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walked into a savings and loan institution, approached the teller counter, put on a ski mask and sunglasses, and walked into the tellers area through an open gate. He took money from an open cash drawer, but was forced to flee when a customer attacked him. The defendant was never closer than eight feet to the nearest teller, had no weapon, did not speak, and did not make any threatening gestures. The Fourth Circuit held that this conduct was insufficient to prove intimidation and reversed his conviction. Id. at 629. The government argues that the Fourth Circuits holding erroneously discounts the reasonable fear people will experience in all but the extraordinary bank robbery. We need not rule on the merits of the governments argument, because Caldwells actions were significantly more intimidating than those of the defendant in Wagstaff. Caldwell slammed his hands down on Douglass desk and leaped toward her, approaching to within a couple of feet. We believe that any reasonable bank teller would be intimidated, as Douglas was, by the sight of someone leaping over the teller counter toward her or him. We have previously held that arguably less aggressive actions were sufficient to support a finding of intimidation. See Smith, 973 F.2d at 60405 (defendant wore a fanny pack that may have contained a weapon, appeared agitated, and leaned through the teller window until he was within twelve inches of the teller); United States v. Smith, 973 F.2d 1374, 1377 (8th Cir.1992) (defendant gave teller a note demanding money, held his hand under a coat as if he had a weapon, and ordered a second teller to keep his hands on the counter and give the defendant his large bills); United States v. Bartolotta, 153 F.3d 875, 878 (8th Cir.1998) (evidence sufficient even where teller who was threatened was a former member of the conspiracy to rob the bank, because she did not know if the person
who threatened her was a member of the same conspiracy). While Caldwell did not speak or give any indication that he had a weapon, his aggressive actions would be intimidating to a reasonable person. Thus, we conclude that a reasonable factfinder could conclude that the government proved the intimidation element beyond a reasonable doubt. The conviction is affirmed.
,
Michael A. NEWDOW, PlaintiffAppellant, v. US CONGRESS; United States of America; William Jefferson Clinton, President of the United States; State Of California; Elk Grove Unified School District; David W. Gordon, Superintendent EGUSD; Sacramento City Unified School District; Jim Sweeney, Superintendent SCUSD, Defendants Appellees. No. 0016423. United States Court of Appeals, Ninth Circuit. March 14, 2002 June 26, 2002.
Father of elementary school student brought action challenging constitutionality of school districts policy requiring teacher-led recitation of the Pledge of Allegiance and statute inserting words under God into the Pledge. The United States
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District Court for the Eastern District of California, Edward J. Schwartz, Senior District Judge, dismissed the action, and father appealed. The Court of Appeals, Goodwin, Circuit Judge, held that: (1) father had standing to challenge constitutionality of both statute and districts policy; (2) statute violated Establishment Clause of First Amendment; and (3) policy violated Establishment Clause. Reversed and remanded. Fernandez, Circuit Judge, filed opinion concurring in part and dissenting in part.
5. Federal Civil Procedure O103.2 Federal Courts O623 Article III standing is a jurisdictional issue; accordingly, it may be raised at any stage of the proceedings, including for the first time on appeal. U.S.C.A. Const. Art. 3, 1 et seq. 6. Federal Civil Procedure O103.2, 103.3 To satisfy Article III standing requirements, a plaintiff must prove that: (1) it has suffered an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. U.S.C.A. Const. Art. 3, 1 et seq. 7. Constitutional Law O42.1(4) Parent of elementary school student had standing to challenge school districts policy and practice requiring recitation of the Pledge of Allegiance at school in which his daughter was enrolled, on ground that the practice interfered with his right to direct the religious education of his daughter. U.S.C.A. Const. Art. 3, 1 et seq.; U.S.C.A. Const.Amend. 1. 8. Schools O118 Parent did not have standing to challenge school districts policy requiring recitation of Pledge of Allegiance, where his daughter was not enrolled in the district, and parent only claimed that daughter would possibly attend school there in the future. U.S.C.A. Const. Art. 3, 1 et seq. 9. Constitutional Law O42.1(4) Parent whose daughter attended elementary school at which recitation of Pledge of Allegiance was required had standing to challenge constitutionality of federal statute adding words under God to the Pledge; enactment of statute in its
1. United States O135 The President is not an appropriate defendant in an action challenging the constitutionality of a federal statute. 2. United States O12 In light of the Speech and Debate Clause of the Constitution, the federal courts lack jurisdiction to issue orders directing Congress to enact or amend legislation. U.S.C.A. Const. Art. 1, 6, cl. 1. 3. United States O12 District court did not have jurisdiction, in light of Speech and Debate Clause, to order Congress or the President to remove words under God from Pledge of Allegiance. U.S.C.A. Const. Art. 1, 6, cl. 1. 4. United States O12 In determining whether the acts of members of Congress are protected by the Speech and Debate Clause, the court looks solely to whether or not the acts fall within the legitimate legislative sphere; if they do, Congress is protected by the absolute prohibition of the Clause against being questioned in any other Place. U.S.C.A. Const. Art. 1, 6, cl. 1.
