Expressing the sense of Congress that the United States Supreme Court should speedily find the use of the Pledge of Allegiance in schools to be consistent with the Constitution of the United States.

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

Mr. Speaker, I come from a State that has a long tradition in supporting religious freedom. In fact, it was Thomas Jefferson of Virginia who wrote the Virginia Statute for Religious Freedom which predates the amendment to the Constitution.

Unfortunately, H. Con. Res. 245 is not about supporting religious freedom. In fact, this resolution 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 national motto to be constitutional, then nothing needs to be done. On the other hand, if the Court ultimately finds it to be unconstitutional, no law that we pass will change that.

Although I tend to agree with the dissent in the 2002 Ninth Circuit decision in Newdow v. U.S. Congress, which

found that the words ``under God'' in the Pledge are permissible under the Constitution, I believe it is important to review the reasoning of the majority decision in that case which held that the words ``under God'' are impermissible on constitutional grounds.

The majority in the Newdow case applied each of the three Supreme Court tests that have been used over the last 50 years in evaluating Establishment Clause cases. That review is essential, because if we support the Pledge, we need to make sure that we support it based on appropriate constitutional principles.

One test the Ninth Circuit cited was whether the phrase ``under God'' in the Pledge constitutes an endorsement of religion. The majority opinion said it was an endorsement of one view of religion, monotheism, and, therefore, was an unconstitutional endorsement.

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

Finally, the Court applied the Lemon test, named after the 1971 Supreme Court case Lemon v. Kurtzman. Part of that test holds that a law violates the Establishment Clause if there is no secular or nonreligious purpose. Mr. Speaker, the Pledge was amended in 1954 to add the words ``under God'' to the existing Pledge, and so the Ninth Circuit concluded that the 1954 law had no secular purpose and was, therefore, unconstitutional.

Mr. Speaker, while I believe that the majority's reasoning was sound, I indicated that I tend to agree with the dissent in the 2002 Newdow case. The operative language in the dissent which persuaded me was as follows:

``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 as to be de minimis. The danger that phrase represents to our first amendment's freedoms is picayune at best.

``Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades, if not for centuries.''

Mr. Speaker, I agree with the dissent and support the Pledge of Allegiance as is under the theory that the words ``under God'' are de minimis. Because the language fails other traditional Establishment Clause tests, the principle that the words ``under God'' are de minimis is the only principle that supports the Pledge as it is. If we suggest that the words are not de minimis, then what do we have to rely on? We would have to overturn one of the existing Supreme Court tests. What will we base that decision on? Would we permit, for example, the government endorsement of one religious view and open the door to other endorsements? Will we permit proscribed coercion of young and impressionable schoolchildren and open the door to other government proscribed religious messages? Should we repeal the Lemon law test and permit the enactment of legislation that only has a religious purpose?

Moreover, if we elect to maintain the Pledge with the words ``under God'' simply because it represents a page in our history as the Fourth Circuit appears to allow, then are we establishing a new Supreme Court test, a historical setting test, or is that the same de minimis standard that the Ninth Circuit cited?

Again, the only principle which upholds the constitutionality of the Pledge is that the words ``under God'' are de minimis, as explained by the dissent in the 2002 Newdow case in the Ninth Circuit. The problem with relying on that principle and enacting H. Con. Res. 245 is that our actions do more harm than good. The de minimis principle is precarious at best.

It is easily undermined by the emphasis we place on the language. If the courts look at the importance that we apparently affix to the words ``under God'' by passing this legislation and increasing the magnitude of the attention we give the issue, we subvert the argument that the phrase has de minimis meaning and, in fact, increase the constitutional vulnerability of that phrase in the pledge.

Mr. Speaker, when we were sworn in, we promised to uphold the Constitution. It is important to acknowledge that any court ruling based on constitutional rights will be unpopular. If the issue was popular, the complainant would be able to vindicate his rights using the normal democratic legislative process. Obviously, the fact that he had to rely on constitutional rights and go through the courts means that he was in the minority.

