisprudence . .S. . . Table of Authorities . . . . . 111. . . . . .. . . . . 16 IV. . . ." Is a Patriotic. . .. . .. . . .. . .. . . . . . . . . . Have Upheld the U. . . . . . .. . . . . .. . . . . . . . . . . . 12 \ B. Exercise Acknowledging Our Nation's Heritage .. . . .. . . . . . . . . . . .. . . . . . .. . . .. . . . . . . . . . . . . . . . . Including This Court. . . . . Pledge. . . . .
. . 23 Certificate of Compliance . . 24 . 20 Conclusion . . . . Recitation of Either Pledge Is a Patriotic. . . . . . . . . . . . . . . 18 Neither Pledge Constitutes an Endorsement of Religion . . . . . . . . . 18 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Not Religious. . . . 16 Neither Pledge Has an Unconstitutional Effect . . . . . . . . . . . . . . . . . . . The Words "Under God" are "Nonsectarian" Neither Pledge Has an Impermissible Purpose . . . . . . 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. . Exercise . . . . . . B. . . . . . . . . . . . . . . . . . . . . . . . . . 18 Neither Pledge Coerces Religious Exercise . . . . . . . . . . . . .A. . . . . . . . 22 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . .
. . 542U. 12 Elk Grove Unzj?ed Sch. . 492U. . . . . . . .Supp.2009) .. . . Hanover Sch. . . .. .. . . . . . .9. . . . . .. . .S. . . ... .3d 289 (6th Cir. ACL U. . . .. 243 F. . . . . . . 604F. 13. 487U. . .21 Engel v. . . . . 19. . . 30.3d 772 (8th Cir.. . . . . ... . . .. . . .18 Croft v. . . . ..16. . . .2009 WL 3227860 (D. . . Bd. . . .16. . ..D. . . . 2. . 370U.. .. . Capitol Square Review & Advisory Bd. 992 F. . 2001) . . v. . . . . . . . . . 473 F. 2006) . . . . . . 3. . . .Cases A CL U v. . . Wilkinson. Governor of Tex.19 Croft v.3d 188 (5th Cir.. . 07-356.. . .. . . . Kendrick. . . . .. Dist. . . . . . .709(2005) . .2d 1335 (5th Cir. .. . . . . 419 F. . . . v.. . .S. 14 ACL U v.. . . . . . . Dist. . . . . . . . . . . . . ... . . . . . . City of Plattsmouth.3d735(5thCir. . . . . . . . . . . . . .2009) Cutter v. .S. . 3. . . . . . .. State of Mississippi. .. . . .S. . .4 8 . . .. . . . . . . . . . . . . . 2005) (en banc) . . . .. .Tex. 562F. . . . 1993) .. . . . . . . ... .. . . ..8.. .. . . . . . .. . . . . . . . .. .. . . . . . . . 14 Barnes v. .. . . . . No. . . 11. . . . . . . . . . . . . . 544U. . . . l(2004) . . . . . . .S.. . . . . . . .. . . . . . . . .2d932(N. . . . .N. . . Sept. . . 5. .589(1988) .. . . 573 (1989) .. 13 . .8 Bowen v. . . . . . .21 Freedom from Religion Found.H. . . Perry. . . . . . Newdow. . . . . . . . . . . . 421 (1962) . Doe v. .2009) . .14. 8 County of Allegheny v.. . . . . . .11. .18.. .. . . . Vitale. . . Tangipahoa Parish Sch. .
. . . . .3d 1282 (11th Cir. . Donnelly. . . . . . . . . 335 F. . Chambers. . . . . . Consol. . . . . 1991) . . . . . . . . .S. . . . City of Austin. . . . . . . . . . . . . . Cong. . Doe. . . .22 Murray v. U S . . . . .S. . . . . . 292 F. . . . . . . . Valente. . . Cmty. . 5. . . . . . . .13 Santa Fe Indep. . . . . . . . 14 Glassroth v.S. . . . Dist. . . . . .290(2000) . . . . . . . . . . 12 Myers v. . . . . . . . . . . . . . . 19. . . . . . . . . .19. . . . . . . Dist. . . . . . . .20. . . . . . . . . . . . . . 577 (1992) Lynch v.15. .. . . . . . . . .3d247 (3rd Cir. .19 Mellen v. 10. . 505 U. 783 (1983) . . .20. .21 Sherman v. . .11. . . . . . . Sch. . . .14. . 1992) . .S.18 Newdow v. . . 465 U. . Cong. 9. 2005) .21 . . v. 980F. . .2. . . 2003) . 456U. . 14 . . .18. . . . . 11. . . 1 1 . . . . . 2002) . . . Schs. . .21 . . .. . . . . . . . . . . . . . . . . 2003) Larson v. . . . . 334 F. . . . . . . . . . . 1. . 374 U. . . . . 20 School District of Abington Township v. . . . 947 F. . . . . . . . . . Loudoun County Pub. . . . . of the US. .S.Freethought Soc 'y v. . . 203 (1963) . . . . . . . . . . 2. . . . . . . . . 105 F . . . . . . . . . 16 . 13. . . . . . 15. 18 . . . App'x 566 (5th Cir. . . . 21. .2d437 (7thCir. . .228(1982) Lee v. . . . . . . . . . . .3d 395 (4th Cir. 12. Chester County. . . . . . . Weisman. . . 12. 463 U. . . . . . . . . . . . . . . . . . . 418 F. . . . . . . . . . . . . . . . . . . . . . . . . Schempp. . . Sch. . . . . . . .. . Moore. 530U.S.2d 147 (5th Cir. 668 (1984) Marsh v. . . . . . . . . . . . . . . . . .3d 597 (9th Cir. . . . . . . . . . . . . . . . 2004) (unpublished) (per curiam) . . .