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particular context allegedly constituted a religious recitation policy that interfered with parents right to direct religious education of his daughter. U.S.C.A. Const. Amend. 1; 4 U.S.C.A. 4. 10. Constitutional Law O42.2(1) Generally, the standing requirements for an action brought under the Establishment Clause of the First Amendment are the same as for any other action. U.S.C.A. Const.Amend. 1. 11. Federal Civil Procedure O103.2 The requirement of standing focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. U.S.C.A. Const. Art. 3, 1 et seq. 12. Constitutional Law O274(3.1, 4) Fourteenth Amendment makes Establishment Clause of First Amendment applicable with full force to the States and their school districts. U.S.C.A. Const. Amends. 1, 14. 13. Constitutional Law O84.1 To survive the Lemon test, for evaluating alleged Establishment Clause violations, the government conduct in question (1) must have a secular purpose, (2) must have a principal or primary effect that neither advances nor inhibits religion, and (3) must not foster an excessive government entanglement with religion. U.S.C.A. Const.Amend. 1.
See publication Words and Phrases for other judicial constructions and definitions.
15. Constitutional Law O84.5(1) United States O5.5 Statute adding words under God to Pledge of Allegiance violated Establishment Clause of First Amendment; statement that the United States is a nation under God was profession of a religious belief, namely, a belief in monotheism. U.S.C.A. Const.Amend. 1; 4 U.S.C.A. 4. 16. Constitutional Law O84.5(3) Schools O165 School districts policy of teacher-led recitation of the Pledge of Allegiance violated Establishment Clause of the First Amendment; given age and impressionability of schoolchildren, policy was likely to convey impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God. U.S.C.A. Const.Amend. 1. 17. Constitutional Law O84.1 Establishment Clause guards not only against the establishment of religion as an institution, but also against the endorsement of religious ideology by the government. U.S.C.A. Const.Amend. 1. West Codenotes Held Unconstitutional 4 U.S.C. 4 (1998)
14. Constitutional Law O84.1 Coercion is not a necessary element in finding an Establishment Clause violation; the Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion. U.S.C.A. Const.Amend. 1.
Michael Newdow, Pro Se, Sacramento, California, the plaintiff-appellant. Kristin S. Door, Assistant United States Attorney, Sacramento, California, Lowell V. Sturgill, Jr., Department of Justice, Washington, D.C., for federal government defendants-appellees; A. Irving Scott, Terence J. Cassidy, Porter, Scott, Weiberg &
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Delehant, Sacramento, California, school district defendants-appellees.
for
Appeal from the United States District Court for the Eastern District of California Edward J. Schwartz, Senior Judge, Presiding D.C. No. CV0000495MLS/ PAN. Before: Alfred T. GOODWIN, Stephen REINHARDT and FERNANDEZ, Circuit Judges Partial Concurrence and Partial Dissent by Judge FERNANDEZ. OPINION GOODWIN, Circuit Judge: Michael Newdow appeals a judgment dismissing his challenge to the constitutionality of the words under God in the Pledge of Allegiance to the Flag. Newdow argues that the addition of these words by a 1954 federal statute to the previous version of the Pledge of Allegiance (which made no reference to God) and the daily recitation in the classroom of the Pledge of Allegiance, with the added words included, by his daughters public school teacher are violations of the Establishment Clause of the First Amendment to the United States Constitution. FACTUAL AND PROCEDURAL BACKGROUND Newdow is an atheist whose daughter attends public elementary school in the
1. The relevant portion of California Education Code 52720 reads: In every public elementary school each day during the school year at the beginning of the first regularly scheduled class or activity period at which the majority of the pupils of the school normally begin the schoolday, 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.