This will always be the case with constitutional rights. You do not need the Constitution to protect the freedom of speech to say something that is popular. You only need it when the majority tries to use the democratic legislative process or police power to stop you from expressing your views, and stopping the majority from exercising that power will always be unpopular.

Mr. Speaker, whatever we think of the recent California district court or the previous Ninth Circuit decisions, the only thing worse than those decisions is a spectacle of Members of Congress putting aside efforts to address the tragedies caused by Hurricanes Katrina and Rita, considering the appointments to the Supreme Court, completion of the appropriations process for the fiscal year that begins 3 days from now, and the need to address a budget deficit that jeopardizes the next generation in order to take time to pass this resolution. Such a spectacle only emphasizes the importance of the words ``under God'' and, simultaneously, undermines the only constitutional argument that supports the Pledge as it is, and that is, that the words are not important.

Mr. Speaker, in that light, the majority of the Members of Congress will always disagree with the constitutional decision of the judicial branch, and so, Mr. Speaker, because this resolution actually makes it less likely that a court can find the Pledge unconstitutional and because what we think about the decision is actually irrelevant and because we have other important business to do, I would hope that this resolution is defeated.

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

Mr. Speaker, I yield 6 minutes to the gentleman from New York (Mr. Nadler), the ranking member of the Subcommittee on the Constitution.

Mr. Speaker, I yield 6 minutes to the gentleman from Michigan (Mr. Conyers), the ranking Democrat on the Committee on the Judiciary.

Mr. Speaker, I yield myself such time as I may consume and point out that out of respect for the judicial branch and because the passage of this resolution will actually make it less likely that the Pledge will be found constitutional by the judicial branch, we should defeat this resolution.

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

Mr. Speaker, this is not a de minimis issue, and those who would say that a constitutional question is ever inappropriate I am afraid do not understand the importance of millions of American children not knowing, depending upon where they live, how they should recite the Pledge of Allegiance. More importantly, it is not about religion. It is about from where our power comes.

Our Founding Fathers rightfully said that our power came from the laws of nature and of nature's God in the Declaration of Independence. I do not know what Thomas Jefferson exactly meant; I was not there. What I do know is that our Founding Fathers believed that the power of the Almighty came to the American people and they loaned to government the right to govern them, rather than the sovereign that they had served in England, the sovereign who said that the powers of God came to him or her and that they then doled it out to the people they chose to.

That difference is profound. It is the difference in American government that we are not the governed of our government but, in fact, the owners of our government.

More importantly, I want the Members on both sides of the aisle to understand that this is not about raising or lowering the importance, it is not about deciding what is appropriate in the Pledge of Allegiance. What it is about is having the indecision between the Ninth and the Fourth Circuit appropriately decided by the U.S. Supreme Court. Once decided by the Supreme Court, it would then be up to the people of the United States to decide if they wanted to change the Constitution, because the Supreme Court is in fact the final decision point.

It is inappropriate, it is always inappropriate for the Supreme Court to allow an important issue to remain undecided and different in different parts of the United States. Therefore, appropriately, my bill asks the U.S. Supreme

Court on behalf of the House and the Senate to take up this important issue, an appropriate issue, and to decide it. We do not determine how it is to be decided by the vote. Those who vote for this are simply asking the Supreme Court to decide an important issue to end the undecided issue between the Ninth and the Fourth and, for that matter, all the other circuits.

Mr. Speaker, in closing, in the past, over 300, sometimes over 400, Members of Congress have affirmed the Pledge as it is. I do not think this is a question about whether or not God is appropriate to be used at times. I think that has been decided within this body. Certainly ``In God We Trust'' above the Speaker's head says a great deal about the role of God in our deliberation.

