A resolution designating the week beginning February 2, 2004, as "National School Counseling Week".

Mr. President, I am pleased that the Senate will approve S. Res. 378, designating today--June 14, 2004--as the National Pledge of Allegiance to the Flag Day.

The resolution, which I introduced earlier today, is cosponsored by several of my fellow Judiciary Committee members--Senators Feinstein, Craig, Grassley, Chambliss, Graham of South Carolina, and DeWine. I thank them.

For Americans across the land, today is a special day.

First of all, today is Flag Day. This morning, I was honored to attend a Flag Day commemoration event at VFW Post 2494, located in the city of Grand Prairie in my beloved home State of Texas. Flag Day is the anniversary of the Flag Resolution of 1777. It was officially established in a proclamation by President Woodrow Wilson on May 30, 1916, and on August 3, 1949, President Harry S. Truman signed an act of Congress designating June 14 of each year as National Flag Day.

I look forward to Flag Day every year, because--as today's resolution notes--Flag Day gives Americans across the land the opportunity to remember and reaffirm that the United States flag is a unique symbol of the United States and its ideals. Millions of Americans instinctively look to the United States flag with reverence, in times of national crisis and triumph alike. No other American symbol has been as universally honored as the United States flag. The United States flag has always played a unique role in honoring the men and women of the Armed Forces who have died in defense of the United States. To the countless families of loved ones who have died in defense of the United States, the United States flag is a treasured possession and a poignant memory of their loss.

But today is also special for another reason. As the resolution also notes, today is the 50th anniversary of the modern version of the Pledge of Allegiance. The pledge has come under attack in recent years, however. Two years ago, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, the Federal court of appeals based in San Francisco, ruled in the case of Newdow v. United States Congress, 328 F.3d 466 (9th Cir. 2002), that the establishment clause of the first amendment of the Constitution forbids public school teachers from leading willing students in the voluntary recitation of the Pledge of Allegiance, simply because the pledge confirms that our Nation was founded ``under God.''

Most Americans were alarmed by the decision, and rightly so. In response, a majority of the Senate subcommittee on the Constitution, Civil Rights and Property Rights filed the first amicus brief in the U.S. Supreme Court defending the pledge on the merits. The Senate legal counsel also filed a brief defending the pledge on behalf of the entire U.S. Senate. Clearly, members of both parties reject the views of the Ninth Circuit, the ACLU, and Americans United for the Separation of Church and State, and instead believe in the constitutionality of the Pledge of Allegiance.

Just last week, the subcommittee convened a hearing, entitled ``Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square.'' At that hearing, scholars testified that our courts have become so hostile to democracy and to religious expression that they object even to patriotic references to God, such as those contained in the pledge.

Let us be clear: There is nothing unconstitutional about pledging allegiance to the flag. And thankfully, the U.S. Supreme Court reversed the Ninth Circuit decision in the Newdow case just this morning.

The Court did so, however, solely on procedural grounds--leaving for another day a determination by the Supreme Court as to whether it agrees with the Ninth Circuit's decision striking down the Pledge as unconstitutional.

I am glad to see that at least three members of the Supreme Court-- Chief Justice Rehnquist, Justice O'Connor, and Justice Thomas-- specifically acknowledged the constitutionality of the pledge in their opinions this morning. Their expressions follow a long line of statements in previous Supreme Court decisions supporting the Pledge. See, e.g., Engel v. Vitale, 370 U.S. 421, 440 n.5 (1962) (Douglas, J., concurring) (``The Pledge of Allegiance . . . in no way run[s] contrary to the First Amendment but recognize[s] only the guidance of God in our national affairs.'') (quotations and citations omitted); Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 304 (1963) (Brennan, J., concurring) (``The reference to divinity in the revised pledge of allegiance . . . may merely recognize the historical fact that our Nation was believed to have been founded `under God.' Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains an allusion to the same historical fact.''); Lynch v. Donelly, 465 U.S. 668, 676 (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 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.''); Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (O'Connor, J., concurring) (``In my view, the words `under God' in the Pledge . . . serve as an acknowledgment of religion with `the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.' ''); County of Allegheny v. ACLU, 492 U.S. 573, 602-3 (1989) (``Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.''); see also Sherman v. Community Consolidated

Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992) (upholding constitutionality of school district policy providing for voluntary recitation of the Pledge).

