PART 1

http://www.restorethepledge.com/litigation/pledge/docs/2005-01-03%20complaint.pdf
APPENDIX J The Words, "under God," in the Current Pledge of
Allegiance are
Not Merely "Ceremonial." Nor is Their Religious Content or Effect
"De Minimis." On the Contrary, they are Unquestionably and
Meaningfully Religious

In various attempts to legitimatize the phrase "under God" in the
Pledge of
Allegiance, the unquestionably religious nature of those two words
has been
denied. Instead, the phrase has been alleged to be "ceremonial," with
any
religious content and/or effect being "de minimis." The following
facts
belie those contentions:

(1) The June 26, 2002 ruling of the Ninth Circuit in Newdow v. United
States Cong., 292 F.3d 597 (9th Cir. 2002)1 "created a firestorm
across
most of the nation."2 National firestorms of controversy are not
created by
the loss of merely "ceremonial" items with "de minimis" content or
effects.

(2) Both houses of Congress stopped their important work to spend
significant amounts of time decrying the ruling in Newdow v. U.S.
Congress.3 Congress doesn't stop its work due to merely "ceremonial"
items
with "de minimis" content or effects.

(3) The Senate almost immediately considered and unanimously passed a
resolution condemning the decision in Newdow v. U.S. Congress.4 Such
Senate
activity doesn't stem from merely "ceremonial" items with "de minimis"
content or effects.

(4) By a vote of 416-3, the House of Representatives almost
immediately
considered and passed a resolution condemning the decision in Newdow
v.
U.S. Congress.5 Such House activity doesn't stem from merely
"ceremonial"
items with "de minimis" content or effects.

(5) The Plaintiff in Newdow v. U.S. Congress was named Time Magazine's
"Person of the Week."6 People aren't accorded such recognition over
matters
that are merely "ceremonial" items with "de minimis" content or
effects.7

(6) President Bush's Press Secretary - on June 26, 2002 - stated that
the
reaction of the President of the United States "was that this ruling
is
ridiculous."8 The President,
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1 Newdow v. U.S. Congress was the initial Ninth Circuit case
subsequently
reversed by the Supreme Court in Elk Grove Unified Sch. Dist. v.
Newdow, 159 L. Ed. 2d 98, 124 S. Ct. 2301 (2004).
2 Gov't to ask rehearing of Pledge ruling, June 27, 2002. CNN.com.
http://archives.cnn.com/2002/LAW/06/27/pledge.allegiance/
3 148 Cong. Rec. S6105-S6112 (daily ed. 6/27/02); 148 Cong. Rec.
H4125-H4136 (daily ed. 6/28/02).
4 S. Res. 292, 107th Cong., 148 Cong. Rec. S6105 (2002).
5 H.R. Res. 459, 107th Cong., 148 Cong. Rec. H4135 (2002).
6 H.R. Res. 459, 107th Cong., 148 Cong. Rec. H4135 (2002).
7 http://www.time.com/time/pow/article/0,8599,266658,00.html.
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himself, commented on the ruling. In fact, it was the first item
addressed
by him at his news conference on June 27, 2002 . following a meeting
with
Russian President Vladimir Putin, no less.9 Presidents and their press
secretaries don't address matters that are merely "ceremonial" and
with "de
minimis" content or effects. (7) At that June 27, 2002 news
conference, the
President referred to Newdow v. U.S. Congress by noting this nation's
"relationship with an Almighty," that the Pledge is "a confirmation
of the
fact that we received our rights from God, as proclaimed in our
Declaration
of Independence, and that "our rights were derived from God."10 Such
comments by the nation's Chief Executive - a deeply religious man -
are not
made over matters that are merely "ceremonial" and with "de minimis"
content or effects.

(8) In response to the Ninth Circuit Court of Appeals' decision in
Newdow
v. U.S. Congress, Robert C. Byrd - a United States Senator - placed
the
following into the Congressional Record: Let that judge's name ever
come
before this Senate while I am a Member, and he will be blackballed .
fast. ... I hope the Senate will waste no time in throwing this back
in the face
of this stupid judge.11 These are not the words a United States
Senator -
referencing an appellate-level Federal judge, no less - uses in
response to
matters that are merely "ceremonial" items with "de minimis content or
effects.

