[House Report 107-659]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-659
======================================================================
TO REAFFIRM THE REFERENCE TO ONE NATION UNDER GOD IN THE PLEDGE OF
ALLEGIANCE
_______
September 17, 2002.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany S. 2690]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (S. 2690) to reaffirm the reference to one Nation under
God in the Pledge of Allegiance, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 4
Hearings......................................................... 8
Committee Consideration.......................................... 8
Vote of the Committee............................................ 8
Committee Oversight Findings..................................... 9
Performance Goals and Objectives................................. 9
New Budget Authority and Tax Expenditures........................ 9
Congressional Budget Office Cost Estimate........................ 9
Constitutional Authority Statement............................... 10
Section-by-Section Analysis and Discussion....................... 10
Changes in Existing Law Made by the Bill, as Reported............ 14
Markup Transcript................................................ 14
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. FINDINGS.
Congress finds the following:
(1) On November 11, 1620, prior to embarking for the shores
of America, the Pilgrims signed the Mayflower Compact that
declared: ``Having undertaken, for the Glory of God and the
advancement of the Christian Faith and honor of our King and
country, a voyage to plant the first colony in the northern
parts of Virginia,''.
(2) On July 4, 1776, America's Founding Fathers, after
appealing to the ``Laws of Nature, and of Nature's God'' to
justify their separation from Great Britain, then declared:
``We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty,
and the Pursuit of Happiness''.
(3) In 1781, Thomas Jefferson, the author of the
Declaration of Independence and later the Nation's third
President, in his work titled ``Notes on the State of
Virginia'' wrote: ``God who gave us life gave us liberty. And
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 these liberties are of the Gift of God. That they
are not to be violated but with His wrath? Indeed, I tremble
for my country when I reflect that God is just; that his
justice cannot sleep forever.''.
(4) On May 14, 1787, George Washington, as President of the
Constitutional Convention, rose to admonish and exhort the
delegates and declared: ``If to please the people we offer what
we ourselves disapprove, how can we afterward defend our work?
Let us raise a standard to which the wise and the honest can
repair; the event is in the hand of God!''.
(5) On July 21, 1789, on the same day that it approved the
Establishment Clause concerning religion, the First Congress of
the United States also passed the Northwest Ordinance,
providing for a territorial government for lands northwest of
the Ohio River, which declared: ``Religion, morality, and
knowledge, being necessary to good government and the happiness
of mankind, schools and the means of education shall forever be
encouraged.''.
(6) On September 25, 1789, the First Congress unanimously
approved a resolution calling on President George Washington to
proclaim a National Day of Thanksgiving for the people of the
United States by declaring, ``a day of public thanksgiving and
prayer, to be observed by acknowledging, with grateful hearts,
the many signal favors of Almighty God, especially by affording
them an opportunity peaceably to establish a constitution of
government for their safety and happiness.''.
(7) On November 19, 1863, President Abraham Lincoln
delivered his Gettysburg Address on the site of the battle and
declared: ``It is rather for us to be here dedicated to the
great task remaining before us--that from these honored dead we
take increased devotion to that cause for which they gave the
last full measure of devotion--that we here highly resolve that
these dead shall not have died in vain--that this Nation, under
God, shall have a new birth of freedom--and that Government of
the people, by the people, for the people, shall not perish
from the earth.''.
(8) On April 28, 1952, in the decision of the Supreme Court
of the United States in Zorach v. Clauson, 343 U.S. 306 (1952),
in which school children were allowed to be excused from public
schools for religious observances and education, Justice
William O. Douglas, in writing for the Court stated: ``The
First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State.
Rather, it studiously defines the manner, the specific ways, in
which there shall be no concern or union or dependency one on
the other. That is the common sense of the matter. Otherwise
the State and religion would be aliens to each other--hostile,
suspicious, and even unfriendly. Churches could not be required
to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious
groups. Policemen who helped parishioners into their places of
worship would violate the Constitution. Prayers in our
legislative halls; the appeals to the Almighty in the messages
of the Chief Executive; the proclamations making Thanksgiving
Day a holiday; `so help me God' in our courtroom oaths--these
and all other references to the Almighty that run through our
laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even
object to the supplication with which the Court opens each
session: `God save the United States and this Honorable Court.'
''.
(9) On June 15, 1954, Congress passed and President
Eisenhower signed into law a statute that was clearly
consistent with the text and intent of the Constitution of the
united States, that amended the Pledge of Allegiance to read:
``I pledge allegiance to the Flag of the United States of
America and to the Republic for which it stands, one Nation
under God, indivisible, with liberty and justice for all.'';
(10) On July 20, 1956, Congress proclaimed that the
national motto of the United States is ``In God We Trust'', and
that motto is inscribed above the main door of the Senate,
behind the Chair of the Speaker of the House of
Representatives, and on the currency of the United States.
(11) On June 17, 1963, in the decision of the Supreme Court
of the United States in Abington School District v. Schempp,
374 U.S. 203 (1963), in which compulsory school prayer was held
unconstitutional, Justices Goldberg and Harlan, concurring in
the decision, stated: ``But untutored devotion to the concept
of neutrality can lead to invocation or approval of results
which partake not simply of that noninterference and
noninvolvement with the religious which the Constitution
commands, but of a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the
religious. Such results are not only not compelled by the
Constitution, but, it seems to me, are prohibited by it.