Elk Grove Unified School District (EGUSD) in California. In accordance with state law and a school district rule, EGUSD teachers begin each school day by leading their students in a recitation of the Pledge of Allegiance (the Pledge). The California Education Code requires that public schools begin each school day with appropriate patriotic exercises and that [t]he giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy this requirement. Cal. Educ. Code 52720 (1989) (hereinafter California statute).1 To implement the California statute, the school district that Newdows daughter attends has promulgated a policy that states, in pertinent part: Each elementary school class [shall] recite the pledge of allegiance to the flag once each day. 2 The classmates of Newdows daughter in the EGUSD are led by their teacher in reciting the Pledge codified in federal law. On June 22, 1942, Congress first codified the Pledge as 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. Pub.L. No. 623, Ch. 435, 7, 56 Stat. 380 (1942) (codified at 36 U.S.C. 1972). On June 14, 1954, Congress amended Section 1972 to add the words under God after the word Nation. Pub.L. No. 396, Ch. 297, 68 Stat. 249 (1954) (1954 Act). The Pledge is currently codified as I pledge allegiance to the Flag of the United
2. The SCUSD, the school district that Newdow claims his daughter may in the future attend, has promulgated a similar rule: Each school shall conduct patriotic exercises dailyTTTT The Pledge of Allegiance to the flag will fulfill this requirement. However, as discussed infra, Newdow lacks standing to challenge the SCUSDs rule requiring recitation of the Pledge.
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States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. 4 U.S.C. 4 (1998) (Title 36 was revised and recodified by Pub.L. No. 105225, 2(a), 112 Stat. 1494 (1998). Section 172 was abolished, and the Pledge is now found in Title 4.) Newdow does not allege that his daughters teacher or school district requires his daughter to participate in reciting the Pledge.3 Rather, he claims that his daughter is injured when she is compelled to watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours [sic] is one nation under God. Newdows complaint in the district court challenged the constitutionality, under the First Amendment, of the 1954 Act, the California statute, and the school districts policy requiring teachers to lead willing students in recitation of the Pledge. He sought declaratory and injunctive relief, but did not seek damages. The school districts and their superintendents (collectively, school district defendants) filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. Magistrate Judge Peter A. Nowinski held a hearing at which the school district defendants requested that the court rule only on the constitutionality of the Pledge, and defer any ruling on sovereign immunity. The United States Congress, the United States, and the President of the United States (collectively, the federal defendants) joined in
3. Compelling students to recite the Pledge was held to be a First Amendment violation in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ([T]he action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations
the motion to dismiss filed by the school district defendants. The magistrate judge reported findings and a recommendation; District Judge Edward J. Schwartz approved the recommendation and entered a judgment of dismissal. This appeal followed. DISCUSSION A. Jurisdiction
[1] Newdow asks the district court to order the President of the United States (the President) to alter, modify or repeal the Pledge by removing the words under God; and to order the United States Congress (Congress) immediately to act to remove the words under God from the Pledge. The President, however, is not an appropriate defendant in an action challenging the constitutionality of a federal statute. See Franklin v. Massachusetts, 505 U.S. 788, 80203, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (plurality) (observing that a court of the United States has no jurisdiction of a bill to enjoin the President in the performance of his official duties ) (quoting Mississippi v. Johnson, 71 U.S. 475, 501, 18 L.Ed. 437 (1866)). [2, 3] Similarly, in light of the Speech and Debate Clause of the Constitution, Art. I, 6, cl. 1, the federal courts lack jurisdiction to issue orders directing Congress to enact or amend legislation. See Eastland v. United States Servicemens Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). Because the words that amended the Pledge were enacted into law by statute, the district court may
on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.). Barnette was decided before the 1954 Act added the words under God to the Pledge.
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not direct Congress to delete those words any more than it may order the President to take such action. All this, of course, is aside from the fact that the President has no authority to amend a statute or declare a law unconstitutional, those functions being reserved to Congress and the federal judiciary respectively. [4] Newdow nevertheless argues that because the 1954 Act violates the Establishment Clause, Congress should not be protected by the Speech and Debate Clause. This argument misses the jurisdictional, or separation of powers, point. As the Court held in Eastland, in determining whether or not the acts of members of Congress are protected by the Speech and Debate Clause, the court looks solely to whether or not the acts fall within the legitimate legislative sphere; if they do, Congress is protected by the absolute prohibition of the Clause against being questioned in any other Place. Id. at 501. If the mere allegation that a valid legislative act was undertaken for an unworthy purpose would lift the protection of the Clause, then the Clause simply would not provide the protection historically undergirding it. Id. at 50809, 95 S.Ct. 1813. Although the district court lacks jurisdiction over the President and the Congress, the question of the constitutionality of the 1954 Act remains before us. While the court correctly dismissed the claim against those parties, it survives against others. B. The State of California as a defendant
