Expressing Sense of Congress that United States Supreme Court Should Speedily Find Use of Pledge of Allegiance in Schools to be Consistent with...

EXPRESSING SENSE OF CONGRESS THAT UNITED STATES SUPREME COURT SHOULD SPEEDILY FIND USE OF PLEDGE OF ALLEGIANCE IN SCHOOLS TO BE CONSISTENT WITH CONSTITUTION -- (House of Representatives - September 28, 2005)

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Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I come from a State that has a long tradition in supporting religious freedom. In fact, it was Thomas Jefferson of Virginia who wrote the Virginia Statute for Religious Freedom which predates the amendment to the Constitution.

Unfortunately, H. Con. Res. 245 is not about supporting religious freedom. In fact, this resolution is totally gratuitous, as it will do nothing to change the underlying law. This is because we are dealing with constitutional issues that cannot be altered by resolution. If the judicial branch ultimately finds the Pledge, or the national motto to be constitutional, then nothing needs to be done. On the other hand, if the Court ultimately finds it to be unconstitutional, no law that we pass will change that.

Although I tend to agree with the dissent in the 2002 Ninth Circuit decision in Newdow v. U.S. Congress, which found that the words ``under God'' in the Pledge are permissible under the Constitution, I believe it is important to review the reasoning of the majority decision in that case which held that the words ``under God'' are impermissible on constitutional grounds.

The majority in the Newdow case applied each of the three Supreme Court tests that have been used over the last 50 years in evaluating Establishment Clause cases. That review is essential, because if we support the Pledge, we need to make sure that we support it based on appropriate constitutional principles.

One test the Ninth Circuit cited was whether the phrase ``under God'' in the Pledge constitutes an endorsement of religion. The majority opinion said it was an endorsement of one view of religion, monotheism, and, therefore, was an unconstitutional endorsement.

Another test was whether the individuals were coerced into being exposed to the religious message, and the majority opinion concluded that the Pledge was unconstitutional because young children are compelled to attend school and ``may not be placed in the dilemma of either participating in a religious ceremony or protesting.''

Finally, the Court applied the Lemon test, named after the 1971 Supreme Court case Lemon v. Kurtzman. Part of that test holds that a law violates the Establishment Clause if there is no secular or nonreligious purpose. Mr. Speaker, the Pledge was amended in 1954 to add the words ``under God'' to the existing Pledge, and so the Ninth Circuit concluded that the 1954 law had no secular purpose and was, therefore, unconstitutional.

Mr. Speaker, while I believe that the majority's reasoning was sound, I indicated that I tend to agree with the dissent in the 2002 Newdow case. The operative language in the dissent which persuaded me was as follows:

``Legal world abstractions and ruminations aside, when all is said and done, the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress someone's belief is so minuscule as to be de minimis. The danger that phrase represents to our first amendment's freedoms is picayune at best.

``Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades, if not for centuries.''

Mr. Speaker, I agree with the dissent and support the Pledge of Allegiance as is under the theory that the words ``under God'' are de minimis. Because the language fails other traditional Establishment Clause tests, the principle that the words ``under God'' are de minimis is the only principle that supports the Pledge as it is. If we suggest that the words are not de minimis, then what do we have to rely on? We would have to overturn one of the existing Supreme Court tests. What will we base that decision on? Would we permit, for example, the government endorsement of one religious view and open the door to other endorsements? Will we permit proscribed coercion of young and impressionable schoolchildren and open the door to other government proscribed religious messages? Should we repeal the Lemon law test and permit the enactment of legislation that only has a religious purpose?

Moreover, if we elect to maintain the Pledge with the words ``under God'' simply because it represents a page in our history as the Fourth Circuit appears to allow, then are we establishing a new Supreme Court test, a historical setting test, or is that the same de minimis standard that the Ninth Circuit cited?

Again, the only principle which upholds the constitutionality of the Pledge is that the words ``under God'' are de minimis, as explained by the dissent in the 2002 Newdow case in the Ninth Circuit. The problem with relying on that principle and enacting H. Con. Res. 245 is that our actions do more harm than good. The de minimis principle is precarious at best.

It is easily undermined by the emphasis we place on the language. If the courts look at the importance that we apparently affix to the words ``under God'' by passing this legislation and increasing the magnitude of the attention we give the issue, we subvert the argument that the phrase has de minimis meaning and, in fact, increase the constitutional vulnerability of that phrase in the pledge.

Mr. Speaker, when we were sworn in, we promised to uphold the Constitution. It is important to acknowledge that any court ruling based on constitutional rights will be unpopular. If the issue was popular, the complainant would be able to vindicate his rights using the normal democratic legislative process. Obviously, the fact that he had to rely on constitutional rights and go through the courts means that he was in the minority.

This will always be the case with constitutional rights. You do not need the Constitution to protect the freedom of speech to say something that is popular. You only need it when the majority tries to use the democratic legislative process or police power to stop you from expressing your views, and stopping the majority from exercising that power will always be unpopular.

Mr. Speaker, whatever we think of the recent California district court or the previous Ninth Circuit decisions, the only thing worse than those decisions is a spectacle of Members of Congress putting aside efforts to address the tragedies caused by Hurricanes Katrina and Rita, considering the appointments to the Supreme Court, completion of the appropriations process for the fiscal year that begins 3 days from now, and the need to address a budget deficit that jeopardizes the next generation in order to take time to pass this resolution. Such a spectacle only emphasizes the importance of the words ``under God'' and, simultaneously, undermines the only constitutional argument that supports the Pledge as it is, and that is, that the words are not important.

Mr. Speaker, in that light, the majority of the Members of Congress will always disagree with the constitutional decision of the judicial branch, and so, Mr. Speaker, because this resolution actually makes it less likely that a court can find the Pledge unconstitutional and because what we think about the decision is actually irrelevant and because we have other important business to do, I would hope that this resolution is defeated.

Mr. Speaker, I reserve the balance of my time.

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Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume and point out that out of respect for the judicial branch and because the passage of this resolution will actually make it less likely that the Pledge will be found constitutional by the judicial branch, we should defeat this resolution.

Mr. Speaker, I yield back the balance of my time.

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