March 19, 2004

Under God? Pledge of Allegiance Constitutionality

10:00 – 11:30 a.m.
National Press Club
Washington, D.C.

Speakers:
Doug Laycock, Counsel of Record for 32 Christian and Jewish clergy, urging the Court to affirm the 9th Circuit’s ruling
Jay Alan Sekulow, Chief Counsel, American Center for Law and Justice; Counsel of Record for United States Senators and Congressmen and the Committee to Protect the Pledge, urging the Court to reverse the 9th Circuit’s ruling

Moderator:
E.J. Dionne, Jr., Co-Chair, Pew Forum; Senior Fellow, The Brookings Institution


LUIS LUGO: Good morning and thank you all for coming. My name is Luis Lugo. I am the director of the Pew Forum on Religion and Public Life. The Forum is a non-partisan organization, and we do not take positionS on policy debates, pending legislation or court cases.

It is my pleasure to welcome you this morning to the timely discussion of the important issues involved in Elk Grove Unified School District v. Newdow, the Pledge of Allegiance case that will be heard by the Supreme Court on Wednesday [March 24th, 2004].

I’ve been assured by all the legal scholars that the constitutionally significant question in this case is whether or not the recitation in public schools of the Pledge of Allegiance, with the phrase “under God” in it, violates the Establishment Clause of the First Amendment. They further assure me that a broad decision in the case, whether yea or nay, could have significant implications for the role of what is called ceremonial deism in the American public square.

However, the Court could choose to avoid the whole issue by ruling that Michael Newdow, who is with us here this morning – welcome to Washington, Mr. Newdow; delighted to have you – lacks standing to bring suit because of custody issues involving his daughter, who attends school in the Elk Grove Unified District. If the Court does that, of course, the constitutional issues will await another day. Since this is not the Pew Forum on Religion and Parental Rights, however, we are going to be focusing our discussion on the constitutional issues at hand, although we are all very much aware that the Court could take that “out” and punt the case.

Today, in addition to bringing before you two highly respected legal experts who are deeply involved in the litigation of this case and who will debate the merits of this case before you this morning, we also have produced what we trust is a helpful briefing paper, a backgrounder that discusses the history of the Pledge, the constitutional issues involved, and the possible decisions that the Court could render, broad and narrow. So we hope that you’ll pick up a copy of this on your way out if you didn’t get one on the way in.

I’ll now hand things over to my good colleague, E.J. Dionne, who is a columnist for The Washington Post, as many of you know. He is also a senior fellow at the Brookings Institution, distinguished professor at Georgetown University, but most importantly, illustrious co-chair of the Pew Forum on Religion and Public Life.

So E.J., it is my pleasure to introduce you. He will be moderating the discussion and introducing the panelists this morning.

E.J. DIONNE, JR.: Thank you. Thank you, Luis.

Luis has taken over recently as the director of the Pew Forum, and he spent a long time at the Pew Trusts, where he supported so many religion projects that I once said wherever two or three people are gathered to discuss religion and public life, there is Lugo. He has done a lot of great work.

This is a great issue to discuss. I want to begin with a story, and it happened on May 19th, 1988. I was working then at The New York Times, and my phone rang. On the other end of the phone was Newt Gingrich, then a young, Republican firebrand. And he loved – and still does to some degree – pointing out every weakness that every Democrat ever had. So he was very excited on that day in 1988 because he had found a 1977 veto message issued by Michael Dukakis, then the governor of Massachusetts and the frontrunner for the Democratic presidential nomination. Dukakis had vetoed a bill requiring students to recite the Pledge of Allegiance, and Gingrich, shrewd man that he was, immediately grasped the possibilities. I quote Newt from the time: “I would just love to see him explain on national television for three or four minutes why a bill requiring the Pledge of Allegiance at the beginning of a school day is unconstitutional.” And he went on from there.

We’ve been here before. This has been a very difficult public issue, and it was put back on our national agenda again on June 26, 2002, when a divided three-judge panel of the U.S. Circuit Court of Appeals in the Ninth Circuit ruled in Newdow v. U.S. Congress that the phrase “under God” in the Pledge of Allegiance violates the Establishment Clause of the First Amendment to the Constitution. I can say the Democrats were very grateful that one of those two judges was actually a Richard Nixon appointee, so it sort of diminished some of the possibilities.

I think it should be pointed out for our discussion that the “under God” phrase is venerable, but not as venerable as we think in terms of its age. When the first version of the Pledge was written back in 1892 – by a socialist, as it happens – the reference to God was not there. It was inserted by Congress only in 1954 at the request of President Eisenhower. Doing so, he said, would, “strengthen those spiritual weapons which forever will be our country’s most powerful resource in war and peace.”

And so now we come to this question again. We have an excellent set of panelists, not to mention an excellent audience, with us here today to discuss this. I want to introduce our two distinguished guests. Each of them was willing to go second, and so they worked out between themselves who would get to go first, and Doug Laycock volunteered.

Doug is one of the nation’s premier scholars of the law on religious liberty. In addition to publishing many articles in leading law reviews, he has been active in appellate litigation and in legislative initiatives on these issues. He demonstrates a remarkable ability to work with all sides, as we’ll see today. Depending on the specific issue, he has represented evangelical Protestants, the National Conference of Catholic Bishops, the ACLU, parents who object to school-sponsored prayer, Hindus and Santerians. He will, I guess, announce his candidacy for president – (laughter) – at this podium, given the reach of his coalition.

He was deeply involved in legislative efforts in support of the Religious Freedom Restoration Act, the Religious Liberty and Charitable Donations Act, and especially the Religious Land Use and Institutionalized Persons Act. He is a graduate of Michigan State University and the University of Chicago Law School. He is the author of two books and nearly a hundred scholarly articles. Thank you so much for being with us today.

Jay Alan Sekulow is chief counsel for the American Center for Law and Justice, an international public interest law firm and educational organization. He is also chief counsel of the European Center for Law and Justice. He has presented oral argument before the Supreme Court in many cases in defense of constitutional freedoms. He serves as a member of the Office of Legal Education for the U.S. Department of Justice. The National Law Journal has twice named him one of the 100 most influential lawyers in the United States. The list of networks that he has appeared on is so long that I can just say he has appeared on every network, probably including the Food Channel. (Laughter.)

He frequently contributes articles and commentary to national publications, is often quoted in USA Today, The New York Times, The Washington Post, The Washington Times, and many other places. He graduated cum laude from Mercer University, where he received both his bachelor’s degree and his law degree. While in law school, he served on the law review, and he, too, is the author of several publications and law articles.

We’re very grateful to you both for joining on this important issue. Doug, why don’t you begin?

(Applause.)

LaycockDOUG LAYCOCK: Thank you. Jay and I were on the same side in a case that the Court decided earlier this year, involving the student from Washington who wanted to take his state scholarship to go to seminary with it. With this case, we’re on opposite sides. How does that happen? What’s up with me? Explaining that is relevant to what I think about the Pledge of Allegiance.

I come to these cases with a fairly simple theory, which is that people of every religion, including the majority and the minority, and people of no religion at all, are entitled to believe their own beliefs, speak their own beliefs, and act on their own beliefs as long as they’re not hurting anybody else, and to be left alone by government and have government not take sides. And a corollary of that is that none of these groups can use the government to try to force the other side to join in or participate in their own religious observances. So when government tries to stop a student prayer club from meeting on its own after school, I think government is wrong. And when that student prayer club – or the supporters of that student prayer club – move into the classroom and try to induce everyone else who didn’t want to come to participate anyway, I think they’re wrong. And I think the Pledge of Allegiance falls on that side of the line.

The country has been fighting about this issue in various forms since the 1820s, when Catholics objected to Protestant religious observances in public schools. We’ve gotten better about it. In the 1840s and ’50s, we had mobs in the street, we had people dead. We don’t do that to each other any more, and that’s progress. And “one nation under God” may seem like a pretty minimal violation of whatever principle is at stake here. The Supreme Court for 40 years has said consistently, without an exception, that government may not sponsor religious observances in the public schools, and they’ve said it with respect to things that were pretty short. The first school prayer case, Engel v. Vitale in 1962, was a pretty generic, monotheistic prayer composed not by clergymen but by the New York Board of Regents, and it was 22 words long, and the Court said you can’t ask children to recite that prayer.

Now we’re down to only two words, and it’s not a prayer, and it’s mixed up in the Pledge of Allegiance, and the question is, Does that change the answer? And the Supreme Court has repeatedly suggested, never in a holding, but over and over in what lawyers call dictums – side comments explaining what this opinion doesn’t decide – there is some kind of threshold. It’s got to be big enough to matter before it’s an Establishment Clause violation. There are little, ceremonial, rote, repetition things that the Court is not going to get involved in striking down. “In God We Trust” on the coins is a classic example; various state mottos around the country; certainly religious references in historical documents and in politicians’ speeches, the Supreme Court is not going to strike down. And they have said – without a holding – two or three times that the Pledge of Allegiance is like “In God We Trust” on the coins. It’s very short, and it’s repeated by rote, and nobody really thinks about it much. Well, most people don’t really think about it much.