ment of the complaint against the state. With respect to the validity of the California statute, however, unlike in the case of the Congressional enactment and the school district policy, no arguments, legal or otherwise, were advanced by the parties either below or here. Thus, we do not address separately the validity of the California statute. C. Standing
[5, 6] Article III standing is a jurisdictional issue. See United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.1997). Accordingly, it may be raised at any stage of the proceedings, including for the first time on appeal. See AZ Intern. v. Phillips, 179 F.3d 1187, 119091 (9th Cir.1999). To satisfy standing requirements, a plaintiff must prove that (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 18081, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). [7] Newdow has standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter. Parents have a right to direct the religious upbringing of their children and, on that basis, have standing to protect their right. Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 795 (9th Cir.1999) (en banc); see also Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir.1985) (Appellants have standing to challenge alleged violations of the establishment clause of the First
The State of California did not join in the motion to dismiss or otherwise participate in the district court proceedings. It did, however, sub silentio, receive the benefit of the district courts ruling dismissing the complaint. Accordingly, a reversal of the order would result in the reinstate-
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Amendment if they are directly affected by use of [the challenged book] in the English curriculum. [Appellant] has standing as a parent whose right to direct the religious training of her child is allegedly affected.) (citation omitted). [8] Newdow has standing to challenge the EGUSDs policy and practice regarding the recitation of the Pledge because his daughter is currently enrolled in elementary school in the EGUSD. However, Newdow has no standing to challenge the SCUSDs policy and practice because his daughter is not currently a student there. The SCUSD and its superintendent have not caused Newdow or his daughter an injury in fact that is actual or imminent, not conjectural or hypothetical. Laidlaw, 528 U.S. at 180, 120 S.Ct. 693 (citing Lujan, 504 U.S. at 560561, 112 S.Ct. 2130). [9] The final question of standing relates to the 1954 Act. Specifically, has Newdow suffered an injury in fact that is fairly traceable to the enactment of the 1954 Act? Id. [10, 11] We begin our inquiry by noting the general rule that the standing requirements for an action brought under the Establishment Clause are the same as for any other action. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 48890, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The requirement of standing focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. Moreover, we know of no principled basis on which to create a hierarchy of constitutional values or a complementary sliding scale of standing which might permit respondents to invoke the judicial power of the United States. Id. at 484, 102 S.Ct. 752 (citation and internal quotation marks omitted). In Valley Forge, an organization
dedicated to the separation of church and state brought suit challenging the federal governments grant of surplus federal property to a church-related college. The suit alleged that this grant of real property, without any financial payment by the college, was a violation of the Establishment Clause. The Supreme Court found that the plaintiff had standing neither as a taxpayer, see id. at 47980, 102 S.Ct. 752, nor as a party personally injured as a consequence of the alleged unconstitutional action, see id. at 48486, 102 S.Ct. 752. The psychological consequence presumably produced by observation of conduct with which one disagrees TTTT is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. Id. at 48586, 102 S.Ct. 752. The Court emphasized that [t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing. Id. at 489, 102 S.Ct. 752 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)). While Valley Forge remains good law, the Supreme Court in more recent opinions has indirectly broadened the notion of Establishment Clause standing in public education cases by holding that the mere enactment of a statute may constitute an Establishment Clause violation. In Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), the Court considered an Establishment Clause challenge to an Alabama statute that originally had authorized a one-minute period of silence in public schools for meditation, but was later amended to authorize a period of silence for meditation or voluntary prayer. Id. at 4042, 105 S.Ct. 2479. Although the previous form of the statute specifically allowed students to use the moment of silence for meditation, silent prayer was always an option. [I]t is un-
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disputed that at the time of the enactment of [the amended statute] there was no governmental practice impeding students from silently praying for one minute at the beginning of each schoolday. Id. at 57 n. 45, 105 S.Ct. 2479. Nor were students, under the amended form of the statute, compelled to use the allotted time for prayer. In sum, the amendment to the Alabama statute had no discernible effect on public school students other than to inform them that the state was encouraging them to engage in prayer during their daily moment of silence. Because the Supreme Court has repeatedly held that standing is a jurisdictional requirement, the existence of which each federal court must determine for itself, see Lujan, 504 U.S. at 559561, 112 S.Ct. 2130; FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 31, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), we may presume that in Wallace the Court examined the standing question before deciding the merits, and that the Court determined that the schoolchildrens parents had standing to challenge the amended Alabama statute. Our reading of Wallace is supported by Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), where the Court upheld a facial challenge to a school districts policy of permitting, but not requiring, prayer initiated and led by a student at high school football games. Noting that the Constitution also requires that we keep in mind the myriad, subtle ways in which the Establishment Clause values can be eroded, id. at 314, 120 S.Ct. 2266(quoting Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604, 694 (1984) (OConnor, J., concurring)), the Court held that the mere passage by the District of a policy that has the purpose and perception of government establishment of religion, id., violated the Establishment Clause. [T]he simple enactment
