Explicit Atheist

Why gravity is real but god is not

2012-01-24T04:30:00.031Z

Christian Platt, in his recent article "Atheism: A Null Hypothesis on God", admits that "I have tried in vain over the years to understand atheism.". He then goes on to make various analogies for acquiring knowledge of various phenomena empirically, such as our seeing things from reflected light, and our verifying gravity by its effects, with his claims of witnessing god by god's reflections and effects. He, and other people like him, will continue to have difficulty understanding atheism because he is not understanding the difference between arguments based on empirical evidence and his arguments for god. This distinction is not difficult to grasp, and after understanding this distinction, he may come closer to his positive goal of "getting" atheism.

But first, lets dispell the unbalanced notion, which Christian Platt mistakenly promotes, that agnosticism is consistent with Christian theism but inconsistent with atheism. He appears to confuse uncertainity that god exists with faith that god exists, and since atheists don't have faith that god exists he concludes atheists are not agnostic. But all agnostics do not have faith that god exists. Not having perfect and direct knowledge that something exists does not equate with faith that it does exist.

Christian Platt is correct that everyone should be agnostic because humans are not omniscient. But he is incorrect to say that atheism precludes agnosticism. Richard Dawkins, for example, has acknowledged that he has such uncertainty. All atheists who are thoughtful acknowledge agnosticism. He also claims that atheism 'implies the same kind of certitude that a religious fundamentalist might claim is arguing they "know without any doubt that God exists."'. Some atheists may say that, but in my experience most atheists either say they don't believe and stop there, or say they believe there is no god, instead of saying they "know without any doubt". This notion of disbelief isn't difficult, and there is no good reason for intelligent people to have difficulty with this concept of disbelief in the singular context of god belief when everyone disbelieves lots of things. The real issue here isn't whether someone has any particular conviction, nor whether that conviction is definite or indefinite, nor whether the conviction is in the middle, or towards one end, of a true versus false spectrum line. The real issue is whether the belief, or disbelief, is well justified and held in proper proportion to the evidence.

Christian Platt then approvingly quotes John D. Caputo for his argument that God belief "insists, so that the rest of creation might exist.". This sounds like an argument that the universe must have a creator. That is a dubious assumption. For example, insects exist, but they do not have a creator. Insects exist because of abiogenesis and evolution. Some cosmologists think that the universe was spontaneously created, or self-created, and most cosmologists think that a self created or spontaneously created universe is consistent with all of the known laws of physics. While the notion of a creator is intuitive, we know from the very long list of non-intuitive and counter-intuitive conclusions found within modern knowledge, that intuition is not a good guide to, let alone a good source of, knowledge.

Christian Platt then declares: 'God is the impetus, the spark, the divine breath, the "inspiration," if you will from which all the rest of creation finds meaning.' I think this is silly, and I will try to explain why. Meaning is found in our experiencing and living our lives. Merely declaring otherwise does not constitute a justification for claiming otherwise, let alone constitute a compelling argument for a god. The notion of creation finding meaning makes no sense. There is no meaning to be had outside the context of minds capable of contemplating the concept, and all such minds that are known to exist reside in physical brains that are attached to physical bodies of animals. Saying that "creation finds" a concept or sentiment, such as meaning, is a category error. This is poetic language, but evidence and argument is not found in poetry. If it were then we would go to poets instead of medical doctors for our annual medical health checks.

Christian Platt then argues that God is found "conspiring with the physical world to create something that makes sense." Here is where he indulges the flawed analogy with seeing an object indirectly as "the result of the interaction between the light and the observed object.". Light is a physical entity that is measurable, it has amplitude and wavelength, it is empirically observed and evidenced. This is very different from the assertion about the vague concepts "something that makes sense" and "conspiring". This analogy doesn't work at all, since the foundation of our knowledge in the second case is precisely the empirical evidence that is completely absent in the first case.

Christian Platt then tries to argue that empirical evidence is not necessary because in the past we didn't know about atomic particles, or dark matter. He appears to be confusing what we know, a.k.a. ontology, with how we know, a.k.a. epistemology. It would be nice if we could just eliminate the effort and time needed to acquire knowledge and magically skip to having knowledge through some unspecified direct mechanism to this particular truth claim (god). However, such magical and instant capability to directly possess knowledge has not demonstrated much success as a non-empirical, alternative method for acquiring knowledge. There is a time sequence constraint here that applies to everyone. Time travels in a single direction from past to present to future. Before we can have knowledge about what is true we must first obtain the evidence to justify the conclusion that it is true. The latter achievement precedes the former achievement in time, we cannot properly leap directly to a conclusion without the evidence needed to justify the conclusion.

Christian Platt cites gravity a second time, saying it 'cannot be directly observed: only measured as it affects other objects. It's not a "thing" that can be pinned down.'. Gravity is due to curvature in space-time, and space-time curvature is a thing that can be, and is, predicted and indirectly measured. It is true that all empirical measurements and observations and knowledge can be said to be indirectly acquired. But the critical and essential attribute of evidence is that it is repeatedly measureable and observable, attributes that are entirely missing from poetic "evidences", if we can call them that, for god. Even if it is true that everything that is empirically evidenced is evidenced indirectly, it doesn't follow that everything that is argued for indirectly is therefore also properly evidenced.

Christian Platt then asserts "to say that even science is entirely constrained by the scientific method is to ignore the creative imagination required to stretch the boundaries, to imagine what might be, beyond what is now understood to be. It's this kind of imagination that pushes humanity to create new tools that have allowed us to observe things we never knew existed before.". The notion that atheists define the scientific method so narrowly as to preclude a role for imagination is false. Imagination, when married with empiricism, can be an important contributor to getting productive ideas. But imagination is no substitute for grounding existence claims in empirical evidence. Undiscplined imagination unfettered by empiricism has been a path to much fictional fantasy falsely claiming to be knowledge. There is excellent reason to think that imagination by itself is a source of fiction only.

Christian Platt then argues "making room for those possibilities, seem, to me, to be at the heart of science as much as the rigorous processes defined by the scientific method.". If by "those possibilities" he means all of the possibilities that have no empirical support then the fact is that the scientific method does not endorse, and cannot arbitrarily endorse, any such possibilities. But the issue here is not "scientific method". The issue is the need for empirical evidence in support of existence claims to justify the corresponding existence beliefs.

The article concludes with this comment: "However, to leap from that to certitude of God's non-existence is to violate the principles of the scientific method, isn't it?". Explicit atheism is not a conclusion of science. It is a belief based on an assessment that the overall direction and weight of the available evidence favors the conclusion that there are no non-material actors with non-material super intelligent minds that created the universe or that take some special interest in humans or that intervene, monitor, or oversee human affairs on earth, nor that humans continue to live forever as material or non-material entities after they die under circumstances dictated by such a god, nor anything of this sort. Instead, the available evidences best fits the conclusion that all god stories are human created fictions that have no relationship to anything that is true.

The incomprehensible, everything good, god

2012-01-18T03:15:00.008Z

When I wrote, in my previous post, that theists argue for irreducible complexity in biology as evidence for god, I was not (of course) referring to all theists. So what about a god that is not to be found in biology, chemistry, or physics? Victor Udoewa, in his recent Huffington article titled "Does Science Make Belief in God Obsolete?", wrote "it is clear that science may make belief in a certain concept of God obsolete. But it is a hard task to make belief in every concept of God obsolete." Seeking funding from The Templeton Foundation to promote his timeless and undefeatable version of theism, he asks: "What if there were concepts of God that had something to offer or add to the fulfilled? What if we had concepts of God based on creativity? On a positive definition of incomprehensible peace? On imaginative joy? On creative, problem-solving love?"

The god that is creativity, peace, joy, imagination, love, and other such general and positive capabilities, outcomes, feelings, and sentiments is a favorite gambit of liberal theists. Its strength is its weakness, in equal measure. There can be no evidence against this god nor can there be any evidence for this god. This god is claimed to be real but is defined as a fantasy. And that is why no one has any proper justification to believe in this god. Evidence is the proper foundation to justify beliefs about what is true or false regarding the reality of entities that are to be worshipped or otherwise asserted to really exist. Conservatives want evidence, but they don't respect evidence that contradicts their theism, so they tend to manufacture their own, alternative world "evidence". Liberals want to follow the real evidence, but they don't want the evidence to contradict their theism, so they tend to place their cherished theism out of harms way by defining their god to be beyond the reach of any possible evidence. Either way, it's the same failure, they are both failing to put the evidence first and follow it.

V-ATPase proton pump and biological complexity

2012-01-16T19:40:00.003Z

Vacuolar-type H+-ATPase (V-ATPase) is a highly conserved evolutionarily ancient enzyme. A proton pump is an integral membrane protein that is capable of moving protons across a cell membrane, mitochondrion, or other organelle. The V-ATPase proton pump helps maintain the proper acidity of compartments within the cell. The pump has a ring that is made up of a total of six copies of two different proteins, but in fungi a third type of protein has been incorporated into the complex. There are many molecular machines like this in cells. Theists assert that these molecular machines are irreducibly complex and therefore must have been created by a god (a.k.a. Intelligent Designer). How could a ring that consists of three different proteins be created without an Intelligent Designer?

A team of scientists from the University of Chicago and the University of Oregon worked out an answer: "It's counterintuitive but simple: complexity increased because protein functions were lost, not gained," The lead author of the study, Dr. Thornton said. "Just as in society, complexity increases when individuals and institutions forget how to be generalists and come to depend on specialists with increasingly narrow capacities."

Hundreds of millions years ago the proton pump ring consisted of two proteins, similar to those found in animals today. However, these older versions of the protein were more versatile, their functionality was broader than the equivelant proteins seen today so they could substitute for each other in the ring. A gene coding for one of the subunits of the older two-protein ring was duplicated, and the daughter genes then diverged on their own evolutionary paths. The functions of the ancestral proteins were partitioned among the duplicate copies, and the increase in complexity was due to complementary loss of ancestral functions rather than gaining new ones. In other words, since the proteins were now assembled by different genes, the proteins diverged, becoming more specialized.

"The mechanisms for this increase in complexity are incredibly simple, common occurrences," Thornton said. "Gene duplications happen frequently in cells, and it's easy for errors in copying to DNA to knock out a protein's ability to interact with certain partners. It's not as if evolution needed to happen upon some special combination of 100 mutations that created some complicated new function.". Thornton proposes that the accumulation of simple, degenerative changes over long periods of times could have created many of the complex molecular machines present in organisms today. Such a mechanism argues against the intelligent design concept of "irreducible complexity," the claim that molecular machines are too complicated to have formed stepwise through evolution. "I expect that when more studies like this are done, a similar dynamic will be observed for the evolution of many molecular complexes," Thornton said. "These really aren't like precision-engineered machines at all," he added. "They're groups of molecules that happen to stick to each other, cobbled together during evolution by tinkering, degradation, and good luck, and preserved because they helped our ancestors to survive."

Free will and fine tuning

2012-01-14T20:18:00.007Z

There is good reason to think that we do not have free will and that the fundamental constants of physics are not fine tuned. Some people defend theism on the grounds that both phenomena are evidence that naturalism is insufficient to describe or explain the universe. So the evidence that both are false assumptions has some significance in the debate over whether or not we should believe that there are no gods.

I will utilize biologist Jerry Coyne's definition of free will: When faced with two or more alternatives, it's your ability to freely and consciously choose one, either on the spot or after some deliberation. A practical test of free will would be this: If you were put in the same position twice — if the tape of your life could be rewound to the exact moment when you made a decision, with every circumstance leading up to that moment the same and all the molecules in the universe aligned in the same way — you could have chosen differently.

If we had free will then we would be self-aware of the action we have selected before we have irreversibly committed to that action. If our choices are unconscious, having been determined well before the moment we think we've made them, then we don't have free will in any meaningful sense. Scans of brain activity favor the latter scenario. First we irreversibly commit to an action and we become aware of which action we are taking only after the decision was made. For example, brain scans show that when a subject "decides" to push a button on the left or right side of a computer, the choice can be predicted by brain activity before the subject is consciously aware of having made it. We then convince ourselves post-hoc that we decided on our action after conscious deliberation. Thus, our feeling that we consciously choose may be a deeply ingrained and automatic self-deception, a trick our mind plays on us.

In his new book "Who's in Charge: Free Will and the Science of the Brain", neuroscientist Michael Gazzaniga explains how the right brain hemisphere is driven by the senses and acts on an immediate, subconscious level. The left brain hemisphere applies a conscious after-the-fact reasoning that attempts to make sense of the actions that the subconscious mind has already taken. The left-brain's "interpreter module" is always at work inventing theories to "explain" what the right half of the brain has already "decided" on the basis of reflexive subconscious instinct.

Our intuition that we have free will is very strong. The concept of free will is fundamental to the way people assign meaning to their lives and is perceived as continuously being in play except when we are sleeping. But from a biological perspective, conscious self-awareness of actions came later in the history of life. Life originally selected among alternative available actions without self-awareness. So it makes sense that animals which later acquired conscious self-awareness still tend to make decisions prior to being self-aware of those decisions.

The premise of the fine-tuned universe assertion is that a small change in several of the dimensionless fundamental physical constants would result in a universe that cannot support life. The current standard model of particle physics has 25 freely adjustable parameters. However, the standard model is not mathematically self-consistent under certain conditions, so most physicists believe that it is incomplete. In some candidate replacement theories, the actual number of independent physical constants may be as small as 1. But, for the sake of argument, let's accept that there are 25 and that a small change to any single one of these constants makes the universe radically different.

Fine tuning can be cited as evidence for an intelligently designed universe only if the probability that the universe would be able to support life is tiny over the entire spectrum of all possible combinations of all possible values of all the constants. Even if the fine-tuning premise were true, there is theoretical evidence for a multiverse which provides a naturalistic explanation for fine-tuning. But is the premise true? Varying the value of just one constant while leaving all of the other values at their actual values may result in no other universe that can support life. Yet varying the values of all 25 constants simultaneously may result in many universes that can support life. The former result can thus be misleading, because the latter result, if true, would outnumber, and thus defeat, the former result.

