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USCOURTS-Ca9-06-15093-0.Pdf Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 1 of 193 Volume 1 of 4 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Dr. MICHAEL A. NEWDOW; PAT DOE; JAN DOE; DOECHILD; JAN POE; POECHILD; ROECHILD-1, Plaintiffs, and JAN ROE and ROECHILD-2, Plaintiffs-Appellees, v. RIO LINDA UNION SCHOOL DISTRICT, Defendant-Appellant, and Nos. 05-17257 05-17344 UNITED STATES OF AMERICA; JOHN 06-15093 CAREY; ADRIENNE CAREY; BRENDEN D.C. No. CAREY; ADAM ARAIZA; ANITA CV-05-00017- ARAIZA; ALBERT ARAIZA; MICHAELA LKK BISHOP; CRAIG BISHOP; MARIE BISHOP; TERESA DECLINES; DARIEN OPINION DECLINES; RYANNA DECLINES; ROMMEL DECLINES; JANICE DECLINES; ANTHONY DOERR; DAN DOERR; KAREN DOERR; SEAN FORSCHLER; TIFFANY FORSCHLER; FRED FORSCHLER; ESTERLITA FORSCHLER; MARY MCKAY; ROBERT MCKAY; SHARON MCKAY; THE KNIGHTS OF COLUMBUS, Defendants-Intervenors-Appellants, and 3865 Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 2 of 193 3866 NEWDOW v. RIO LINDA USD CONGRESS OF THE UNITED STATES OF AMERICA; ELK GROVE UNIFIED SCHOOL DISTRICT; SACRAMENTO CITY UNIFIED SCHOOL DISTRICT; Dr. STEVEN LADD, Superintendent, Elk Grove Unified School District; M. MAGDALENA CARRILLO MEJIA, Superintendent, Sacramento City Unified School District; Dr. DIANNA MANGERICH, Superintendent, Elverta Joint Elementary School District; FRANK S. PORTER, Superintendent, Rio Linda Unified School District; PETER LEFEVRE, Law Revision Counsel; ARNOLD SCHWARZENEGGER, Governor of California; RICHARD J. RIORDAN, California Secretary for Education, Defendants. Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding Argued and Submitted December 4, 2007—San Francisco, California Filed March 11, 2010 Before: Dorothy W. Nelson, Stephen Reinhardt, and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea; Dissent by Judge Reinhardt Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 3 of 193 NEWDOW v. RIO LINDA USD 3871 COUNSEL Dr. Michael Newdow (argued), Sacramento, California, for plaintiffs-appellees Jan Roe, et al. Craig M. Blackwell, Theodore C. Hirt, Peter D. Keisler, McGregor W. Scott, Gregory G. Katsas (argued), Robert M. Loeb, Lowell V. Sturgill, Jr., Department of Justice, Washing- ton, D.C., for defendant-intervenor-appellant United States. Terence J. Cassidy (argued), Michael W. Pott, Thomas L. Riordan, Porter, Scott, Weiberg & Delehant, Sacramento, Cal- ifornia, for defendant-appellant Rio Linda Union School Dis- trict. Kevin J. Hasson (argued), Anthony R. Picarello, Jr., Derek L. Gaubatz, Eric C. Rassbach, Jared N. Leland, The Becket Fund for Religious Liberty, Washington, D.C., for defendants- intervenors-appellants John Carey et al. Amici:* As Amicus Curiae in Support of Defendants-Appellants: Patrick T. Gillen, Ann Arbor, Michigan, for the Thomas More Law Center; *The amici in this case are extensive and include the following: All 50 States; the Pacific Justice Institute; the American Legion; the National Legal Foundation; the Thomas More Law Center; the Foundation for Moral Law; Los Angeles County; Rex Curry; the Appignani Humanist Legal Center; the Freedom from Religion Foundation, Inc.; American Atheists Inc.; the Madison-Jefferson Society; the Secular Coalition for America; the Atheists and Other Freethinkers, Humanist Association of Las Vegas and Southern Nevada, Agnostic and Atheist Student Associa- tion, Las Vegas Freethought Society; and the Humanist Community, Humanists of Houston, and the Humanist Association of the Greater Sac- ramento. We thank them all for their thoughts and efforts regarding this case. Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 4 of 193 3872 NEWDOW v. RIO LINDA USD Peter D. Lepiscopo, James M. Griffiths, Law Offices of Peter D. Lepiscopo, San Diego, California for the Pacific Justice Institute; Eric L. Hirschhorn, Anne W. Stukes, Andrew C. Nichols, Winston & Strawn LLP, Washington, DC, and Philip B. Onderdonk, Jr. for The American Legion, Indianapolis, Indi- ana; Greg Abbott, R. Ted Cruz, Office of the Attorney General, Austin, Texas; Lawrence Wasden, Attorney General of Idaho; Drew Edmondson, Attorney General of Oklahoma; Troy King, Attorney General of Alabama for all 50 States; Roy S. Moore, Gregory M. Jones, Benjamin D. Dupré, for the Foundation for Moral Law, Montgomery, Alabama; Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for the National Legal Foundation; and Raymond G. Fortner, Jr., Ralph L. Rosato, Doraine F. Meyer for the County of Los Angeles. As Amicus Curiae in Support of Plaintiffs-Appellees: Dr. Rex Curry, Tampa, Florida; Chris J. Evans, American Atheists, Inc., Irvine, California; for American Atheists, Inc.; George Daly, Charlotte, North Carolina, for the Freedom From Religion Foundation, Inc.; Shawn C. Mills and Paul S. Sanford, Aptos, California, for the Madison-Jefferson Society; Herb