S. ... v. as Arnici Curiae in Support of Petitioners.. . .. . .. . . .. L. . 83-396. 13 Vlll . . . . Clauson. . . . . . Pub. .. . . . . . . . . .. .. . . .. 107-293. L. 15 TEX. $8 1-2. . . . .. .EDUC..S. .. . ... .2003 WL 230 11472 (U. . . . .. . 3. .. 13. . . . . .. .. . . . . . Pub. . . . . . . . . . . . . . 343 U. Statutes and Rules 4U. . 5. . . . .. . Newdow.. .. . . Dec.. . . .S. TEX. . . . .C. . . . . . . No. .9. . . . . 4 . .. . . . . Perry. . . . . . . .EDUC.5 Act of Nov. . . .1954. .. .. . . . . .. .. . .. . . . . 15 . .. . 545U. . . . 2057-2060 Brief for Texas. . . . . . . . .. . . .. . . . . .. . .. . . . No. . . . .. . . . . . . l1.. . . CODE 25. . . . Dist. . .6 5 Other Authorities Act of June 14. . .. . . . .. . CODE5 25. . . . .. . .677(2005) Wallace v. . . . . . . . . . . .. . . . . 18. . . . . . . ..GOV'TCODE 3100. . in Elk Grove UniJied Sch. . . 306 (1952) . . 02-1624. . . . .S. . . .. .116 Stat. . . . .. . . .2002. . . . . .. . . . No.. . .. . . 20 TEX.S. . .082(c) 8 . . . . . . . . . . .. et al. .. . . . . . .. . . . .84 . . . . . . . . .Van Orden v. . . . ..38(1985) Zorach v.19 Constitutional Provisions. . . . . . . . . . Jaffree. .101 . . . .. . . . . . . . 472U.68 Stat. . . . ...18 . .2003) . . . .082(b) . . . . 249 . . .
. . . 80th Leg. US. . . .. . . . . . . 03-7. . No. . Tex. . . 80th Leg. on State Affairs.S. . . 13 Debate on Tex. .C... . 7 Senate Comm. .S.SOth Leg. . Recreation. . . and Tourism. .. . . . .S. 80th Leg.. 1034. . . .C. . . . . REP. .... . .2007) . H. . . 2007) . . on State Affairs.. . .. 3 145 (2007) .. 6 Hearings on Tex. on Culture. .. .. (2007) . . H. ... . . . . . . in Elk Grove UniJied Sch. . . . NO. 6 House Comm. .S.. . . . Aug. ..S.. . 19. reprinted in 1954 U.B. . . 20. R. . Recreation.. (May 14. . . . . ..N. . . . Cong.. Bill Analysis.2003) . .. H. .S.. . v. 4. H.. . .2003 WL 23051994 (U. . . Dist. 17 . ..2007) . . on Culture. . H. 1034 on the Floor of the Senate. (May 18th. . ..2003) .A.. . Tex.S.B. . . 1034 Before the House Comm. ..S. 1034. .B. . .S. & Tourism. . . . (2007) . 83-1693 (1954). . .. . . .J. . . . . 2003 WL 22428408 (U. . . . . of Tex. R. 6 H... .B. . . 80th Leg.Brief for the United States as Respondent Supporting Petitioners. . .. . . Dec.. . . . . . .. . . . 1034 Before the Senate Comm. . . . .B.. . .. R.. . . ... . 6 H. . .. . . R. R. . . Bill Analysis.SOth Leg. ... . No. . . 02-1624. . . . 13 Brief for the United States in Opposition.R. .. . . . 2339-43 . . . 17 Hearing on Tex. (Mar. 4. . 7. . . .. R. Newdow. . . . . . . . in Newdow v. . .