Simulating universes while simultaneously varying the values of all 25 constants may be computationally very difficult, but several attempts have been made with a subset. Victor Stenger has simulated different universes in which four fundamental parameters are varied. He found that long-lived stars could exist over a wide parameter range. Fred Adams has done a similar study to Stenger, investigating the structure of stars in universes with different values of the gravitational constant, the fine-structure constant, and a nuclear reaction rate parameter. His study suggests that roughly 25% of this parameter space allows stars to exist.

So the free-will and fine tuning arguments may both be wrong. Certainly, both arguments have been premature in the sense that neither phenomena has been established to be true by the evidence. It is only very recently that we have acquired the tools to start to tackle the question of whether these two premises are true. The early results suggest both premises are false.

Theists' defense against atheism and human invention fails

2012-01-14T20:14:00.003Z

Sean McDowell and Jonathan Marrow wrote a book "Is God Just a Human Invention? And Seventeen Other Questions Raised by the New Atheists", published in August 2010, that claims to defeat the arguments for atheism and show that Christian theism is true. I have not read the book, instead I recently read a book review. Sometimes, reading a favorable book review is enough to conclude that the book fails to achieve its claimed objective. Why and how does this book fail to make a convincing argument against atheism, contrary to the enthusiastic book reviewer's assertions that the book succeeds? Let's take a look at some of the arguments from the book as cited by the book reviewer.

All people, including atheists, have faith in some things, therefore atheist attacks against religious faith are said to be mistaken. One trusts the unfamiliar pilot of a plane one boards; one has faith that the electrician properly wires your house; one trusts the cook at the restaurant where one eats, etc. The problem with this argument is that it is confusing our day to day faith in the behavior, skills, and good will of other people with faith in factual claims made by religions. It doesn't follow that because we trust pilots to not try to kill their passengers that we are justified in trusting that the angel Moroni communicated the wisdom of God to Joseph Smith as asserted by the book of Mormon.

Atheists are then accused of having blind faith in the ideas that the universe came into existence from nothing, that life emerged from non-life, and the human mind arose from mere matter. None of this is true. Atheists follow the opinions of the experts in cosmology, biology, and neurology: Cosmologists, Biologists, and Neuroscientists. These are the people who have devoted their time and efforts to studying and pursuing the evidence about our universe, life, and brains, including their origins. The evidence suggests that our universe contains a near balance of negative and positive energy consistent with its emerging from an unstable, initial "nothing". Nothing is in quotes here because the evidence suggests that absolute nothingness could be impossible, it exists in the minds of theologians but has no evidenced reality. The evidence suggests that the brain is a completely materialistic entity that is the sole source, together with its supporting body, of our minds. The evidence suggests that life emerged from chemistry and is entirely a chemical and physical process. These are, in fact, the conclusions favored by the available evidence. I, and most other atheists, are absolutely convinced that these are the conclusions that are the best fit with the evidence.

The authors of the book are then quoted as asserting "there is no inherent conflict between Christianity and science”. As evidence for this it is noted that most of the early pioneering scientists were theists. However, time passes and more evidence is accumulated. Today, more scientists are atheists than a hundred years ago. People hold inconsistent beliefs, so the fact that there are many people who hold two beliefs is not sufficient to establish that both beliefs are not in conflict.

The authors claim naturalism “ultimately undermines any basis for confidence” in nature’s order and the powers of reason. It is claimed that under a naturalistic worldview, there’s no reason to trust our reason or our senses; they were merely the result of blind Darwinian accidents. Again, this is false. Our reason and senses are effective precisely because they competitively evolved. To the extent animal reasoning and senses were less trustworthy they were out competed by animals whose reasoning and senses were more trustworthy. The process of evolution is thus not only accidental, it is also directional, it necessarily follows a path that "puts us in touch with reality", because the outcome is shaped by competition for survival. A tendency to walk over cliffs is not an outcome favored by evolution.

The authors defend the concept of miracles, “if a transcendent God exists, then it seems eminently possible that He has acted in the universe”. This if x then y is possible logic is sensible here. But we could just as logically say if not x then not y. While the authors seem to be impressed by the standard philosophical arguments for God, those arguments fail by the only criteria that counts, they don't reach conclusions by following the overall weight of the overall evidence. So the authors are mistaken to consider those various traditional arguments for god to be convincing. Arguing from one possibility to another possibility only makes sense when the evidence favors the first possibility.

The authors claim that Hume mistakenly presumes to know the uniformity of human experience prior to considering the evidence. Indeed, we should always start with the evidences. So do the available evidences favor the conclusion that the universe consistently follows a set of laws? Yes, very much so. Pieces of icebergs break off and fall down into the ocean, but equivalent amounts of ice don't jump up and attach itself to the side of the iceberg. Hume was correct regarding this "presumption" of his. Time has a clear direction from past to future because our universe unfolds uniformly according to fixed laws.

The authors then attack Hume’s argument that one should be skeptical about the improbable. “But surely it is perfectly reasonable to believe that an improbable event can occasionally occur”. No, that is not a reasonable conclusion for any particular imaginable event. Again, this depends on the evidence. We know that Royal Flushes in poker are both improbable and an occasional occurrence, while a human language talking donkey is not only improbable, but physically impossible and thus a never occurred fiction. Believing in any such tall tale events that violate the evidences regarding what is possible, a.k.a. a miracle, is, by definition, unreasonable.

The authors claim that there is not good evidence for macroevolution (changes from one species into another different species), only good evidence for microevolution (small changes within a kind). This is false. The evidence for evolution transcends this micro/macro distinction and is strong for both. Macroevolution is also an unavoidable logical consequence of microevolution.

The authors claim that a purely material reality cannot produce consciousness. Again, this is contrary to the evidence. The evidence that we have favors the conclusion that consciousness is an emergent property of purely material brains. Near death experiences are like dreams, we have lots of evidence that they are fictions, they reflect activity internal to the brain, not what it is true beyond the confines of the person. Intention and free will are not sufficient evidence for consciousness being immaterial. We literally don't have evidence that free will is anything more than an illusion, or that if it is in any sense real, that it is in that sense also non-material.

The authors note that atheism lacks an objective and perfect ground to issue objective moral commandments as well as the means to hold all moral lawbreakers to an account. But neither does theism. The authors claim that “In the theistic view, objective moral laws are grounded in the reality of a Moral Lawgiver." That is a circular argument, it fails to establish what are objective moral laws, or how that is determined. Citing the Christian (or Hebrew or Islamic, etc.) bible as the guide for "Morality" is untenable. Those documents are more distant from being a decent, let alone perfect, guide to moral behavior, or laws, than most atheists could write themselves. Furthermore, it is rather obvious that the content of these documents reflect the state of knowledge and attitudes of the people of the place and time where they originated. Again, the evidence strongly favors the conclusion that the only Lawgivers behind these documents are people.

The book reviewer concludes "They offer several of the leading arguments for Christian theism while toppling some of the most belligerent of the objections promoted by the New Atheists. They have written, with abundant care, to attain a thoroughness that is not often established in popular books. The wisdom and excellence with which each chapter is written makes this a crucial volume for the budding apologist’s library."

The arguments for Christian theism, and more generally for religious theisms, in this book, and in the many similar arguments found in other such books, are often seriously flawed, in conflict with the available evidence, and very weak overall. That books like these are popular is an indication that more debate regarding religious beliefs is needed. There is nothing belligerent, or impolite, or counter-productive, in arguing that everyone should believe in macroevolution, in abiogenesis, in global warming, in atheism, and generally in that set of conclusions which are best supported by the available evidence.

Enlighten the Vote PAC

2011-09-14T10:44:00.001Z

Secularists have several civil rights groups with lawyers such as the Freedom from Religion Foundation and American Atheists. Secularists have a lobbying group, the Secular Coalition for America. Yet there is still only one elected official in the Congress who self-identifies as a non-theist. We need something more, but this something more that we need is not an atheist political party. We need a well funded PAC similar to EMILY's List.

There is such a PAC, it is called Enlighten the Vote, but unfortunately it appears that is not well funded. If the Enlighten the Vote PAC were better funded, secularists could pursue a three-pronged strategy to elect atheists: recruiting and funding viable atheist candidates; helping them build and run effective campaign organizations; and mobilizing secular voters to help elect progressive candidates across the nation. We could work within the context of existing progressive political parties, including the Democratic party, for the targeted and limited goal of secularist government, much like the Secular Coalition for America already does, but without the 501(c)4 restrictions on partisan political activities.

As a group, atheists don't have a common, broad, governing agenda needed for a political party. For example, I disagree with the National Atheist Party's support for import tariffs. My understanding is that most economists disfavor import tariffs because the available empirical evidence (and also economic theory) is that by restricting trade such tariffs result in a net loss in most contexts. I don't think atheists should be taking a position on import tariffs under the banner of atheism because economic policy is too far removed from the issues related to the existence of gods.

More generally, I think everyone should, insofar as it is currently possible, strive to anchor their policy positions in the available empirical evidence. One of the biggest problems I have with the Republican party is that their supporters tend to favor policies that directly contradict lots of available, strong evidence on issues such as global warming, evolution and sex and history education, and the like. Republicans like to say that the Obama Administration's stimulus program "failed" despite the fact that the empirical evidence, when evaluated by the experts, appears to better fit the conclusion that the stimulus program reduced the strength of the recession. It is difficult to trust any political party or movement that prides itself in exhibiting a selective and shameless unwillingness to follow or respect or understand the overall weight of the evidence. Ideology overtaking reason isn't a recipe for good governing or national achievement and success.

What many secularists as a group have in common is an ethical civil rights agenda for secular government that opposes government favoring religious ideologies over more generally applicable principles and opposes government privileging religious institutions over non-religious institutions. Accordingly, the Enlighten the Vote PAC that seeks to elect self-identified atheists who favor ethical secular governing with equality before the law for all, and that could supplement the work of the non-partisan Congressional lobbying group Secular Coalition for America, appears to me to be worthy of our support (despite their odd practice of capitalizing the word atheist as if it were a proper noun).

The specifics of the agenda varies over time. Examples of current policy issues which the Secular Coalition for America lobbies Congress include discrimination against atheists in the military, laws allowing pharmacists to deny emergency contraception access, exemptions for so-called faith-healing from medical neglect liability, safety exemptions for religious child care centers, theological restrictions imposed on civil marriage, government support of organizations that deny membership to non-theists such as Boy Scouts, broad exemptions for religious groups from local zoning restrictions (RLUIPA), religious control over sex education, "Under God" in the Pledge, government funding of religious schools, taxpayer subsidized housing for clergy, and state school curricula that mislead children for religious reasons.

There are naysayers who advocate for fear on behalf of silence. They say that the religious right is big, and strong, and mean. The religious right wants us to challenge them so that they can target us for defeat. Therefore, anyone who publicly takes any unpopular position in opposition to the religious right is playing into the religious right's hands by provoking them. The best strategy is to be intimidated into silence.

It is logical, and therefore probably true, that some people want their political opponents to be afraid of them with the goal of intimidating their opponents into silence. Insofar as we appease a strategy of promoting intolerance and bigotry against atheists by agreeing to be intimidated into silence by our political opponents we are arguably guilty of encouraging such a strategy on their part. But this is not primarily about what our opponents want or about their tactics, this is not primarily about what is currently popular and unpopular, this is first and foremost about the merit of alternative government policies and trying to realize the better policies on the basis of merit. We identify and speak out on behalf of some policies and against other policies because those policies are better or worse than the alternatives, not because those policies are currently more popular or unpopular. We are all better off if our conversations on policies are open and held on the basis of the policy merit, not on the basis of insisting on a-priori self-censorship that is rationalized by someone's measure of relative size of, and reasons to fear, the opposition. Silence because of fear of the opposition isn't a policy argument with any substance, its a recipe for rewarding the promotion of intolerance as a political tactic. My advice to everyone is to avoid being self-deceived by anyone claiming it is a sophisticated and wise strategy to refuse to advocate for good policies merely because those policies currently face a misdirected, strong opposition.

I anticipate that some people may object to the focus on electing atheists. Why not focus on electing secularists more generally? Why not use the more inclusive term "non-theist"? We, all of us secularists, not just atheists, need to challenge the anti-atheist prejudice directly and head on because it is in the self-interest of secularism to defeat the fear of atheism. The fear of atheism and prejudice against atheists is one of the major obstacles to the popularity of secularism more generally. We can't defeat that association by trying to divorce secularism from atheism even though they are not the same because secularism necessarily tolerates atheism and therefore, for that reason alone, anti-atheist bigots will not accept secularism. EMILY's list is more effective, not less effective, by focusing on electing women rather than focusing on electing people of any gender who support abortion, because they recognize that opposition to legal abortions and under-representation of women as policymakers in government are mutually re-enforcing problems.

All theisms are created equal

2011-08-22T03:15:00.017Z

I recently read the article Why I am not an Atheist by Pierre Whalon, Bishop of Convocation of Episcopal Churches in Europe, published in the Huffington Post on August 9. He starts by asserting that "by definition" there is no evidence for god, approvingly citing German Jesuit and theologian Karl Rahner for saying "God is not a datum in the universe." He also approvingly cites Thomas Aguinas for arguing that nothing can be proven from nature or scripture to those who do not have faith already.

Karl Rahner may have been right, but not because there is no evidence by definition according to the Christian bible, where God speaks and performs witnessed physical miracles onymously. Bishop Whalon, however, defines god as subsisting "completely outside of the universe". I will simply accept Bishop Whalon's definition of god since he is entitled to argue for his god on his own terms. I will then leave it to the reader to decide whether Bishop Whalon is being inconsistent here insofar as he also claims to be Christian according to the authority of the Christian bible.

I am not impressed with Bishop Whalon's citing some recent Scientific American articles for asserting that the existence of the multiverse "cannot be proven" and that the reason why math works "cannot be understood scientifically". "Cannot" is a strong word here, and my understanding is that supporting evidence for both is not outside the realm of the possible. In particular, we already have evidence for a multiverse in the sense that existing theories of how our universe functions which are favored by cosmologists appear to imply a multiverse. A multiverse is currently a highly speculative possibility and yet it is also better evidenced than any gods. This is important because we don't require "proof" to justify our theism/atheism beliefs, what is required is overall weight of the available evidence, and the evidence we have for a multiverse is unfavorable to gods being non-fictional.