However, the other five Justices of the Supreme Court--Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer--did not see fit to join the other three Justices in supporting the constitutionality of the pledge. They appear to have remained largely silent on the issue. I hope that they are not sending a signal with their silence--a signal that they may strike down the pledge in some future case. Certainly, by reversing the Ninth Circuit on solely procedural grounds, they effectively reserve for themselves the opportunity to strike down the pledge in a future case.

The majority opinion does state that, ``as its history illustrates, the Pledge of Allegiance evolved as a common public acknowledgement of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles.'' This passage suggests that the majority would uphold the Pledge of Allegiance against constitutional attack under the establishment clause. I hope that that is ultimately what the Court will do. I hope that the Court will ultimately vote to uphold and protect the Pledge of Allegiance.

I am not so optimistic about the Court voting to protect the flag itself, however--as I wrote in an op-ed published in the Fort Worth Star-Telegram just this morning, a copy of which I ask unanimous consent be printed in the Record at the conclusion of my remarks.

To be sure, from the founding, of our Nation until 1989, the power to protect the flag was not in doubt. In Smith v. Goguen, 1974, the U.S. Supreme Court held, in a decision authored by Justice Lewis Powell, that ``nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags.'' Justice Byron White stated in that same case that ``[i]t would be foolishness to suggest that the men who wrote the Constitution thought they were violating it when they specified a flag for the new Nation. . . . There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial. . . . The Flag is itself a monument, subject to similar protection.'' In Street v. New York, 1969, Chief Justice Earl Warren wrote that ``the States and Federal Government do have the power to protect the flag from acts of desecration and disgrace.'' Justice Hugo Black wrote in that same case that ``[i]t passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American Flag an offense.'' And Justice Abe Fortas noted that ``the States and the Federal Government have the power to protect the flag from acts of desecration committed in public.'' More recently, Chief Justice William Rehnquist, Justice John Paul Stevens, and Justice Sandra Day O'Connor have all expressed their belief that nothing in the first amendment prohibits protection of the flag.

Accordingly, until recently, 48 States have had laws on the books protecting the flag--most of them patterned after the Uniform Flag Act of 1917. The Federal Government enacted its own law in 1967. And Congress reaffirmed that law in 1989 with the support of 91 Senators.

This historic power to protect the flag was eviscerated in 1989, however when the U.S. Supreme Court issued the first of two decisions, both decided by a bare 5 to 4 majority, declaring that flag desecration constitutes speech protected by the first amendment. See Texas v. Johnson, 1989, and United States v. Eichman, 1990.

Legal scholars agree that the flag protection amendment is the only way to restore the law as it existed for most of our Nation's history. Constitutional amendments are the only way for the American people to reverse judicial constitutional decisions they reject. The Eleventh, Fourteenth, Sixteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth amendments were all ratified in order to reverse judicial decisions with which the American people disagreed.

So I am pleased to be an original cosponsor of the flag protection amendment, S.J. Res. 4. That resolution was introduced by Senator Hatch and by my Democrat cosponsor of today's resolution, Senator Feinstein. The amendment states simply that ``[t]he Congress shall have power to prohibit the physical desecration of the flag of the United States.'' I am proud to be an original cosponsor of the flag protection amendment, because I firmly believe that the flag occupies a unique place in our Nation and deserves constitutional recognition as such.

Of course, the first amendment guarantees freedom of speech, and thankfully so. And of course, the requirement that constitutional amendments be approved by two-thirds of each House of Congress and three-fourths of the States guarantees that the liberties we hold dear will not be taken away, just because we have acted today to protect the U.S. flag against physical desecration.

Moreover, the first amendment itself already contains exceptions. For example, the law does not allow individuals to yell ``Fire!'' in a crowded theater--even though such laws do impose a burden on the freedom of speech, albeit a minor one. Likewise, the vast majority of Americans agree that the Nation is better off when our flag is protected.

The House has approved the flag protection amendment five times in the past five Congresses--including just last year. All 50 State legislatures have approved resolutions asking Congress to give them the opportunity to vote on the amendment. The last time that the amendment was brought to a vote on the Senate floor, in 2000, 63 Senators voted in favor of it--just four votes shy of the necessary two-thirds.