JANE DOE. concurring).AS PARENTS AND NEXTFRIEND THEIR MINOR CHILDREN.Appellee. Dallas Division BRIEF OF GOVERNOR RICK PERRY The recitation of the Pledge of Allegiance is a patriotic exercise-not a religious one. On Appeal from the United States District Court Northern District of Texas. Schempp. 203 (1963). JOHN DOE. PARENTS NEXT AS AND FRIEND THEIR MINOR OF CHILDREN.. As Justice Brennan observed over four decades ago in School District ofAbington Township v. RICK PERRY.Appellants.%nthe Nnitea Btates Qolrrt of Appeals for f be Xtftb airtuif DAVID WALLACE CROFT. or (as Justice Brennan envisioned) the school day. PARENTS NEXTFRIEND THEIR AS AND OF MINOR CHILDREN. at 280-81 (Brennan. 374 U. Id. SHANNON KRISTINE CROFT. GOVERNOR THE STATE TEXAS.AS PARENTS NEXT AND FRIEND THEIR MINOR OF CHILDREN.S. . voluntary recitation of the Pledge serves the valuable (and secular) purpose of solemnizing public events and activities-whether to open official government proceedings. OF OF Defendant . OF Plaintiffs . sporting events. J.
. . After all. App'x 566. e.S." Croft.] Pledge of Allegiance" (like moments of silence) may "serve the solely secular purposes of [I devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres f of religion and government. Plaintiffs' objection to the Texas Pledge of Allegiance is based on a proposition that this Court has repeatedly rejected. at 28 1). 562 F.Not surprisingly.S. in rejecting Plaintiffs7challenge to the Texas moment of silence law. Governor o Tex. If the U. 374 U. In fact.g." Croft v. Mellen v. Accordingly. and indeed condemned as "frivolous"-namely. this Court.566 (5th Cir. that the inclusion of the words "under God" f somehow violates the Establishment Clause. See. 2009) (quoting Schempp. 562 F. as this Court recently observed. the Court should affirm the judgment below. Cong. o the US. Pledge is constitutional-and of course it is-then so too must be the Texas Pledge.743 (5th Cir.. earlier this year.3d at 747. then.S. 105 F..3d 735. "the obvious purpose of [both] pledges is to inculcate patriotism among students. 2004) (unpublished) (per curiam). repeated Justice Brennan's observation that "daily recitation of the [U.
history. the court noted that "Plaintiffs do not explicitly state whether their challenge to the amended Texas pledge is facial or 'as applied' to them. I pledge allegiance to thee. Tex." TEX. one state under God. On cross-motions for summary judgment. f After reviewing the text.9. "[b]ecause they have shown no evidence of the specific manner in which the statute is administered unconstitutionally against them to support an 'as-applied' challenge. State o Mississippi. Accordingly. in 2007."' Id. 2d 932 (N." Id. at 935. (quoting Barnes v.101 (emphasis added). "[tlo prevail on a facial challenge. 'plaintiffs must show that under no circumstances could the law be constitutional. and purpose of the law. one and indivisible.10. the district court granted summary judgment to the Governor and upheld the Pledge. R.GOV'TCODE9 3 100. Texas. Croft v. Perry.D. 1993)). In doing so. 992 F. 2009)." Id. 604 F. 1343 (5th Cir. Supp. STATEMENT THE CASE OF Plaintiffs challenge the Texas Pledge ofAllegiance on the ground that. the district court upheld the Texas Pledge.ISSUE PRESENTED Whether the Texas Pledge of Allegiance may include the words "under God" as a patriotic acknowledgment of our state and national heritage.2d 1335. The court found that "nowhere" had the Legislature 3 . The court concluded that they challenged the Pledge only on its face. the Legislature amended it to read (in purported violation of the Establishment Clause): "Honor the Texas flag.
83-1693 (1954). 249. Plaintiffs appealed.S. The phrase "under God" reflect[s] the traditional concept that our Nation was founded on a fundamental belief in God.457.355 (H."articulate[d] a religious purpose for [the] bill. at 942. a document which contained the first constitution in America for complete . our colonial forbears recognized the inherent truth that any government must look to God to survive and prosper.R. Pledge to insert two words: "under God. R. at 939. noting that Plaintiffs fail to draw a meaningful distinction between the national Pledge and the Texas state pledge. the half-century that has passed since the insertion of "under God" into the national Pledge of Allegiance under President Eisenhower provides the Texas pledge with even deeper historical roots.A. Congress amended the U. Pub.N. R." Act of June 14. The simple fact that the insertion occurred recently is a distinction without a difference. 1954. L." Id. If anything. 83-396. 68 Stat. No. 2339-43). the Mayflower compact. NO. REP. twelve years after first adopting and codifling the Pledge of Allegiance to the United States. In 1954. reprinted in 1954 U.C. 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. In the year 1620. The court also compared the Texas Pledge to the U. Pledge.C. Id. For example.S.S. Congress inserted this phrase to acknowledge that [olur American Government is founded on the concept of the individuality and the dignity of human being.