Nevertheless, putting aside that his two examples may be flawed, Bishop Whalon is no doubt correct on his main point, that "there are limits to the 'evidence' science can produce." He also says "the questions these limits raise are clearly not the confines writ large of human inquiry." But surely it is not merely inquiry that Bishop Whalon is advocating for when he advocates for Episcopalianism in particular, or even monotheism more generally. So its not clear what Bishop Whalon's point is here.

Since Bishop Whalon put the word evidence inside scare quotes, it is worth noting that evidence is not produced by science, at least not in an active sense. Evidence is that which was observed to happen. Scientists seek out, verify, and consume the evidence, they don't produce the evidence.

Bishop Whalon has conceded most of his argument from the start: There is no evidence for god. For some inexplicable reason, Bishop Whalon appears to think that theism is justified without providing any explanation for how it is justified. He mentions faith and intuition, but faith and intuition alone cannot justify belief. No belief about how the world works is justified without evidence.

Having first conceded that there is no evidence for god, he then concedes that the evils manifest in our universe are evidences against an all-knowing, all-powerful, all good, god. When we combine concession one with this second concession its even less clear why Bishop Whalon is a Christian theist. Bishop Whalon puts in a pitch for theism when he says "... a theist can be called to account because her religion has an ethical standard that stands completely over her. An atheist can have no such check." However, this isn't an argument that theisms are true. Its an assertion that only theistic religions provide ethical standards transcending the individual. Yet the individual is not transcended by any religions. Individuals have the option to believe or not in any particular religion. Furthermore, the ethical standards that religions provide may be unethical, or poorly defined, or undefined in any given context, thus taking us back to square one, or maybe worse.

Bishop Whalon, citing Jean-Paul Sartre and Albert Camus as examples, points out that evil in the world is also a problem for atheists. Of course, evil is a problem for all people, but its not evidence against atheism. It is evidence against the set of theisms that posit a omnibenevolent deity.

Bishop Whalon then characterizes awe, intuition of a hidden order, curiosity, beauty of order, and the like as the domain of the "queen of of sciences" - theology. It is "that intuition -- that life has a meaning that transcends my momentary flicking in and out of it -- is for me confirmed by the revelation of God on the cross of Jesus...". Mesopotamians also had intuitions. The forces of Taimat and Abzu, who had emerged from a primordial chaos of water, created the 4 creator gods. The highest of the 4 gods was the sky-god An, the over-arching bowl of heaven. Next came Enlil who could either produce raging storms or act to help man. Nin-khursag was the earth goddess. The 4th god was Enki, the water god and patron of wisdom. These 4 gods did not act alone, but consulted with an assembly of 50, which is called the Annunaki. Innumerable spirits and demons shared the world with the Annunaki.

So, Bishop Whalon, why are your intuitions more accurate descriptions of how the world works than the Mesopotamians intuitions? You asserted "not all theologies are created equal", but I fail to see how we can logically adopt any particular religion when all religions are non-evidenced, counter-evidenced, intuitions. Intuitions about how the universe ultimately works are diverse, inconsistent, and, as human history amply demonstrates, inevitably false. Human intuition here is synonymous with human ignorance. You may think that relying on intuition to answer questions such as who created the universe, the ultimate purpose of people, the ultimate meaning of human lives, and the like is rational. I am convinced that the evidence demonstrates otherwise and you are mistaken. Those questions have simple, non-intuitive, negative answers. No intelligent agent intentionally created our universe, there is no ultimate purpose of people, there is no ultimate meaning to human lives.

Contrary to what Bishop Whalon argues, a story is not true because its implications "are trustworthy in the abstract" or because it is "personally relevant". Fictions can be trustworthy in the abstract and personally relevant. Bishop Whalon asserts that "what you believe ... makes up what you are ..." But we shouldn't be utilizing belief as a method of defining ourselves. Our beliefs reflect our best efforts at deciding what is true and false. Accordingly, we believe because the overall weight of the evidence directs us to what we must believe.

Bishop Whalon then confuses evidence justified belief with faith by concluding thusly: "Faith, atheist or otherwise, is never just a personal option. At least, not for long." On the contrary, faiths, no matter what their implications for the holders of those faiths and for others, are always a personal option. It is evidence alone that enables us to transcend personal options. In my judgment, the available evidence is that all gods are human created fictions, these fictions accurately reflect ignorant human intuitions, gods almost certainly do not exist, and in any case, by definition, we cannot be justified in believing in anything that resides completely outside of the universe.

Politics, Prayer, and Prejudice

2011-08-06T16:42:00.014Z

In a August 2, 2011 editorial titled Politics and Prayer, the New York Times editorial staff applauds a recent United States Court of Appeals for the Fourth Circuit decision outlawing the Forsyth County prayer policy because the prayers often featured sectarian references. The NY Times argues that the constitution forbids government from favoring "one religion", citing the court's observation that invocations must not "repeatedly suggest that government has put its weight behind a particular faith." The NY Times then quoted the court criticizing the county's policy because it favored "the majoritarian faith in the community at the expense of religious minorities." This argument is seriously flawed because it ignores that "the majoritarian faith" encompasses more than "one religion" or "a particular faith" and that the Establishment Clause forbids "an establishment of religion", not "establishment of a religion" or "establishment of one religion" arbitrarily selected.

Forsyth County is majority Protestant, it is majority trinitarian, it is majority Christian, it is majority monotheist. There is no one majority religion or faith. Different religious belief based divisions of the same set of people results in multiple different religious belief majorities. The gratuitous addition of the qualifiers "a", "the", and "one" by the NY Times and the court to mis-characterize as singular the pluralism inherent in majoritarian religion is disingenuous and mischievous. Counting religions is capricious. Delineating a single religion for large groups of citizens is inherently subjective and arbitrary because there can be as many religions as there are people. One judge could count a single religion where another judge could count hundreds of religions which is one just one of several reasons why the count of religions should be irrelevant to judicial decisions.

There is no basis in law for judges to pick and choose for which religions the Establishment Clause applies and for which religions it does not apply. The concocted misconception that the constitution requires judges to identity "the" majority faith or "a" majority religion when evaluating the applicability of the Establishment Clause is in conflict with the underlying principles of impartiality and equity which gives the first amendment and, more generally, all laws, their warrant to claim to be just. It should be obvious that the Establishment Clause principle equally prohibits establishments of minority religion, regardless of how unlikely that result is in a democracy, multiple establishments of religion, however many such distinct establishments there are, and a single simultaneous establishment of multiple religions, regardless of how many different religions or faiths, however delineated, are simultaneously established in a given instance. The Establishment Clause applies equally to minority and majority religions, to any and all religions, to one and many religions.

Accordingly, if, as asserted by the court here, Forsyth County violated the Establishment Clause of the Constitution by starting its meetings with prayers “endorsing Christianity to the exclusion of other faiths” then it also violated the Establishment Clause of the Constitution by starting its meetings with prayers endorsing monotheism to the exclusion of polytheism and atheism. There is no non-prejudiced basis for declaring government favoritism for Christianity to be unconstitutional while declaring government favoritism for monotheism to be constitutional. That is a completely arbitrary distinction. Jesus as deity is Christian religion, singular God as deity is Abrahamic religion, one majority is larger than the other majority, but otherwise its the same violation of the same principle against government establishment of religion. Yet it is exactly this irrelevant distinction that many judges, courts, and the NY Times, repeatedly and inconsistently endorse as a foundation of Establishment Clause jurisprudence.

There is no such thing as inclusive and nonsectarian theistic prayer. Theism is exclusive to, and sectarian for, those who believe one or more gods should be worshiped, or be appealed to, with a prayer prior to starting work. If, as the NY Times asserts, "a government that favors one faith flouts the inclusive nature of American government, harming church and state" then a government that favors monotheism, or even theism more generally, is identically harming church and state by flouting the inclusive nature of American government. Excluding non-Christians and excluding non-theists is an identical harm to the identical principle. The NY Times, and the judges, by refusing to acknowledge this, are hypocritically declaring themselves to endorse a principle of inclusiveness while they simultaneously advocate against the identical inclusiveness principle. The only real difference is that one exclusion targets a different minority than the other exclusion. Prejudice or bigotry are the nouns that apply when one minority is not deemed equal before the law merely because that minority disagrees more completely or directly with the majority on a matter of opinion than the other dissenting minorities.

The Universe is not intuitive

2011-08-03T02:04:00.001Z

Reposted from Secular Perspectives

When atheists assert that evidence for god is missing, theists tend to react with complaints that atheists are disregarding or stereotyping the sophisticated and compelling arguments of theologians, or with complaints that atheists have a faith/belief in materialism that skews their perspective. What characterizes these arguments defending theism is a tendency to favor intuition over empirical evidence, and/or to characterize intuition as providing supporting evidence that is at least on par with empirical evidence. I won't dispute that theism is more intuitive than atheism. So to answer the question 'who is right here?' we need to tackle the question of whether or not appeals to intuition are a proper and compelling basis for reaching conclusions about how the world works.

Intuitions are intellectual seemings that something is necessarily the case. They are directed towards statements that make some kind of necessity claim. Intuitions can be distinguished from beliefs more generally, since we can believe that propositions which are non-intuitive are true, and our intuition can favor propositions which we believe to be false. So the question here becomes this: Should our beliefs about how the world works follow our intuitions or disregard our intuitions?

One way to answer this question is to look at history for the intuitive answers that humans relied on to answer the big questions about how the world works. For example, what are the intuitive explanation for drought, flood, illness, earthquakes, wind storms, and similar calamities? What are the intuitive explanations for mental illness?

In Chaldean mythology the seven evil deities were known as shedu, meaning storm-demons. Hebrew demons were workers of harm. To them were ascribed the various diseases. In the Gospel of Mark, Jesus casts out many demons, or evil spirits, from those who are afflicted with various ailments. The exorcists of the Catholic Church teach that demons attack humans continually but that afflicted persons can be effectively healed and protected either by the formal rite of exorcism, authorized to be performed only by bishops and those they designate, or by prayers of deliverance which any Christian can offer for themselves or others.

In Islam, some thought mental disorder could be caused by possession by a djin (genie), which could be either good or demon-like. There were sometimes beatings to exorcise djin. Christian Europe often considered Madness to be a moral issue, either a punishment for sin or a test of faith and character. Ancient Hindu scriptures attribute mental disorders to supernatural agents, sorcery or witchcraft. Disrespect towards the gods, teachers or others were blamed. The Chinese blamed an imbalance between Yin and yang. In Judaism, mental disorders are caused by problems in the relationship between the individual and God. Plato argued that there were "divinely inspired" mental illness that gave the person prophetic powers. Playwrights such as Homer, Sophocles and Euripides described madmen driven insane by the Gods.

For most of human history, almost all people have thought that the Earth was in the center of a giant sphere (or ball, called the "celestial sphere") with the stars stuck to the inside of the sphere. The planets, Sun, and Moon were thought to move between the sphere of stars and the Earth, and to be different from both the Earth and the stars. This was correct intuitively - and factually wrong.

Now lets briefly look at this question of the ability of intuition to give us knowledge from the other direction. This time we will look to examples of our strongly evidenced knowledge to see if they are intuitive.

Humans have a common ancestor with all other primates, who have a common ancestor with all other mammals, who have a common ancestor with all other vertebrates. This defies our intuitions, which is why no human ever proposed this to be true on the basis of intuition. Solid matter consists mostly of empty space. There is a maximum velocity that information can travel. All particles exhibit both wave and particle properties. No one reached these conclusions from intuition. Over and over again, our knowledge about the world, including much that today we take for granted, is non-intuitive, and arguably counter-intuitive.

Time and time again, through out history, the intuitive explanations for how the world worked, the explanations that originated in human imagination, were wrong. They were much more often wrong than right. The pattern is clear, as is the explanation: Human intuition is not up to the task of explaining the world. On its own, human intuition lacks the capability to understand our world.

Yet theists continue to rely heavily on intuition in their arguments for theism. They continue to argue intuitively along the lines that something cannot come from nothing, therefore god exists. There must a first cause for everything, therefore god exists. Beauty and order characterize our universe, therefore god exists. Humans have conscious minds with capabilities that go beyond what purely material brains can achieve, therefore god exists. Free will exists, therefore god exists. Etc. Granted, the full arguments can get considerably more nuanced and sophisticated than this, but given that the premises are assuming certainties that go beyond, or even contrary, to what we obtain from empirical evidence, the additional sophistication doesn't diminish the dependency on human intuition.

Theists think they have wonderful arguments, so they conclude that atheists are blinded by a bias. The theists are overestimating their arguments and simultaneously underestimating what is possible within a purely materialistic framework. We don't have sufficient reason to think that nothing is the stable starting condition ("nothingness" exhibits an intrinsic small scale instability), that there is an ultimate first cause for everything (QED arguably allows some acausality), that beauty and order prevail (there is plenty of the opposites), that human minds exhibit capabilities that cannot be realized by material mechanisms (our minds have properties consistent with being entirely material), that free will exists (some evidence suggests free will may be an illusion), etc. Those are all human intuitions, like the intuition that time is unrelated to velocity and gravity, and as such they are most likely false. We even have some modern evidence that hints that some of these long standing intuitions cited by theologians, are, or at least may, be incorrect, as parenthetically stated above.

Not an impenatrable mystery beyond human understanding

2011-05-01T20:48:00.013Z

On April 12, 2011, the Huffington Post published an article by Vincent Bugliosi, author of Divinity of Doubt: The God Question, titled "Why Do I Doubt Both the Atheists and the Theists?" advocating for his view that "the question of the existence of God is an impenetrable mystery and beyond human comprehension." As an atheist, I disagree with his conclusion, and here I will attempt to explain some of the reasons why.

Mr. Bugliosi begins by asserting "the fact" that "we can all agree that there cannot be a more important subject than God". Not true. I consider the subject of God to have no day to day relevance in my own life and I think my perspective here is a common perspective among atheists. What is important is the broader issue of how we properly justify our beliefs. The subjects of theism and agnosticism are significant topics because there appears to be a strong tendency for people to rely on poor and bad justifications for those two beliefs. Atheists consider theism, and agnosticism of the sort defined above, to not only lack sufficient justification, but to be held contrary to the overall weight of the evidence. Sam Harris tends to express this as "faith" versus "science", but I consider that framing to be too stark. It is more accurate to say this disagreement centers on our dependency on weight of the evidence for proper belief justification and which side of this question the overall weight of the evidence places us.