The Court may say the Pledge of Allegiance – the religious part of the Pledge of Allegiance – is just too short to worry about. It’s what lawyers call de minimis. That may happen.

I think the Pledge of Allegiance is different from all these other examples of things that might be de minimis. It’s different from “In God We Trust” on the coins. It’s different from politicians making speeches and so forth. The reason it’s different is really unique in the culture. Government doesn’t do this to adults; it doesn’t do this to children in any other context. In the Pledge of Allegiance, we ask every child in the public schools in America every morning for a personal profession of faith. You don’t have to take out your coin and read and meditate on “In God We Trust.” You don’t have to pay any attention when the politician is talking, and lots of us don’t.

But this asks for a personal affirmation: I pledge allegiance to one nation under God. Now if God does not exist, or if I believe that God does not exist, then that isn’t one nation under God. We can’t have a nation under God unless there is a God. It doesn’t say one nation under our god, or some gods, or one of the gods. It pretty clearly implies there is only one God, and if there is only one God, then the God of the Pledge is the one true God, and other alleged gods around the world are false gods.

It says one other thing about this God – it doesn’t say much, can’t say much in two words – but the nation is “under God.” God is of such a nature that God exercises some sort of broad superintending authority so that it is possible for a whole nation to be under Him. Now that doesn’t exclude many folks, but it excludes some, right? This is not God as First Cause who set the universe in motion and doesn’t intervene any more; this is not God as a metaphor for all the goodness imminent in the universe or imminent in the population. This is God exercising some kind of authority over at least this nation; maybe over all nations.

It’s a pretty generic concept of God, and it’s comfortable for a lot of people. But we may overestimate how many people. The largest private opinion polls have about 15 percent of the population not subscribing to any monotheistic conception of God. Who is in that 15 percent? Buddhist and other non-theists, Hindus and other polytheists, those with no religion, atheist, agnostic, humanist, ethical culturalists. That’s 15 percent of the population, with 7.2 million children in public schools who are being asked to personally affirm every morning a religious belief that is different from the religious belief that is taught or held in their home and by their parents. And it is the personal affirmation request in the Pledge, it seems to me, that makes the Pledge unique. It is different from all the other kinds of ceremonial deism that go on in the country.

In the attempt to defend the Pledge, government and the various friends of the Court supporting the Pledge have said a remarkable variety of things, but probably the most common thing they’ve said is variations on what appears in the brief of the United States. It is not religious. We don’t mean for them to take it literally. We ask the children to say the nation is under God, but we don’t expect them to really believe that the nation is under God. Here is a quote from the government’s brief: “What it really means is, I pledge allegiance to one nation, founded by individuals whose belief in God gave rise to the governmental institutions and political order they adopted, indivisible, with liberty and justice for all.”

Now if that were what it means, if anybody thought that was what it meant, we would not have had the great political outcry in response to the Ninth Circuit’s decision. If people want to get mad about this because it had some recital about what the founders believed, or because of the other point the government makes – that it’s in reference to historical and demographic facts that most Americans over time have believed in God – that would be one thing. But people don’t get angry at a recital of historical and demographic facts. People get angry because they know what it means; it’s plain English. They believe what it means, they want people to say what it means, they want their kids to say what it means. And I’ll tell you a dirty little secret: They want to coerce other kids to say what it means and what they believe to be true. They know that “under God” means under God.

And if it doesn’t mean under God, if we were to take the government seriously for asking children every morning to say the nation is under God but not to mean the nation is under God, well, Christians and Jews have a teaching about that, too. “Thou shalt not take the name of the Lord Thy God in vain.” If we don’t mean it, if it’s a vain form of words that doesn’t mean what it says, then it is indeed a taking of the name of the Lord in vain. That is why the brief that I filed is on behalf of 32 Christian and Jewish clergy who do care, not only about not coercing other people to practice their religion, but also care that if we are going to practice religion, we mean it seriously. We don’t want a watered down religion that we don’t really believe.

Jay Sekulow’s version is a little different. He says there’s a category – and there’s some of this in the government’s brief as well – of patriotic observances with religious references. You can’t do religion in the school, but you can do patriotism with a religious reference. The consequence of that would be, I suppose, that we could undo all the school prayer cases as long as we wrapped them in a coat of patriotism.

Mingling the patriotic and the religious seems to me to make it worse, not better. Think about what the Pledge does to a child who cannot in good faith affirm that the nation is under God and who actually thinks about it. And let me tell you, kids think about it. You don’t think about it if you’re comfortable with it, if it doesn’t challenge anything you believe, you blur right over it. You can say it pretty fast, and most of us don’t stop to reflect on the Pledge anymore. But for kids who don’t believe it, and maybe most especially for kids who once went to a church and now don’t believe it, whether or not to say “under God” becomes a big issue. I don’t claim it becomes a big issue for all 7.2 million whose parents show up in opinion polls, but for a substantial minority of kids, to say “under God” or not becomes an issue.

Some kids drop it out. One of the saving graces here is that it’s only two words, so you can get away with dropping it out, and your friends may not notice. But there are people who refuse to say those two words because they don’t believe them, and there are a few who refuse to say those two words because it’s religious in a governmental context, and it shouldn’t be there. It belongs somewhere else.

And for the child who cannot say it, here’s what we do by putting the religious reference in the middle of the Pledge of Allegiance to the nation: If you are doubtful about the existence of God, you are of doubtful loyalty to the nation. What kind of a citizen can you be? You can’t even say the Pledge of Allegiance in the prescribed form that Congress has written. You can’t pledge your loyalty to the nation without pledging your belief in the existence of God.

Now over and over and over the Supreme Court has said the reason it will not allow the government itself to take a position on a religious question, will not allow the government to endorse a religious viewpoint or an anti-religious viewpoint is because government should not make any citizen’s political standing in the community depend upon his religious beliefs, not even implicitly, not even by implication. The Court says repeatedly that if the government says this is a Christian nation or this is a religious nation, then non-Christians and non-religious folks will think the government really views them as a second-class citizens. That’s pretty indirect and implicit. This is very direct and explicit. Now, children, it is time to pledge your allegiance to the United States of America, and to do that, you have to pledge that the nation is under God. We have linked religion and politics, religion and patriotism, religious faith and patriotic standing inseparably right in the middle of one sentence. And the only way to avoid the religious part is literally to drop out mid-sentence and then come back in.

What would follow from a Supreme Court either striking down or upholding the Pledge? I think because of the fact that the Pledge is unique in asking for a personal affirmation, not much follows about other cases from a decision striking it down. Political volcano is going to follow, but not much is going to follow legally. “In God We Trust” doesn’t come off the coins, the other religious references in the school curriculum don’t come out. Of course the government can teach historical documents that have religious references in them because that is part of the history curriculum. I think they can teach music with religious references in it because that’s music. It’s important in the culture. I think schools should be more sensitive than they are about the problems faced by nonbelieving children when they’re asked to sing that music. I think we can deal with those problems, but I don’t think the Constitution requires that all – indeed, I think it forbids – certainly, it’s sound educational policy – forbids stripping all religious references out of history. Religion is part of history.

None of those things ask the child to personally affirm his belief that the nation is under God, so in this sense, the Pledge case is unique. A decision taking “under God” out of the Pledge would not really portend much change on anything else.

A decision upholding the Pledge, well, you’ve got to see how they write it. If the Court wants to say the Pledge is special, we’re going to let this go by, but it doesn’t mean we’re unraveling all the school prayer cases, it doesn’t mean anything else much changes. They can write this very narrowly. There is a whole list of objective factors that are special about the Pledge that cut the other way. They could say it is only two words; it is recited by rote; it is not a prayer; it has been around in exactly the same form for 50 years before we got a hold of it; kids don’t have to say it – we settled that in 1943 [in West Virginia v. Barnette]; they don’t have to say it. For those reasons, in combination with all those reasons, we’re going to uphold this. Nothing else will satisfy all those reasons. Nothing else is only two words, for starters, and that would be an opinion that doesn’t change much.

If they write an opinion that’s like the government’s brief – we’re going to declare that this really isn’t religious – the problem with that is that it’s completely standardless and therefore it’s completely boundless. It’s a fiat. The plain language is religious, but five of us on the Supreme Court – hey, with five votes, you can do anything – we’re going to tell the country this is not religious. The Fifth Circuit recently held the Ten Commandments are not religious. A big monument across the top, giant letters, “I am the Lord, thy God. Thou shalt have no other gods before me.” Not religious, the Fifth Circuit says.