of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. Id. at 316, 120 S.Ct. 2266 (emphasis added). In Wallace and Santa Fe, the Court looked at the language of each statute, the context in which the statute was enacted, and its legislative history to determine that the challenged statute caused an injury in violation of the Establishment Clause. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer. Id. at 315, 120 S.Ct. 2266. Justice OConnors concurrence in Wallace noted that whether a statute actually conveys a message of endorsement of religion is not entirely a question of fact TTTT The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as state endorsement of prayer in public schools. 472 U.S. at 76, 105 S.Ct. 2479(OConnor, J., concurring in judgment). In Santa Fe, [t]he text and history of this policy TTT reinforce our objective students perception that the prayer is, in actuality, encouraged by the school. 530 U.S. at 308, 120 S.Ct. 2266. In evaluating the purpose of the school district policy, the Court found most striking TTT the evolution of the current policy. Id. at 309, 120 S.Ct. 2266. In Wallace, a review of the legislative history led the Court to conclude that enactment of the amended statute was not motivated by any clearly secular purposeindeed, the statute had no secular purpose. 472 U.S. at 56, 105 S.Ct. 2479; see also id. at 5760, 105 S.Ct. 2479. Operating within the above-described legal landscape, we now turn to the question initially posed, namely, does Newdow have standing to challenge the 1954 Act? Initially, we note that the 1954 statute chal-
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lenged by Newdow is similar to the Alabama statute struck down in Wallace. Neither statute works the traditional type of injury in fact that is implicated when a statute compels or prohibits certain activity, nor do the amendments brought about by these statutes lend themselves to as-applied constitutional review. Nevertheless, the Court in Wallace, at least implicitly, determined that the schoolchildrens parents had standing to attack the challenged statute. Moreover, the legislative history of the 1954 Act shows that the under God language was not meant to sit passively in the federal code unbeknownst to the public; rather, the sponsors of the amendment knew about and capitalized on the state laws and school district rules that mandate recitation of the Pledge. The legislations House sponsor, Representative Louis C. Rabaut, testified at the Congressional hearing that the children of our land, in the daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its origins, and this statement was incorporated into the report of the House Judiciary Committee. H.R.Rep. No. 831693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2341. Taken within its context, the 1954 addendum was designed to result in the recitation of the words under God in school classrooms throughout the land on a daily basis, and therefore constituted as much of an injury-in-fact as the policies considered in Wallace and Santa Fe. As discussed earlier, Newdow has standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter. The mere enactment of the 1954 Act in its particular context constitutes a religious recitation policy that interferes with Newdows right to direct the religious education of his daughter. Accordingly, we
hold that Newdow has standing to challenge the 1954 Act. D. Establishment Clause
[12] The Establishment Clause of the First Amendment states that Congress shall make no law respecting an establishment of religion, U.S. Const. amend. I, a provision that the Fourteenth Amendment makes applicable with full force to the States and their school districts. Lee v. Weisman, 505 U.S. 577, 580, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Over the last three decades, the Supreme Court has used three interrelated tests to analyze alleged violations of the Establishment Clause in the realm of public education: the three-prong test set forth in Lemon v. Kurtzman, 403 U.S. 602, 61213, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); the endorsement test, first articulated by Justice OConnor in her concurring opinion in Lynch, and later adopted by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); and the coercion test first used by the Court in Lee. [13] In 1971, in the context of unconstitutional state aid to nonpublic schools, the Supreme Court in Lemonset forth the following test for evaluating alleged Establishment Clause violations. To survive the Lemon test, the government conduct in question (1) must have a secular purpose, (2) must have a principal or primary effect that neither advances nor inhibits religion, and (3) must not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 61213, 91 S.Ct. 2105. The Supreme Court applied the Lemon test to every Establishment case it decided between 1971 and 1984, with the exception of Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the
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case upholding legislative prayer.4See Wallace, 472 U.S. at 63, 105 S.Ct. 2479 (Powell, J., concurring). In the 1984 Lynch case, which upheld the inclusion of a nativity scene in a citys Christmas display, Justice OConnor wrote a concurring opinion in order to suggest a clarification of Establishment Clause jurisprudence. 465 U.S. at 687, 104 S.Ct. 1355 (OConnor, J., concurring). Justice OConnors endorsement test effectively collapsed the first two prongs of the Lemontest: The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a persons standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutionsTTTT 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. Id. at 68788, 91 S.Ct. 2105 (OConnor, J., concurring).