I urge my colleagues at least to give the States the opportunity to consider this amendment. And I urge my colleagues at least to give constitutional recognition to the importance of the United States flag to millions of Americans--even if they ultimately would oppose implementing legislation to protect the flag against physical desecration.

After all, the flag protection amendment does nothing more than to recognize that the United States flag occupies a unique position as the symbol of our Nation and, accordingly, deserves constitutional recognition as such. The amendment would empower Congress to take action to protect the flag, but it would not require Congress to do anything whatsoever.

There are many ways to express one's political views. But there is only one United States flag--and it deserves constitutional protection.

I look forward to the debate over the flag protection amendment, and I look forward to a decision of the U.S. Supreme Court affirming for all time the constitutionality of the Pledge of Allegiance.

Until then, I am pleased that, because of the Senate's action today, today will forever be known as the National Pledge of Allegiance to the Flag Day.

Exhibit 1

[From the Fort Worth Star-Telegram, June 14, 2004]

Our Banner Deserves Constitutional Protection

(By John Cornyn)

For Americans everywhere, Flag Day is special. And today we

mark not only the annual celebration of the U.S. flag but

also the 50th anniversary of the modern Pledge of Allegiance.

The U.S. flag is a uniquely powerful symbol of our nation

and of our commitment to freedom and democracy. Therefore, it

is deeply regrettable that our democratic system of

government to date has not properly protected it.

A June 2 hearing of the Senate subcommittee on the

Constitution, Civil Rights and Property Rights got to the

heart of this problem.

Legal scholars testified that our courts have become so

hostile to democracy and to religious expression that even

patriotic references to God, such as those contained in the

Pledge of Allegiance, are being wrongly struck down by the

courts.

Let's be clear: There is nothing unconstitutional about

pledging allegiance to the flag. Yet a federal appeals court

in San Francisco struck down the pledge anyway simply because

it acknowledges that our nation was founded and exists

``under God.''

The U.S. Supreme Court will soon decide whether the First

Amendment forbids schoolteachers across America from leading

students in voluntary recitation of the pledge.

The vast majority of Americans believe that the pledge is

constitutional and reject

the views of the 9th Circuit Court and the American Civil

Liberties Union. A majority of the Constitution subcommittee

members filed the first amicus brief in the Supreme Court

defending the pledge on its merits.

Many legal observers predict that the Supreme Court will

reverse the 9th Circuit's decision. The same cannot be said,

however, for protecting the flag itself.

The ability to protect the flag against physical

desecration was not in doubt throughout most of American

history. For example, in 1974, the Supreme Court held that

``nothing prevents a legislature from defining with

substantial specificity what constitutes forbidden treatment

of United States flags.''

Congress' power to protect the flag has also been supported

by Chief Justices Earl Warren and William Rehnquist and

Justices Byron White, Hugo Black, Abe Fortas, John Paul

Stevens and Sandra Day O'Connor.

This power, however, was eviscerated in 1989 when the

Supreme Court decided by a 5-4 majority that flag desecration

constitutes speech protected by the First Amendment.

The flag deserves constitutional protection, and legal

scholars agree that the Flag Protection Amendment is the only

way to restore the law as it existed for most of our nation's

history. That is why the Constitution subcommittee recently

approved the amendment, and the full committee is scheduled

to vote on it this month.

The First Amendment guarantees freedom of speech, and

rightfully so. The requirement that constitutional amendments

be approved by two-thirds of each chamber of Congress and

three-fourths of the states guarantees that the liberties we

hold dear will not be taken away just because the American

people decide to take action to protect the U.S. flag against

physical desecration.

The House has approved the Flag Protection Amendment five

times in the past five Congresses--including just last year.

All 50 state legislatures have approved resolutions asking

Congress to give them the opportunity to vote on the

amendment.

The last time that the amendment was brought to a vote on

the Senate floor, in 2000, 63 senators voted in favor of it--

just four votes shy of the necessary two-thirds. This year,

the prospects for passage could be even better.

In times of national crisis and triumph alike, it is the

U.S. flag that Americans look to with reverence. No other

American symbol has been as universally honored.

In a time of war, it is even clearer that the flag plays a

unique role in honoring the men and women of the military who

died for the ideals that the flag represents.

If a soldier dies in defense of our nation, the United

States gives the family a flag in honor of that service. To

countless families, the flag is a treasured possession and a

poignant memory of their loss.