If the Supreme Court adopts that kind of approach – we’ll just decree things not to be religious – then everything’s up for grabs. If you’re going to arbitrarily decree religious things to be secular, you can do it in any case, and district judges will be asked to do it in any case. So that would be a much scarier opinion, a much more potentially wide-ranging opinion, and then other possibilities sort of range in between. Any religion is okay if you’re wrap it in patriotism. I think that’s pretty wide open, too, because political officers can be pretty clever about wrapping things in patriotism.

So we may get an opinion either way – we may get a very narrow opinion either way or a very broad opinion, particularly if they uphold it. Watch not only for the result; watch for how they write it.

MR. DIONNE: Thank you very much.

(Applause.)

SekulowJAY ALAN SEKULOW: First, let me say that I probably agree with Doug on more cases than I disagree. In fact, the very first case I argued at the Supreme Court of the United States [Airport Commissioners v. Jews for Jesus]- which seems like a long time ago, because it was – Justice O’Connor wrote for the Court, and she relied primarily on an article that was written by Professor Laycock. So I’ve always appreciated that unanimous opinions are rare and getting rarer every day, especially in the Religion Clause cases.

Let me give you five reasons why the Pledge of Allegiance is constitutional and should be affirmed by the Court as not violating the Establishment Clause.
1. The Pledge of Allegiance is not in a form of prayer.
2. The Pledge of Allegiance does not refer to Christianity or any other particular religion. 3. The religious portion of the Pledge of Allegiance is only two words.
4. The Pledge of Allegiance was recited unchanged for 50 years before the Court considered the question.
5. And no one can be required to recite the Pledge of Allegiance.
That’s the closing portion of the brief Professor Laycock filed, where he argued that if the Court was going to rule in favor the Pledge of Allegiance, here’s five ways to do it. And it may well be what the Supreme Court does, because it does give a very specific approach, and I think a fairly persuasive one.

Doug talked about the 40 or 50 years of history when the Supreme Court has dealt with the school prayer issue and not allowing for school prayer in that context. There’s another history that’s over 200 years now, and it goes something like this: “God save the United States and this Honorable Court” – that’s how this Supreme Court oral argument’s going to start when Dr. Newdow presents his arguments before the Supreme Court next Wednesday.

So the fact of the matter is that the Supreme Court itself has had this cry as part of its opening ceremony described as an invocation. Students attend oral arguments frequently, including kids in high school and even elementary school. And when those justices stand up or walk in, the students stand up. And while they don’t have to repeat it, students also don’t have to repeat the Pledge of Allegiance, and correctly so, since the Supreme Court’s decision in Barnett, which is now dating back almost 60 years, said you can’t be compelled to violate your conscience, and in that way, if you are objecting to the form of the Pledge of Allegiance.

I think that the words “God save the United States and this Honorable Court,” like the words of the Pledge of Allegiance, echo what our founding fathers thought, and that was that our freedoms, rights and liberties are derived not from government but rather from God granting them to mankind. And in a sense, it’s a very Lockean concept. Thomas Jefferson talks about it. And even, of course, in the Declaration of Independence itself, how often have we learned or were required to learn and recite in school the words, the famous portion of the Declaration of Independence where it’s written, “We hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights. Amongst them are life, liberty and the pursuit of happiness.”

If the Pledge of Allegiance were to say something like that, I would suspect that there would be the same objection. Why? Because of its reliance on a Creator, and it is a concept where the Creator endows us with our rights. But in the context of the history of our country, that makes a lot of sense. Our country was founded on the concepts that the rights of man don’t derive from a king and they can’t be taken away from us by a king. The rights of mankind, the basic rights of mankind – liberty, freedom, the things that we cherish in this country – derive from a Creator. That’s what our founding fathers mean.

It’s often talked about, Thomas Jefferson’s famous letter to the Danbury Baptist Connecticut Association, where he talked about what he called the “high and mighty duty in this wall of separation between church and state.” There’s something else that Jefferson wrote several years before he wrote that famous letter to the Danbury Baptists, and that was during the debates on the First Amendment and also in discussions with friends about the concept of liberty. He wrote, “Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that the liberties are a gift of God and that they are not violated but with His wrath?”

Now, Thomas Jefferson, in the classic understanding of his religious belief, would not fall within what most people would consider an orthodox Christian position. In my view of history anyway, I would not consider him to be – and I’m not speaking as a theologian– He had various views on religion and faith. I don’t think faith was insignificant in his life, I don’t mean to suggest that at all, but it wouldn’t be what we would typically talk about today as a Protestant form of Christianity or Catholic form of Christianity. He kind of had his view of faith, Christianity, and the deity of Jesus, and that’s a whole different topic.

But he recognized something very fundamental in that our rights don’t come from a king; they are endowed to us. So if the requirement of the school district in Elk Grove was that we begin each school day by reminding ourselves, as students, that we should remember the history of this great nation, that we are endowed by our Creator with these rights, they’re inalienable, and that the Creator bestowed them upon us – life, liberty and the pursuit of happiness – I submit that many people, Dr. Newdow included, would object, saying again it’s this compelled reliance.

Now, nobody can be compelled, nor should they be, as I said, to recite the Pledge. Let’s talk about the more recent history, and that is, what happened in 1954? Now, of course, the issue upon which certiorari is granted – and I am frequently reminded of that both when I’m watching arguments and when I argue them myself – is not the congressional action here, which is interesting. The United States asked for review of the 1954 congressional act amending the Pledge of Allegiance. The Supreme Court denied review there. They granted the school district’s policy for review, which is a policy that said the school day will start with a patriotic expression. The Pledge of Allegiance would meet that patriotic expression.

In 1954, though, when the Pledge was modified to include the phrase “under God,” what was motivating Congress? There were a lot of things motivating Congress. We were in the midst of the Cold War. There was this desire to treat and to establish the difference between how we viewed our rights and liberties, and how communism viewed these things, which is any rights that you have, whatever they might be, are derived from the state; the state is supreme. Congress, reflecting, again, on what the founding fathers thought, said, No, it doesn’t work that way. We believe the foundation of our country is different, and this shows the difference. We believe that our rights come from God to mankind.

And I don’t know if this is a true fact or not, but it’s in one of the briefs, that Dr. Newdow is actually an ordained minister with the Universal Life Church, and I’m not sure if that’s correct. What the Universal Life Church has as one of their – and I know they have a pretty broad view of what constitutes God – mission statements, it says that – and they use the phrase “gods” in terms of recognizing that individuals, us, are given what he calls “God-given rights” – freedoms, liberties. Again, this is part of the American experience.

Now, no one’s required to believe that, and I don’t think that that’s the intent of saying the Pledge. Students who don’t want to participate don’t have to participate, and I think acknowledging the historical significance of how our rights are derived in the foundation of America is correct. The idea that you would be able to tell a student, You cannot be compelled to memorize the Declaration of Independence – which many of us remember having to do – and recite it because of its reference to a Creator, I would think would be wrong. Now, could you argue that there should be a religious exemption? Probably you could argue that under the Free Exercise Clause. These days, though, I don’t know if any of us would be too persuasive on how that would go. But I will tell you this much: that is the historical fact. Our founding fathers did recognize– This was part of the Lockean concept of the rights of mankind, and you don’t have to be a historian to check this out.

Let me do something I never do, and I really don’t do anymore, but I’m going to do it anyway, and that is justice counting, which is always a very dangerous thing. And I’ll just give two personal anecdotes. I’ve argued two cases this term. I argued a portion of the campaign finance case, and I argued a free exercise case. And I was joking with Linda Greenhouse from The New York Times – one of my favorite writers, I might add; I’ll give that plug to The New York Times there – that in the campaign case – I argued just one section of it – I think I got 24 questions in about 10 or 12 minutes. It was a lot of questions. And I walked out of there saying, Oh, I don’t know if we’re going to pull that one off; it’s going to be pretty close. And of course the opinion came out and the Supreme Court declared most of the campaign finance laws constitutional, but in our case we were successful unanimously. Well, I kind of misjudged that one – I was glad we were.

Then I argued a Free Exercise case about two months later, and I said it’s going to be very close – 4-4 probably, with one justice deciding it, Justice O’Connor. She could easily go the other way on that particular case, I thought, against us. It was a decision coming out of the Ninth Circuit, which is generally never good news. I will tell you, the day I argued Locke v. Davey, there were two decisions decided that day. They were both from the Ninth Circuit and they were both reversed unanimously. Just saying all that – and in that case the Court ruled against us, including conservative members of the Court, 7-2.

So you just don’t know how to justice count. But I will say, taking a look at what the Court has written about the Pledge of Allegiance, and really looking at a couple of justices that I would think would be key– Justice O’Connor has already made a statement specifically about the Pledge in context being constitutional, in the schools. She’s talked about it being recited daily by tens of thousands of students. Interesting, for a case like this, Justice Stevens joined a portion of the opinion in Allegheny, along with Justice Blackman, Justice Marshall Brennan, and held that the state, regarding the Pledge of Allegiance as well as our national motto, would both be constitutional, calling it “ceremonial deism.” Justice Brennan specifically, right in the Abington v. Schempp and the Engle cases, specifically said the Establishment Clause doesn’t require the Pledge to be struck down at all, in his view.