Neither government nor this Court can or should ignore the
significance of the fact that a vast portion of our people
believe in and worship God and that many of our legal,
political, and personal values derive historically from
religious teachings. Government must inevitably take cognizance
of the existence of religion and, indeed, under certain
circumstances the First Amendment may require that it do so.''.
(12) On March 5, 1984, in the decision of the Supreme Court
of the United States in Lynch v. Donelly, 465 U.S. 668 (1984),
in which a city government's display of a nativity scene was
held to be constitutional, Chief Justice Burger, writing for
the Court, stated: ``There is an unbroken history of official
acknowledgment by all three branches of government of the role
of religion in American life from at least 1789 . . .
[E]xamples of reference to our religious heritage are found in
the statutorily prescribed national motto `In God We Trust' (36
U.S.C. 186), which Congress and the President mandated for our
currency, see (31 U.S.C. 5112(d)(1) (1982 ed.)), and in the
language `One Nation under God', as part of the Pledge of
Allegiance to the American flag. That pledge is recited by many
thousands of public school children--and adults--every year . .
. Art galleries supported by public revenues display religious
paintings of the 15th and 16th centuries, predominantly
inspired by one religious faith. The National Gallery in
Washington, maintained with Government support, for example,
has long exhibited masterpieces with religious messages,
notably the Last Supper, and paintings depicting the Birth of
Christ, the Crucifixion, and the Resurrection, among many
others with explicit Christian themes and messages. The very
chamber in which oral arguments on this case were heard is
decorated with a notable and permanent--not seasonal--symbol of
religion: Moses with the Ten Commandments. Congress has long
provided chapels in the Capitol for religious worship and
meditation.''.
(13) On June 4, 1985, in the decision of the Supreme Court
of the United States in Wallace v. Jaffree, 472 U.S. 38 (1985),
in which a mandatory moment of silence to be used for
meditation or voluntary prayer was held unconstitutional,
Justice O'Connor, concurring in the judgment and addressing the
contention that the Court's holding would render the Pledge of
Allegiance unconstitutional because Congress amended it in 1954
to add the words ``under God,'' stated ``In my view, the words
`under God' in the Pledge, as codified at (36 U.S.C. 172),
serve as an acknowledgment of religion with `the legitimate
secular purposes of solemnizing public occasions, [and]
expressing confidence in the future.' ''.
(14) On November 20, 1992, the United States Court of
Appeals for the 7th Circuit, in Sherman v. Community
Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992),
held that a school district's policy for voluntary recitation
of the Pledge of Allegiance including the words ``under God''
was constitutional.
(15) The 9th Circuit Court of Appeals erroneously held, in
Newdow v. U.S. Congress, (9th Cir. June 26, 2002) that the
Pledge of Allegiance's use of the express religious reference
``under God'' violates the First Amendment to the Constitution,
and that, therefore, a school district's policy and practice of
teacher-led voluntary recitations of the Pledge of Allegiance
is unconstitutional.
(16) The erroneous rationale of the 9th Circuit Court of
Appeals in Newdow would lead to the absurd result that the
Constitution's use of the express religious reference ``Year of
our Lord'' in Article VII violates the First Amendment to the
Constitution, and that, therefore, a school district's policy
and practice of teacher-led voluntary recitations of the
Constitution itself would be unconstitutional.
SEC. 2. ONE NATION UNDER GOD.
(a) Reaffirmation.--Section 4 of title 4, United States Code, is
amended to read as follows:
``Sec. 4. Pledge of allegiance to the flag; manner of delivery
``The Pledge of Allegiance to the Flag: `I pledge allegiance to the
Flag of the United States of America, and to the Republic for which it
stands, one Nation under God, indivisible, with liberty and justice for
all.', should be rendered by standing at attention facing the flag with
the right hand over the heart. When not in uniform men should remove
any non-religious headdress with their right hand and hold it at the
left shoulder, the hand being over the heart. Persons in uniform should
remain silent, face the flag, and render the military salute.''.
(b) Codification.--In codifying this subsection, the Office of the
Law Revision Counsel shall show in the historical and statutory notes
that the 107th Congress reaffirmed the exact language that has appeared
in the Pledge for decades.
SEC. 3. REAFFIRMING THAT GOD REMAINS IN OUR MOTTO.
(a) Reaffirmation.--Section 302 of title 36, United States Code, is
amended to read as follows:
``Sec. 302. National motto
`` `In God we trust' is the national motto.''.
(b) Codification.--In codifying this subsection, the Office of the
Law Revision Counsel shall make no change in section 302, title 36,
United States Code, but shall show in the historical and statutory
notes that the 107th Congress reaffirmed the exact language that has
appeared in the Motto for decades.
Purpose and Summary
The purpose of S. 2690, introduced and passed by the Senate
on June 27, 2002, by a vote of 99-0, is to reaffirm Congress'
commitment to the Pledge of Allegiance and our national motto,
``In God we trust.''