Mr. Bugliosi asserts that he devoted years to "objectively look at and draw powerful inferences from the evidence, my only master, to see if almost universally accepted, centuries-old religious beliefs had any merit to them." So he is on the same page as most atheists regarding the centrality of evidence. Yet he disparages atheism for assuming the non-sequiturs that god must be all-good, that evolution rules out god creating the original life forms, that organized religion is synonymous with god belief, and that a creator god is improbable because such a god would be more complex than the universe.

However, atheists simply observe that for many theists, the omni attributes, including the omni-beneficient attribute, are central to their own self-stated, self-justification for their theism. They argue god must exist, and should be worshipped, because such omni attributes must exist to explain the universe. So naturally, and correctly, atheists turn this around and point out that the presence of these omni attributes are inconsistent with accurate descriptions of our universe and are pairwise logically incompatible.

Unfortunately for Mr. Bugliosi's comment that evolution technically does not require abiogenesis to get started, and therefore does not support atheism, the overall weight of the evidence that we have strongly favors the conclusion that life began as self-catalytic chemical reactions which eventually reached a point of complexity where it could begin evolving via genetic-like mechanisms. Maybe the initial chemicals required to get this started were somewhat complex, but the evidence suggests that it is reasonable to think that the chemistry needed for complex molecules to self-assemble would have occurred during earth's early history. We don't have the details to reconstruct and pinpoint the historical details regarding exactly where and how this happened . However, this is not an issue of "ruling out", or proving, in some impossible to achieve, absolute, and total sense, that god did it, or that no god did anything. All belief justification, including theism, agnosticism, and atheism beliefs, is properly about following the overall weight of the evidence.

As for god being more complex than the universe, the point of that argument is that it doesn't make sense to simply assert as an answer a more complex phenomena (God) than the phenomena to be explained (the universe) because that approach takes us backwards, not forwards, relative to the goal of achieving an explanation. God is an assertion that masquerades as an explanation but that actually accomplishes the opposite, it obscures instead of explaining. Mr. Bugliosi's cavalier dismissal of this argument, which does not originate with Mr. Dawkins, is what fails here.

Mr. Bugliosi is convinced that "the other principal argument for his existence, First Cause, is very difficult to get around and goes in the direction, though not conclusively, of a Supreme Being." I very much disagree. First Cause makes too big an assumption that the starting point is "nothing". In this sense it is like the omni attributes must exist arguments for god, it assumes some initial and intrinsic state of affairs that we have no good reason to assume. Why must this perfect, extreme, total, starting-point condition called "nothing" exist and why must that condition be the starting point? In the universe in which we live, quantum mechanics indicates that nothingness is an unstable condition, it is spontaneously filled with the undeniable something of virtual particles. These virtual particles, although they are fleeting in time and place, are as real as any other particles that physics identifies. I think the problem here is that Mr. Bugliosi has not read enough physics and cosmology to have a good appreciation of the possibilities that modern science suggests with regard to the nature of space, time, boundaries, and origins. So his perspective is stilted, it is too constrained by blinkered human intuition. All of our modern understanding of the universe is counter-intuitive, which is why it isn't found in ancient, human-written, documents such as any holy books, or for that matter in many theology books. Mr. Bugliosi quotes Einstein saying he is not an atheist, so I will counter here with a quote from Stephen Hawking: "Spontaneous creation is the reason there is something rather than nothing, why the Universe exists, why we exist. It is not necessary to invoke God to ... set the Universe going."

Mr. Bugliosi quotes Gertrude Stein as describing his agnosticism correctly this way "There ain't no answer. There ain't going to be any answer. There never has been an answer. That's the answer." Atheism fully respects the reality that we don't have all of the answers, that answers may not always be obtainable even in principle, that saying we do not know is the correct answer to give when the weight of the evidence fails to favor one conclusion over any of the others. Atheists simply disagree that the "existence of God" is one of those questions where relevant evidence is either not available or not favoring one conclusion over the other. The evidences from history, from sociology, from psychology, from the hard sciences, all point persuasively towards the conclusion that all gods are human created fictions and that gods, messiahs, children of god, prophets, jinns, genies, souls, devils, angels, ghosts, or supernatural creatures of any descriptions or names do not exist. In my opinion, atheism is the correct, weight of the evidence based belief for people to adopt.

Historian Gordon Wood versus GW oath history.

2010-09-19T16:03:00.032Z

C-Span broadcast a three hour interview with United States historian Gordon Wood, Professor Emeritus at Brown University, on its Sept. 5 broadcast of "In-Depth". About one hour and twenty minutes into the interview, the interviewer Peter Slen forwarded a question from Ray Soller to Gordon Wood asking why Gordon Wood thinks it proper to conclude that George Washington appended the words "so help me God" during the first oath recitation. Here is Professor Wood's response:

It's from what I said before - the fact that he kissed the Bible and that the Judiciary Act which was passed that same year did prescribe for the oath for judges that they say "so help me God." So you can deduce from that that maybe he said it. That's all we have. It seems to me I'm happy to just leave it at that. But others, lots of people want it settled for reasons that have to do with contemporary political life.

Professor Wood also said "What I think is fascinating is the interest in this, because the stakes seem high for people. If you can show that he said or did not say that phrase, then certain things follow from that. I'm not sure we want our politics to hinge on that one fact."

Omitted by the interviewer, and not acknowledged by Gordon Wood, was Ray Soller's written explanation for why he is taking an interest in this question:

It is unfortunate that the Senate Historical Office under the direct supervision of the Senate Rules Committee, does not recognize what is actually known about GW's swearing-in ceremony when it comes to its Facts and Firsts website. Here, the website states in the entry for GW's inauguration on April 30, 1789,"First Inauguration; precedents set include the phrase, "So help me God," and kissing the Bible after taking the oath." No correction has been made even though staff members at the Senate Historical Office are currently aware of the inaccurate nature of their assertion, and this is a big reason why I care so much about this question.

So here is the question for Professor Wood: Why are you directing your criticism that "But others, lots of people want it settled for reasons that have to do with contemporary political life." at "others" and "lots of people" instead of at the Senate Historical Office? After all, Ray Soller is just one out of hundred's of million's of ordinary citizens, and he acknowledged "everyone is guessing" in his letter to C-SPAN and Gordon Wood, while the Senate Historical Office is a trusted, official government source for inaugural history that is incorrectly misrepresenting this dubious guess as a historical fact.

Here is why I think Gordon Wood's guess is highly dubious. Gordon Wood cites the fact that GW kissed the bible. An anonymously written letter published in the in the May 13, 1789 issue of The Gazette of the United States, using religious language to describe the event such as "a solemn appeal to Heaven" and "I was under an awful and religious persuasion that the Gracious Ruler of the Universe was looking down at that moment with peculiar complacency" also said "he bowed down and kissed the sacred volume". The anonymity of the letter and the religious mindset of the writer suggest that this isn't a particularly unbiased description of what actually happened. But there is no disputing that George Washington kissed the bible because Samuel Otis said he did.

More significant is that the available evidence suggests that George Washington did not bring the bible to the ceremony, nor did he request the bible for the ceremony, nor did he kiss the bible on his own initiative. The notes in the Journal of the Secretary of the Senate, handwritten by Samuel Otis, who held the bible during the inauguration, reported that GW had placed his hand on the bible and kissed the bible, which Otis had lifted towards Washington's face, when the oath was concluded. In other words, the bible kissing was prompted by Samuel Otis. Nothing related to the presence or use of the bible was initiated by George Washington.

Also of direct relevance is that we have no evidence that a bible was present, or that "so help me god" was appended, at George Washington's second inauguration. In fact, we have no evidence that "So help me God" was appended to any presidential oath until at least after the Civil War started and even then, the evidence for that phrase being uttered is contradictory, very sparse, and of dubious quality, disregarding Jefferson Davis because he was the Confederate president, until we get to the 1881 inauguration of Chester Arthur. If George Washington really did append that phrase at his first inauguration, why didn't he do so at his second inauguration, and why don't we have evidence that anyone else appended that phrase at their inauguration for another 100 hundred years?

Most significant of all, we do have one eyewitness account that quotes the oath recitation, and that account has Chancellor Livingston saying "Long live Washington" when the oath was finished. So if we really are motivated by a desire to follow the tradition set by George Washington, as some people claim, then the Chief Justice should complete our presidential oath recitations with "Long live [name]" and not "so help me God".

Finally, why does the Judicial Act take on so much importance as evidence that GW appended "so help me God"? The Judicial Act was passed more than four months after the inauguration, it specified that the "so help me God" phrase was optional, and George Washington was not inaugurated as a judge. In contrast, the act to regulate the time and manner of administering certain oaths applied to Congress and the executive branch, was debated before, and passed by Congress three weeks after, the inauguration, and made no mention of god. Furthermore, it is the constitution, which George Washington had just recently assisted in drafting, not any congressional bill, that specifies the presidential oath of office, and again no mention of God.

Gordon Wood appears to be intelligent, personable, sensible, thoughtful, honest, and knowledgeable. But he should direct his valid criticism that what GW said after his oath isn't "settled" at the Senate Historical Office, not at Ray Soller or "others" and "lots of people" generally. It is the web site of the Joint Congressional Committee on Inaugural Ceremonies, which is administered by the Senate Rules Committee, that is claiming that it is settled that George Washington appended shmG to his oath of office, so if lots of people believe its settled then that is why. Gordon Woods knows this, so it is disingenuous for him to attribute this problem to "others" and "lots of people". And his argument that George Washington appended "so help me God" to his first inaugural oath isn't persuasive, its a grasping at straws argument.

Atheists Are Non-Believers, Even Explicit Atheists Like Me.

2010-08-21T21:59:00.028Z

Pete Enns, Ph.D., Senior Fellow in Biblical Studies, The BioLogos Foundation, wrote an article "Atheists Are Believers, Too" published by Huffington Post on August 15 , asserting that "Atheists do not know God does not exist; they believe it."

Some self-declared atheists say they have no belief on this question, and I accept their characterization of themselves as non-believing atheists, but I am an atheist who positively believes that there are no gods. I am compelled to this belief by my understanding of the weight of the overall evidence. However, it is an equivocation on different definitions of belief to call atheists "believers", as Pete Enns does in his article. A believer is a person who is convinced that something exists, the person who is convinced that something does not exist is a non-believer. According to this common usage, atheists are non-believers. This distinction has some significance because it is the person who positively asserts that an entity exists who has the primary burden of providing the evidence and clear definitions to support their belief. The logical default starting position on any possible entity is that we shouldn't assume that it exists absent both a good definition of that entity and empirical evidence for its presence. However, atheists who, like me, positively believe that gods do not exist also have some responsibility to provide evidence in support of our belief. Accordingly, I cite physicist Victor Stenger who has also recently been writing articles for the Huffington Post. He makes such arguments on the evidence and Pete Enns would be doing better if he acknowledged those arguments.

Pete Enns goes astray again when he asserts "To say that God's existence is detectable with certainty through reason, logic, and evidence is a belief because it makes some crucial assumptions. For one thing, it assumes that our intellectual faculties are the best, or only, ways of accessing God." So what is this alternative way of "accessing God"? He explains "This is an assumption that privileges Western ways of knowing and excludes other wholly human qualities like emotion and intuition." Sure, emotion and intuition have their place because we often have to make decisions quickly without complete information and evaluating all of the evidence would take too long and take too much effort. But they are no substitutes for evidence and deliberation when there is no urgent need to make a quick decision. If appeal to emotion and intuition is the best that theists can do then the case for theism is very weak indeed. It is a fact that much of our modern understanding of the world is counter-intuitive, including the most important concepts of modern physics (quantum mechanics, general relativity) and biology (evolution).

This characterization of atheists as people who assert "certainty" of knowledge is a false negative stereotype. No one needs to claim an unattainable absolute knowledge to justify their belief that some conjectured entity does not exist. We justify our beliefs based on the overall weight of the available evidence. That is all that is needed and all that we claim.

He then tries to skip over the need for evidence with the assertion that "god is the source of all being". That is lame, we have no justification for accepting that. As an example of a belief that is allegedly justified without evidence he then states that "there is no compelling evidence whatsoever" for the widely accepted "principle of uniformity". Not true. There is plenty of evidence for uniformity. We witness the laws of nature and find that they appear to be the same everywhere and don't change. On all such questions we will follow the evidence wherever it takes us. So if and when we find evidence that the laws of nature differ in different locations or change over time then we will be compelled to conclude that the laws of nature vary by place and time.

Pete Enns writes 'I know some real live atheists, and they do not claim to know as much as some others do. The reason that they are atheists is that "God is" is a less compelling proposition to explain their reality than "God is not." They did not come to this sure and certain conclusion by a calm and logical assessment of the evidence (as opposed to the unreasonable and illogical faith of religious types). Rather, they came to their atheism for many different types of reasons, some of which are too subtle to quantify.'

He appears to now be contradicting his earlier argument that emotion and intuition was sufficient justification for belief since now he is suggesting a "calm" assessment of the evidence is essential. He also is simply mistaken here (although he is now correct regarding the need for evidence). Every belief is not "unreasonable and illogical faith". Some beliefs are justified by the weight of the evidence (based on a calm and logical assessment of the evidence), some beliefs are unjustified by the weight of the evidence, and some beliefs are contrary to the weight of the evidence. Atheism is the best justified belief here, it is a belief that is the result of a calm and logical assessment of the evidence. There is no solid empirical evidence for gods, all the empirical evidence that we do have is collectively a best fit with the conclusion that gods are made up entities that exist only in the minds of people and nowhere else. Atheists don't claim to "know more than anyone else", but atheism does appear to be the rationally compelled belief from the overall weight of the evidence, evidence that is equally available to many of us, although not necessarily equally consumed or equally followed, resulting in most people being theists. There is nothing in Pete Enns' article to support any assertion otherwise.