(9) After the Ninth Circuit's Newdow v. U.S. Congress decision was
announced, its author - Judge Alfred Goodwin - had an "e-mail system
[that]
was literally jammed, frozen with public opinion. Ten boxes of mail
piled
up at his office, 'all scolding me for being un-American.'"12 The
litigation was "easily the most publicized and hotly debated case in
Goodwin's fifty-three-year legal career."13 This is not a reaction
that
stems from a decision affecting something merely "ceremonial" with "de
minimis" content or effects.

(10) As chosen by the Religion Newswriters Association, the story
about the
Pledge litigation was among the top 10 religion stories for 2002,
2003 and 2004.14 Such a ranking - as a "religion story," three years
in a row - is
not consistent with something merely "ceremonial" with "de minimis"
content
or effects.

(11) The Pew Research Center for the People & the Press reviewed the
top
news stories from 1986-2004 in terms of the maximum degree they were
followed by the public.15
__________________________________
8 http://www.whitehouse.gov/news/releases/2002/06/20020626-8.html.
9 http://www.whitehouse.gov/news/releases/2002/06/20020627-3.html.
10 Id.
11 148 Cong. Rec. S6103 (daily ed. June 26, 2002).
12 Williams K. Allegiance to the Law. Oregon Quarterly. Autumn, 2004,
page
22.
13 Id.
14 http://www.rna.org/
15 http://people-press.org/nii/.
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Out of 1103 stories listed, the Pledge was #57 - ahead of, for
instance,
the O.J. Simpson trial (#89), the breakup of the Soviet Union (#91),
and
the Space Shuttle Columbia disaster (#111). Public interest to that
extraordinary degree is not garnered by something merely "ceremonial"
and
with "de minimis" content or effects.

(12) The United States - in its Writ Petition to the Supreme Court in
Newdow v. U.S. Congress - claimed that "[t]he question presented is
one of
great importance."16 It makes little sense to claim that something the
United States itself believes to be "of great importance" is merely
"ceremonial" and with "de minimis" content or effects.

(13) Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2326
(2004)
was referenced as "one of the most intensely watched church-state
cases in
recent memory."17 Such a description hardly fits a case involving a
merely "ceremonial" matter with "de minimis" content or effects.

(14) Pages and pages of the Congressional Record are dedicated to
debate
about Newdow v. U.S. Congress and the subsequent Supreme Court
litigation.
Members of Congress don't spend extensive amounts of time posturing
over an
issue that is merely "ceremonial" and has "de minimis" content or
effects.18

(15) On September 23, 2004, the House of Representatives actually
passed
the "Pledge Protection Act of 2004," which would deny the federal
judiciary
any jurisdiction to hear any challenge to the constitutionality of the
Pledge of Allegiance.19 Such an unprecedented statute - so
breathtaking in
its nature - surely would not be created to deal with a merely
"ceremonial"
matter with "de minimis" content or effects.

(16) Fifty-five separate amicus briefs were filed in the Newdow case.
Additionally, the case was covered in countless media reports,
symposia,
webchats, and commentaries. (Included among these were works by
religious
scholars and theologians,20 Christian and Jewish clergy, 21
historians,22
and respected commentators - legal23 and
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16 Petition for a Writ of Certiorari for Petitioner United State of
America, United States of America v. Newdow, April, 2003, at 25.
17 Lane C. Justices Keep 'Under God' in Pledge. The Washington Post,
Tuesday, June 15, 2004; A01.
18 Plaintiffs do not rely too strongly upon this assertion.
19 150 Cong. Rec. H7478 (daily ed. September 23, 2004).
20 Nineteen Religious Scholars and Theologians wrote an amicus brief
in
support of the plaintiff in the Elk Grove case. See, Brief amicus
curiae of
Religious Scholars and Theologians, Elk Grove Unified Sch. Dist. v.
Newdow, 124 S. Ct. 2301 (2004).
21 Thirty-two respected Christian and Jewish clergy members wrote an
amicus
brief in support of the plaintiff in the Elk Grove case. Brief amicus
curiae of Rev. Dr. Betty Jane Bailey, et al., Elk Grove Unified Sch.
Dist.
v. Newdow, 124 S. Ct. 2301 (2004).
22 In Newdow, the only amicus brief written by historians was in
support of
the Plaintiff's position. Twenty-two esteemed experts from academic
institutions across the nation agreed that the school district policy
in
that case, "would have been opposed by the Framers of the
Constitution."
See, Brief amici curiae of Historians and Law Scholars, Elk Grove
Unified
Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004), at 1.
23 See, e.g.,, Thompson JE. What's the Big Deal? The
Unconstitutionality of
God in the Pledge of Allegiance. 38 Harv. C.R.-C.L. L. Rev. 563, 586
(2003) ("From their cognitive birth Americans
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otherwise24 - who agreed with the Plaintiff in the Newdow case.) Such
a
level of participation by amici does not occur over matters that are
merely "ceremonial" and that have "de minimis" content or effects.