Background and Need for the Legislation
It is an accepted legal principle that government
acknowledgment of the religious heritage of the United States
of America is consistent with the meaning of the Establishment
Clause of the First Amendment to the U.S. Constitution. Indeed,
although there has been much legal uncertainty throughout the
last half century regarding the parameters of the Establishment
Clause, the United States Supreme Court has repeatedly affirmed
that government acknowledgment of our Nation's religious
heritage is entirely consistent with, and in fact may in some
circumstances be required by, the Establishment Clause. Yet, on
June 26, 2002, a three member panel of the United States Court
of Appeals for the Ninth Circuit held unconstitutional, in
Newdow v. U.S. Congress, a California school district's policy
and practice of teacher-led voluntary recitation of the Pledge
of Allegiance, concluding that the use of the phrase ``one
Nation under God'' violates the Establishment Clause of the
First Amendment.\1\
---------------------------------------------------------------------------
\1\ 292 F.3d 597 (9th Cir. 2002).
---------------------------------------------------------------------------
Writing for the 2-1 majority, Circuit Judge Alfred T.
Goodwin stated that the Pledge of Allegiance is an
unconstitutional endorsement of religion, that ``impermissibly
takes a position with respect to the purely religious question
of the existence and identity of God,'' and places children in
the ``untenable position of choosing between participating in
an exercise with religious content or protesting.'' \2\
---------------------------------------------------------------------------
\2\ See id. at 609.
---------------------------------------------------------------------------
Yet, this conclusion is contrary to the vast weight of U.S.
Supreme Court authority recognizing that the mere mention of
God in a public setting is entirely consistent with the First
Amendment's Establishment Clause. The Pledge of Allegiance is
not a religious service or prayer, but is a statement of
historical beliefs. It is a recognition of the fact that many
Americans believe in God, and it acknowledges the value that
our culture has traditionally placed on the role of religion in
our founding and our culture. Thus, the Supreme Court has
recognized that governmental entities may, consistent with the
First Amendment, recognize the religious heritage of America.
Although the United States Congress recognizes the right of
those who do not share the beliefs expressed in the Pledge to
refrain from its recitation, the Newdow ruling is troubling
from a jurisprudential standpoint because its analysis appears
to reflect the belief that any religious reference presents an
inherent danger to individuals who hear it, the result of which
would be the banishment of all such references from the public
arena. Clearly, this is inconsistent with any reasonable
interpretation of the Establishment Clause of the First
Amendment.
Immediately following the Newdow ruling on June 27, 2002,
the House of Representatives passed H. Res. 459, introduced by
Judiciary Committee Chairman F. James Sensenbrenner, Jr.
expressing the sense of the House of Representatives that the
Newdow case was erroneously decided by the Ninth Circuit and
that the court should agree to hear the ruling en banc. H. Res.
459 passed the House of Representatives by a 416-3 vote. By
passing S. 2690, the House of Representatives will join the
Senate in reaffirming its commitment to our Nation's pledge of
allegiance as ``one Nation under God'' and our Nation's motto,
``In God we trust.''
Historical References to and Acknowledgment of America's Religious
Heritage
Our Nation's history of civic and political discourse is
sprinkled with extensive references to God. On November 11,
1620, prior to embarking for the shores of America, the
Pilgrims signed the Mayflower Compact that declared, ``Having
undertaken, for the Glory of God and the advancement of the
Christian Faith and honor of our King and country, a voyage to
plant the first colony in the northern parts of Virginia.'' On
July 4, 1776, America's Founding Fathers, after appealing to
the ``Laws of Nature, and of Nature's God'' to justify their
separation from Great Britain, then declared, ``We hold these
Truths to be self-evident, that all Men are created equal, that
they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and the Pursuit of
Happiness.''
In 1781, Thomas Jefferson, the author of the Declaration of
Independence and later the Nation's third President, in his
work titled ``Notes on the State of Virginia'' wrote, ``God who
gave us life gave us liberty. And 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 these liberties are
of the Gift of God. That they are not to be violated but with
His wrath? Indeed, I tremble for my country when I reflect that
God is just; that his justice cannot sleep forever.'' On May
14, 1787, George Washington, as President of the Constitutional
Convention, rose to admonish and exhort the delegates and
declared, ``If to please the people we offer what we ourselves
disapprove, how can we afterward defend our work? Let us raise
a standard to which the wise and the honest can repair; the
event is in the hand of God!''
On July 21, 1789, on the same day that it approved the
Establishment Clause concerning religion, the First Congress of
the United States also passed the Northwest Ordinance,
providing for a territorial government for lands northwest of
the Ohio River, which declared, ``Religion, morality, and
knowledge, being necessary to good government and the happiness
of mankind, schools and the means of education shall forever be
encouraged.'' On September 25, 1789, the First Congress
unanimously approved a resolution calling on President George
Washington to proclaim a National Day of Thanksgiving for the
people of the United States by declaring, ``a day of public
thanksgiving and prayer, to be observed by acknowledging, with
grateful hearts, the many favors of Almighty God, especially by
affording them an opportunity peaceably to establish a
constitution of government for their safety and happiness.''