Justice Powell – obviously some of these justices are no longer alive nor serving on the Court – Justice Powell stated that “religion permeates our history and the Constitution does not require that public school children be insulated from these historical truths,” noting that there is a constitutional difference between acknowledging the role that belief in God has played in our nation’s history and endorsement of God or any religious institution. This is important, assuming they reach the merits.

Now, Professor Laycock has made this statement in his brief, and it’s good rhetorically, but I don’t think it’s correct contextually, with due respect, and that is “one nation” – the Pledge of Allegiance, “I pledge allegiance…one nation” – (cell phone rings) – under phones – (laughter) – “one nation under God,” and of course ellipses in between. But that’s not what the Pledge of Allegiance says. It doesn’t say “one nation under God,” and context matters in Establishment Clause cases. And I think the context of the Pledge and the history of how this country came into existence is going to point to what I would expect to be a Supreme Court decision affirming the constitutionality of the Pledge.

Let me give you my other two predictions – and generally I’m not correct so, Dr. Newdow, don’t worry. Two other things. Assuming they reach the merits – and I think the standing issue, which is going to play a big part of this, I think it would be anti-climactic, in a sense, for most of us who are concerned about the Establishment Clause if they threw it out on the standing issue; but I’ve been there, Professor Laycock’s been there, and we know standing matters to the Supreme Court of the United States, especially this court. Now, you’ve got the dynamic of Justice Scalia not participating, which will make the oral argument different than it normally is, I will tell you – for good or for ill, Dr. Newdow; probably for good in your case. But I think you’ve got to look at the possibility in a case like this, assuming they reach the merits, that if justices start peeling off – in other words, if you’ve got a couple of justices that are inclined to dissent and say the Pledge is unconstitutional, if it’s one or two, it could become three or four very easily, and then you end up with this dichotomy of a 4-4 split, which gives the Court two options – and I’ve been through one of the options.

One option is that they just let the decision go 4-4 and there is an affirmation of the lower court. In other words, for my side to prevail, we would have to obtain five votes. Dr. Newdow has to get four, the way the case is. Now, I did a case where there were eight justices – and I hope this doesn’t happen to anybody, but I had this – I had eight justices on the Court – Justice Marshall had retired. I argued it the first day of the term, and I got a call on the very last day of the term. I was waiting for the opinion, of course. And Sandy Nelson was then the deputy clerk, and she called me up and said, “Jay, I hate to make this phone call, but the Court has asked the case to be reargued.” Of course, it took them a whole year to figure that out, but this was the Bray v. Alexandria. It was the Operation Rescue Protest cases. We reargued the case in October of the next term, and the Court ruled in our favor, but I suspect that it was a 4-4 tie and this was the fifth vote, and Justice Thomas would have been the fifth vote. Then the decision came out and the Court ruled in our favor 6-3.

So I cannot explain that, I’m not going to explain that, I’m just going to say justice counting is a dangerous thing. And it’s especially dangerous in a case like this, but this could be one of those cases where if one or two start peeling off, there may be a couple that peel off as well. On the other hand – and I would say this with caution as you’re arguing these cases – Justice Stevens on flag burning, for instance, took a very patriotic – and I know you don’t like the phrase in that regard but – and it didn’t have a really religious connotation to it, but he has a lot of respect for the American flag and symbolism generally. And his statement, I think, in Allegheny, if he sticks to that and talks about ceremonial deism – which some people on my side of these issues don’t like that term. It’s never bothered me, to be honest with you. I don’t think there’s anything wrong with ceremonial deism. We’re not a nation founded under Christianity, and we’re not a nation founded under Judaism, but we do know what our founding fathers believed, and this is a general concept. But this could be one of those cases where justices start peeling one way or another. You could have a situation where the Court comes out with a 4-4 tie. It could be one of those.

So, having said that, let me close with this, and then I know there’s going to be some questions. I think it would be revisionist history if we’re going to start saying that students cannot say the Pledge of Allegiance, and revisionist in this context: the history, granted, of the Pledge itself is only 50 years old – it’s not that old. But I’ll tell you something: the religious heritage of the country goes back to its founding, and whether you take the very strict view of church-state separation or a more accommodationist view, or somewhere in between, denying the history is denying the fact. And I think that mandating a change in the Pledge or finding that those statements, those two words, as Professor Laycock pointed out so well in his brief, those two words create a constitutional crisis, I would hope the Court does not go there.

But this is going to be a fascinatingly important case, and Dr. Newdow deserves a lot– Listen, anytime you get to argue a case before the Supreme Court of the United States, win or lose, it’s the thrill of a lifetime. I told him that before, and you got the case up there, and that’s the hardest challenge sometimes. I don’t know which is more difficult, though, the oral arguments or the press conferences after, but you’ll get to decide that on March 24th. Thank you.

(Applause.)

MR. DIONNE: All right, this is training for the press conferences. And Jay must have recently filled out an NCAA bracket, because I loved his justice counting, and if Doug wants to fill out his own bracket on this case, feel free.

Here’s what I’d like to do. I want to ask one question myself. I would like to give the first set of questions to my friends in the media, because they may actually have to write about this fairly soon. If you all could jump in – I’d love Dr. Newdow to jump in and have anyone else join us. At some point I’ll probably start grouping questions together. We’re supposed to end promptly at 11:30, so I want to get as many voices as I can in.

I just want to ask one question. This notion – I’m glad you brought it up at the end – of ceremonial deism strikes me as bothersome from almost everybody’s point of view. In essence, it’s the idea that references to God become meaningless if recited often enough in public places. And in a sense, that takes neither religious people nor people who reject religion seriously. And I’d just like to hear you both talk a little bit about this notion of ceremonial deism, because I have a hunch that if this case goes in an important direction – that is to say, if they don’t punt all the important issues – that is something they’re going to have to deal with. But whether I’m right about that or not, I’d like you guys to deal with it.

Doug, do you want to start – and also, feel free to answer anything Jay said.

MR. LAYCOCK: I think you’re right. I think the principal religious division in the country used to be Protestant-Catholic. It’s not that anymore. It is a continuum from intense anti-religion to intensely religious. Intensely devout Protestants, Catholics, Muslims, Jews find themselves on the same side of a lot of issues, given that divide, and ceremonial deism is very comfortable for the vast range in the middle. The religious center in America is low-intensity theist.

I think these ceremonial references are very problematic for the anti-religious and for the seriously religious, and many of the seriously religious, in good faith, defend that kind of watered-down ceremonial deism in court on the theory that it’s better than nothing; that’s all they’ll let us have, that’s all we can get in a government-sponsored forum, and it’s not for me to tell them they’re making a mistake. But it seems to me it is a mistake, and a lot of folks who are intensely religious aren’t comfortable with it, and to some extent, it is a position only for the Court. So the Justice Department, representing the United States, says, This is not religious at all. But the form letter from the White House that goes out to people who write in about this issue says it is profoundly religious. They’re telling the Court one thing and the public something completely different. The ceremonial deism is a placeholder.

MR. SEKULOW: I’ll go quickly, because I addressed the issue and covered it, but I’ll give you two quick thoughts.

I don’t for those who are anti-religious – and I know there are people who are anti-religious– I mean, the fact of the matter is you could be anti-something or pro-something; it’s a free country, and neither the anti-religious nor the majority religion have a veto right over everybody else. And I think that’s one thing.

Number two, a lot of people on my side of these issues normally, Doug, get nervous about the phrase ceremonial deism. I’ve never had a problem with it. I think what Justice O’Connor said is right. It’s one of these phrases that does tend to solemnize an occasion. It expresses hope for the future and reflects our past, but again, you’re not compelling anybody to say this. You’re not compelling anybody to believe this, but I suspect there’ll be a lot of questions – I mean, I’m guessing again – on the issue of ceremonial deism. I’ve had that happen on a couple of the cases that I argued on those issues where prayer came up, and even in some of the earlier cases, in the early ’90s. That’s an issue that’s going to come up. The ceremonial deism question is going to, I think, play in this probably significantly.

MR.: Assuming they get to the merits.

MR. DIONNE: Just to follow up, I’d like both of you to comment on whether there is a path that we go down that essentially declares that the public realm – whatever is supported by government – must necessarily be godless, or is there an alternative to this? Does this case take you there or does it not necessarily take you there?

MR. SEKULOW: I think this case says you don’t have to be godless. You can accurately reflect the historical precedent of the country’s founding. That’s how I would pitch this case. If I were arguing this case to the Court, I would be talking about the historic fact of patriotic expression. Sure, it’s got religious overtones, but so does the “Star Spangled Banner” and a host of other religious music and songs and documents of our country. It’s part of who we are.

