The Pew Forum discussion transcript, with Jay Sekulow, involving the constitutionality of the Pledge of Allegiance
Discussion
Under God? Pledge of Allegiance Constitutionality
Friday, March 19, 2004
10:00 11:30 a.m.
National Press Club, Holeman Lounge
529 14th Street, NW
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
EVENT TRANSCRIPT
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.)
DOUG 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.)
JAY 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 allegianceone 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. I