4. In Marsh, the Court held that the Nebraska Legislatures practice of opening each days session with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. [The] holding was based upon the historical acceptance of the practice that had become part of the fabric of our society. Wallace, 472 U.S. at 63 n. 4, 105 S.Ct. 2479 (Powell, J., concurring) (quoting Marsh, 463 U.S. at 792, 103 S.Ct. 3330). Although this formulation is referred to as the coercion test, it should be noted that coercion is not a necessary element in finding an Establishment Clause violation. The Establishment Clause, unlike the Free Exercise
[14] The Court formulated the coercion test when it held unconstitutional the practice of including invocations and benedictions in the form of nonsectarian prayers at public school graduation ceremonies. Lee, 505 U.S. at 599, 112 S.Ct. 2649. Declining to reconsider the validity of the Lemon test, the Court in Lee found it unnecessary to apply the Lemon test to find the challenged practices unconstitutional. Id. at 587, 112 S.Ct. 2649. Rather, it relied on the principle that at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so. Id. (citations and internal quotation marks omitted).5 The Court first examined the degree of school involvement in the prayer, and found that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. Id. at 590. The next issue the Court considered was the position of the students, both those who desired the prayer and she who did not. Id. Noting that there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools, id. at 592, 112
Clause, does not depend upon any showing of direct governmental compulsionTTTT Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). [T]his court has never relied on coercion alone as the touchstone of Establishment Clause analysis. To require a showing of coercion, even indirect coercion, as an element essential of an Establishment Clause violation would make the free Exercise Clause a redundancy. Allegheny, 492 U.S. at 628, 109 S.Ct. 3086 (OConnor, J., concurring). Over the years, this Court has declared the invalidity of many noncoercive state laws and practices conveying a message of religious endorsement. Lee, 505 U.S. at 618, 112 S.Ct. 2649(Souter, J., concurring).
5.
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S.Ct. 2649, the Court held that the school districts supervision and control of the graduation ceremony put impermissible pressure on students to participate in, or at least show respect during, the prayer, id. at 593, 112 S.Ct. 2649. The Court concluded that primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting. Id. at 594, 112 S.Ct. 2649. Finally, in its most recent school prayer case, the Supreme Court applied the Lemon test, the endorsement test, and the coercion test to strike down a school districts policy of permitting student-led invocations before high school football games. See Santa Fe, 530 U.S. at 31016, 120 S.Ct. 2266. Citing Lee, the Court held that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. Id. at 312, 120 S.Ct. 2266. Applying the Lemon test, the Court found that the school district policy was facially unconstitutional because it did not have a secular purpose. Id. at 31416. The Court also used language associated with the endorsement test. Id. at 315, 120 S.Ct. 2266([T]his policy was implemented with the purpose of endorsing school prayer.); id. at 317, 120 S.Ct. 2266 (Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail.). We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them. The Supreme Court has not repudiated Lemon; in Santa Fe, it found that the application of each of the three tests provided an independent ground for invalidating the statute at issue in that case; and in Lee, the Court invalidated the policy solely on the basis of the coercion test. Although this court has typ-
ically applied the Lemon test to alleged Establishment Clause violations, see, e.g., Am. Family Assn, Inc. v. City and County of San Francisco, 277 F.3d 1114, 1120 21(9th Cir. 2002), we are not required to apply it if a practice fails one of the other tests. Nevertheless, for purposes of completeness, we will analyze the school district policy and the 1954 Act under all three tests. [15, 16] We first consider whether the 1954 Act and the EGUSDs policy of teacher-led Pledge recitation survive the endorsement test. The magistrate judge found that the ceremonial reference to God in the pledge does not convey endorsement of particular religious beliefs. Supreme Court precedent does not support that conclusion. In the context of the Pledge, the statement that the United States is a nation under God is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation under God is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase one nation under God in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, andsince 1954monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation under God is identical, for Establishment Clause purposes, to a profession that we are a nation under Jesus, a nation under Vishnu, a nation under Zeus, or a nation under no god,
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because none of these professions can be neutral with respect to religion. [T]he government must pursue a course of complete neutrality toward religion. Wallace, 472 U.S. at 60, 105 S.Ct. 2479. Furthermore, the school districts practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, and thus amounts to state endorsement of these ideals. Although students cannot be forced to participate in recitation of the Pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge. The Supreme Court recognized the normative and ideological nature of the Pledge in Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. There, the Court held unconstitutional a school districts wartime policy of punishing students who refused to recite the Pledge and salute the flag. Id. at 642, 63 S.Ct. 1178. The Court noted that the school district was compelling the students to declare a belief, id. at 631, 63 S.Ct. 1178, and requir[ing] the individual to communicate by word and sign his acceptance of the political ideas [the flag] TTT bespeaks, id. at 633, 63 S.Ct. 1178. [T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. Id. The Court emphasized that the political concepts articulated in the Pledge6 were idealistic, not descriptive: [L]iberty and justice for all, if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement. Id. at 634 n. 14, 63 S.Ct. 1178. The Court con cluded that: If there is any fixed star in
6. Barnette was decided before under God was added, and thus the Courts discussion was limited to the political ideals contained in the Pledge.