So, yes, I think it can reflect– If you don’t want to be in a situation where the next thing – and maybe some do – that we’re fighting over is whether you really can have those students memorize the Declaration of Independence and be required to recite it as my teacher required me to recite it flawlessly, and if you didn’t do it flawlessly you did it again, and it could go on, for many of us, for weeks.

MR. LAYCOCK: There’s no path that leads to the public sphere being godless. There is a path that leads to any activity sponsored by government being godless. The simple absolutist rule is that if the government’s sponsoring it, there’s no mention of God. In the public schools, the Court has never found a case where a government could mention God, but they’ve never said this is an absolutist rule with no exceptions either.

This case does not take us there. It does not present the question whether there can ever be any exceptions because this case has the unique feature of requesting a personal affirmation. So a decision in this case wouldn’t say anything about whether the rule about what the teacher can do is absolute or the rule about what the president or the governor or the mayor at a public ceremony can do. That’s never going to be absolute.

MR. SEKULOW: But it would say something about what the Supreme Court can do when they open up their session and those students are required to be there and stand up.

MR. LAYCOCK: They’re required to stand but they’re not required to repeat it or agree with it.

MR. SEKULOW: But they have to hear it.

MR. LAYCOCK: “Pledge” is a strong word, right? This is half a step short of a loyalty oath, right? “I pledge allegiance” is unique. We don’t do that in any other context, and what the language says it is not plausibly about history. It doesn’t say anything about what the founders believed or what they were thinking. It’s in the present tense. It’s in the first person. It is what I, the student, believe today about the relationship between this nation and God. That’s what’s so troubling about it.

MR. SEKULOW: So if the Pledge of Allegiance were to read like this: I pledge allegiance to the flag of the United States of America, a nation that recognized that we are all created equal, endowed by our Creator with certain unalienable rights and amongst them are life, liberty and the pursuit of happiness. That’s okay with you?

MR. DIONNE: He still knows it by heart.

MR. LAYCOCK: He still knows it by heart. That would be much -

MR. SEKULOW: Mrs. Sopher required me to know it by heart and I’ll never forget it.

MR. LAYCOCK: That would be much less troubling, because that is a description of something that actually happened in history.

MR. SEKULOW: But that’s a pledge and it says God -

MR. LAYCOCK: Yeah, I know.

MR. SEKULOW: — is the Creator, which, to some people, is even more significant than – okay. Just curious.

MR. DIONNE: It’s fun watching lawyers. Yes, please?

ROB MARUS: I’m Rob Marus from Associated Baptist Press, and I have a similar question to what E.J. just asked, specifically for Mr. Sekulow, but from a slightly different perspective. You mentioned earlier that you’re speaking as a lawyer not as a theologian, but every Christian, every person of faith, is a lay theologian in one way or another. And so, as a Christian -

(Off mike.)

MR. MARUS: Right. As a Christian, how would you respond to Professor Laycock’s argument that – does it not bother you theologically, as a Christian, that what you have to assert to win this case on the constitutional merits is that the phrase “under God” doesn’t really mean anything?

MR. SEKULOW: No, because I don’t think -

(Off mike.)

MR. SEKULOW: (Off mike.) No, I don’t think it presents a difficult question because again it’s acknowledging– It’s not a theological statement. It is a statement that reflects an historical fact. This is what our founding fathers believed, and so I don’t think it presents either a constitutional crisis or a theological one. Having said that, obviously, five justices of the Supreme Court thought that it presented enough of a constitutional crisis that they’re going to review it. So, no, I don’t think it’s disjoined. I don’t think it has to be a particular theological belief.

MR. DONNE: Wait for the mike, I’m sorry. And if you could say who are you, that’d be –

JIM PUZZANGHERA: Sure, Jim Puzzangahera with the San Jose Mercury News. Professor Sekulow touched on this a little bit, but I’m wondering if you all can elaborate on it. Justice Scalia’s recusal from this case, how does that affect the dynamics of both the oral arguments and the Court’s deliberation of the issue?

MR. DIONNE: As Richard Nixon used to say, I’m glad you asked that question.

MR. LAYCOCK: It does a lot of things. One thing it does is take the option off the table of sending the case for re-argument, because Justice Marshall was going to be replaced, but Justice Scalia is recused forever, having announced how he thinks the case ought to be decided while it was already on its way to the Court. So they’ve got to deal with this with eight. Four to four affirms the judgment below without an opinion of the Supreme Court, without effect as precedent, so the “under God” in the Pledge would be unconstitutional in the Ninth Circuit and unresolved everywhere else in the country.

And it changes the dynamics of oral argument because Justice Scalia is a very active and aggressive questioner. He’s not the only active questioner, so it’ll still be hard for the lawyers to get a word in edgewise. If you get to count the words in transcripts, the justices typically say more words than the lawyers now, and that’s been true for a while. But Justice Scalia is particularly aggressive, and Mr. Newdow won’t have that to deal with that. He’ll have plenty else to deal with, I’m sure.

MR. SEKULOW: Can I say one thing on the argument side? It is going to be a different dynamic, but the two most active questioners generally are – it depends on the case – are Justice Scalia and Justice Ginsburg. They tend to ask a lot of questions, Justice Breyer does, too, and they all are pretty active. Even though Justice Scalia is not going to be there, there will be lots of questions. I’ve had that situation, too, where you’re expecting a lot of questions and you don’t get them. That’s kind of the worst thing – you want the questions. The dynamic, I think, will be different. I agree with Professor Laycock. I think it’s going to be quite different.

MR. DIONNE: Ma’am, please.

ALEX McRAE: Alex McRae, Marketplace Radio. I was wondering what implications this case would have for currency in the message “In God We Trust” on the U.S. dollar notes and coins.

MR. LAYCOCK: I’m sure there are people who fear it portends that any governmental reference to God goes, and so the currency all has to be changed. I don’t think that follows at all because no one has to agree with the currency or pledge allegiance to the currency or even pay any attention to what it says on the currency, beyond the number.

MR. SEKULOW: I do think the lawsuit will follow, though. If the Pledge of Allegiance is declared unconstitutional– There have already been a series of cases on the national motto. Most recently, I handled one in Kansas. The district court ruled in our favor, and there was no appeal taken in that case. But I would expect that whether it applies or not, you will see those kind of lawsuits being filed if they declare the Pledge unconstitutional.

Whether they’ll succeed or not, that’s going to depend on how this opinion’s written and what the Court says. But to say that it’s not going to have far reaching consequences if the Pledge is struck down as unconstitutional – even if it is a four-four decision, which, as Professor Laycock said, is just an affirmance of the judgment – I will tell you that there will be school districts all over the United States that are going to say, Well, look, we’re going to not read the tea leaves here. We don’t want to get sued and lose again, so we’re just going to stop saying the Pledge. I think that will be a ripple effect of this, too.

MR. DIONNE: This gentleman over here, then Linda Greenhouse and then our good friend Al in the front.

SETH LINDEN: Thank you. Seth Linden, NBC News channel. Two questions. The first one is, very simply, who will actually be arguing the case on Wednesday and how does that affect the dynamics? And then I have a second question regarding the Ninth Circuit.

MR. SEKULOW: Well, as far as the argument goes, Dr. Newdow’s representing himself, what’s called pro hac vice. He was admitted – he is a lawyer and he’s – are you doing it pro se or pro hac vice?

(Off mike.)

MR. SEKULOW: Yeah, I think they granted both actually, the way the order – it’s worded because it approved your motion, which means he’s arguing it on behalf of himself, and since he’s a lawyer but hadn’t applied for admission, they’ll waive him in. He’ll argue the case. The school district is represented by a lawyer in California, and the Department of Justice, Solicitor General Ted Olson is given 10 minutes.

The oral argument is a blast anyway – win or lose, oral arguments are a lot of fun. Professor Laycock’s done several – they’re fun, but the briefing of the case is sometimes overlooked by the public. That is really, to me, always the critical aspect of the case, how it’s presented, how it’s framed, and I think the issues here, because of the standing issue, you could have an argument that focuses on that. W’re thinking we’re going to hear a lot about the Pledge of Allegiance, but we may hear a lot of questions about standing. So it’s going to be an interesting dynamic there.

MR. LAYCOCK: I especially agree with that last point. I have a feeling the justices know what they think about the Pledge of Allegiance. The standing issue is complicated. I would not be surprised if three-quarters of the time is devoted to standing. I’m not predicting that, but it sure wouldn’t be surprising.

MR. SEKULOW: And I wouldn’t be surprised either, because I think they come to this with a good framework in their own minds on how they’re viewing the Pledge, but the standing issue is– It’s never easy, and this Court particularly has been very concerned about standing, and I think to ignore standing here – and you can imagine the school district’s going to talk about it. It’s in all the briefs. We’ve all talked about it. I think there’ll be a lot of questions on standing.