Congress approved legislation condemning the ruling and reaffirming that the U. The history also reflects that the amendment "is not an act establishing a religion or one interfering with the 'free exercise' of religion. US. No. 292 F. Pub. 2057-2060." Id. .S. Pledge does not violate the U. 107-293.2002. Clauson. v. Cong. the Declaration of Independence. both facially and as applied by public school teachers leading willing students in its recitation.self-government.S. Id. Constitution. Newdow v. 13. Pledge is constitutional.the Gettysburg Address. Supreme Court subsequently reversed the Ninth Circuit decision on standing grounds. 2002). 306.S. has concluded that the U." Id. In 2002.S. Elk Grove UniJied Sch.3d 597 (9th Cir. Act ofNov. $5 1-2. whether squarely or in passing. and U. Virtually every court to have addressed the issue. all to illustrate that our Nation's political philosophy is deeply rooted in the religious convictions of our Founders. 343 U. In response. 1 (2004). 116 Stat. Dist.S. at 355-56. Newdow. 3 12-13 (1952)). at 356-57 (citing Zorach v. Pledge as a violation ofthe Establishment Clause.S.S. The U. Supreme Court opinions. . The legislative history of the amendment also includes references to William Penn. 542 U.S. however. the Ninth Circuit disagreed and struck down the U.. L. Amen. declared in the opening sentence "In the name of God.
on State Affairs.S. H. Pledge. I pledge allegiance to thee.. GOV'TCODE5 3 100.S. (May 14. The record further reflects that the Legislature. 1034 on the Floor of the Senate. 80th Leg. none disputed the purpose 6 .J. R. the purpose of the 2007 amendment to the Texas Pledge was to acknowledge our heritage and our Founders.S.. 3 145 (2007)). the Texas Legislature amended the Texas Pledge to read: "Honor the Texas flag." R. H.101 (emphasis added).. Recreation. we say 'one nation under God. one and indivisible.338 (Hearing on Tex. Texas.343 (Debate on Tex.335 (H. Representative Riddle stated that the Texas Pledge should acknowledge our heritage in the same way as the U. Likewise. 1034 Before the House Comm." TEX. R. Pledge.In 2007. explicitly intended to mirror the U. 80th Leg. H. Like the 1954 amendment to the U.. 80th Leg.B.S.3 16 (Hearings on Tex. House sponsor Debbie Riddle explained "that [Texas]. R." R. in amending the Texas Pledge.S.S.B.' I felt like it was altogether right and appropriate for us to have in our state pledge.B. that we would say 'one State under God. 1034 Before the Senate Comm. Senate sponsor Dan Patrick noted that "House Bill 1034 will acknowledge our Judeo-Christian heritage by placing the words under God in the state pledge. Although some legislatorsthought the bill was ill-advised. was founded on the belief that we should have the right to acknowledge God.. 20. (Mar.2007)). ofTex."' R. On the House floor. even when it was its own nation. 80th Leg. and Tourism. on Culture. R. 2007)). 2007)). Pledge: "[Iln our national pledge. R. one state under God. (May 18th.S.
. tj 4.S. such practices. and indeed protects. Recreation.361 (Senate Comm. H. Bill Analysis. PLAINTIFFS CHALLENGE TEXAS THE PLEDGE ONLY ON ITS FACE. See also R.." 4 U. public school children have begun each school day pledging allegiance to "one Nation under God. SUMMARY ARGUMENT OF For 55 years. 80th Leg. on Culture. 1034. as required to raise an "as applied" challenge.S. ARGUMENT I. H. 80th Leg. the Supreme Court has cited this practice approvingly. & Tourism. assuring the Nation that the First Amendment permits. Pledge. this Court has rejected as "frivolous" a challenge to the words "under God" in the U. . R.S. and the judgment below should be affirmed. (2007)) (purpose of adding "under God" to the Texas Pledge was to "acknowledge our JudeoChristian heritage"). Tex. Accordingly. The words "under God" have the same purpose and effect in the Texas Pledge as they do in the U. on State Affairs.S.B. R. Pledge.B. See.360 (House Comm. Plaintiffs do not dispute that they have challenged the constitutionality of the Texas Pledge only on its face-and that they have not challenged a particular application of the Texas Pledge. R. Likewise.C. 221. R. Plaintiffs' facial challenge to the Texas Pledge should be rejected.of acknowledging our heritage. Tex. Throughout this period. (2007)). Bill Analysis. 1034.S.
. they must show that the Texas Pledge is unconstitutional in all of its applications. Both the Supreme Court and this Court have recognized such a distinction."). The argument plainly fails. 709. . Tr. .g.. Plaintiffs argue. including in Establishment Clause cases. to succeed on that challenge.2d at 1343. Cutter v.o f its applications. Wilkinson. See. Plaintiffs plainly fail in this regard.g. because they cannot show that the Texas Pledge is unconstitutional in a n y l e t alone a l l . Barnes. But we should not engage in such speculation on a facial review of the law. Bowen v.S. See..e. Pltfs' Br. Kendrick. the AFLA was unconstitutional as applied. e."). Croft.S. 992 F.3d at 750 ("All of these speculative possibilities may be fertile ground for as-applied challenges to the statute if they occur.' We turn now to consider whether ."). 589'6 18 (1988) ("[Wle conclude that the AFLA does not violate the Establishment Clause 'on its face. 29 ("It's all-all pretty much a facial challenge. however. e. Accordingly. at 7 ("This is a challenge to the [Texas Pledge].g."). . Plaintiffs challenge the Texas Pledge only on its f a c e a n d therefore. 562 F. at 10-14.") (quotations omitted). 544 U. 725 (2005) ("[Wle emphasize that respondents have raised a facial challenge to [RLLJIPA's] constitutionality. that there is no distinction between facial and "as applied" challenges in the Establishment Clause context. Pltfs' Br. 487 U.