On November 19, 1863, President Abraham Lincoln delivered
his Gettysburg Address on the site of the battle and declared,
``It is rather for us to be here dedicated to the great task
remaining before us--that from these honored dead we take
increased devotion to that cause for which they gave the last
full measure of devotion--that we here highly resolve that
these dead shall not have died in vain--that this Nation, under
God, shall have a new birth of freedom--and that Government of
the people, by the people, for the people, shall not perish
from the earth.''
On April 28, 1952, in the decision of the Supreme Court of
the United States in Zorach v. Clauson,\3\ in which school
children were allowed to be excused from public schools for
religious observances and education, Justice William O.
Douglas, in writing for the Court, stated:
---------------------------------------------------------------------------
\3\ 343 U.S. 306 (1952).
The First Amendment, however, does not say that in
every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no
concern or union or dependency one on the other. That
is the common sense of the matter. Otherwise the State
and religion would be aliens to each other--hostile,
suspicious, and even unfriendly. Churches could not be
required to pay even property taxes. Municipalities
would not be permitted to render police or fire
protection to religious groups. Policemen who helped
parishioners into their places of worship would violate
the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a
holiday; ``so help me God'' in our courtroom oaths--
these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies
would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the
supplication with which the Court opens each session:
``God save the United States and this Honorable
Court.'' \4\
---------------------------------------------------------------------------
\4\ Id. at 312.
On June 15, 1954, Congress passed, and President Eisenhower
signed into law a statute, that was clearly consistent with the
text and intent of the Constitution of the United States, that
amended the Pledge of Allegiance to read, ``I pledge allegiance
to the Flag of the United States of America and to the Republic
for which it stands, one Nation under God, indivisible, with
liberty and justice for all.'' On July 20, 1956, Congress
proclaimed that the national motto of the United States is ``In
God We Trust,'' and that motto is inscribed above the main door
of the Senate, behind the Chair of the Speaker of the House of
Representatives, and on the currency of the United States.
On June 17, 1963, in the decision of the Supreme Court of
the United States in Abington School District v. Schempp,\5\ in
which compulsory school prayer was held unconstitutional,
Justices Goldberg and Harlan, concurring in the decision,
stated:
---------------------------------------------------------------------------
\5\ 374 U.S. 203 (1963).
But untutored devotion to the concept of neutrality can
lead to invocation or approval of results which partake
not simply of that noninterference and noninvolvement
with the religious which the Constitution commands, but
of a brooding and pervasive devotion to the secular and
a passive, or even active, hostility to the religious.
Such results are not only not compelled by the
Constitution, but, it seems to me, are prohibited by
it. Neither government nor this Court can or should
ignore the significance of the fact that a vast portion
of our people believe in and worship God and that many
of our legal, political, and personal values derive
historically from religious teachings. Government must
inevitably take cognizance of the existence of religion
and, indeed, under certain circumstances the First
Amendment may require that it do so.\6\
---------------------------------------------------------------------------
\6\ Id. at 306 (Goldberg, J., concurring).
On March 5, 1984, in the decision of the Supreme Court of
the United States in Lynch v. Donelly,\7\ in which a city
government's display of a nativity scene was held to be
constitutional, Chief Justice Burger, writing for the Court,
stated:
---------------------------------------------------------------------------
\7\ 465 U.S. 668 (1984).
There is an unbroken history of official acknowledgment
by all three branches of government of the role of
religion in American life from at least 1789. . . .
[E]xamples of reference to our religious heritage are
found in the statutorily prescribed national motto ``In
God We Trust,'' which Congress and the President
mandated for our currency,\8\ and in the language ``One
Nation under God,'' as part of the Pledge of Allegiance
to the American flag. That pledge is recited by many
thousands of public school children--and adults--every
year. . . . Art galleries supported by public revenues
display religious paintings of the 15th and 16th
centuries, predominantly inspired by one religious
faith. The National Gallery in Washington, maintained
with Government support, for example, has long
exhibited masterpieces with religious messages, notably
the Last Supper, and paintings depicting the Birth of
Christ, the Crucifixion, and the Resurrection, among
many others with explicit Christian themes and
messages. The very chamber in which oral arguments on
this case were heard is decorated with a notable and
permanent--not seasonal--symbol of religion: Moses with
the Ten Commandments. Congress has long provided
chapels in the Capitol for religious worship and
meditation.\9\
---------------------------------------------------------------------------
\8\ See 31 U.S.C. 5112(d)(1) (1982).
\9\ 465 U.S. at 674.
On June 4, 1985, in the decision of the Supreme Court of
the United States in Wallace v. Jaffree,\10\ in which a
mandatory moment of silence to be used for meditation or
voluntary prayer was held unconstitutional, Justice O'Connor,
concurring in the judgment and addressing the contention that
the Court's holding would render the Pledge of Allegiance
unconstitutional because Congress amended it in 1954 to add the
words ``under God,'' stated, ``In my view, the words `under
God' in the Pledge, as codified at 36 U.S.C. 172, serve as an
acknowledgment of religion with the legitimate secular purposes
of solemnizing public occasions, [and] expressing confidence in
the future.'' \11\ On November 20, 1992, the United States
Court of Appeals for the 7th Circuit, in Sherman v. Community
Consolidated School District 21,\12\ held that a school
district's policy for voluntary recitation of the Pledge of
Allegiance including the words ``under God'' was
constitutional.