On Gary Gutting's Theism: A Response

2010-08-21T21:33:00.041Z

Gary Gutting teaches philosophy at the University of Notre Dame and co-edits Notre Dame Philosophical Reviews, an on-line book review journal. His most recent book is “What Philosophers Know: Case Studies in Recent Analytic Philosophy.” He published an article "On Dawkins’s Atheism: A Response" for the Opinionator column of the NY Times on August 11. Towards the end of the article he makes the following assertion regarding the status of materialism:

"At this point, the dispute between theists and atheists morphs into one of the most lively (and difficult) of current philosophical debates—that between those who think consciousness is somehow reducible to material brain-states and those who think it is not. This debate is far from settled and at least shows that materialism is not something atheists can simply assert as an established fact. It follows that they have no good basis for treating the existence of God as so improbable that it should be denied unless there is decisive proof for it. This in turn shows that atheists are at best entitled to be agnostics, seriously doubting but not denying the existence of God."

The fact is that we have excellent evidence that consciousness (thoughts, feelings, desires, etc.) exists only as a material product of a nervous system and brain: Consciousness manifests itself according to both absolute brain size (because brain resources are needed to produce consciousness) and brain size relative to body size (since brain resources are also devoted to supporting bodily functions). Therefore consciousness is a material phenomena. This method of reaching conclusions is called logical best fit on the overall weight of the available evidence. We don't have to be professional scientists or philosophers to adopt this method of applied logic, its freely available to everyone and in fact its commonly recognized as the best method. We can adopt this method and at the same time recognize that some phenomena may be too complex, indeterminate, or informationally hidden to fully understand scientifically. We don't have perfect methods for finding the ultimate truth, we cannot have perfect and complete knowledge, but we do have a reliable method versus non-reliable methods for justifying beliefs.

Furthermore, we cannot properly conclude that our present ignorance, or even the inevitability of our future ignorance, is evidence for "immaterial realities" in general or for any god in particular. Theists tend to favor appeals to ignorance as evidence for god, personal interpretations of personal experiences as evidence for god, argument by assertion of possibilities as evidence for god, what I call "the dog eats the homework" and other excuses for not having, or even needing, supporting empirical evidence, and the like. These are unreliable methods for justifying beliefs, and poor excuses for not relying on evidence, that rational people rightly reject in many other contexts as seriously flawed and should also reject here.

As far as doubting versus denying, we should hold our beliefs in proportion to the evidence. If little evidence is for, and much evidence is against, then denying is more appropriate than doubting. There is very little in the way of solid evidence favoring god, so given the ample evidence against, god denial is proportional to the evidence. Gary Gutting fails, completely, to put forward evidence for any gods in his article.

Furthermore, we don't need "decisive proof" to deny a far-fetched hypothesis. We have no decisive proof that the sun will "rise" tomorrow, yet we are justified in denying that tomorrow our sun will inexplicably disappear from the universe. Most, if not all, of our knowledge is contingent and probabilistic, its based on weight of the evidence. Outside of mathematics and pure logic we don't have "decisive proof", no one operates by such an impractical standard. Its a double standard to assert, as Gary Gutting does, that atheism, and apparently only atheism, be required to adhere to such an impossible standard.

Gary Gutting disputes Dawkins' assertion that god as "a highly complex being would itself require explanation". However, the evidence that we have is that intelligence of the sort attributed to god requires brains and brains are complex. So, putting aside the obvious dubiousness of the assumption that an all-knowing being is feasible, an all-knowing being would be very complex indeed on a weight of the available evidence standard. Why should we abandon weight of the evidence for any particular other "possibilities", as Gary Gutting advocates? Theological arguments that weight of the evidence isn't the proper standard are cited, but please pardon me when I assert that those arguments are all sophistry. If Dawkins' "ignores those discussions" then I say good for him. If more people took such weightless, arbitrary, and unjustified possibilities as "god" being the "necessary being" less seriously then we would have more rational deliberations. Gary Gutting accuses Dawkins' of taking leaps, but going from the universe exists to "necessary being" and then from "necessary being" to "god" are leaps greater than any leaps found in the contents of Dawkins' arguments for atheism.

Gary Gutting then cites public opinion favoring the existence of god as evidence for god. If the overall weight of the evidence is against public opinion then majority public most likely is wrong, as it has occasionally been wrong throughout history. The fact is that there are many bad reasons for people to believe in gods and we have multiple sources of evidence that people's beliefs regarding gods have little to do with the facts of the matter and much to do with human emotional and intellectual limitations. For example, it is implausible that a majority of beliefs about gods throughout history are true because those beliefs are self-contradictory and mutually exclusive, so we have good reason to think that people's ubiquitous beliefs about gods are wrong.

I am most unimpressed with the free floating, unanchored, evidence-less, philosophizing for god belief on the basis of mere possibilities that Gary Gutting promotes. We have no good justification for taking such arguments seriously.

More ships heading to Gaza will be impeded.

2010-06-02T01:31:00.019Z

The Rachel Corrie is an Irish-owned ship carrying 15 passengers, including a northern Irish Nobel Peace laureate.

“The government has formally requested the Israeli government to allow the Irish-owned ship... to be allowed to complete its journey unimpeded and discharge its humanitarian cargo in Gaza,” Irish Prime Minister Brian Cowen told members of parliament in Dublin.

Israeli Navy sources said that the ships sailing toward Gaza would be intercepted the same way the flotilla was stopped on Monday morning. “We are tracking the ships and are under orders to stop them,” a top navy officer said. According to the sources, in a future operation, the navy would use more force. “We boarded the ship [the Mavi Marmara] and were attacked as if it were a war,” one officer said. “That will mean that we will have to come prepared in the future as if it were a war.”

I frankly am baffled by this aggressive attitude of the Irish government against Israel's security interest. All ships carrying humanitarian cargo for Gaza are permitted to discharge their cargo in Israel where the goods will be trucked to Gaza after inspection for war materials and dual military use goods. It is odd for the Irish government to insist that Israel cannot inspect goods going to Hamas controlled Gaza when they know that concerns that Hamas remains committed to arming itself for future attacks against Israel are well founded. Characterizing as a "humanitarian mission" efforts that are focused on trying to deny Israel its basic role of protecting the security of its citizens by inspecting cargo heading for Gaza is dishonest.

Greta Berlin of the Free Gaza Movement, which organized the flotilla, said from the group’s base in Cyprus “This initiative is not going to stop, we think eventually Israel will get some kind of common sense. They’re going to have to stop the blockade of Gaza, and one of the ways to do this is for us to continue to send the boats.” This expectation for a unilateral end to the blockade of arms and dual military use material to Gaza that could end up being deployed against Israelis by the authorities in Gaza, is unreasonable. That is certainly not a humanitarian objective. For that simple reason, no matter how many ships are sent, for however long, regardless of how many women and children are irresponsibly placed on those ships, I predict that those ships will be diverted to Israel where the cargo will be inspected before any such cargo, or anyone on those ships, are allowed into Gaza. An end to the blockade is possible only in the context of a mutual agreement negotiated between Israel and the local authorities governing Gaza. Efforts to reach such an agreement with Hamas have been made in the recent past without success and may be attempted again in the future.

There are reasonable complaints that can be made against Israeli policies. Israel has prevented Gazans from importing, among other things, cilantro, sage, jam, chocolate, French fries, dried fruit, fabrics, notebooks, empty flowerpots and toys, none of which are particularly useful in building Kassam rockets. Israel bans many, but not all, exports from Gaza (flowers and strawberries, for example, have been exported). The Free Gaza Movement would have a good chance of modifying some Israeli policies towards Gaza with a more nuanced, targeted, and balanced approach. Sending the banned goods to Gaza via Israel would effectively pressure Israel to allow in those goods because they would have too much difficulty publicly justifying withholding such items. Israel apparently trucked the toys and notebooks that were on the recent flotilla into Gaza.

However, focusing exclusively on Israel and making maximum demands that are against Israel's most basic interests on false humanitarian pretenses is not likely to produce a good result for anyone. Israel found passengers without passports and carrying thousands of dollars in cash each, along with a cache of bulletproof vests and night-vision goggles, as well as gas masks, on the Mavi Marmara. Inspection is only one way that anyone can determine with confidence that the cargo and its passengers aren't transporting illicit material. The humanitarian cargo was then trucked to Gaza as Israel promised in advance that it would. If the Free Gaza Movement, which is responsible for allowing the ships to include cargo without manifests and undocumented passengers, with cargo scattered throughout each ship and not packed up in an organized fashion, thinks that Israel is criminal for insisting on taking such precautions with cargo and people being sent to Gaza then they are very mistaken.

Jon Rowe understands history, but not non-establishment

2010-04-24T13:30:00.030Z

In his recent blog Competing Traditions & Abstract Ideals that Trump Dominant Historical Practice [Monday, April 19, 2010], Jon Rowe made the following misdirected comments regarding the recently federal court decision that the National Day of Prayer Act "has taken sides on a matter that must be left to individual conscience.”

"The harder questions are how to get there in a 1) constitutional and 2) policy sense (the two aren't always supposed to be the same).

Do we need a naked public square where the state is always silent on religious beliefs? Or perhaps a more open pluralistic public square where the state, in its public supplications, sometimes says things that you or I agree with, sometimes not.

I'm willing to endorse the latter position as long as its understood that if the pious Christians get the state chaplain microphone, sometimes the Hindus and the atheists get it too.

And I think that pluralism perfectly "fits" with the ideals of the American Founding."

Regarding the question about whether we need a "naked public square where the state is always silent on religious beliefs?": There are two major misconceptions in that one sentence. The first falsehood is the adjective "naked", the second falsehood is the phrase "always silent".

It should be obvious that a public square where government is silent on the truth of, or need for, religious beliefs would not be "naked". Such a public square would be fully clothed with the associated partisan voices of the individuals who are citizens of this country. This court decision does not strip the public square of any individual belief or expression. Government employees, including elected officials, can go to any public square and add their voices on any subject as free individuals on the same terms as everyone else, just like everyone else. What government employees don't get to do is speak on behalf of government on matters of religious beliefs just because they are government employees or elected officials. That makes the public square equitable, it doesn't render the public square naked. There is a critical distinction here that Jon Rowe, and other opponents of non-establishment of monotheism, keep failing to acknowledge. A President’s statements of his own beliefs about prayer are less likely to be viewed as an official endorsement than a permanent statement from the government in the form of a statute encouraging all citizens to pray to "God" every year.

This court decision does not require that the state be "always silent on religious beliefs". Again, there is a critical distinction here that Jon Rowe, and other opponents of non-establishment of monotheism, keep failing to acknowledge. In her decision, U.S. District Judge Barbara Crabb asserted that government involvement in prayer could be constitutional provided that it does not call for religious action, which the prayer day does. "It goes beyond mere 'acknowledgment' of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context," Crabb wrote. "In this instance, the government has taken sides on a matter that must be left to individual conscience." Exactly right. Why is this distinction between acknowledgement and promotion so difficult for those who oppose non-establishment of monotheism to acknowledge? Could it be that their reasoning is clouded by anti-atheism animus? Maybe there is a prevailing anti-atheist bias in this country as evidenced by Judge Scalia's attitude that atheists and polytheists can be disregarded? Have you considered that possibility and its implications for this discussion, Jon Rowe?

Regarding Jon Rowe's final prescription for a policy of inviting non-Christians and atheists to the state chaplain microphone: How does that comment apply in the context of the NDOP Act? The NDOP Act allows for no accommodation of atheists and atheists don't want a National Day of Blasphemy Act. Multiple competing establishments of religion are not better than no establishment of religion and the constitution calls for the latter. In any case, there is no justification for a state chaplain microphone. There is no chaplain at my place of work, indeed there is no chaplain microphone at the workplace of anyone I know. I guess that means we all have naked workplaces where the state is always silent on religious beliefs. Can Jon Rowe explain why there is this need for introducing a chaplain microphone into official business at government workplaces?

While it is true that 'pluralism perfectly "fits" with the ideals of the American Founding', it is also an irrelevant, trite, one-sided statement. Anything ranging from every citizen has a different belief to every citizen has the same belief fits with the ideals of the American Founding. It is not true that pluralism of beliefs is a goal of government according to the constitution, and an active government role in sponsoring a diversity of beliefs is what Mr. Rowe appears to favor. The constitution no more permits the government to promote a diversity of different beliefs then it permits the government to oppose a diversity of different beliefs. It is not the role of government to select which beliefs it will favor and which it will not favor regardless of the quantity or diversity of the beliefs it theoretically could choose to favor. People can pray individually and in voluntary groups before and after business and during breaks, privately or publicly. Why is that insufficient? Why must government sponsor prayers and assert in laws that a single God exists?

As Jon Rowe knows, the constitution was written by refugees seeking freedom of conscience and freedom from religious tyranny. They wanted a land where government would not tell them which church to support, what religious rituals to engage in or what to believe or disbelieve. They knew there can be no true religious liberty without the freedom to dissent. Whether to pray, or believe in a god who answers prayer, is an individual decision protected under our First Amendment as a paramount matter of conscience. Jon Rowe is mistaken in his refusal to acknowledge that the NDOP, which annually compels partisan religious speech on the president of the United States as an act of government, is a direct, and rather blatant, violation of the Bill of Rights, just like Judge Scalia is mistaken when he says the constitution permits the disregard of atheists and polytheists.

Overturn the shmG PoA amendment now.

2010-03-24T01:18:00.012Z

These three paragraphs from Newdow v. Rio Linda, USD p. 3921 exemplify the monotheistic bias of the two judges:

"[B]oth the purpose and effect of the Pledge are that of a predominantly patriotic, not a religious, exercise. The phrase 'under God' is a recognition of our Founder's [sic] political philosophy that a power greater than the government gives the people their inalienable rights. Thus, the Pledge is an endorsement of our form of government, not of religion or any particuar sect."

"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."

"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.""

The Declaration of Independence was a call to armed rebellion and as such it was a propaganda document. Because religion has emotional weight it is not surprising that the authors of the DoI employed some religious language that was compatible with the monotheism of the majority. Our country's controlling legal foundation is the constitution, not the DoI. There are no phrases such as "endowed by their Creator" or "inalienable rights", or "God-given rights" in the legal text of the constitution. Unlike the constitution, the DoI was not intended to protect the rights of religious minorities. Since this lawsuit was seeking civil rights protection enforcement for a non-monotheistic minority under the constitution, it was inappropriate for the judges to rely so heavily on the DoI.