This resolution is about asking, albeit with a bent in favor of past votes, asking the Supreme Court to decide an issue. Ultimately, when we ask the Supreme Court to decide an issue, we are not deciding it. We are not binding them to some decision. Just the opposite. This is a free and independent judiciary that will decide the issue as it sees fit. But it is appropriate both for us to ask them to do it and, when appropriate as an amicus, enter into the debate at the Supreme Court. I expect we will do that if and when the Supreme Court takes this issue up.

Mr. Speaker, I move strongly that the Members support the opportunity and the insistence to the extent of our authority that the Supreme Court take this unreconciled difference between two circuits up and decide one way or the other, one time, for the youth of America.

Mr. Speaker, I rise today in support of H. Con. Res. 245. It is time to settle the constitutionality of the Pledge of Allegiance. America's circuit courts are currently split on the issue, and I introduced this resolution to encourage the Supreme Court to resolve this conflict on the side of patriotism.

We come to this juncture because of an attempt by a very few to scour the public space of religious symbols and expression. They have targeted federal, state and local governments in a determined effort to erase every single reference to the existence of a higher power from public life. While they claim to be fighting the establishment of religion, what they are really doing is eliminating the freedom of religious expression. They have forgotten that the inclusion of ``under God'' in the Pledge is no more egregious than Thomas Jefferson including the phrase ``Laws of Nature and of Nature's God'' in the Declaration of Independence.

In 2002, the 9th Circuit Court of Appeals ruled that recitation of the Pledge of Allegiance in classrooms is unconstitutional. Far be it for we in Congress to criticize the wisdom of the 9th Circuit. I would rather compliment the 4th Circuit's ruling last month that the Pledge is constitutional. The 4th Circuit noted that the primary reason for the Establishment Clause within the First Amendment was to combat the practice of European nations compelling individuals to support government favored churches. The 4th Circuit stated that the inclusion of the words ``under God'' in the Pledge of Allegiance does not pose a threat to freedom of religion.

We are left with two divergent interpretations of the constitutionality of the Pledge of Allegiance. Two weeks ago, a U.S. District Court within the 9th Circuit judge stated that he was bound by precedent of the 9th Circuit and held that the Pledge is unconstitutional in another school district.

The Supreme Court must decide the issue to ensure that our children have the right to express their patriotism through recitation of the Pledge of Allegiance. The Court had the opportunity to resolve this issue last year but failed to do so. It is time for the Supreme Court to step in and support the Pledge.

I encourage all of my colleagues to vote in favor of H. Con. Res. 245.

Mr. Speaker, it seems that many Members of this House must really be dissatisfied with their jobs. Instead of being legislators, they seem to want to be Federal judges. Every Member, like every citizen, is entitled to express an opinion on any ruling by any court. That is what our system of government is about. What concerns me is that too many people here seem to think it is the job of Congress to order courts to decide cases certain ways or to consider issues that we want them to consider.

The gentleman from California (Mr. Issa) should read his own resolution. His resolution does not ask the Supreme Court to decide between the Ninth and Fourth Circuit views. It asks them to decide that the Fourth Circuit is right and the Ninth Circuit is wrong. It asks for a certain specific direction.

We have considered bills here to take away certain Federal court jurisdiction because some Members do not like certain court decisions. We have heard threats against judges, against the courts, even statements by some who have said that they understand the murder of judges. This resolution is not binding, and it is probably as innocuous as they come; but it is part of a greater campaign of delegitimizing the independent judiciary, by implication our system of checks and balances and our system of government.

Courts are supposed to rule on cases that come before them; to call them as they see them; to decide what the Constitution means as the court sees it, as Judge Roberts recently told the Senate regardless of popular opinion. That is their job. It is not our job to pressure the court to decide the case a specific way. If we do not like a court decision, we can amend the law. We can start a constitutional amendment if we disagree with a court decision.