MR. LINDEN: And then my question regarding the Ninth Circuit: There is an effort in Congress right now to essentially break off part of the Ninth Circuit and create a new circuit. This has happened in years past, but there seems to be some momentum this time because of the Pledge decision and, in fact, the Judiciary Committee is actually going to hold a hearing on this. Do you think, based on this case, that now there’s actually some real possibility that that would occur?

MR. SEKULOW: I’ll give you my view quickly. The last split we had in a circuit was the Fifth creating and then the Eleventh and that was because of – not because of decisions. It was because of volume. If there was a split of the Ninth Circuit, I don’t think it would be because of this decision or any decision. I think ultimately it would be because of the volume of cases, and that is a big area, is just so significant.

I take a very cautious view there. I mean, I’ve had the Ninth Circuit rule for me, and I’ve been reversed. I’ve had the Ninth Circuit rule against, reversed it and I’ve had it where I’ve won at the Ninth Circuit and won at the Supreme Court. There are some circuit justices on just about every circuit that you could find a disagreement with. That’s not a basis upon which you start splitting the circuits.

If the Ninth Circuit is actually split, though, I think it’s going to be the sheer volume of cases that are being handled by the Ninth Circuit just because the size of California is so significant that they’re going to have to do something.

MR. LAYCOCK: This is an old proposal, it’s been around for 20 years and it desperately needs to be done, because the circuit’s too big. It’s impossible to do because California’s too big. Nobody wants one circuit that’s only California, where two senators dominate the appointments and another circuit that’s everybody else, and nobody wants to split California and have L.A. in the Ninth Circuit and San Francisco in the new Twelfth Circuit with different federal law within the same state. That is the core impracticality of the problem, and nothing about this changes it, so I assume this hearing is grandstanding.

MR. DIONNE: I imagine some members of Congress want the Ninth Circuit to cover only the Aleutian Islands but that’s – (laughter.)

Linda Greenhouse.

LINDA GREENHOUSE: Hi. Doug, you argue that the Pledge requires an affirmation of personal faith and consequently has got to go. Jay, you say no, it doesn’t – it’s not an affirmation of personal faith, so it’s okay. One point of view that’s not represented here, but it’s in some of the top side briefs – I guess, John Whitehead for the Rutherford Institute – is that yes, it requires an affirmation of personal faith and that’s fine. And the Court should say that’s fine. Is that a possible outcome? Can you play around with that a little bit?

MR. SEKULOW: I can’t imagine the Court saying that – if they hold the Pledge constitutional, I think – actually, if they hold the Pledge constitutional, I think, it’s going to be for the five reasons that Professor Laycock laid out in his brief. I think that is a pretty straightforward way for the Court to go if they decide it’s constitutional. I can’t imagine them saying the Pledge is constitutional, and you must believe it when you say it.

MR. LAYCOCK: I think that’s quite unlikely. It’s not impossible, but let me just give you 30 seconds of the background. What the Court has said over the years on political issues the government can try to lead public opinion – which it does all the time, it tries to rally public support for its own agenda – but it cannot coerce people to agree with the government or to say that they agree with the government. And that’s why in 1943, when the Pledge was entirely secular, it didn’t have “under God” in it, and the Pledge case got to the Supreme Court, they said, You can’t make students say it. Any student can opt out, but the teacher can lead it. On religious questions in the school prayer cases, they’ve said opt out isn’t enough, because it’s really outside the government’s jurisdiction, the government isn’t responsible for leading public opinion on religion, so the government can’t do it at all. It can’t ask the kids, even with an opt-out right, to say anything religious, and that’s why I agree with Jay.

It would be quite unlikely for them to say this really is religious, it really is an affirmation of faith and the government can ask you to say it as long as it gives you the right to opt out. That would be a striking departure from the structure of doctrine they’ve set up over the past 60 years.

MR. DIONNE: I want to turn to Al, and I want to invite Dr. Newdow, anytime you want to jump in, just raise your hand. We’d love to hear from you.

Al.

AL MILLIKEN: Al Milliken, an affiliate with Washington Independent Writers. If our nation was not under Christianity at the birth of our Constitution, which I think scholars generally acknowledge Thomas Jefferson, whether he was a deist or a heretical Christian or a Unitarian, whatever he was, he was a religious man, obviously. But whether he was a Christian or not isn’t relevant as far as the Constitution goes. But why did our Constitution refer to a Christian Sabbath, not a Jewish or a Muslim or an atheist Sabbath? And why was the document dated in the year of our Lord? Would anyone dare to say that that Lord is anyone other than Jesus Christ? And – I do have a question – well, not a question, I just – a warning for -

MR. SEKULOW: Why don’t we try that one first.

MR. MILLIKEN: Well, for Michael Newdow, I wanted to mention, though, that should he win this case, couldn’t he face the same fate that other past Supreme Court winners – Norma McCorvey, Bill Murray, might the same thing happen to him? He might be joining them for eternity as a Christian brother.

MR. SEKULOW: Well, let me answer the legal – (laughter) – question, and Professor Laycock also. I’ve just completed a dissertation on a lot of the historical backgrounds, mostly focusing on the Supreme Court justices, not on the founding fathers. But what becomes very clear is that a lot of terminology was used by the founding fathers and by Supreme Court justices that we take in one context and, culturally, at the time, meant something very different. It’s not to say that they were not people of faith, but there is no doubt about it, I mean, if you study history in America, it was a pretty broad – even within the founding fathers, a pretty broad swath of faith.

And statements like “In the year of our Lord” were the customary ways in which these documents were signed. It does not mean that they were anti-religious. Obviously they included them in there. The Declaration of Independence, I think, as a foundational document established how Americans viewed the relationship between rights, liberty, mankind and God, and I think they did it in one document and actually in one portion of that document.

A lot of the justices, for instance, had said this is a Christian nation, in 1892, 1864. We’re Unitarians. Now, I’m not saying that they weren’t Unitarians, weren’t Christians, it’s just that it wasn’t what you would typically think of as Protestantism as we know it. So you’ve got to look at the cultural context to understand.

Now, having said all of that, to remove that history, I think, would be very dangerous. The fact that there was this general belief in the way rights derived to mankind, to remove that, I think, would be wrong.

MR. LAYCOCK: I agree with most of what Jay just said. Let me elaborate a little bit further and add a piece that I think is very important here. The founding generation fought hard about religious liberty, but they fought about the issues that were controversial in their time. And the religious liberty issue that was controversial in their time was how do you fund the church? And it was controversial because Protestants disagreed about it, because Episcopalians and Congregationalists had had tax support and nobody else did, and fixing that, not surprisingly, produced a huge fight.

They did not fight about these sort of religious references in public documents and public events because there was broad diversity of opinion, but the country was overwhelmingly Protestant and there wasn’t any disagreement there big enough to get a fight going. The disagreement became big enough to get a fight going in the 1820s, when they started creating public schools and conservative Protestants said you Unitarians – Horace Mann was a Unitarian, and he was the founder of the public school movement – you Unitarians are putting watered down Christianity. It’s not much more than Unitarianism in the public schools. We want real religion in the public schools. And then the huge Catholic immigration began and you got much bigger fights between Protestants and Catholics about what to do with the schools. And really, today’s battles over prayer in the public schools and funding for private religious schools both of those battles date to those early 19th century disputes and the Protestant-Catholic conflicts that comes all the way down.

Now if the Religion Clauses of First Amendment are a guarantee of principle that government will leave each of us alone, give us as much religious liberty as we can, that principle encountered a whole new set of applications when religious diversity became greater and when the public schools got going. And so to say that in the Declaration of Independence, which is our founding political theory but it’s also a political document to rally opinion, that they invoked both the secular rationale, natural law, and the religious rationale, nature’s God and our Creator, they did both, that’s true. And that was shrewd, but I don’t think that tells us anything about how the government should handle religion when it has other people’s children in its custody.

MR. SEKULOW: There’s also this misconception that’s out there, especially in the school prayer debate. People think that students can’t pray in school. Just to end that conflict, because I argued both cases and it’s very clear now, student-led and student-initiated activities are allowed. For instance, in the Bible club settings, or in the see-you-at-the-poll events that are held annually at schools, or voluntary prayer groups that want to meet every day on public school campuses during break time or lunchtime, they absolutely have the right to do that. The Supreme Court is basically unanimous on that point.

What they can’t do is have the school’s machinery involved, and that’s where it’s going to be interesting, because I argued the Texas football game prayer case policy, and the Court said there that even though the policy had changed, looking at the history of the case, gee, there was too much school involvement. So that’s the line drawing here, and how that plays into the Pledge case is going to be interesting, because you run into all of those lines plus the ceremonial deism issue. So all of those are going to come into play.