(17) In the presidential election that just took place, the danger of
"political outsiders" based on religious belief was accentuated more
than
ever before. In fact, the Pledge litigation played a role. For
instance, in
Allentown, PA, a billboard stating "Bush Cheney 04 - One Nation Under
God"
was utilized.25 People don't take out billboards to sway their fellow
citizens votes in presidential election campaigns and plaster them
with a matter that is merely "ceremonial" and has "de minimis"
content or
effects

(18) Rev. Brenda Bartella Peterson - appointed director of religious
outreach for the Democratic Party - was forced to resign merely
because she
had joined thirty-one other clergy members to support the Plaintiff
in Elk
Grove Unified Sch. Dist. v. Newdow.26 Political pressure sufficient to
cause a key appointment to be reversed during an extremely close
presidential election doesn't arise from merely joining more than
thirty
other esteemed individuals in signing a legal brief over a matter
that is a
matter that is merely "ceremonial" and has "de minimis" content or
effects.

(19) In the 2000 presidential election, potential candidates were
interviewed by the Committee to Restore American Values. This arm of
the
so-called "religious right" specifically asked, "Would you support a
removal of the words 'under God' from the Pledge of Allegiance?"27
Joined
by the executive director of the Christian Coalition, there can be no
doubt
as to the religious agenda the commission had in posing that
question. This
further demonstrates the illusory notion behind any "ceremonial
deism" or "de minimis" claims.
__________________________________________
receive the message: 'You can be almost anything, but not an
atheist.' We
are prejudiced, biased from the outset. This anti-atheist sentiment
is so
pervasive that many fail to recognize its manifestations. . To reject
God
means overcoming . monumental social barriers sponsored by the
government.
Of course, the religious do not understand this message of disrespect
for
nontheism as a harm."); Hamilton M. Why the Court Should Reject This
Pledge, and Why the Department of Justice Is Wrong
To Support It, Findlaw.com, March 25, 2004, accessed at
http://writ.news.findlaw.com/hamilton/20040325.html ("[I]t is not
only the
right thing for the Court to find in favor of Mr. Newdow and the
principle
of neutrality toward religion in the First Amendment's Free Exercise
and
Establishment Clauses. It is also in the national interest to do so.")
24 See, e.g., William Safire, New York Times, March 24, 2004, Of God
and
the Flag, Section A , Page 21 , Column 1 ("The only thing this
time-wasting
pest Newdow has going for him is that he's right."); Ellen Goodman,
Boston
Globe, March 28, 2004, accessed at
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2004/03/28/why_make_such_a_big_deal_of_two_little_words/
("Here's the problem. . Newdow is right.")
25 Kirkpatrick D. Battle Cry of Faithful Pits Believers Against the
Rest.
New York Times, October 31, 2004. Section 1 , Page 24.
26 Duin J. Furor over Pledge stance prompts Democrat to quit. The
Washington Times, August 6, 2004, accessed at
http://www.washingtontimes.com/functions/print.php?StoryID=20040805-113248-2858r.
27 Religious Right Queries GOP Rivals, Washington Post, Thursday,
February 4, 1999; page A4.
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