I am more than a bit concerned that Members seem to want to decide this case for themselves, but I am more concerned by the constant assertions by Members and some courts that the phrase ``One Nation Under God'' is not a form of religious expression. As the gentleman from Virginia (Mr. Scott) mentioned, constitutionally the only way, since it is clear that we cannot have an establishment of religion, since the jurisprudence of the Supreme Court for the last 40 years says that we cannot mandate a prayer, that we cannot mandate that children in school should say a prayer, we cannot lead an organized prayer in a public school, as I have said repeatedly on this floor, there will always be prayer in the public schools as long as there are math tests, but we cannot have organized prayer where an agent of the State, namely the teacher, says this is the prayer you shall say. That is an establishment of religion, and it is against the first amendment.

The only way around that is by saying that the phrase ``under God'' in the Pledge of Allegiance does not mean anything. It is a mere patriotic expression. It is not religious. It does not mean anything. I think that is sacrilegious. Frankly, it violates the Second Commandment: ``Thou shall not take the name of the Lord thy God in vain.'' Maybe we should have the Ten Commandments here, so people can take a look at it every so often.

Frankly, references to God are inherently religious, and it is a sin to use the Lord's name for any other purpose. It is a religious expression with which not all people, including people of different religions, might agree. It is not out of the question that a court could reasonably conclude that this sentence is a religious expression, that it is inherently coercive when the government makes it part of every school day. That is what the Ninth Circuit did conclude.

It is not the job of Congress to tell the court what to decide, and certainly not the job of Congress to tell the court that God is not religious. If God is not religious, then nothing is religious.

I know most people will look at this vote and think it is a vote on whether or not you support the Pledge of Allegiance; whether or not you are loyal, in fact, to this government; or whether or not you are a person of faith or whether you support God. It is unfortunate that we have to politicize this issue in this way, and that is the real reason for this resolution, since it is totally innocuous, is not binding and has no effect.

But it is even more unfortunate that there is so little respect for our system of government and such enthusiasm for delegitimizing the judiciary every time someone disagrees with a court ruling. That is very dangerous. The future of our Nation depends on the preservation of our system of government, the preservation of the independence of the courts, and not on the text of the Pledge that children are asked to recite in school.

Mr. Speaker, I move to suspend the rules and agree to the concurrent resolution (H. Con. Res. 245) expressing the sense of Congress that the United States Supreme Court should speedily find the use of the Pledge of Allegiance in schools to be consistent with the Constitution of the United States.

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 H. Con. Res. 245.

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

Mr. Speaker, I rise today in support of House Concurrent Resolution 245, expressing the sense of Congress that the United States Supreme Court should speedily find the use of the Pledge of Allegiance in schools to be consistent with the Constitution of the United States.

As Justice Stevens noted, writing for the Court last year in Elk Grove Unified School District v. Newdow, ``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.''

However, going far beyond the requirements of the Establishment Clause and the Supreme Court's interpretation of that clause, the Ninth Circuit struck down a school policy of voluntary, teacher-led recitation of the Pledge of Allegiance, citing that the policy impermissibly coerces a religious act.

Last summer, the Supreme Court reversed the Ninth Circuit's decision on standing grounds. Though the Court did not address the merits of the case, the late Chief Justice Rehnquist stated in his concurring opinion: ``I do not believe that the phrase `under God' in the Pledge converts its recital into a `religious exercise.' Instead, it is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase `under God' is in no sense a phraser, nor an endorsement of any religion, but a simple recognition of the fact that from the time of our earliest history, our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.''

Just 2 weeks ago, in Newdow v. U.S. Congress, the Eastern District of California relied on the Ninth Circuit's decision and held that school district policies of voluntary, teacher-led recitations of the Pledge violate the Establishment Clause.

But, as former Chief Justice Rehnquist stated: ``The Constitution only requires that schoolchildren be entitled to abstain from the ceremony if they choose to do so. To give the parent of such a child a sort of `heckler's veto' over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase `under God' is an unwarranted extension of the Establishment Clause, an extension would have the unfortunate effect of prohibiting a commendable patriotic observance.''