---------------------------------------------------------------------------
\10\ 472 U.S. 38 (1985).
\11\ Id. at 78 n.15 (O'Connor, J., concurring).
\12\ 980 F.2d 437 (7th Cir. 1992).
---------------------------------------------------------------------------
Clearly, America has a rich history of referring to God in
its political and civic discourse and acknowledging the
important role faith and religion have played throughout our
Nation's history. Thus the Ninth Circuit's analysis in the
Newdow ruling cannot be supported by any reasonable
interpretation of the Establishment Clause as their holding is
inconsistent with the meaning given the Establishment Clause
since America's founding. It is important to note that under
Pierce v. Underwood, 487 U.S. 552 (1988), Congress, by
approving S. 2690 which calls for the re-codification of
section 4 of title 4 of the United States Code, could be
presumed to have adopted previous interpretations of this
provision, including the Ninth Circuit Court of Appeals'
interpretation of section 4 of title 4 of the Unites States
Code in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).
The Committee wishes to make clear that it is not the intent of
Congress to adopt any previous judicial interpretations of this
provision, particularly that given to it by the Ninth Circuit
in the Newdow ruling.
Hearings
No hearings were held on S. 2690.
Committee Consideration
On September, 10, 2002, the Committee met in open session
and ordered favorably reported the bill S. 2690, with
amendment, by voice vote, a quorum being present.
Vote of the Committee
1. Mr. Nadler and Mr. Scott offered an amendment to S. 2690
to clarify that section 4 of title 4's requirement that men,
who are not in uniform, ``remove their headdress with their
right hand and hold it at the left shoulder, the hand being
over the heart'' prior to reciting the pledge only applies to a
``non-religious'' headdress. The amendment was agreed to by a
voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
S. 2690 does not authorize funding. Therefore, clause 3(c)
of rule XII of the Rules of the House of Representatives is
inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, S. 2690, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 12, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2690, an act to
reaffirm the reference to one Nation under God in the Pledge of
Allegiance.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
S. 2690--An act to reaffirm the reference to one Nation under God in
the Pledge of Allegiance.
S. 2690 would reaffirm the current language of the Pledge
of Allegiance to the Flag and the national motto. CBO estimates
that enacting this legislation would result in no cost to the
Federal Government. Because S. 2690 would not affect direct
spending or receipts, pay-as-you-go procedures would not apply.
The act contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
The CBO staff contact is Matthew Pickford, who can be
reached at 226-2860. This estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 18 of the
Constitution.
Section-by-Section Analysis and Discussion
S. 2690 reaffirms the reference to one Nation under God in
the Pledge of Allegiance.
Section 1. Findings. In paragraph (1) Congress finds that
on November 11, 1620, prior to embarking for the shores of
America, the Pilgrims signed the Mayflower Compact that
declared, ``Having undertaken, for the Glory of God and the
advancement of the Christian Faith and honor of our King and
country, a voyage to plant the first colony in the northern
parts of Virginia.''
In paragraph (2) Congress finds that on July 4, 1776,
America's Founding Fathers, after appealing to the ``Laws of
Nature, and of Nature's God'' to justify their separation from
Great Britain, then declared, ``We hold these Truths to be
self-evident, that all Men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty, and the Pursuit of Happiness.''
In paragraph (3) Congress finds that in 1781, Thomas
Jefferson, the author of the Declaration of Independence and
later the Nation's third President, in his work titled ``Notes
on the State of Virginia'' wrote, ``God who gave us life gave
us liberty. And 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 these liberties are of the Gift of
God. That they are not to be violated but with His wrath?
Indeed, I tremble for my country when I reflect that God is
just; that his justice cannot sleep forever.''
In paragraph (4) Congress finds that on May 14, 1787,
George Washington, as President of the Constitutional
Convention, rose to admonish and exhort the delegates and
declared, ``If to please the people we offer what we ourselves
disapprove, how can we afterward defend our work? Let us raise
a standard to which the wise and the honest can repair; the
event is in the hand of God!''
In paragraph (5) Congress finds that on July 21, 1789, on
the same day that it approved the Establishment Clause
concerning religion, the First Congress of the United States
also passed the Northwest Ordinance, providing for a
territorial government for lands northwest of the Ohio River,
which declared, ``Religion, morality, and knowledge, being
necessary to good government and the happiness of mankind,
schools and the means of education shall forever be
encouraged.''
In paragraph (6) Congress finds that on September 25, 1789,
the First Congress unanimously approved a resolution calling on
President George Washington to proclaim a National Day of
Thanksgiving for the people of the United States by declaring,
``a day of public thanksgiving and prayer, to be observed by
acknowledging, with grateful hearts, the many favors of
Almighty God, especially by affording them an opportunity
peaceably to establish a constitution of government for their
safety and happiness.''
In paragraph (7) Congress finds that on November 19, 1863,
President Abraham Lincoln delivered his Gettysburg Address on
the site of the battle and declared, ``It is rather for us to
be here dedicated to the great task remaining before us--that
from these honored dead we take increased devotion to that
cause for which they gave the last full measure of devotion--
that we here highly resolve that these dead shall not have died
in vain--that this Nation, under God, shall have a new birth of
freedom--and that Government of the people, by the people, for
the people, shall not perish from the earth.''