Silverman, Washington, D.C., for the Secular Coalition; Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 5 of 193 NEWDOW v. RIO LINDA USD 3873 Norman Goldman, Los Angeles, California, for Atheists and other Freethinkers, Humanist Association of Las Vegas and Southern Nevada, Agnostic and Atheist Student Association, Las Vegas Freethought Society, The Humanist Community, Humanists of Houston, Humanist Association of the Greater Sacramento; and Melvin S. Limpan, Washington, D.C. for Appignani Human- ist Legal Centerl. OPINION BEA, Circuit Judge: I. Introduction We are called upon to decide whether the teacher-led reci- tation of the Pledge of Allegiance to the Flag of the United States of America, and to the Republic for which it stands, by students in public schools constitutes an establishment of reli- gion prohibited by the United States Constitution. We hold it does not; the Pledge is constitutional. The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God—the Founding Fathers’ belief that the people of this nation are endowed by their Creator with certain inalienable rights; indivisible—although we have individual states, they are united in one Republic; with liberty —the government cannot take away the people’s inalienable rights; and justice for all—everyone in America is entitled to “equal justice under the law” (as is inscribed above the main entrance to our Supreme Court). Millions of people daily recite these words when pledging allegiance to the United States of America: Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 6 of 193 3874 NEWDOW v. RIO LINDA USD 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. 4 U.S.C. § 4 (2002). Pursuant to California Education Code § 52720, the Rio Linda Union School District in California (“the School Dis- trict”) has a practice that every morning, willing students, led by their teachers, face the American Flag, place their right hands over their hearts, and recite the Pledge of Allegiance. Plaintiff Jan Roe is a self-proclaimed atheist whose child, RoeChild-2, attends elementary school in the School District. Roe filed suit alleging that the words “under God” in the Pledge offend her belief that there is no God, interfere with her right to direct her child’s upbringing, and indoctrinate her child with the belief that God exists. The parties have stipu- lated that RoeChild-2 has never recited the Pledge, but Roe nevertheless asks us to prohibit the recitation of the Pledge by other students. Thus, this case presents a familiar dilemma in our pluralistic society—how to balance conflicting interests when one group wants to do something for patriotic reasons that another groups finds offensive to its religious (or atheis- tic) beliefs. In other words, does Roe have the right to prevent teachers from leading other students from reciting the Pledge of Allegiance—something we all agree is a patriotic exercise —because the mention of God in the Pledge offends her as an atheist? Plaintiffs challenge the School District’s policy as consti- tuting a violation of the Establishment Clause: “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. The Pledge reflects many beliefs held by the Founding Fathers of this country—the same men who authored the Case: 06-15093 03/11/2010 ID: 7261293 DktEntry: 106-1 Page: 7 of 193 NEWDOW v. RIO LINDA USD 3875 Establishment Clause—including the belief that it is the peo- ple who should and do hold the power, not the government. They believed that the people derive their most important rights, not from the government, but from God: 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. The Declaration of Independence, 1 U.S.C. § XLIII (1776) (emphasis added). The Founders did not see these two ideas— that individuals possessed certain God-given rights which no government can take away, and that we do not want our nation to establish a religion—as being in conflict. Not every mention of God or religion by our government or at the government’s direction is a violation of the Estab- lishment Clause. See Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (“Nor does the Constitution require complete separa- tion of church and state; it affirmatively mandates accommo- dation, not merely tolerance, of all religions, and forbids hostility toward any.”). The Supreme Court has upheld sev- eral government actions that contained a religious element against Establishment Clause claims: a display of the Ten Commandments on the Texas State Capitol grounds;1 the dis- play of a Chanukah menorah outside a City-County Building;2 the display of a Nativity scene in a public Christmas display;3 a state legislature’s practice of opening each day with a prayer led by a chaplain paid with state funds;4 a state’s property tax exemption for religious organizations;5 and a township’s pro- 1Van Orden v.
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