MR. DIONNE: I want to bring in Dr. Newdow. There are very patient people here, the lady in the gray scarf, the gentleman in the blue shirt, the gentleman in the green tie. But let me bring in Dr. Newdow first and then you all can – thank you for your patience.

MICHAEL NEWDOW: I would just say, to Jay especially, since he’s obvious on the other side: This idea that this is history and you really want to maintain our history, et cetera, it just seems to me, with all due respect, bogus. I understand that you really want that history, but that’s not what anybody is complaining about. The people didn’t have this outcry, this didn’t get onto the front page and 99 senators didn’t go stand out because they’re concerned about the nation’s history.

Roper did a poll in 2000 of students at the top universities – 55 top universities and liberal arts colleges. They asked about some historical facts. Who’s the father of the Constitution? Where do you find “Of the people, by the people and for the people?” They gave four choices and for the father of the Constitution, 23 percent got it right. For the Gettysburg Address, 22 percent got it right. That’s worse than random chance.

MR. SEKULOW: But that’s an indictment of the public school and -

MR. NEWDOW: No, that’s Harvard, Yale, Stanford. These are the best – seniors of the best universities. These people don’t know this stuff.

MR. SEKULOW: Maybe they need to modify the SAT.

MR. NEWDOW: That has nothing to do with what this case is about. This case is about people wanting to have God and do exactly as you just referred to, to have the machinery of the state used so that they can further their religious views.

MR. SEKULOW: Let’s be realistic. Everybody’s reviewed the brief and realism is those who are going to be opposed to the Pledge are going to say it’s too much state machinery involved. Those who are saying it’s really not are going to say it’s not, it’s this kind of ceremonial acknowledgement. And the question’s going to be how do the eight of them line up?

If I were arguing for the school district, I wouldn’t run away from the fact that the policy says the teachers will lead in a patriotic exercise and this – you run away from the facts – and you’ll find this out because I’m sure you won’t do this, but a lot of lawyers do and it’s a mistake – is well, here’s my facts and this is how I’d like to pitch it. They’re going to want the broad implications here across the board.

MR. LAYCOCK: I think that’s kind of a category mistake. Clearly, you’ve got the machinery of the state involved here because the teacher in the classroom. I think your argument is that it’s not religious enough, it has this historical interpretation. You can do other things with it.

MR. SEKULOW: Your five points.

MR. LAYCOCK: Let me say another thing about those five points. You know the phrase “damage control,” right? What I did in the brief I filed was make the strongest argument we could make about why this really is unconstitutional. Partly because it might persuade the Court and partly because they need to at least understand they can’t blow this off. This is a serious problem. Asking kids for a profession of faith every morning is a serious problem.

And then if they’re determined to uphold it anyway, well, I don’t have a vote on the Supreme Court, so I can’t control that. They’ll either write a better opinion, and I suggested to them here’s the narrowest way to do it. If you’re determined to uphold this and you don’t want to do any damage to anything else, here’s how. That’s what those five points are, but I can’t imagine that the low involvement in the machinery of the state is going to play a role in it. This is in the classroom.

MR. SEKULOW: Yes, but it’s going to depend on whether the Court looks at it as a school prayer case or a patriotic expression. I tend to think they’re going to take your view, at least your alternative view, which is that this is more of a patriotic expression. It’s limited in context. Doug’s brief argued aggressively that the Pledge should not be given, but he brings five points up as kind of the assuming – (inaudible) – if you don’t go with me, here’s the way you should go, which may well be the way the Court goes, because it’s a fairly narrow position and it doesn’t create any of the firestorm after the fact.

MR. DIONNE: Sekulow quotes Laycock’s words against him. (Laughter.)

Ma’am? The lady in the scarf, yes.

LEE McAULIFFE RAMBO: My name is Lee McAuliffe Rambo. I’m a freelancer. Much has been made of the fact that there are only two words here, but one of those words is a preposition, which, to at least some ears, implies a particular type of God, one that we are under, one that is transcendent. And I wonder if consideration of that aspect would move this particular phrase beyond ceremonial deism?

MR. SEKULOW: But it’s an historical fact that the phrase under God– Most people think it originated in the Gettysburg Address, when President Lincoln said “This nation under God shall have a new birth of freedom.” But actually it predates that by almost a hundred years, because General Washington – I think he was Colonel Washington then actually – in his order to the Continental Army said, “Millions of lives are in jeopardy, both born and unborn” – talking about posterity – “and this army under God” – now, does that mean that this army’s under God? That’s how they viewed the interplay of Divine Providence. That’s what they meant by that.

And, again, the Pledge is an historic statement. You can’t change the history; you can debate what the history means, but the words they used are– Fortunately for all of us, we have them, and that’s what they meant and that’s what they said.

MR. DIONNE: Yes. Do you have a quick follow-up?

MS. McAULIFFE: Yes, I did actually. I guess my concern is that if you reject the historical document argument, it does seem to imply that we’re asking people to affirm a particular type of God, which in 2004, many, many people do not affirm.

MR. SEKULOW: Yes, but let’s say you don’t agree with the historical document, say the Declaration of Independence. Again, Mrs. Sopher requiring us to memorize it when I was in junior high. There’s no dispute that that’s what the document says. It says we’re endowed by our Creator with these rights. It was a Lockean concept that rights derived not from the King of England, because then the king could take them away, but derived from God to mankind. That’s what they thought, whether they were deists or whatever their views were theologically, that is what their overall and overarching propositions were, and that’s their thought process.

So you could say you don’t agree with the historical documents or you don’t assume they’re historic, you could argue anything, but I think they’re pretty clear.

MR. LAYCOCK: I think what she said was if you don’t agree that the pledge is an encapsulation of those historical documents, right?

MR. SEKULOW: But it is, I mean -

MR. LAYCOCK: But it isn’t. It doesn’t say anything about history. It’s about this nation right now, today, that it is under God.

MR. SEKULOW: But Doug, you would say that the Pledge of Allegiance that I read you, one that says “I pledge allegiance to the flag of the United States of America, a nation that was founded by believing that man was endowed by his Creator with certain unalienable rights life, liberty and the pursuit of happiness.” That’s okay with you?

MR. LAYCOCK: I didn’t say okay, I said it’s less troublesome, but here’s what would be okay. Here’s how you could make it okay. A nation founded by people, many of whom believed that. And then you can fill in anything historical -

(Cross talk.)

MR. LAYCOCK: I think that if you want to talk about history, let’s talk about history. “One nation under God” does not talk about history. It talks about theology and the relation of this nation today to God today and it does say we’re under, that is a particular kind of God. I don’t think that’s going to trouble the Court much because it doesn’t eliminate many conceptions of God, but it does eliminate some, as I said. But it’s hard to talk about God without talking about some conception of God. It’s impossible to be truly neutral in God-talk because humans have evolved too many radically diverse understandings of God.

MR. SEKULOW: But the founding fathers believed that these were self-evident truths. So I guess it’s just that we have a historical framework disagreement, and I think the Pledge is a reflection of that, and basically you think the Pledge is not, so that’s the -

MR. LAYCOCK: And partly we have a disagreement about how you translate principles written for a Protestant country and apply them to a country that’s only about 65 or 60 percent Protestant.

MR. DIONNE: Thank you. Sir?

THABITI ANYABWILE: Thabiti Anyabwile, Center for the Study of Social Policy. Your last comment, in terms of being only about 65 percent is a good segue for my question to you, which is, you opened your comments by saying, Professor Laycock, that your principle in deciding how to take sides on these issues was to think about how government can not take sides. In a country that is as pluralistic as you’ve described it, how can you apply that principle equitably when you’re going to have this non-correspondence of outcomes? There’s going to be winners and losers.

And if I could ask a question to Mr. Sekulow as well: What do you make of Professor Laycock’s critique that the Pledge improperly, and perhaps even dangerously, combines patriotism with religious reference?

MR. LAYCOCK: Government spends about three-eighths of gross national product, so when the gorilla’s that big, it’s impossible for it to have no effect on anything, including people’s religious views, but it can come close, and I think the key is to leave religious choices as much as possible at the individual level. If the individual’s making the choice, that’s good. If we are collectively making the choice, through an election or through an elected body or through a government appointed authority figure, that’s problematic.

So the government decides that it’s going to put religious content into the Pledge, and the government decides what the religious content is going to be, and the government decides how often kids should say it. It helps that we individualize to the extent of saying kids can opt out. They can refuse to say it. I don’t think a lot of kids know that, I don’t think a lot of teachers know that. I don’t think teachers are explaining that to kids, but it’s true. If they get the word, they can opt out. But we have collectivized the decision about what the national recitation shall be about the relationship between God and country, and I think we should not collectivize that choice. That choice should be left to each of us individually, and that principle, can we decollectivize the choice, can we leave it to individuals is the best guide we have to how do we get government out of the way and maximize religious freedom for all of us, including very intense believers and non-believers and everybody in between.