There are many ways to express one's political views. But

there is only one United States flag--and it deserves

constitutional protection.

Mr. Speaker, I move to suspend the rules and agree to the resolution (H. Res. 132) expressing the sense of the House of Representatives that the Ninth Circuit Court of Appeals ruling in Newdow v. United States Congress is inconsistent with the Supreme Court's interpretation of the first amendment and should be overturned, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on House Resolution 132.

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

Mr. Speaker, today we will consider House Resolution 132, which expresses the sense of the House of Representatives that the Ninth Circuit Court of Appeals' recent ruling in Newdow v. United States Congress is inconsistent with the Supreme Court's interpretation of the first amendment and urges the Attorney General to appeal its decision.

We are here today because the United States Court of Appeals for the Ninth Circuit continues to get it wrong.

On February 28, 2003, as our country continued preparations for what is now an impending war to defend the values upon which our great Nation is founded, the Ninth Circuit refused to rehear the case of Newdow v. U.S. Congress. In Newdow, a three-judge panel of the Ninth Circuit Court of Appeals ruled that the voluntary, voluntary recitation of the Pledge of Allegiance by public school students violates the first amendment because it includes the phrase ``one Nation under God.'' In addition, on February 28, the three-judge panel amended its June 2002 ruling and held that the Elk Grove, California, school district policy of opening each school day with the voluntary recitation of the Pledge of Allegiance to the Flag ``impermissibly coerces a religious act'' on the part of those students who choose not to recite the Pledge and, thus, violates the Establishment Clause of the first amendment.

This second preposterous ruling by the most-often reversed appellate court in the Nation impels us to come to the House floor again to voice our profound disagreement. House Resolution 132 expresses the sense of the House that the phrase ``one Nation, under God'' should remain in the Pledge of Allegiance and that the Ninth Circuit Court of Appeals ruling in Newdow v. U.S. Congress is inconsistent with the Supreme Court's interpretation of the first amendment.

It also urges the Attorney General of the United States to repeal the Ninth Circuit's ruling and urges the President to nominate and the Senate to confirm Federal circuit court judges who will interpret the Constitution consistent with the Constitution's text. House Resolution 132 also encourages school districts across the Nation to continue reciting the Pledge daily and praises the Elk Grove School District for its defense of the Pledge of Allegiance against this specious constitutional challenge.

Since the Pledge of Allegiance is not a prayer nor a statement of religious faith, the recitation of the Pledge is not a religious exercise. Rather, it is a patriotic exercise in which one expresses support for the United States of America and pledges allegiance to the flag, the principles for which the flag stands, and to the Nation. To conclude otherwise is to ignore clear precedent from the Supreme Court.

If this latest ruling is allowed to stand, schoolchildren at every public school in nine States, a total of 9,600,000 students, will be prohibited from reciting the pledge. Furthermore, the constitutionality of the voluntary recitation by public school students of numerous historical and founding documents such as the Declaration of Independence, the Constitution, and the Gettysburg Address has been placed into serious doubt. When one considers how this decision distorts Establishment Clause jurisprudence, the importance of appointing judges who will interpret the Constitution consistent with its text becomes clear.

Congress has consistently supported the Pledge of Allegiance by starting each session of the House with its recitation. The House reaffirmed its support for the Pledge when, on June 27, 2002, it adopted House Resolution 459, which I introduced, by a vote of 416 to three. The House should do the same with House Resolution 132 today.

I am proud to serve as an original cosponsor of this measure, and I urge my colleagues to support it.

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

Mr. Speaker, I yield 1 minute to the gentleman from Texas (Mr. Carter).

Mr. Speaker, I yield 4 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Ose), who represents the area that includes the Elk Grove Unified School District, which is the district from which this case arose.

Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Oklahoma (Mr. Lucas) to get back to debating the Pledge of Allegiance and the Newdow ruling.

Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Arkansas (Mr. Boozman).

Mr. Speaker, I have no further speakers and am prepared to yield back if the gentleman from Massachusetts will do the same.

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

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I thank the gentleman for yielding time to me.

Mr. Speaker, I come from a State that has a long tradition in supporting religious freedom. In fact, it was Thomas Jefferson who wrote the Virginia statute for religious freedom which precedes the first amendment to our Constitution.