In paragraph (8) Congress finds that on April 28, 1952, in
the decision of the Supreme Court of the United States in
Zorach v. Clauson,\13\ in which school children were allowed to
be excused from public schools for religious observances and
education, Justice William O. Douglas, in writing for the Court
stated: ``The First Amendment, however, does not say that in
every and all respects there shall be a separation of Church
and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concern or union or
dependency one on the other. That is the common sense of the
matter. Otherwise the State and religion would be aliens to
each other--hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to
the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; `so help me
God' in our courtroom oaths--these and all other references to
the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with
which the Court opens each session: `God save the United States
and this Honorable Court.' '' \14\
---------------------------------------------------------------------------
\13\ 343 U.S. 306 (1952).
\14\ Id. at 312.
---------------------------------------------------------------------------
In paragraph (9) Congress finds that on June 15, 1954,
Congress passed, and President Eisenhower signed into law a
statute, that was clearly consistent with the text and intent
of the Constitution of the United States, that amended the
Pledge of Allegiance to read, ``I pledge allegiance to the Flag
of the United States of America and to the Republic for which
it stands, one Nation under God, indivisible, with liberty and
justice for all.''
In paragraph (10) Congress finds that on July 20, 1956,
Congress proclaimed that the national motto of the United
States is ``In God We Trust,'' and that motto is inscribed
above the main door of the Senate, behind the Chair of the
Speaker of the House of Representatives, and on the currency of
the United States.
In paragraph (11) Congress finds that on June 17, 1963, in
the decision of the Supreme Court of the United States in
Abington School District v. Schempp,\15\ in which compulsory
school prayer was held unconstitutional, Justices Goldberg and
Harlan, concurring in the decision, stated: ``But untutored
devotion to the concept of neutrality can lead to invocation or
approval of results which partake not simply of that
noninterference and noninvolvement with the religious which the
Constitution commands, but of a brooding and pervasive devotion
to the secular and a passive, or even active, hostility to the
religious. Such results are not only not compelled by the
Constitution, but, it seems to me, are prohibited by it.
Neither government nor this Court can or should ignore the
significance of the fact that a vast portion of our people
believe in and worship God and that many of our legal,
political, and personal values derive historically from
religious teachings. Government must inevitably take cognizance
of the existence of religion and, indeed, under certain
circumstances the First Amendment may require that it do so.''
\16\
---------------------------------------------------------------------------
\15\ 374 U.S. 203 (1963).
\16\ Id. at 306 (Goldberg, J., concurring).
---------------------------------------------------------------------------
In paragraph (12) Congress finds that on March 5, 1984, in
the decision of the Supreme Court of the United States in Lynch
v. Donelly,\17\ in which a city government's display of a
nativity scene was held to be constitutional, Chief Justice
Burger, writing for the Court, stated: ``There is an unbroken
history of official acknowledgment by all three branches of
government of the role of religion in American life from at
least 1789. . . . [E]xamples of reference to our religious
heritage are found in the statutorily prescribed national motto
`In God We Trust,' which Congress and the President mandated
for our currency,\18\ and in the language `One Nation under
God,' as part of the Pledge of Allegiance to the American flag.
That pledge is recited by many thousands of public school
children--and adults--every year. . . . Art galleries supported
by public revenues display religious paintings of the 15th and
16th centuries, predominantly inspired by one religious faith.
The National Gallery in Washington, maintained with Government
support, for example, has long exhibited masterpieces with
religious messages, notably the Last Supper, and paintings
depicting the Birth of Christ, the Crucifixion, and the
Resurrection, among many others with explicit Christian themes
and messages. The very chamber in which oral arguments on this
case were heard is decorated with a notable and permanent--not
seasonal--symbol of religion: Moses with the Ten Commandments.
Congress has long provided chapels in the Capitol for religious
worship and meditation.'' \19\
---------------------------------------------------------------------------
\17\ 465 U.S. 668 (1984).
\18\ See 31 U.S.C. 5112(d)(1) (1982).
\19\ 465 U.S. at 674.
---------------------------------------------------------------------------
In paragraph (13) Congress finds that on June 4, 1985, in
the decision of the Supreme Court of the United States in
Wallace v. Jaffree,\20\ in which a mandatory moment of silence
to be used for meditation or voluntary prayer was held
unconstitutional, Justice O'Connor, concurring in the judgment
and addressing the contention that the Court's holding would
render the Pledge of Allegiance unconstitutional because
Congress amended it in 1954 to add the words ``under God,''
stated, ``In my view, the words `under God' in the Pledge, as
codified at 36 U.S.C. 172, serve as an acknowledgment of
religion with the legitimate secular purposes of solemnizing
public occasions, [and] expressing confidence in the future.''
\21\
---------------------------------------------------------------------------
\20\ 472 U.S. 38 (1985).
\21\ Id. at 78 n.15 (O'Connor, J., concurring).