The Pledge of Allegiance is simply a patriotic exercise in which one expresses support for the United States of America, that was founded by a generation of framers who saw a belief in God as fundamental to sustaining the moral fabric of a free society. Those who did not share the beliefs of our founding generation as reflected in the Pledge are free to refrain from its recitation. However, those who wish to voluntarily recognize the special role of providence in America's identity and heritage must also continue to be free to do so.

This body affirms its support for the Pledge of Allegiance by starting each session of the House with its recitation. When the Pledge of Allegiance has come under legal and political assault, this body has consistently and overwhelmingly defended it by passing resolutions that expressed support for its voluntary recitation. Most recently, in 2003, the House passed H. Res. 132 affirming support for the Pledge by a margin of 400 to 7.

I urge my colleagues to continue to affirm their support for the Pledge of Allegiance by supporting the passage of this important resolution.

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

Mr. Speaker, I yield 4 minutes to the gentleman from California (Mr. Issa), the author of the resolution.

Mr. Speaker, I yield the balance of my time to the gentleman from California (Mr. Issa).

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 from Virginia (Mr. Scott) for yielding me this time and for managing the bill so ably.

Well, here we are again, as we take this issue up for a fourth time; and I am again disappointed to say that we are not here for a love of this country or the time-honored Pledge that celebrates it, but to take yet another stab at our independent judiciary. Because the Ninth Circuit did not bend to the resolve of Congress and because the Supreme Court skirted the first amendment claims in the Newdow I decision, Members of this House have introduced this resolution in an attempt to strong-arm judges and manipulate the Supreme Court appointment process. How sad.

So I respectfully take issue with this resolution. While my reverence for the Pledge of Allegiance is unending, my patience with this sort of political maneuvering has long run out. This resolution is a vehicle simply for a conservative litmus test for new judges, particularly Supreme Court Judges, as we currently face both a vacancy and a confirmation of a new Justice.

This resolution was introduced the day after Newdow II, September 14 it was reported; and opponents immediately put it to use in the confirmation process. One conservative group used the case as a vehicle to endorse the confirmation of Judge John Roberts as Chief Justice and to bash Carter-appointed District Court Judge Lawrence Karlton as a judicial activist, even though he was bound by a prior ruling of the Ninth Circuit on the merits. Moreover, the gentleman from South Carolina, Senator Lindsey Graham, deliberately invoked the Pledge ruling at the Roberts confirmation hearings.

All of this comes on the heels of our prior Pledge resolution in 2003 that directed the President to appoint and the Senate to confirm circuit judges who would supposedly ``interpret the Constitution consistent with the Constitution's text.''

Today is the next step. We urge the Supreme Court to accept an appeal to resolve the conflict between the circuit courts over the constitutionality of the Pledge. While drafters have tried to use the most subtle phrase possible in this series of resolutions, their intent is clear: the resolutions demand the promotion of judges who fall in line with a specific series of conservative ideals and a specific result on the merits.

Our judiciary was meant to be independent. Our Founding Fathers created three distinct branches of government to ensure that no single body could write, interpret, and enforce the laws all at the same time. Today's resolution is part of a series that overreaches the bounds between the legislature and the judiciary and attempts to make puppets of our judges. Our judges should be impartial arbiters, which they cannot be if they are manipulated by the Congress.

Further, the Model Code of Judicial Conduct reveals that no candidate for a judgeship ``make pledges or promises or conduct in office other than the faithful and impartial performance of the duties of the office,'' nor ``make statements that commit or appear to commit the candidate with respect to

cases, controversies or issues that are likely to come before the court.'' So not only do these resolutions make a mockery of our judicial system, they also, my colleagues, subject our judges to potential ethical violations.

While I may disagree with the Newdow decisions, I disagree even more with attempts to influence the constitutional interpretation by politicizing judicial appointments. I respect the Pledge of Allegiance so much that I resent that it is being used as a tool for political jockeying and partisanship. Our Pledge simply deserves better.