Pledge. our public rituals [and] our ceremonies. the Court has repeatedly made clear its view that the Pledge is entirely constitutional. . See. although the question was squarely presented in 2004.S. as has been recognized by virtually every court to consider the issue. Even so. an 'establishment' of religion or a step toward establishment.S. at 3 13. . 463 U. . Quite the contrary.S."IS A PATRIOTIC. . A. Nevertheless. 343 U. the majority 9 . Elk Grove. Marsh v." Zorach. PLEDGEOF ALLEGIANCE. it is simply a tolerable acknowledgment of beliefs widely held among the people ofthis country"). It is well settled that government acknowledgments of our religious heritage do not violate the Establishment Clause. 783. e. THE VOLUNTARY RECITATION THE U. Chambers. The U.11. extremes to condemn" the "references to the Almighty that run through our laws. the Supreme Court has consistently warned courts not to construe the Establishment Clause in a manner that "press[es] the concept of separation of Church and State to . NOT INCLUDING THE WORDS EXERCISE ACKNOWLEDGING NATION'S OUR HERITAGE.S.S. Pledge. . The Supreme Court Has Repeatedly Endorsed the U. at 17-18. Pledge falls well within this tradition of religious acknowledgment. 792 (1983) ("the practice of opening legislative sessions with prayer. . 542 U. The Supreme Court has never had occasion to enter judgment respecting the constitutionality of the U. OF "UNDER GOD. RELIGIOUS..g.S. instead concluding that the petitioner lacked standing to bring the suit. For example. the Court did not ultimately reach the merits.S. is not.
the majority upheld a religious display featuring a creche. 668 (1984). concurring). J.' as part of the Pledge of Allegiance to the American flag. at 676. [and] are uniquely suited to serve such wholly secular purposes as solemnizing public 10 . "[als its history illustrates.. for example. . [are] protected from Establishment Clause scrutiny chiefly because they have lost . at 683. Moreover. C. and that it is entirely constitutional. ." Id. who would have reached the merits. . any significant religious content . noting that "display of the creche is no more an advancement or endorsement of religion" than other instances of "Congressional and Executive recognition" of religion.. 465 U." Id. all nine justices in Lynch endorsed the Pledge. id. the Supreme Court has invoked the Pledge as a baseline for what the Establishment Clause indisputably permits. id.. . In other rulings. each stated explicitly what the majority made implicit-that recitation of the Pledge is a patriotic. exercise. concurring). .S. See id. the Pledge of Allegiance evolved as a common public acknowledgment of -theideals that our flag symbolizes. J.. at 6 (emphasis added). J. . although they disagreed about the issues presented in that case. at 33 (Rehnquist. See id.opinion took special care to note that. DonnelZy. including "the language 'One nation under God. not religious. at 716-17 (Brennan. Its recitation is apatriotic exercise designed to foster national unity and pride in those principles. Moreover. dissenting) ("[Tlhe references to God contained in the Pledge of Allegiance . id. In Lynch v. concurring). three other justices. at 54 (Thomas.J. at 44-45 (O'Connor.
C. 370 U.J.). 78 n. e. joined by Rehnquist. Likewise.." federal tax exemptions for religious organizations. and White & Thomas. dissenting).S. dissenting). concurring and dissenting.S." noting the "obvious" difference it found between the "nonsectarian references to religion" in the U. J.5 (1985) (O'Connor. concurring) (condemning legislative chaplains. at 88 (Burger.S. joined by Rehnquist.g. which "demonstrate[d] the government's allegiance to a particular sect. in County o Allegheny v. joined by Harlan. 439-41 (Douglas.l. 38. along with other similar religious acknowledgments. dissenting. Jafiee.."God save the United States and this Honorable Court. J. This history underlies the Court's analysis and "help[s] explain why the Court consistently has declined to take a rigid.10 (Kennedy. JJ. numerous justices have invoked the Pledge. 577."). Pledge and motto. But see Engel. and an isolated creche display.S. J. JJ.). See. at 678. Engel v. as constitutional guideposts. C. the national motto "In God We Trust.S." and the Pledge of Allegiance as unconstitutional). J. Schempp..J.. at 437 & n. To the contrary.633 (1992) (Scalia. 573 (1989). concurring).. at 307-8 (1963) (Goldberg. and White & Scalia. at 674. Wallace v. at 602-03." on the other hand. the f Court reaffirmed the Pledge "as consistent with the proposition that government may not communicate an endorsement of religious belief. absolutist view of the Establishment Clause." Id.. Id. 472 U. providing a prominent example of the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Vitale. 370 U. In each of these cases. id. C. Similarly.J. County o f Allegheny. 492 U.occasions.). use of the Bible for administration of oaths. Weisman. J. 374 U. ACLU. 449-50 (1962) (Stewart.. 492 U. Lee v.S.. use of GI Bill funds in denominational schools. on the one hand. .. the constitutionality of the Pledge played a key role in the Court's analysis.S.S. J. 505 U.S. concurring.." Lynch. at 674 n. 421. J. the Court did not merely mention the Pledge in passing. 465 U.' 1.