---------------------------------------------------------------------------
In paragraph (14) Congress finds that on November 20, 1992,
the United States Court of Appeals for the 7th Circuit, in
Sherman v. Community Consolidated School District 21,\22\ held
that a school district's policy for voluntary recitation of the
Pledge of Allegiance including the words ``under God'' was
constitutional.
---------------------------------------------------------------------------
\22\ 980 F.2d 437 (7th Cir. 1992).
---------------------------------------------------------------------------
In paragraph (15) Congress finds that the 9th Circuit Court
of Appeals erroneously held, in Newdow v. U.S. Congress,\23\
that the Pledge of Allegiance's use of the express religious
reference ``under God'' violates the First Amendment to the
Constitution, and that, therefore, a school district's policy
and practice of teacher-led voluntary recitations of the Pledge
of Allegiance is unconstitutional.
---------------------------------------------------------------------------
\23\ 292 F.3d 597 (9th Cir. 2002).
---------------------------------------------------------------------------
In paragraph (16) Congress finds that the erroneous
rationale of the 9th Circuit Court of Appeals in Newdow would
lead to the absurg result that the Constitution's use of the
express religious reference ``Year of our Lord'' in Article VII
violates the First Amendment to the Constitution, and that,
therefore, a school district's policy and practice of teacher-
led voluntary recitations of the Constitution itself would be
unconstitutional.
Section 2. One Nation Under God.
Subsection (a) amends section 4 of title 4, United States
Code, to read as follows: ``Sec. 4. Pledge of allegiance to the
flag; manner of delivery
`The Pledge of Allegiance to the Flag: ``I pledge
allegiance to the Flag of the United States of America, and to
the Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all.'', should be
rendered by standing at attention facing the flag with the
right hand over the heart. When not in uniform men should
remove any non-religious headdress with their right hand and
hold it at the left shoulder, the hand being over the heart.
Persons in uniform should remain silent, face the flag, and
renders the military salute.' ''.
Subsection (b) directs that in codifying this subsection,
the Office of the Law Revision Councel shall make no change in
section 4, title 4, United States Code, but shall show in the
historical and statutory notes that the 107th Congress
reaffirmed the exact language that has appeared in the Pledge
for decades.
Section 3. Reaffirming That God Remains in our Motto.
Subsection (a) amends section 302 of title 36, United
States Code, to read as follows: ``Sec. 302. National motto
`In God we trust' is the national motto.''.
Subsection (b) provides that in codifying this subsection,
the Office of Law Revision Councel shall make no change in
section 302, title 36, United States Code, but shall show in
the historical and statutory notes that the 107th Congress
reaffirmed the exact language that has appeared in the Motto
for decades.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 4 OF TITLE 4, UNITED STATES CODE
Sec. [4. Pledge of allegiance to the flag; manner of delivery
[The Pledge of Allegiance to the Flag, ``I pledge
allegiance to the Flag of the United States of America, and to
the Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all.'', should be
rendered by standing at attention facing the flag with the
right hand over the heart. When not in uniform men should
remove their headdress with their right hand and hold it at the
left shoulder, the hand being over the heart. Persons in
uniform should remain silent, face the flag, and render the
military salute.]
Sec. 4. Pledge of allegiance to the flag; manner of delivery
The Pledge of Allegiance to the Flag: ``I pledge allegiance
to the Flag of the United States of America, and to the
Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all.'', should be
rendered by standing at attention facing the flag with the
right hand over the heart. When not in uniform men should
remove any non-religious headdress with their right hand and
hold it at the left shoulder, the hand being over the heart.
Persons in uniform should remain silent, face the flag, and
render the military salute.
----------
SECTION 302 OF TITLE 36, UNITED STATES CODE
[Sec. 302. National motto
[``In God we trust'' is the national motto.]
Sec. 302. National motto
``In God we trust'' is the national motto.
Markup Transcript
BUSINESS MEETING
TUESDAY, SEPTEMBER 10, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order, and
a working quorum is present.
[Intervening business.]
Finally, pursuant to notice, I now call up the bill, S.
2690, a bill to reaffirm the reference to ``One nation under
God'' in the Pledge of Allegiance for purposes of markup and
move its favorable recommendation to the House.
Without objection the bill will be considered as read, open
for amendment at any point. My lengthy statement talking about
what a great bill this is will be put in the record, without
objection. All Members statements may be put in the record at
this point without objection.
[The bill, S. 2690, follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Sensenbrenner. Are there amendments? The gentlemen
from New York.
Mr. Nadler. Thank you, Mr. Chairman. My lengthy statement
about how superfluous a bill this will also be placed in the
record. I have two amendments. I would like to offer them one
after the other. One is by me and one is by myself and
Representative Scott. Take up the one by me first.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to S. 2690 offered by Mr. Nadler. On
Page 9, line 9, omit ``erroneously.'' On Page 9, line 16, omit
``erroneous.''
[The amendment follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, I will take less; probably half a
minute.
Mr. Chairman, I don't believe it is the business or the
proper role of Congress to say that a decision of a court is
erroneous. If we don't like the decision of a court, we can
pass a bill, we can initiate a constitutional amendment. But I
don't think it is the business of one branch of Government to
say that another branch of Government, to say officially--as
individuals we can say anything we want--but we don't pass
resolutions saying the President is wrong or the courts are
wrong.