What is remarkable about our constitution is that the religious beliefs of the Founders are not expressed in the law. This is not because our Founders didn't have any religious beliefs. This is not because they didn't think religious beliefs could influence the behavior of believers. Its because the Founders considered religious beliefs to be matters of personal conscience that are outside the reach of the law. They were seeking to create a limited government, limited in the sense that government was prohibited from implementing laws that interfered with the beliefs of its citizens. Elected officials arguably could personally appeal to religious sentiments, even advocate for religious beliefs, but the laws, as exemplified by the constitution, were to remain silent regarding religious beliefs.

The 1954 "under God" amendment to the Pledge of Allegiance did exactly what the Founders, our constitution, and the EC in particular, made an effort to avoid doing. That law, by adding the words "under God" to the Pledge, placed itself between citizens and their atheist and polytheist beliefs. Contrary to what Judge Scalia says, the constitution should not be interpreted as permitting the disregard of such minority beliefs. It is unlikely that our Chief Justices would uphold as constitutional a law that added "godless" to the PoA, nor should they. Our constitution has ethical merit in large part because it favors equality before the law and freedom of conscience for all citizens. Good ethics is reciprocal and good laws therefore must similarly be reciprocal. Our laws earn our respect in proportion to their ethical merit. It really is that simple.

That 1954 amendment should be overturned, the sooner that happens the better. As a reasonable alternative to overturning that amendment, the PoA ritual with "under God" in public schools could be declared unconstitutional on the more narrow grounds that it coercively targets children, such as the 5 year old who was the plaintiff for standing in this lawsuit.

Excellent EC reasoning from dissent by Judge Reinhardt

2010-03-21T05:54:00.013Z

Here, in the dissent of the recent decision Newdow v. Rio Linda Union School District (also known as Newdow v. Carey), we have an example of the writing of a competent judge who knows the law, knows how to apply the law, can reason and think clearly and deeply, and has first rate ethical commitment and judgment. Unfortunately, the other two judges, who together constituted the majority, can't hold a candle to Judge Stephen Reinhardt from the United States Court of Appeals for the Ninth Circuit on even any one of those attributes.

Introduction

Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the "under God" version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, "under God", words added in 1954 for the specific religious purpose, among others, of indoctrinating public schoolchildren with a religious belief. The recitations of the amended version as conducted by the Rio Linda Union and other school districts fail all three of the Court's Establishment Clause tests: The recitation of the Pledge in its historic secular version would not fail any of them. Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.

To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today's majority purports to do, that the words "under God" were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: "to recognize the power and the universality of God in our pledge of allegiance;" to "acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion," 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919. Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or non-participation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.

It is equally clear that no judge familiar with our constitutional history and the history of the Pledge could legitimately rely on a 2002 "reaffirmation" to justify the incorporation of the words "under God" into the Pledge in 1954 by a statutory amendment, or suggest that, in determining the question before us, we should not look to that amendment but only to the Pledge itself, as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred. Finally, no such judge could ignore the fact that in a clearly controlling decision that binds us here the Supreme Court has directed us, in deciding a constitutional question such as we now face, to examine the 1954 amendment and why it was adopted rather than to look to the pertinent statute, here the Pledge, as a whole. See Wallace v. Jaffree, 472 U.S. 38, 58-61 (1985).

The undeniably religious purpose of the "under God" amendment to the Pledge and the inherently coercive nature of its teacher-led daily recitation in public schools ought to be sufficient under any Establishment Clause analysis to vindicate Jan Roe and her child's constitutional claim, and to require that the Pledge of Allegiance, when recited as part of a daily state-directed, teacher-led program, be performed in its original, pre-amendment secular incarnation that served us so well for generations. Surely, our original Pledge, without the McCarthy-era effort to indoctrinate our nation's children with a state-held religious belief, was no less patriotic. For purposes of this case, the only difference between the original secular Pledge and the amended religious version is that the former did not subject, and was not designed to subject, our children to an attempt by their government to impose on them a religious belief regarding the existence of God. We should indeed have had more faith in our country, our citizens, and our Constitution than we exhibited at the peak of the McCarthy era when we enacted the religious amendment to our Pledge of Allegiance, in part to inculcate in our children a belief in God. In doing so, we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.

Today's majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts, just as this court's decision in Newdow I1 was condemned by so many who did not even bother to read it and simply rushed to join the political bandwagon. As before, there will be little attention paid to the constitutional rights of the minority or to the fundamental tenets of the Establishment Clause. Instead, to the joy or relief, as the case may be, of the two members of the majority, this court's willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.

If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular. In such circumstances, adherence to constitutional principles by all members of this court and all members of the judiciary will become all the more important. I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all. That is not an easily achieved objective, as today's decision shows, but it remains an essential one.

History leaves no doubt that Congress inserted the words "under God" in the Pledge of Allegiance in order to inculcate in America's youth a belief in religion, and specifically a belief in God. No matter the majority's attempts to obfuscate the question, the record on that point is clear. It is equally clear that the daily, state-sponsored, teacher-led recitation of the "under God" version of the Pledge in public schools, institutions in which First Amendment rights are most in need of vigilant protection, violates the Establishment Clause, under any legal analysis in which this court may properly engage. If our constitutional principles are to be redefined in the manner the majority suggests (and I would hope that they would not be), only the Supreme Court may do so, not two members of an appellate court who for varying reasons wish to repudiate our earlier decision.

The Constitution "has never meant that a majority could use the machinery of the State to practice its beliefs." Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 226 (1963). It was to forestall practices such as are currently engaged in by the Rio Linda and other school districts that the Founders adopted the Establishment Clause while deliberately omitting the term "God" from the constitution. The Founders sought to preserve a strict division between the religious and the secular, and between the Church and the State. As appellate judges it is our duty to preserve that division, unless and until the Supreme Court instructs us to the contrary.

The 2002 reaffirmation2 by Congress made no change in the Pledge as amended in 1954, but simply purported to reaffirm the earlier Congress's action fifty years before, when it added to it the additional phrase "under God"; it also sought to explain why it believed that the earlier Congress's action was constitutional at the time it was taken, and why it thought that this court's interpretation of the Constitution in Newdow I half a century after the amendment was adopted was wrong.3 Any effort to address the issue before us, however, must be based not on what happened in 2002, long after the "under God" amendment was adopted, but on the facts and circumstances surrounding the enactment of that amendment in 1954, as well as on other relevant historical facts. There is simply no basis in law, constitutional or otherwise, for using an event that occurred many years later, let alone one of no legal significance, to attempt to rewrite history: here, the history relating to the enactment of the amendment to the Pledge in 1954. History cannot be eradicated by a different Congress's recitation long afterwards of its version of the events that preceded or followed the actions of an earlier body. If this is not apparent to all on its face, it is clear as a matter of law, because the Supreme Court has so squarely held. See McCreary County v. ACLU of Ky., 545 U.S. 844, 871-72 (2005).

I. The Majority's Fundamental Errors

A reader of the majority opinion, if unfamiliar with the facts of this case and the law that intermediate courts are bound to apply to those facts, would be left with a number of misconceptions about both. It might be helpful to identify the most fundamental of those misconceptions at the outset, prior to engaging in the more detailed examination of the facts and the law that follows. Although the majority's reasoning is far from clear, its conclusion that the state-directed, teacher-led, daily recitation of the "under God" version of the Pledge in public schools complies with the Establishment Clause appears to result from at least seven major errors in its legal analysis.

First, this case involves only the phrase "under God" as
recited by young children as part of a state-directed, teacher-
led, daily program in public schools. Only those two words
are at issue. The plaintiffs in this case do not ask us to "strike
down the Pledge" or to prohibit its recitation, as the majority
claims. Rather, they ask only that the two words be stricken
and that the state-directed, teacher-led, daily recitation return
to the original, purely secular Pledge of Allegiance that
schoolchildren had recited long before Congress enacted it
into law in 1942, and long before Congress added the reli-
gious phrase at issue here by statutory amendment in 1954.

Second, the majority asserts that "under God" as that term appears in the amendment to the Pledge is not a religious phrase, and was not inserted in the Pledge for a religious purpose. Instead, the majority argues that "under God" is simply "a reference to the historical and political underpinnings of our nation," that its purpose is to remind us that ours is a "limited government" and, thus, that the term as adopted by Congress has a predominantly secular meaning and purpose. There is simply no basis in fact or law for so absurd an assertion. If the plain meaning of the words "under God" were not enough to demonstrate beyond any doubt that the majority's contention borders on the irrational, and that the term is predominantly, if not entirely, religious in both meaning and purpose, the overwhelmingly religious intent of the legislators who added the phrase to the Pledge, as shown by the unanimous statements to that effect in the Congressional Record, would remove any possible doubt from the mind of any objective person.

Third, the majority states that in order to determine the constitutionality of the amendment adding the phrase "under God" to the Pledge, we must examine the Pledge as a whole and not the amendment. Well-established controlling Supreme Court law is squarely to the contrary. See Wallace v. Jaffree, 472 U.S. 38 (1985). Wallace makes it clear, beyond dispute, that it is the amendment and its language, not the Pledge in its entirety, that courts must examine when, as here, it is the amendment, not the Pledge as a whole, that is the subject of the claim of unconstitutionality. The majority's error in this respect causes it to analyze the legal issues improperly throughout its opinion. Examining the wrong issue inevitably leads the majority to reach the wrong result.

Fourth, the amendment to the Pledge that added the phrase "under God" was, contrary to the majority's contention, adopted in 1954, not in 2002. Congress's reaffirmation of the "under God" amendment in response to this court's Newdow I decision is of no legal consequence. Congress could not and did not change the meaning and purpose of the 1954 amendment in 2002 and did not purport to do so. It simply proclaimed that we were wrong in our legal ruling and that we erred in our constitutional analysis of the First Amendment issue. Although the 2002 Congress did not purport to suggest a different purpose for Congress's 1954 action than did the earlier Congress, even had it sought to add a secular purpose, such as to remind us of our nation's "limited government" or "historical principles of governance," doing so would not have changed the overwhelmingly predominant religious meaning and purpose of the amendment. See McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). Nor, certainly, would it have changed the effect of the amendment upon the schoolchildren who are subjected to the state-directed, teacher-led, daily recitations of the Pledge.

Fifth, the majority suggests that the School District's policy
is constitutional because under that policy only "willing" stu-
dents recite the Pledge. The majority does not and cannot
make that argument explicitly, however, because it is well-
established that the Constitution forbids governmental coer-
cion, and not just compulsion, of religious belief. The major-
ity acknowledges at a later point in its opinion that public
schoolchildren are "coerced to participate" in the state-
directed, teacher-led recitation of the "under God" version of
the Pledge, but then excuses that coercion on other grounds
that are as fallacious as its initial argument.

Sixth, the majority repeatedly asserts that under the coercion test only "religious exercises" may be deemed unconstitutional. The majority's "religious exercise" limitation conflicts with the express holding of Lee v. Weisman, 505 U.S. 577, 587 (1992), as well as the Supreme Court's decisions in Stone v. Graham, 449 U.S. 39 (1980) (per curiam), and Edwards v. Aguillard, 482 U.S. 578 (1987). Coercion is prohibited with respect to participation in religious activities as well as other efforts to support or promote religion. Moreover, the majority errs in its contention that because the Pledge constitutes a patriotic rather than a religious exercise, the religious component does not fail the coercion test. A religious component included in a secular exercise, whether or not a patriotic one, is subject to the same coercion rules as is any other religious practice to which public school students are subjected. Further, the majority's assertion that the coerced recitation of the Pledge does not require "a personal affirmation . . . that the speaker believes in God" is not only contradicted within the majority opinion itself, but is foreclosed by the Supreme Court's explicit statement that the Pledge "requires affirmation of a belief." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). In any event, it is self-evident that one cannot profess to believe that our nation is "under God" without professing to believe that God exists.

Seventh, the majority appears at several points in its opinion to imply that the use of the term "under God" in the Pledge may be justified by the doctrine of ceremonial deism. The theory of ceremonial deism has never been approved by the Supreme Court for use in Establishment Clause cases in general; the Court has, however, expressly disapproved the use of that doctrine to justify state-sponsored religious practices in the public schools. Lee, 505 U.S. at 596-97. The majority's suggestion that the doctrine may be applicable here is clearly erroneous.

If the majority made only one or two of the seven fundamental errors described above, its conclusion that the state-directed, teacher-led, daily recitation of the "under God" version of the Pledge is constitutional could not stand. With all seven errors, the majority sets an all-time record for failure to conform to any part of any of the three tests governing compliance with the Establishment Clause. Unless and until those tests are reversed or repudiated by the Supreme Court, an appellate court is not free to disregard the law and the Constitution in the manner that the two judges in the majority have in the case before us.

II. Historical and Factual Background

To begin with, this case concerns the daily recitation of a state-directed, teacher-led, religious version of the Pledge of Allegiance in public schools, a setting that the Supreme Court has always considered especially significant to its Establishment Clause analysis. A proper constitutional analysis must give substantial weight to the critical fact that we are dealing with "young impressionable children whose school attendance is statutorily compelled." Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (same). We must also bear in mind that the issue before us is whether those children may, regardless of their own fundamental views, be subjected to a daily Pledge that includes a religious component, as opposed to simply reciting the historic version of the Pledge that contained no reference to God. However, before discussing the complex case law regarding the Establishment Clause, or the less complex case law regarding the relationship between the Establishment Clause and public schoolchildren, it is important to have a full understanding of the words at the heart of this controversy, the added two words of the amended Pledge, and the history of how the Pledge grew from twenty-nine to thirty-one words in 1954.

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.4 But those of us who attended school before the 1950s, including at least two members of this panel, may remember a different Pledge of Allegiance, a wholly secular pledge that was based solely on patriotism and not on any attempt at religious indoctrination. That version of the Pledge, the original version, was written by Francis Bellamy in 1892. It read: "I pledge allegiance, to my flag, and to the Republic for which it stands " one Nation indivisible " with Liberty and Justice for all." The Pledge achieved such popularity and acceptability that in 1942, Congress codified it, departing only slightly from Bellamy's words by replacing "my flag" with "the flag of the United States of America," thereby recognizing officially the minor change that had been made in practice a generation earlier.5 Neither Bellamy's version nor the slightly modified official version, recited for many years by school-children throughout the land, contained any language even remotely associated with religious beliefs.