Dist. Including This Court. . Given the Supreme Court's repeated assurances that the U.2d f 147. and actions [including the Pledge] evince Governmental approval of religion. symbols. 1992). 473 F. Consol." the Fourth Circuit concluded that "[tlhe Pledge.2d 437.These statements are noteworthy. have withstood constitutional scrutiny . If the Justices are just pulling our leg. we take its assurances seriously. Cmty. Murray v. 2006) ("References to God in a motto or pledge . 1991) ("government use of religious acknowledgment.448 (7th Cir. which is not a religious . the pledge of allegiance"). let them say so. if not religious belief.S. . financial support. Pledge is constitutional. Numerous Federal Courts. 105 F. 21. Tangipahoa Parish Sch.. See also Doe v. 947 F. As one court of appeals observed: "If the Court proclaims that a practice is consistent with the establishment clause.g. Bd.S.3d 188. . and do not give an impression of government approval. App'x at 566. ." Sherman v. . it is unsurprising that this Court recently condemned an Establishment Clause challenge to it as "frivolous"-finding that "[a] reasonable observer would not conclude that the disputed phrases. Pledge against Establishment Clause challenge.980 F. City o Austin. . . is allowed: e. Have Upheld the U. Two other circuits have likewise upheld the U. Sch. After first stating that "[tlhe Establishment Clause works to bar sponsorship. B. and active involvement of the sovereign in religious activity.198 (5th Cir. Pledge.").. 154-55 (5th Cir." Mellen.S.
1.N. 19. does not convert the Pledge into a prayer or religious exercise. Aug.H.2009 WL 3227860. 03-7. Pledge was the Ninth Circuit.S. Pledge..exercise. 02. No.2003 WL 22428408 (U. 18. v. the United States and all fifty Statesjoined together to urge reversal of the Ninth Circuit. 30. See also Freedomfrom Religion Found.. Newdow. Elk Grove. see also Brief for the United States in Opposition. 07-356. v. As previously noted. et al.2003). 2003 WL 2305 1994 (U.S. in Newdow v.S. Schs. No. 418 F. 2003). No. 980 F.S.2009) ("Inclusion of the words 'under God..' in context. Sept. Dec.408 (4th Cir.S. 02-1624.3d 395. poses none of these harms and does not amount to an establishment of religion." Sherman. 542 U.S. Cong. See Newdow. Dec. Brief for Texas.. worse. 4.' They did not.2d at 445. 292 F. 13 . v. 2005) (quotation omitted). as Arnici Curiae in Support of Petitioners." Myers v.").3d at 6 12. US. 2003). Newdow. 2003 WL 23011472 (U. Hanover Sch. That judgment was later reversed by the Supreme Court on standing grounds. Moreover. at *8 (D. Dist. in Elk Grove UniJied Sch. reasoning that "[u]nless we are to treat the founders of the United States as unable to understand their handiwork (or. the only court to strike down the U. See Brief for the United States as Respondent Supporting Petitioners. Dist. Loudoun County Pub. in Elk Grove UniJied Sch.1624. hypocrites about it). No. The Seventh Circuit also upheld the U. we must ask whether those present at the creation deemed ceremonial invocations of God as 'establishment. Dist.
291 (6th Cir. THETEXAS PLEDGE CONSTITUTIONALLY IS INDISTINGUISHABLE FROM THE U.3d 772." Croft. Pledge. This near-unanimity among federal courts that the Pledge is constitutional "is striking." Myers. 2003) (noting Supreme Court's approval ofthe Pledge and other acknowledgments). 562 F. 4 19 F. 335 F.S. All Things Are Possible").3d at 406. indistinguishable from the U.g. 2001) (upholding Ohio state motto: "With God.S. Moore.3d at 747.264 (3rd Cir.3d 247.. 111. Capitol Square Review & Advisory Bd. The Texas Pledge is. "the obvious purpose of [both] pledges is to inculcate patriotism among students. ACL Uv. ACLUv. 4 18F. 243 F.Various circuits have also expressed support for the U. in passing. See. Freethought Soc 'y v. Pledge and should be upheld accordingly.S.. Both pledges are patriotic exercises that . 777 (8th Cir. PLEDGE." particularly considering that the Establishment Clause is an "area of law sometimes marked by befuddlement and lack of agreement. As this Court recently observed. Chester County. e. 2005) (en banc) (noting Supreme Court approval of "patriotic invocations of God and official acknowledgments of religion's role in our Nation's history").1301 (1 1th Cir. and other similar religious acknowledgments.3d 1282. 2003) (noting constitutionality of the official use of "God save the United States and this Honorable Court" and "In God We Trust"). Glassroth v.3d 289. 334 F. City ofPlattsmouth. for Establishment Clause purposes.