MR. SEKULOW: But I don’t think we need to take it to the least significant – the “we can all agree” approach, because you get to such a low common denominator that it’s meaningless, and I think again you start tinkering with much that is historical fact. No one can sit in this room and deny that our founding fathers in the Declaration of Independence wrote that these rights derived from God to mankind. You can’t deny that fact, whether you agree with that proposition or not. That’s what the founding fathers wrote. That’s what’s in the document.

So as far as the religious statements with patriotism – look, that’s part of the tapestry of the American experience, and I think we’d be denying reality if we were to say completely that religious faith or religious beliefs intertwined with patriotism is somehow not part of the American experience. Now, could you be not religious and be patriotic? Sure. Could you be religious and not patriotic? Absolutely. We’ve seen that.

So I don’t think it’s that simple of an analysis. Believe me, you don’t want me to sing any songs, trust me, I have a horrible voice, but if you were to sing a lot of the songs that are sung every day by Americans all over the country, they have references to faith in them and it’s part of the American experience, and you shouldn’t feel like you’re left outside of this.

I want to say something about the opt out. I have heard that the opt-out situation on the Pledge has really been in great shape. When I was in school, there were students who left it out. We had kids who were Jehovah’s Witnesses in my elementary school, and they left it out and nobody said anything bad. It was different during the 1950s, and I understand that, or right before that, I guess, right before the decision in ’47 and as the decision was moved forward. But the opt out has worked.

Nobody should be compelled to violate their conscience by being required to say something. On the other hand, I don’t think there’s a minority right veto on the heritage of the American experience. That’s how I view it.

MR. DIONNE: We’ve got two folks over here who have been very patient. The gentleman in the green tie, the gentleman right behind him, and then there are about three people over here – I’d like to both of you in together, those three in together and I think we’re going to run out of time. I apologize to anyone else. I’m trying to leave no questioner behind, but I may have to in the end.

Sir?

MATTHEW CLOUD: Hi, thanks. Matthew Cloud, I’m a law student at Catholic. I have two brief questions. I was wondering if either of you would be willing to comment on the relevance, if any, that you think Article 6 and the No Religious Test clause has to the Pledge and the fact that the president can take an oath or affirmation and does not have to say, “So help me God” while – as you said, Mr. Laycock, that children uniquely in our country are coerced into reciting God.

Secondly, as to the opt out, I think it’s worth pointing out that the policy here in Elk Grove essentially requires volunteerism. That is to say, the Pledge of Allegiance is going to be recited each day whether anyone likes it or not, and that raises issues both regards to whether teachers can be required to lead students, which is not at issue in this case, but it was a related issue. And secondly, is a policy that requires volunteerism really the kind of thing that Barnett contemplated?

MR. DIONNE: And could you pass the mic right behind you to – thank you.

KENNETH JONES: Kenneth Jones with Congressional Quarterly, and my question is hard to group with that one. But I’d like each of you -

MR. SEKULOW: It’s just like a Supreme Court case.

MR. JONES: — I’d like each of you – I want to ask about standing because, as Dr. Newdow puts it in his brief, it bears on the role of religion in the public sphere. He says he has standing because his child will be taught that her father’s beliefs are those of an outsider and, in addition, that he has standing because of the conflict his child may experience when forced to express a religious belief she knows her father denies. I’d like each of you to address that on the merits and on the likely reception by the justices.

MR. LAYCOCK: There are a couple of briefs that go to the questions you posed. There’s a brief that emphasized the test oath clause, which says ,”no religious oaths shall be required for any office in the United States,” and that doesn’t control here, but it reminds us of the founders’ suspicion of oaths, and this comes very close to an oath, and that’s not a knock down winner one way or the other. It’s a factor that reminds us why this is troublesome.

There’s a brief that uses the model of oath or affirmation for the president, for witnesses in court, for cops getting search warrants, for lots of people. Oath was understood religiously in the framers’ time, affirmation was the secular alternative, and suggests you can do a religious version of the Pledge if you provide a secular alternative. That’s kind of like opt out, but, I think, in their view, a little different. They want the government to write two versions.

Volunteering to opt out is always a problem, but that’s why the Court has said in a religious context you don’t have to call attention to yourself and opt out that way. They may make an exception here. It is pretty easy to just drop out for two words and you can get away with that for years without being noticed if you’re moderately clever.

Standing – this is partly a problem of American family law, that there are a lot of divorced parents. Somebody’s got to be in charge if the parents can’t agree anymore, and the Court might say, you know, Mom is in charge because she got the top side in the last custody order. On the other hand, standing is a very – and it’s not on the other hand, it’s on the same hand – standing’s a very attractive way for the Court to duck this whole problem. There will not be a political explosion if they find that there’s no standing room. But, on the other hand, those arguments you’ve made, you’ve recited, make absolute sense. A parent cannot object to a child studying political ideas the parent disagrees with, but a parent ought to be able to object that the government is taking sides on a religious question, as between the two parents.

MR. SEKULOW: Really quick, because I know we’re running out of time, I don’t think the oath clause is involved here at all, because obviously this is not a requirement for public office or any other office. I think it’s interesting but irrelevant.

On the standing issue, though, I suspect three-quarters of this argument could be on the standing issue. And I think that’s going to be the most difficult for Dr. Newdow, because he’s the advocate and the client. I’m sure he’s worked that through in his moot courts, because the standing issue is – and I agree completely here with Doug – if the Court were to decide it doesn’t want to decide the merits of this, it is very easy to say the mother had custodial control for the education. Thus, if she wanted to send the child to parochial school five days a week, his only way to object would be to go back into court and show that it’s not in the best interest of the child. And no Supreme Court wants to get into domestic disputes like that. But I do think the standing issue, which is the first issue that is going to come up in this case, and I suspect it will come up in the argument significantly, is going to play a major role here.

MR. DIONNE: Now, we’ve got some folks over here. If you could be very, very quick with a quick question, we could get everybody in, and they could close on these.

KEN MASUGI: Ken Masugi, the Claremont Institute. I find both sides’ reasoning somewhat muddled. Could you apply it to the case of the Presidential Proclamation of Thanksgiving? That’s not covered by the First Amendment. How far could the president go without violating the Constitution in proclaiming what is obviously a – to some extent at least – a religious holiday? After all, we’re not asked to thank football coaches.

MR. DIONNE: There was somebody else with a hand right behind the doctor.

PHILIP MUNOZ: Hi. Phillip Munoz – I’m a Pew Fellow at the American Enterprise Institute. Specifically for Professor Laycock: You want to narrow the ruling by saying that the government is requesting a pledge, yet none of the precedents you’ve cited – coercion or endorsement or even Lemon – would let you narrow it in that way. So are you advocating a new sort of test?

MR. DIONNE: Thank you. We’ll close with that.

MR. LAYCOCK: Those two questions do go together. The general standard is the government cannot endorse a religious viewpoint. Thanksgiving Proclamations flunk that standard, right? It’s an endorsement of religion. In my view, the president shouldn’t do it. But we also have this recurring dictum running through the cases that some things are just too generic, too low level, too insignificant to worry about. The Thanksgiving Proclamations may be like that. Nobody pays any attention to it.

I’m on a list serve of law professors that argue about religious liberty issues, and when I tried to float the idea that Thanksgiving actually is a religious holiday, I just got hooted down. No one thinks of it as a religious holiday. They think of it as a shopping day and a football day and a stuff yourself day. My church actually has a Thanksgiving service, but not many others do, apparently.

Assuming this de minimus or low-level exception exists, you can’t put a request for a personal affirmation into it. Request for a personal affirmation inherently is not de minimus. It is not below the threshold that doesn’t raise a problem. It raises a serious problem when the government asks an individual American for a profession of faith. So that’s the new step that I’m proposing. I wouldn’t change the endorsement test for the stuff the Court views as important. I’m just saying you can’t view this as unimportant.

MR. SEKULOW: I suspect that in this case, if the Court rules that the Pledge is in fact constitutional, you may see no mention of endorsement. You may see no mention of the three-pronged Lemon test as now modified. I think the Court could do a kind of Marsh vs. Chambers – the legislative chaplaincy prayer cases – and say, Look, this is part of the American experience. It’s ceremonial deism, or whatever you want to call it. It doesn’t rise to the level of a serious Establishment Clause problem. It’s almost like a gimme.

And I suspect I would be very surprised to see the Court rule in favor of the Pledge and apply the three-prong test. They have gone a lot of different ways lately on that, so the Establishment Clause jurisprudence, as I’ve said and argued and written, is unclear, contradictory and difficult to apply, and they probably would say the same, and they do say the same thing.

MR. DIONNE: First, I want to thank Dr. Newdow for joining us. Thanks to a great audience who gave these guys excellent spring training for what they’re going to face in the court. God save these honorable panelists, and thank goodness – (laughter) – thank goodness they agree on liberty and justice for all. Thank you.

(Applause.)

(END)