It was not until 1954 that the provision amending the Pledge was enacted, inserting the words "under God" into the Pledge of Allegiance, and it is at this point that the majority's version of history diverges sharply from the facts. In the majority's view, the words "under God" were added to the Pledge for a predominantly secular purpose. That is simply not the case. Seizing on the fact that the amendment to the Pledge was adopted during the Cold War, the majority asserts that the "words `under God' were added . . . to reinforce the idea that our nation is founded upon a concept of a limited government, in stark contrast to . . . communist forms of government." Maj. op. at 3909 (emphasis added).6 In the majority's version of the facts, religion played at most only a minor part in the effort to amend the Pledge. Nothing could be further from the truth. As anyone with a whit of common sense will readily acknowledge, the word "God" carries predominantly, indeed exclusively, religious significance. While differentiating the United States from the Soviet Union was certainly a factor motivating the amendment of the Pledge, even that differentiation was based largely on the Soviets' purported belief in atheism and America's belief in religion, and particularly in God. Indeed, the overwhelmingly predomi nant purpose motivating the amendment of the Pledge was unqualifiedly religious in nature: Congress declared that "true" Americans believe in God and sought to imprint this belief on the minds of schoolchildren across the country.

Were the majority to engage seriously with the history of
the Pledge, it would be compelled to recognize beyond any
doubt that the words "under God" were inserted with the
explicit and deliberate intention of endorsing a particular reli-
gious belief, of compelling nonadherents to that belief to pro-
nounce the belief publicly or be labeled un-American, and of
instilling the particular religious view in America's youth
through daily indoctrination in the public schools.

For want of a respectable constitutional argument, the majority seeks to persuade us that "[i]t is the 2002 statute . . . that sets forth our current Pledge." Maj. op. at 3894. That statement is, at best, misleading: the "current Pledge" was enacted in 1954, and its language has not changed in any respect since the words "under God" were added at that time. As I shall explain, see infra Part III, the majority's attempt to use the 2002 legislation as the legal basis for the incorporation of the two additional words into the Pledge in 1954 is patently without merit and is contrary to logic, reason, and binding Supreme Court law. The "reaffirmation" by the later Congress does not in any way affect the constitutionality of the "under God" amendment as recited by public schoolchildren in the present or in any other circumstances.

A. Religious Origins of the "Under God" Amendment

For most of its 117 year existence, the Pledge of Allegiance existed, and was recited across the nation, in a purely secular form. The overwhelmingly religious purpose driving the decision to amend the Pledge into its current form is apparent from the earliest efforts to do so. Those efforts began in 1951, when the Knights of Columbus, a "major Roman Catholic fraternal order,"7 adopted a resolution requiring that the words "under God" be included in the Pledge of Allegiance when said at organizational meetings.8 The following year, the Supreme Council of the organization passed a resolution urging the United States Congress to adopt the Knights' version of the Pledge, and within a few months Representative Louis Rabaut, a Catholic congressman from Michigan, sponsored a bill to do just that.

That first bill, however, did not gain much traction, perhaps because the group backing its adoption was composed of Roman Catholics, who were, at the time, disdained as both foreign and ignorant by many segments of American society.9 No Catholic had been nominated for President of the United States by a major political party until 1928, when the Catholicism of Al Smith, the first member of that religion to become his party's standard bearer, was a major issue in the presidential campaign. Smith lost the election to Herbert Hoover by nearly twenty percentage points, and no other Catholic was gain nominated until after the Pledge had been amended. Following Rabaut's introduction of his bill, the Knights sent a second, identical resolution to every member of the House and Senate. ELLIS, supra note, at 131. Yet, "despite the [Knights'] best efforts . . . the movement to have the `under God' clause added to the Pledge languished throughout 1953." Id. at 132. Thus, the Catholic effort to place God in the Pledge appeared to be dead.

The next year, however, the words "under God" received a full-throated endorsement from members of a more mainstream and popular Christian denomination " a major Protestant religion. On February 7, 1954, the Reverend George M. Docherty, a highly regarded Presbyterian minister, delivered a sermon on "the American way of life" to an august congregation at Washington's prestigious New York Avenue Presbyterian Church: many members of Congress were present, and seated in President Lincoln's former pew were President and Mrs. Eisenhower. See 100 Cong. Rec. 1700 (1954). Reverend Docherty seized this opportunity to encourage the assembled national leaders to add the words "under God" to the Pledge of Allegiance, arguing that such a phrase was necessary to distinguish America from "militantly atheistic communism,"10 and, more specifically, to distinguish the "Judaio-Christian" beliefs governing this nation from the "secularized Godless" philosophy that motivated our opponents in the "theological war" in which we were engaged. Contrary to the majority's characterization of the purpose underlying the proposed insertion as predominantly secular, Reverend Docherty explicitly denied that the phrase "under God" emphasized a difference in political philosophies as the majority contends. Rather, he said:

We face today a theological war. It is not basically
a conflict between two political philosophies "
Thomas Jefferson's political democracy over against
Lenin's communistic state.

Nor is it a conflict fundamentally between two
economic systems[,] between, shall we say, Adam
Smith['s] "Wealth of Nations" and Karl Marx['s]
"Das Capital."

It is a fight for the freedom of the human personal-
ity. It is not simply, "Man's inhumanity to man." It
is Armageddon, a battle of the gods. It is the view of
man as it comes down to us from the Judaio-
Christian civilization in mortal combat against mod-
ern, secularized, godless humanity.

. . . [T]he pledge of allegiance . . . seems to me to
omit this theological implication that is inherent
within the "American Way of Life." It should be

"One nation, indivisible, Under God." Once "Under
God," then we can define what we mean by "liberty
and justice for all." To omit the words "under God"
in the pledge of allegiance is to omit the definitive
character of the "American Way of Life."

Diverging for a moment from his theological thesis, Reverend Docherty then paused to address those who "might assert this [proposed alteration] to be a violation of the First Amendment to the Constitution." Reverend Docherty had at least some specific critics in mind, seeing as when he had made a similar proposal to amend the Pledge in a sermon two years earlier "several of [his] colleagues" in the clergy "declared it would violate the principle of separation of church and state."11 In the Reverend's view, however, as expressed in his church lecture to the President and the assembled members of Congress, it was "quite the opposite," as the proposed insertion would not create a "state church in this land such as exists in England" nor would it discriminate between "the great Jewish Community, and the people of the Moslem faith, and the myriad denominations of Christians in the land."12

The Reverend was mindful, however, that he omitted a
group from his list: "What then of the honest atheist?" he
asked rhetorically. Here his answer was simple:

[A]n atheistic American is a contradiction in
terms. . . .

[T]hey really are spiritual parasites. . . . [They] are
living upon the accumulated spiritual capital of a
Judaio-Christian civilization, and at the same time,
deny the God who revealed the divine principles
upon which the ethics of this Country grow. . . .
. . . .

[I]f he denies the Christian ethic, [the atheist] falls
short of the American ideal of life.

The Reverend's central message was clear: the American way of life "is defined by a fundamental belief in God. [It is a] way of life that sees man, not as the ultimate outcome of a mysterious concatenation of evolutionary process, but a sentient being created by God and seeking to know His will . . . ." Only by adding the words "under God" to the Pledge of Allegiance could that oath truly be a pledge "to the United States of America."

The assembled legislators in Reverend Docherty's pews were enraptured by his sermon. One was so inspired that he felt compelled to break the Sabbath in order to draft the historic bill amending the Pledge of Allegiance in time to introduce it the next morning: "The following day, one of Docherty's petitioners [sic], Representative Charles Oakman, introduced a resolution in the House that would codify the inclusion of `under God' in the Pledge. Two days later, Senator Homer Ferguson presented an identical resolution to the Senate."13 Both legislators explicitly stated that they introduced their proposed bills in direct response to Reverend Docherty's sermon. See 100 Cong. Rec. 7759 (Rep. Oakman); id. at 6231 (Sen. Ferguson). Later that same week, Representative Rabaut, who had introduced the bill a year earlier that was "the grandaddy of them all," id. at 7758, took to the floor of the House to comment on the inspiring impact of Docherty's "eloquently" delivered sermon. See id. at 1700. Indeed, Docherty's "sermon was so powerful that in its wake no fewer than seventeen bills were introduced to incorporate God into the Pledge of Allegiance."14

B. Congressional Enactment of the "Under God"
Amendment

The strong religious sentiment driving the amendment to the Pledge only became more pietistic when the topic moved from the pulpit into the halls of Congress. The discussion of the proposed amendment could hardly be called a debate, as no one stood in opposition,15 but a parade of legislators still rose to offer spirited, deeply religious statements in support of the proposal. While it cannot fully recapture the fervent and undeniable religiosity so evident in the pages of the Congressional Record, even the limited report of the discussion that follows is extremely revealing. In an effort at completeness, this report includes statements from each and every legislator who commented on the proposed Pledge amendment in the Congressional Record.16

The discussion in Congress began five days after Reverend Docherty's sermon, when Congressman Rabaut made his way to the floor of the House of Representatives to declare that "[w]ithout these [new] words . . . the pledge ignores a definitive factor in the American way of life and that factor is belief in God." 100 Cong. Rec. 1700 (emphasis added). In the Congressman's view, anyone who did not wholeheartedly endorse that "belief in God" was not a true American. As for American atheists, Congressman Rabaut was unsparing in his condemnation:

From the root of atheism stems the evil weed of
communism and its branches of materialism and
political dictatorship. Unless we are willing to affirm
our belief in the existence of God and His creator-
creature relation to man, we drop man himself to the
significance of a grain of sand and open the flood-
gates to tyranny and oppression.

Id. (emphases added). At the close of the congressman's jeremiad against nonbelievers, he let the following words, lifted from Reverend Docherty's sermon, echo through the hall: "An atheistic American . . . is a contradiction in terms." Id. (emphasis added).

Once the seventeen separate House bills seeking to amend the Pledge were consolidated and favorably reported by the judiciary Committee, the House proceeded to a floor discussion during which many congressmen rose to express their views. Congressman Angell, who had authored one of the many bills, said, "there should be embodied in the pledge our allegiance and faith in the Almighty God. The addition of the words `under God' will accomplish this worthy purpose." Id. at 6919 (emphases added). Representative Pillion, author of a separate bill, gave a statement "in support of any and all bills that would serve to recognize the power and the universality of God in our pledge of allegiance. . . . The inclusion of God in our pledge would acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion." Id. at 7590-91 (emphases added). Congressman Bolton, author of yet another of the bills, stated that:

The significant import of our action today . . . is that
we are officially recognizing once again this
Nation's adherence to our belief in a divine spirit,
and that henceforth millions of our citizens will be
acknowledging this belief every time they pledge
allegiance to our flag.

Id. at 7757 (emphases added). Congressman Brooks rose to
declare that the proposed law "recognizes that all things
which we have in the way of life, liberty, constitutional gov-
ernment, and rights of man are held by us under the divine
benediction of the Almighty." Id. at 7758 (emphases added).
Congressman Keating noted that:

[W]e cannot too often be reminded of the spiritual
values which alone have permanence . . . . When the
forces of anti-God and antireligion so persistently
spread their dangerous and insidious propaganda, it
is wholesome for us to have constantly brought to
our minds the fact that . . . it is the strength of the
spirit . . . to which we must ultimately look for salva-
tion . . . .

Id. at 7760 (emphasis added). Congressman Oakman proudly introduced into the record a letter from a constituent praising his authorship of one of the proposed bills, which described the bill as "a realistic recognition of the theological and philosophical truth " the existence of a Supreme Being." Id. Congressman O'Hara observed that "what we are engaged in today is a sacred mission" and that in amending the Pledge the legislators were achieving a "victory for God." Id. at 7762 (emphases added). Congressman Wolverton commented that the proposed amendment "sets forth in a mere two words, but, very strong and meaningful words, the fundamental faith and belief of America in the overruling providence of God and our dependence at all times upon Him." Id. at 7763 (emphasis added). Congressman Rodino quoted scripture in order to best express "the spirit" of the proposed law, citing David the Psalmist for the proposition that Americans reciting the Pledge (including the public schoolchildren who were expected to recite it every day in the classroom, see infra Part II.C) "shall say to the Lord: Thou art my protector and my refuge: my God, in Him will I trust." Id. at 7764. Congressman Bolton rose to observe that the legislation "comes at a time in the world when we do well to once more publicly and officially affirm our faith." Id. (emphasis added). At the close of the discussion, the final congressman to speak was Representative Addonizio, who said:

We, who take the pledge of allegiance to the flag
of the United States of America and raise our eyes
toward that symbol of our faith, should bear in mind
that our citizenship is of no real value to us . . .
unless we can open our souls before God and before
Him conscientiously say, "I am an American."

Id. at 7765 (emphases added).

The majority asserts that "[t]he words `under God' were added as a description of `one Nation' primarily to reinforce the idea that our nation is founded upon the concept of a limited government, in stark contrast to . . . communist forms of government." Maj. op. at 3909 (emphasis added). In my colleagues' view, any religious purpose associated with the amendment of the Pledge was merely incidental to the patriotic, anti-Communist purpose driving the law. However, had my colleagues actually acknowledged the existence of the detailed historical record instead of ignoring it, they could not have failed to recognize that their historical assertion is precisely backward: the anti-Communist sentiment associated with the amendment was clearly secondary to the overwhelming and predominant religious purpose motivating the amendment. For one thing, the majority's revisionist account ignores the fact that much of the anti-Soviet sentiment associated with the amendment was itself driven in large part by the congressmen's religious disagreement with the Soviets' purported atheism. For example, in rising to endorse the amendment, Congressman Wolverton stated that a virtue of the proposed amendment was that it "plainly denies the atheistic and materialistic concepts of communism with its attendant subservience of the individual." 100 Cong. Rec. 7762 (emphasis added). Indeed, the original author of the bill to amend the Pledge stated that "the evil weed of communism and its branches of materialism and political dictatorship" stems "[f]rom the root of atheism." Id. at 1700 (emphasis added). The majority's revisionism is further refuted by that same original author, Congressman Rabaut, who explicitly stated: "You may argue from dawn to dusk about differing political, economic, and social systems, but the fundamental issue which is the unbridgeable gap between America and Communist Russia is a belief in Almighty God."17 Id. (emphases added). This was seconded by Congressman Brooks, who declared that "One thing separates free peoples of the Western World from the rabid Communist, and this one thing is a belief in God." Id. at 7758 (emphases added). Indeed, even the official House Report accompanying the bill demonstrates that the desire to underscore a political philosophy of anti-Communism was at most an ancillary aim of the bill, as it was listed as a second and separate rationale following the legislation's primary stated rationale: to "acknowledge the dependence of our people and our Government upon the moral directions of the Creator." See H.R. REP. NO. 83-1693 at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. Moreover, even that ancillary rationale stresses the religious underpinning of the anti-Soviet sentiment, as the Report goes on to state: "At the same time, [the bill] would serve to deny the atheistic and materialistic concepts of communism . . . . " Id., 1954 U.S.C.C.A.N. 2340 (emphasis added).