our constitutional constellation, it is that no 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. Id. at 642, 63 S.Ct. 1178. The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers 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, 465 U.S. at 688, 104 S.Ct. 1355(OConnor, J., concurring). Justice Kennedy, in his dissent in Allegheny, agreed: [B]y statute, the Pledge of Allegiance to the Flag describes the United States as one nation under God. To be sure, no one is obligated to recite this phrase, TTT but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false. Allegheny, 492 U.S. at 672, 109 S.Ct. 3086 (Kennedy, J., dissenting) (citations and internal quotation marks omitted).7 Consequently, the policy and the Act fail the endorsement test. Similarly, the policy and the Act fail the coercion test. Just as in Lee, the policy and the Act place students in the untenable position of choosing between participating in an exercise with religious content or protesting. As the Court observed with respect to the graduation prayer in that case: What to most believers may seem
7. For Justice Kennedy, this result was a reason to reject the endorsement test.
NEWDOW v. U.S. CONGRESS
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609
nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. Lee, 505 U.S. at 592, 112 S.Ct. 2649. Although the defendants argue that the religious content of one nation under God is minimal, to an atheist or a believer in certain non-Judeo-Christian religions or philosophies, it may reasonably appear to be an attempt to enforce a religious orthodoxy of monotheism, and is therefore impermissible. The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.8 Furthermore, under Lee, the fact that students are not required to participate is no basis for distinguishing Barnette from the case at bar because, even without a recitation requirement for each child, the mere fact that a pupil is required to listen every day to the statement one nation under God has a coercive effect.9 The coercive
8. The subtle and indirect social pressure which permeates the classroom also renders more acute the message sent to non-believing schoolchildren that they are outsiders. See Lee, 505 U.S. at 59293, 112 S.Ct. 2649 (stating that the risk of indirect coercion from prayer exercises is particularly pronounced in elementary and secondary public school because students are subjected to peer pressure and public pressure which is as real as any overt compulsion). The objection to the Pledge in Barnette, like in the case at bar, was based upon a religious ground. The Pledge in the classroom context imposes upon schoolchildren the constitutionally unacceptable choice between participating and protesting. Recognizing the severity of the effect of this form of coercion on children, the Supreme Court in Lee stated, the State may not, consistent with the Establish-
effect of the Act is apparent from its context and legislative history, which indicate that the Act was designed to result in the daily recitation of the words under God in school classrooms. President Eisenhower, during the Acts signing ceremony, 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. 100 Cong. Rec. 8618 (1954) (statement of Sen. Ferguson incorporating signing statement of President Eisenhower). Therefore, the policy and the Act fail the coercion test.10 Finally we turn to the Lemon test, the first prong of which asks if the challenged policy has a secular purpose. Historically, the primary purpose of the 1954 Act was to advance religion, in conflict with the first prong of the Lemon test. The federal defendants do not dispute that the words under God were intended to recognize a Supreme Being, at a time when the government was publicly inveighing against atheistic communism. Nonetheless, the federal defendants argue that the Pledge
ment Clause, place primary and secondary school children in this position. 505 U.S. at 593, 112 S.Ct. 2649. 10. In Aronow v. United States, 432 F.2d 242 (9th Cir.1970), this court, without reaching the question of standing, upheld the inscription of the phrase In God We Trust on our coins and currency. But cf. Wooley v. Maynard, 430 U.S. 705, 722, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (Rehnquist, J., dissenting) (stating that the majoritys holding leads logically to the conclusion that In God We Trust is an unconstitutional affirmation of belief). In any event, Aronow is distinguishable in many ways from the present case. The most important distinction is that school children are not coerced into reciting or otherwise actively led to participating in an endorsement of the markings on the money in circulation.
9.