" Van Orden. .082(b).S. Croft. Not surprisingly.S. 562 F. .S. 545 U." Schempp. at 22. like the U. the U. 688 (2005) (plurality opinion) (quoting Marsh. And "it would be incongruous to interpret [the Establishment Clause] as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. 545 U. then.3d at 746. fndeed. . Both are recited at the opening of each school CODE5 25. at 686 (plurality opinion). the Texas Pledge. Pledge had contained the words "under God" for less than a decade when Justice Brennan observed that "daily recitation of the Pledge of Allegiance . at 790-91). adequately serve[s] the solely secular purposes ofthe devotional activities withoutjeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government.S.EDUC." Van Orden v. easily satisfies the various Establishment Clause doctrines set forth by the Supreme Court." Pltfs' Br. But patriotic acknowledgments of religion are constitutional. day to promote patriotism and contemplation. Perry. 463 U. Plaintiffs hope to distinguish the Texas Pledge by noting that it was amended only recently to include the words "under God. but because they fit into the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life. See TEX.acknowledge our Nation's heritage. not because the practices are old.S. 677. at 281. Pledge. 374 U.S.
at 42 (O'Connor. 542 U.S. when it notes that the reference to God in the Pledge is "obvious[ly] .S. at 603 (noting .S. SATISFIES TRADITIONAL ESTABLISHMENT CLAUSE JURISPRUDENCE. Neither Pledge Has an Impermissible Purpose. 492 U. Pltfs' Br. A." See Allegheny.the Establishment Clause is that one religious denomination cannot be officially preferred over another.IV. B."'). See also Elk Grove. It does not refer to a nation 'under Jesus' or 'under Vishnu.the "obvious distinction between creche displays and references to God in the motto and the pledge" because the latter are "nonsectarian references to religion by the government''). just as it motivated . PLEDGE.' but instead acknowledges religion in a general way: a simple reference to a generic 'God. Pledge under the Larson standard. Plaintiffs concede that the purpose of acknowledging our religious heritage genuinely motivated the Legislature to amend the Texas Pledge. at 40-4 1. concurring) ("The Pledge complies with [Larson's] requirement.244 (1982)).S. 492 U. at 605 (quoting Larson v." Allegheny.. 228. J. THE TEXASPLEDGE. Precisely the same analysis applies to the same words in the Texas Pledge.S.. 456 U. The Words "Under God" are "Nonsectarian. But Allegheny itself confirms the validity of the U. Plaintiffs contend that the Texas Pledge violates the anti-sectarian principle articulated in Larson and reaffirmed in Allegheny." "The clearest command of ..S. nonsectarian. Valente.NO LESS THAN THE U.
dropped the pretense that the bill had a secular legislative purpose" when she affirmed that its purpose was to "acknowledge our . SeeR. .B.No. .N. 80th Leg. To the contrary. Pltfs' Br. Pltfs' Br.36 1 (Senate Cornrn. however.").A. 37. . . Nor is "mirroring" the U.S. at 32.S. Tex.S. Placing the phrase 'under God' in the [Texas Pledge] may best acknowledge this heritage. Pledge. 233943). Pledge a "sham purpose. on State Affairs. the Legislature sincerely (and understandably) believed that simply tracking the language of the U.S. Pledge]. (2007)) ("[President] Eisenhower signed legislation in 1954 to affirm [our religious heritage] by placing the phrase 'under God' in the [U." as Plaintiffs contend. See.R. Plaintiffs contend that "Representative Riddle .C. at 37.Congress to amend the U. 1034. 'JudeoChristian heritage.. R. H.R. e-g. Pledge. For example.S. Pledge affirming that we are "under God" was the safest and smoothest means of achieving its purpose to acknowledge our religious heritage. Bill Analysis.. The same purpose motivated Congress to include the phrase "under God" in the U.C.S. at 32-37. that such a purpose is not secular. Plaintiffs maintain."' Id. But there is nothing wrong with that. .354-58 (H. reprinted in 1954 U. 83-1693 (1954).S. REP.