Now, the points that are made on Page 9 in findings 15 and
16 flow just as well if you omit the words ``erroneously'' and
``erroneous.''
The 9th Circuit Court of Appeals made the decision saying
this and the rationale of the court, if followed, would lead to
the following conclusion. I just don't think we should label a
court decision erroneous. I don't think it is the business of
the Congress to characterize a court decision officially as a
coordinate branch of Government.
Therefore, the amendment would simply remove the words,
``erroneously'' and ``erroneous.'' The same points will be made
in the findings as is made with those words.
Chairman Sensenbrenner. The question is on the amendment.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it. The amendment
is not agreed to.
The second amendment?
Mr. Nadler. I call up the amendment.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to S. 2690 offered by Mr. Nadler and
Mr. Scott: On Page 10, Line 12, before ``headdress'' a, strike
``their'' and b----
[The amendment follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, this amendment deals with the
provision of existing law that says on how to deal with the
flag ``When not in uniform, men should remove their headdress
with their right hand and hold it at their left shoulder, the
hand being over the heart.''
This was passed, I think, in a less sensitive era. The fact
is there are religions which demand that people wear headdress.
Orthodox Judaism says people have to wear something on their
heads, whether a hat or a yarmulke. Sikhs have to wear turbans.
Certain Muslims have to wear other things. So, I just think it
should say when not in uniform men should remove their non-
religious head
dress.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Nadler. Yes.
Chairman Sensenbrenner. I think the gentleman makes a good
point on this one. I am prepared to accept the amendment.
Mr. Nadler. I thank the Chairman.
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Scott. Mr. Chairman, have you called the question on
this amendment?
Chairman Sensenbrenner. Question? Without objection, the
amendment is agreed to.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia.
Mr. Scott. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I come from a State that has a
long tradition of supporting religious freedom. In fact, it was
Thomas Jefferson of Virginia who wrote the Virginia Statute of
Religious Freedom which preceded the First Amendment to the
Constitution.
Today's exercise is certainly gratuitous in that if this is
a constitutional issue, when the courts have finished with it,
nothing we can do can change that.
The court in its dissent said that the Pledge of Allegiance
should be constitutional because the ``under God'' in the
Pledge of Allegiance was de minimus. The danger the phrase
represents to our First Amendment freedoms is picayune at best.
Our actions today, however, may cause the court to review that
sentiment because if the Court looks at the importance that we
have affixed to that phrase because of this legislation, the
idea that they may consider it de minimus will be less and
unconstitutional, more.
Today's action may also cause them to take another look
because under the Lemon Test the law violates Establishment
Clause if it has no secular purpose. For example, in cases
involving a moment of silence in public schools, laws have been
upheld if the law allows silent prayer as one of many
activities which can be done in silence, but have stricken laws
in which a moment of silent prayer is added to an existing
moment of silence because that law has no secular purpose.
Because this legislation's sole purpose is religious, not
secular, the bill is vulnerable to that same constitutional
attack.
Mr. Chairman, I want to quote finally the editorial from
the Christian Century, a nondenominational Protestant weekly
which said, ``To the extent 'under God' has real religious
meaning, then it is unconstitutional. The phrase is
constitutional to the extent that it is religiously innocuous.
Given that choice, we side with the 9th Circuit. We see no
need, especially for Christians, to defend hollow references to
innocuous God.''
Mr. Chairman, I ask unanimous consent to include for the
record the entire editorial and the Virginia Statute for
Religious Freedom.
Chairman Sensenbrenner. Without objection.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Texas.
Ms. Jackson Lee. Mr. Chairman, I strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. Mr. Chairman, I rise to support S. 2690. I
will briefly state my conclusions on this legislation. My
understanding of the First Amendment argues against and
prohibits the establishment of religion by this nation.
I would argue that the re-inclusion of the language or the
re-emphasis of the language ``One nation under God'' is in fact
not an establishment of religion and as well still allows those
who find offense or find that it offends their religious
practices or their non-religious practices the ability and
discretion to make the choice of reciting the Pledge of
Allegiance in its totality, of not reciting it and reciting it
without such words in it.
I believe what this legislation simply does is restate
statutory language and provides the opportunity for choice to
be made and not in establishment of religion by the nation as
the First Amendment prohibits.
I yield back and ask my colleagues to support it, as I know
they might be doing.
Chairman Sensenbrenner. The chair notes the presence of a
reporting quorum. The question is on reporting the bill, S.
2690 favorably as amended.
All those in favor will say aye.
Opposed, no.
Chairman Sensenbrenner. The ayes appear to have it. The
ayes have it. The motion to report favorably is adopted.
Without objection the bill will be reported favorably to the
House in the form of a single amendment in the nature of a
substitute incorporating the amendment adopted here today.
Without objection the Chairman is authorized to move to go
to conference pursuant to House rules.
Without objection the staff is directed to make any
technical and conforming changes.
All Members will be given 2 days as provided by House rules
in which to submit additional dissenting supplemental or
minority views.
The chair thanks the Members for their patience and their
indulgence. A lot of people didn't think we would get through
the agenda. We did and the Committee is adjourned.
[Whereupon, at 2:52 p.m. the Committee was adjourned.]