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must be considered as a whole when assessing whether it has a secular purpose. They claim that the Pledge has the secular purpose of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. Lynch, 465 U.S. at 693, 104 S.Ct. 1355. The flaw in defendants argument is that it looks at the text of the Pledge as a whole, and glosses over the 1954 Act. The problem with this approach is apparent when one considers the Courts analysis in Wallace. There, the Court struck down Alabamas statute mandating a moment of silence for meditation or voluntary prayer not because the final version as a whole lacked a primary secular purpose, but because the state legislature had amended the statute specifically and solely to add the words or voluntary prayer. 472 U.S. at 5960, 105 S.Ct. 2479. By analogy to Wallace, we apply the purpose prong of the Lemon test to the amendment that added the words under God to the Pledge, not to the Pledge in its final version. As was the case with the amendment to the Alabama statute in Wallace, the legislative history of the 1954 Act reveals that the Acts sole purpose was to advance religion, in order to differentiate the United States from nations under communist rule. [T]he First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. Id. at 56, 105 S.Ct. 2479 (citations omitted) (applying the Lemon test). As the legislative history of the 1954 Act sets forth: At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dig-
nity 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.Rep. No. 831693, at 12 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. This language reveals that the purpose of the 1954 Act was to take a position on the question of theism, namely, to support the existence and moral authority of God, while deny[ing] TTT atheistic and materialistic concepts. Id. Such a purpose runs counter to the Establishment Clause, which prohibits the governments endorsement or advancement not only of one particular religion at the expense of other religions, but also of religion at the expense of atheism. [T]he 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. This conclusion derives support not only from the interest in respecting the individuals freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of a free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects or even intolerance among religionsto encompass into-
NEWDOW v. U.S. CONGRESS
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611
lerance of the disbeliever and the uncertain. Wallace, 472 U.S. at 5254, 105 S.Ct. 2479. [17] In language that attempts to prevent future constitutional challenges, the sponsors of the 1954 Act expressly disclaimed a religious purpose. This is not an act establishing a religionTTTT A distinction must be made between the existence of a religion as an institution and a belief in the sovereignty of God. The phrase under God recognizes only the guidance of God in our national affairs. H.R.Rep. No. 83 1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2341 42. This alleged distinction is irrelevant for constitutional purposes. The Acts affirmation of a belief in the sovereignty of God and its recognition of the guidance of God are endorsements by the government of religious beliefs. The Establishment Clause is not limited to religion as an institution; this is clear from cases such as Santa Fe, where the Court struck down student-initiated and student-led prayer at high school football games. 530 U.S. at 31016, 120 S.Ct. 2266. The Establishment Clause guards not only against the establishment of religion as an institution, but also against the endorsement of religious ideology by the government. Because the Act fails the purpose prong of Lemon, we need not ex11. Although Ball was overruled in part by Agostini v. Felton, 521 U.S. 203, 236, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), as the Court stated in Agostini, Ball s statement of the general principles and relevant tests to be used in determining what constitutes an Establishment Clause violation remain intact; only the underlying factual assumptions and presumptions have changed. In particular, the Court rejected the following three core assumptions of Ball: (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school
amine the other prongs. Lemon, 403 U.S. at 61214, 91 S.Ct. 2105. Similarly, the school district policy also fails the Lemon test. Although it survives the first prong of Lemon because, as even Newdow concedes, the school district had the secular purpose of fostering patriotism in enacting the policy, the policy fails the second prong. As explained by this court in Kreisner v. City of San Diego, 1 F.3d 775, 782(9th Cir. 1993), and by the Supreme Court in School District of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 87 L.Ed.2d 267(1985), the second Lemon prong asks whether the challenged government 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.11 Ball, 473 U.S. at 390, 105 S.Ct. 3216. Given the age and impressionability of schoolchildren, as discussed above, particularly within the confined environment of the classroom, the policy is highly likely to convey an impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God. Therefore the policy fails the effects prong of Lemon, and fails the Lemon test. In sum, both the policy and the Act fail the Lemon test as well as the endorsement and coercion tests.12
premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking. Agostini, 521 U.S. at 222, 117 S.Ct. 1997. Therefore, Ball s restatement of the second prong of Lemon remains valid even after Agostini. 12. We recognize that the Supreme Court has occasionally commented in dicta that the presence of one nation under God in the
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[10] In conclusion, we hold that (1) the 1954 Act adding the words under God to the Pledge, and (2) EGUSDs policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause. The judgment of dismissal is vacated with respect to these two claims, and the cause is remanded for further proceedings consisPledge of Allegiance is constitutional. See Allegheny, 492 U.S. at 60203, 109 S.Ct. 3086; Lynch, 465 U.S. at 676, 104 S.Ct. 1355; id. at 693, 104 S.Ct. 1355 (OConnor, J., concurring); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 30304, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring); id. at 30608, 83 S.Ct. 1560(Goldberg, J., joined by Harlan, J., concurring); Engel, 370 U.S. at 435 n. 21, 82 S.Ct. 1261. However, the Court has never been presented with the question directly, and has always clearly refrained from deciding it. Accordingly, it has never applied any of the three tests to the Act or to any school policy regarding the recitation of the Pledge. That task falls to us, although the final word, as always, remains with the Supreme Court. The only other United States Court of Appeals to consider the issue is the Seventh Circuit, which held in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir.1992), that...