S. the Texas Pledge. 562 F. Neither Pledge Constitutes an Endorsement of Religion.3d at 747. 980 F. like the U." rather than "focus almost exclusively" on religious aspects).620 (analyzing the full holiday display. at 582. the phrase "under God" cannot be divorced fiom its larger context.S. Lynch.. See.2d at 439 ("states may require teachers to lead the Pledge and otherwise communicate patriotic values to their students"). Not Religious.S. rather than religious.S. Exercise. at 680 (courts must judge religious symbols and references in their "proper context. is plainly a patriotic. The Texas Pledge must be considered as a whole. at 38-40. 465 U.g. 418 F. See.g. Pltfs' Br. Considered as a whole.C. rather than the later-added menorah in isolation). Allegheny. 472 U. e." Wallace. And other circuits have likewise so held. J. Plaintiffs contend that the Texas Pledge endorses a particular religious belief. in violation of the principle that government may not send the message that "religion or a particular religious belief is favored or preferred. Sherman.." Croft. 2. exercise. . Pledge.. concurring). e.3d at 407 (noting that "inclusion of ['Under God'] does not alter the nature of the Pledge as a patriotic activity"). 492 U. Myers. 1 Recitation of Either Pledge Is a Patriotic. at 70 (O'Connor. This Court recently observed that "the obvious purpose of [both] pledges is to inculcate patriotism among students. Neither Pledge Has an Unconstitutional Effect.
Pledge is entirely "consistent with the proposition that government may not communicate an endorsement of religious belief.S. 465 U. See also Elk Grove. at 792 (same). Indeed.S. would not perceive these acknowledgments as signifying a government endorsement of any specific religion."). it is difficult to discern any practical difference between the acknowledgment that we are "one Nation [or State] under God" and the Supreme Court's oft-repeated assertion. Not surprisingly. a basic historic fact about our Nation: that religion was significant to our Founders and to their enduring political philosophy.")..S. then. from the Mayflower Compact to the Constitution itself.S. at 602-03.S. It simply acknowledges.S. at 313." Allegheny. 374 U. or even of religion over nonreligion. beginning with the majority opinion of Justice Douglas in Zorach. J.S." 343 U. at 36 (O'Connor. .the unalienable rights of man were rooted in Him is clearly evidenced in their writings. Pledge] 19 . See Schempp. 492 U. See also Lynch.The Texas Pledge does not indicate approval or preference. at 213 ("The fact that the Founding Fathers believed devotedly that there was a God and that . 542 U. concurring) ("The reasonable observer. at 675 (same). the Supreme Court has observed that the U. This Court has likewise found that "[a] reasonable observer would not conclude that the [U. .S. within a broader patriotic statement. 463 U. Marsh. that "[wle are a religious people whose institutions presuppose a Supreme Being.
577 (1992). Dist.S. v. at 18-19 (quoting Lee.S. For their part. Plaintiffs invoke Lee v. App'x at 566. 290. Neither Pledge Coerces Religious Exercise.evince[s] Governmental approval of religion. No student is required to recite the Pledge. 505 U. 3. Doe.S." Mellen. 530 U. See TEX. Texas law expressly includes an "opt out" provision. By definition. 105 F. There is no reason to treat the Texas Pledge any differently.S. CODE5 25. But the concern about "psychological coercion" expressed in Lee and other cases is expressly limited to religious exercises. to the contrary. voluntary recitation of the Pledge cannot constitute coercion of religious exercise.") (emphasis added). at 586 ("These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. at 592). Santa F e Indep. Sch. especially prayer. See Lee.3 13 (2000) ("[Tlhe religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer. 505 U.082(c). to assert that the "opt out" provision of Texas law is inadequate due to "heightened concerns with protecting freedom of conscience fiom subtle coercive pressure in the elementary and secondary public schools. Weisman." Pltfs' Br. . 505 U.").EDUC.
the Supreme Court has repeatedly noted the specific practice of reciting the U. S. even when they contain religious references: There is of course nothing in the decision reached here that is inconsistent with .the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being. 542 U. 505 U..g.the same Establishment Clause concerns as religious exercises.21 (emphasis added). which contains an allusion to the same historical fact") (Brennan.S. Pledge in schools without the slightest hint of disapproval. Indeed.S. Schempp. See Elk Grove. 465 U.S. at 583 (noting that "the students stood for the Pledge of Allegiance and remained standing during the rabbi's prayers"). not a religious one.S. concurring). is a patriotic exercise. by contrast. Lynch. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. or with the fact that there are many manifestations in our public life of belief in God. See. including in Lee itself.S. 374 U. Lee. e. 370 U. Patriotic exercises do not raise .. J. at 304 ("reciting the [revised] pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address. Engel. at 435 n. at 676 (observing that the Pledge is recited by "thousands of public school . Pledge] is a patriotic exercise"). at 6 ("recitation [of the U.S.Recitation of the pledges.
O. MORALES Deputy Attorney General for Civil Litigation # JAMES C. This Court has similarly rejected a challenge to the recital of the U.children. 24067875 I OFFICE THE ATTORNEY OF GENERAL P. Texas 787 11-2548 [Tel. 24052766 REED N. The judgment below should be affirmed. 105 F.] (5 12) 936. Box 12548 (MC 059) Austin. SMITH Assistant Attorney General Texas Bar No.S. Respectfully submitted.1700 [Fax] (5 12) 474-2697 FOR RICK COUNSEL GOVERNOR PERRY ."). HO Solicitor General Texas Bar No. ANDREW WEBER First Assistant Attorney General DAVID S. GREG ABBOTT Attorney General of Texas C. Mellen. App'x at 566. Pledge in schools.
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