House Resolution 132 is totally gratuitous, as it will do nothing to change the underlying law. This is because we are dealing with constitutional issues that cannot be altered by resolution. If the judicial branch ultimately finds the Pledge or the motto to be constitutional, then nothing needs to be done; on the other hand, if the Court ultimately finds it to be unconstitutional, then no law that we pass can change that.

Mr. Speaker, I believe the reasoning of the majority opinion in the case was sound. In the case, the appellate court applied three different tests which have been applied in the last 50 years in Supreme Court jurisprudence in evaluating establishment clause cases. One test was whether the phrase ``under God'' in the Pledge constitutes an endorsement of religion. The majority opinion says that it was an endorsement of one view of religion, monotheism, and therefore was an unconstitutional endorsement.

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

Finally, the court applied the Lemon test, part of which holds that a law violates the Establishment Clause if it has no secular or nonreligious purpose. For example, cases involving a moment of public silence in public schools, some of those laws have been upheld if the law allows silent prayer as one of many activities which can be done in silence; but courts have stricken laws in which a moment of silent prayer is added to existing moments of silence because that law has no secular purpose.

The court concluded, if the 1954 law, which added ``under God'' to the existing Pledge, had no secular purpose, it was, therefore, unconstitutional.

It is interesting to note the reasoning of the dissent in the Newdow case. The important operative language in the dissent was the following: ``Legal world abstractions and ruminations aside, when all is said and done, the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress someone's belief is so minuscule to be de minimis. The danger that the phrase represents to our first amendment's freedoms is picayune at best.''

Unfortunately, Mr. Speaker, our actions in enacting H. Res. 132 may cause the courts to review the sentiments behind ``one Nation, under God'' because, if the courts look at the importance we apparently affix to the phrase by passing yet another resolution before the judicial branch has even entered final judgment, this attention diminishes the argument that the phrase has de minimis meaning and increases the constitutional vulnerability of the use of that phrase in the Pledge. While one Federal appeals court rejected a call to rehear the controversial ruling that struck down the recitation of the Pledge due to its religious content, the fact remains that this issue is still alive and well; and every resolution we pass chips away at the de minimis argument.

Furthermore, Mr. Speaker, the court may look at this very resolution, understand the Lemon test, and find that today's exercise has no secular purpose and, therefore, adds to the constitutional vulnerability of the Pledge.

Finally, Mr. Speaker, to quote from an editorial that appeared in the Christian Century, a nondenominational Protestant weekly, puts this matter in perspective: ``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, I side with the Ninth Circuit. The government should not link religion and patriotism.''

Mr. Speaker, for those reasons I believe we should reject this resolution.

Mr. Speaker, I rise in opposition to this resolution. I rise in opposition because it is wrong in its principles, it is wrong on the stated findings, it is wrong on its facts. Let me just go through them.

First of all, people may very well, everybody has the freedom to disagree with a court decision. All of us have the right to get up and say that. I do not think it is the role of Congress to say that a court decision is wrong. If we disagree as a body with a court decision, then pass a law if it is a question of statutory interpretation, or propose a constitutional amendment if it is a question of constitutional interpretation. That is our role.

The role of the judiciary is, to quote Chief Justice Marshall, to say what the law is. They say what the law is, and we say what the law should be. It is not our role to tell the court it is wrong; it is our role to change the law if we think so. To pass a resolution which has no power except perhaps the power to intimidate judges is wrong and a violation of our constitutional role.

Secondly, this states as fact that recitation of the Pledge of Allegiance to the flag, including the phrase ``one Nation under God,'' is a patriotic act, not an act or statement of religious faith or belief. It certainly is a patriotic act, but it certainly is a statement of religious faith and belief when you say ``one Nation under God.''

The only way you can get around that conclusion is to say, as the dissenting opinion in the court said, that the phrase ``under God'' is minor, it is de minimis, it does not mean anything. But that is a sacrilege. Since when is God minor? Are we really going to say in this Chamber that God is minor; that belief in God is a minor question, so minor as to not to be worthy of notice?

That is the only ground on which we could say that asking schoolchildren, in the context of a group recitation of a pledge in a classroom, is not a prayer and an affirmation of belief and a religious conviction. To say that God is minor and ``under God'' means nothing, I do not think we want to say that. I certainly hope we do not want to say that. Yet, if we say it means something, then the Pledge of Allegiance with that phrase in it is a statement of a religious belief, or at least a statement of a belief in God.

There are religions in this country, Shintoism, Hinduism, that do not believe in one God. There are people who are atheists. It is factually a wrong statement. It says, as a statement of fact, that the court's ruling in this case is inconsistent with the Supreme Court's interpretation of the first amendment. That is demonstrably wrong, and the Supreme Court will say so.

First, the Supreme Court for the last 40 years in its jurisprudence on school prayers has said that we cannot ask schoolchildren to recite a prayer or a belief in God in the classroom setting, even if we allow the dissenters to walk out of the room; but that is exactly what asking them to say the Pledge of Allegiance with that phrase ``under God'' is. It is exactly consistent with the Supreme Court's last 40 years of jurisprudence and rulings on the school prayer cases. It is, in effect, the school prayer, that as long as you ask schoolchildren to say ``one Nation under God.'' It has all the same pros and cons; and many disagree with the Supreme Court's decisions, but those were its decisions.

In the name of religious liberty, in the name of the separation of powers, in the name of religion, to say that God is not minor, we ought not to pass this resolution and let the Supreme Court uphold or overturn the Court of Appeals decision in Newdow. After that we can worry about a constitutional amendment, which I would propose, and some Members may want to propose. But at this point it is not our function to be correcting a court.

Mr. Speaker, I rise in support of House Resolution 132 expressing the sense of the House that the Ninth Circuit Court of Appeals ruling in Newdow v. United States Congress is inconsistent with the Supreme Court's interpretation of the first amendment.

It is clear that the ninth circuit's amended Newdow ruling contradicts any reasonable interpretation of the first amendment. In a long line of cases, the Supreme Court has interpreted the establishment clause as prohibiting not only compelled participation in religious activity in public schools, but even voluntary religious devotional activity if, under the circumstances, children feel coerced to participate.

These cases, however, were based upon the fact that the activity at issue involved compelled participation in prayers and devotional exercises, as in the cases of School District of Abington Township v. Schemp and Engle v. Vitale; or the practice of graduation prayers at issue in Lee v. Weisman.

In fact, the questionable activity in these cases occurred either just before or just after the recitation of the Pledge. In its review of these cases, however, the court not only failed to question the practice of the voluntary recitation of the Pledge by schoolchildren, but instead explicitly limited its holding to the prayer or devotional exercise.

To have applied these cases to the facts in the Newdow case was incorrect because the Pledge is clearly not a religious statement or prayer; thus, its recitation is not a religious exercise. It is a historical fact that our Nation's founding principles were based upon the Founding Fathers' deeply held religious views. The Pledge of Allegiance simply refers to this fact.

The reasoning and holding of the ninth circuit in Newdow turns historical fact, as well as Supreme Court precedent, on its head. Either the judges were incapable or were unwilling to make this distinction.

Those who do not share the beliefs expressed in the Pledge or those who do not wish to pledge allegiance to the flag have a right to refrain from its recitation. This was recognized by the Supreme Court in the 1943 case of West Virginia Board of Education v. Barnett, in which the mandatory recitation of the Pledge of Allegiance was held unconstitutional under the first amendment's free speech clause.

Indeed, it is a cornerstone of the religious faith that the Founding Fathers held dear that no man can force another to say or believe that which their conscience will not allow. I would hope that no court would issue a ruling that tramples upon this right. However, the ninth circuit in Newdow simply ignored Supreme Court precedent and essentially gave those who do not wish to recite the Pledge, and who possess the right to refrain from reciting the Pledge, a heckler's veto over those who do wish to recite the Pledge.

This ruling also places the ninth circuit in direct conflict with the Seventh Circuit Court of Appeals which, in Sherman v. Community Consolidated School District, held that a school district's policy allowing for the voluntary recitation of the Pledge of Allegiance in public schools does not violate the establishment clause of the first amendment.

I believe that this clearly incorrect first amendment interpretation, as well as the split in the circuits created by the Newdow ruling, warrants an appeal by the Attorney General and Supreme Court review.

I urge my colleagues to approve this resolution so, during this time of international conflict in which our young men and women may be hours away from going to war to fight for those values based upon which our Founding Fathers gave birth to this very Nation, our youngest Americans, our children, may pledge their allegiance to those same values.