After all of the congressmen made their intentions clear and the House moved to adopt its final bill, discussion opened across the Capitol in the well of the Senate. Initially, the Senate version of the bill stalled in the Senate Judiciary Committee, where it "seemed dead" because some "senators had concerns about the resolution's implications for the separation of church and state." ELLIS, supra note 5, at 134; see also id. at 257 n.40. However, in light of the zealous and unanimous parade of congressmen who endorsed the bill in the House, the Senate was forced to consider the matter. The senators who remarked on the bill from the floor of that chamber were fewer in number,18 though no less fervent in their religiosity than their counterparts in the House. Senator Wiley, rising to congratulate Senator Ferguson for authoring the Senate bill, said that "in these days of great challenge to America, one can hardly think of a more inspiring symbolic deed than for America to reaffirm its faith in divine providence, in the process of restating its devotion to the Stars and Stripes." 100 Cong. Rec. 5915 (emphasis added). When the final resolution was reported to the Senate, Senator Ferguson explained its purpose as follows: "the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic." Id. at 6348 (emphasis added).

Evidence of the legislation's overt religious purpose was
not, as the majority claims, limited to individual statements
proclaiming the "religious motives of the legislators who
enacted the law." Maj. op. at 3911 n.27 (citing Bd. of Educ.
v. Mergens, 496 U.S. 226, 249 (1990) (plurality opinion of
O'Connor, J.)). To the contrary, the House and Senate
Reports accompanying the proposed bills also bear testament
to the new Pledge's indisputably religious purpose. The Sen-
ate Report stated that one of the reasons for adopting the
"under God" amendment was its recognition of "the funda-
mental truth that a government deriving its power from the
consent of the governed must look to God for divine leader-
ship." S. REP. NO. 83-1287 at 2 (1954) (emphasis added),
reprinted in 100 Cong. Rec. 6231. The House Report empha-
sized "the belief that the human person is important because
he was created by God and endowed by Him with certain
inalienable rights which no civil authority may usurp. The
inclusion of God in our pledge therefore would further
acknowledge the dependence of our people and our Govern-
ment upon the moral directions of the Creator." H.R. REP.
No. 83-1693 at 1-2 (1954) (emphasis added), reprinted in
1954 U.S.C.C.A.N. 2339, 2340.

With these official reports attached to the bills, both the
Senate and the House unanimously adopted the new Pledge
by voice vote and sent it to President Eisenhower for his
approval. The culmination of the legislative proceedings was
carefully timed so that the joint resolution could be approved
in time for the President to sign it on Flag Day, four short
months after Reverend Docherty's sermon. See, e.g., 100
Cong. Rec. 7759 (discussing scheduling of legislation in rela-
tion to Flag Day). And so it was that on June 14, 1954, Presi-
dent Eisenhower officially added his signature to the bill
amending the Pledge of Allegiance, thereby changing funda-
mentally the nature and purpose of the oath. After doing so,
he proclaimed in his signing statement:

From this day forward, the millions of our school
children will daily proclaim in every city and town,
every village and rural school house, the dedication
of our Nation and our people to the Almighty. To
anyone who truly loves America, nothing could be
more inspiring than to contemplate this rededication
of our youth, on each school morning, to our coun-
try's true meaning.19

Once the bill was signed into law, Senator Ferguson, Con-
gressman Rabaut, the sixteen other sponsors of the "under
God" resolutions, and the Senate Chaplain gathered before an
assembled audience at the Capitol and a national audience
watching on television for what Walter Cronkite called a
"stirring event."20 As described in the Congressional Record,
the legislators who amended the Pledge turned toward "the
believer's flag[,] the witness of a great nation's faith" and
recited the newly minted Pledge of Allegiance to "our Nation
[and] to the Almighty." 100 Cong. Rec. 8617. "Then, appro-
priately, as the flag was raised a bugle rang out with the
familiar strains of `Onward, Christian Soldiers!' " Id.:

Onward, Christian soldiers, marching as to war,
With the cross of Jesus going on before.
Christ, the royal Master, leads against the foe;
Forward into battle see His banners go!

C. The 1954 Amendment and America's Schoolchildren

The foregoing history of the process by which the Pledge
was amended " beginning in the pews of New York Avenue
Presbyterian Church, continuing through speech after speech
in the House and Senate declaring the need for America to
"affirm our belief in the existence of God," id. at 1700, fol-
lowed by the President's remarks regarding schoolchildren
daily proclaiming their dedication to the Almighty, and con-
cluding with the triumphant playing of Onward Christian Sol-
diers on the Capitol steps to baptize the newly amended
national oath " demonstrates beyond any shadow of a doubt
that the purpose driving the amendment was predominantly,
and indeed overwhelmingly, religious in nature. But there is
more. Not only was the message underlying the new Pledge
clear " "true" Americans believe in God and non-believers
are decisively un-American " but so too was its intended
audience: America's schoolchildren.21

The legislators who set out to insert the words "under God"
into the Pledge of Allegiance were fully aware that in 1954
the original Pledge was a commonplace scholastic ritual.22
Indeed, a primary rationale for inserting the explicitly reli-
gious language into the Pledge of Allegiance, as opposed to
into some other national symbol or verse, was that the Pledge
was an ideal vehicle for the indoctrination of the country's
youth. The amendment's chief proponents in Congress were
not at all bashful about their intentions. Speaking from the
well of the Senate, Senator Wiley endorsed the bill by saying,
"What better training for our youngsters could there be than
to have them, each time they pledge allegiance to Old Glory,
reassert their belief, like that of their fathers and their fathers
before them, in the all-present, all-knowing, all-seeing, all-
powerful Creator." Id. at 5915 (emphases added). Senator
Ferguson, who authored the Senate bill, agreed that "we
should remind the Boy Scouts, the Girl Scouts, and the other
young people of America, who take [the] pledge of allegiance
to the flag more often than do adults, that it is not only a
pledge of words but also of belief." Id. at 6348 (emphasis
added). In the House, Congressman Rabaut, the original
author of the first bill to amend the Pledge, declared that
"from their earliest childhood our children must know the real
meaning of America," a country whose "way of life . . . sees
man as a sentient being created by God and seeking to know
His will." Id. at 1700 (emphases added). His colleague, Con-
gressman Angell, argued that "the schoolchildren of Ameri-
ca" should understand that the Pledge of Allegiance
"pledge[s] our allegiance and faith in the Almighty God." Id.
at 6919 (emphases added). Similarly, Congressman O'Hara
noted that the new Pledge's "acknowledgment that God is the
foundation of our Nation will be of incalculable value, all
through the years, of ever keeping vividly before our . . .
children[,] who from earliest childhood[ ] pledge their alle-
giance to the flag, that the real source of our strength in the
future, as in the past, is God." Id. at 7763 (emphases added).
Indeed, the last words said before the House passed the bill
inserting "under God" into the Pledge emphasized "the mil-
lions of school children who daily repeat the pledge of alle-
giance." Id. at 7766 (emphasis added). And of course, when
President Eisenhower signed the law amending the Pledge, he
declared that "[f]rom this day forward, the millions of our
school children will daily proclaim in every city and town,
every village and rural school house, the dedication of our
Nation and our people to the Almighty."23 Id. at 8618 (empha-
ses added). These statements reflect the unanimous expecta-
tion on the part of both houses of Congress and the President
of the United States that the new religious version of the
Pledge would be recited regularly by "the schoolchildren of
America." Id. at 6919.

Nor was it only the federal government that promoted the newly amended Pledge through legislation. At the time Congress first considered the amendment to the Pledge, only six states " Delaware, Massachusetts, Mississippi, New Jersey, Rhode Island, and Washington " had statutes requiring students to recite the Pledge in school,24 even though the Pledge had, at that point, existed for over sixty years and had been "a defining symbol of national patriotism" for over three decades. See ELLIS, supra note 5, at 79. However, once Congress inserted the words "under God" into the Pledge in 1954, the number of states statutorily providing for its recitation skyrocketed: Within a few years of the congressional amendment, nine state legislatures passed laws either requiring or encouraging recitation of the Pledge in school with the newly inserted words "under God."25 A steady march of legislatures followed suit so that today all but seven states statutorily provide for the teacher-led daily recitation of the "under God" version of the Pledge.26 As the proponents of the "under God" amendment stated early on, such "widespread support [for] the [new Pledge] . . . must bear testimony to a religious revival of significance."27

At the forefront of that revival was the state of California. While many other states, perhaps preoccupied with more pressing legislative business, took a decade or more to endorse state-directed, teacher-led, daily recitation of the religious version of the Pledge in public schools, California did so in 1961, becoming one of the first states to adopt a school-pledge statute after Congress inserted the words "under God."28 California's Pledge-recitation bill was introduced on January 12, 1961, following an opening prayer in the California State Assembly to "Jesus Christ, our Lord and Redeemer."29 Some legislators, apparently concerned over the religious content recently inserted into the Pledge by Congress, attempted to amend the proposed state bill in order to allow "any pupil" to be "excused from giving the pledge" if doing so "conflicts with [his] religious beliefs."30 However, even this modest protection for religious minorities was removed from the final version of the bill, over the dissenting votes of seven members.31 Thus, on May 1, 1961, when the final version of the bill was signed by Governor Edmund G. "Pat" Brown,32 California joined those states ensuring by force of law that the state-directed, teacher-led recitation of the "under God" version of the Pledge of Allegiance would occur daily in classrooms throughout the state.

D. The 2002 "Reaffirmation"

Almost immediately after its amendment, the new Pledge
was the subject of numerous constitutional challenges. See
infra note 102. Those challenges continued consistently over
the following decades, but met with little success until June
26, 2002, when this court held that the state-directed recita-
tion of the "under God" version of the Pledge of Allegiance
in California's public schools violated the First Amendment.
Newdow I, 292 F.3d at 612. In response to that constitutional
ruling, lawmakers immediately took to the floor in both
houses of Congress to condemn this court's decision. Among
them was Senator Robert Byrd, who proudly announced that
he was "the only Member of Congress today, bar none, in
either body, who was a Member of the House on June 7,
1954, when the words `under God' were included in the
Pledge of Allegiance." 107 Cong. Rec. S6103. His comments,
like those of the other Senators who spoke that day, made
clear that his outrage over the Newdow I decision was not
based on any devotion to principles of limited government:

I, for one, am not going to stand for this country's
being ruled by a bunch of atheists. If they do not like
it, let them leave. They do not have to worship my
God, but I will worship my God and no atheist and
no court is going to tell me I cannot do so whether
at a school commencement or anywhere else.
Id.

That same afternoon, the Senate passed a resolution expressing its "strong[ ] disapprov[al]" of the Newdow I decision. S. Res. 292, 107th Cong. (2002), reprinted in 107 Cong. Rec. S6105. The reason for that disapproval is readily apparent from the statements offered in the resolution's support. Senator Robert Bennet, for example, announced that "[r]egardless of what the courts may say, the American people still trust in God. . . . [I]t is a correct statement of how we feel, and it belongs in the Pledge of Allegiance to our flag." 107 Cong. Rec. S6106 (emphasis added). Numerous other senators expressed similar views,33 including Senator Sam Brownback, who remarked upon the superiority of the United States, "a nation that honors God," to North Korea, "a country that does not honor God." Id. at S6109.

Although the majority asserts that "virtually all of the
members of Congress agreed" that we had misunderstood its
purpose when we decided Newdow I, maj. op. at 3913
(emphasis added), not a single Senator expressed the view
that our court had misunderstood the 1954 Congress's pur-
pose for enacting the "under God" amendment. Several Sena-
tors, however, explicitly stated their disagreement with any
interpretation of the Constitution under which that religious
purpose would be impermissible. For example, Senator
George Allen declared that the Pledge "should remain in our
schools" because "the purpose of the Establishment Clause .
. . was not to expunge religion or matters of faith from all
aspects of public life." Id. at S6108. Similarly, Senator John
Ensign urged the Senate "to take it upon itself to correct what
the Ninth Circuit has done" because "we need to reestablish
in this country what this document " the Constitution of the
United States " really says and really was about." Id. at S6102.34

Recognizing these strong sentiments, Senator Trent Lott stated when he introduced the resolution that additional measures should be taken to reaffirm the actions of the 1954 Congress:

[F]or our children to be allowed to invoke God's
blessing on our country in the Pledge of Allegiance
is certainly something we want to do.

If there is ever a time when we need this addi-
tional blessing, perhaps it is now more than ever in
our lifetimes. . . . .

In [this resolution], we state that we disapprove of
the decision by the Ninth Circuit . . . .

Beyond that, to further make it clear, the Senate
should consider a recodification of the language that
was passed in 1954. There was no uncertainty or
ambiguity about what was done in 1954. The Con-
gress, in fact the American people, spoke through
their Congress. We should make it clear once again.

107 Cong. Rec. S6105 (emphasis added).35

And so they did. The next morning, Senator Byrd called the
Senate to order and invited the Reverend Lloyd J. Ogilvie, the
Senate Chaplain, to lead "[t]he prayer to Almighty God, the
supreme Judge of the world." 107 Cong. Rec. S6177. In his
invocation, Reverend Ogilvie declared that "[t]here is no sep-
aration between God and State," and proclaimed God as the
"ultimate Sovereign of our Nation." Id. He then described the
Pledge as an expression of America's trust in God: "It is with
reverence that in a moment we will repeat the words of com-
mitment to trust You which are part of our Pledge of Alle-
giance to our flag: `One Nation under God, indivisible.' " Id.
After the members of the Senate recited the Pledge, Senator
Tom Daschle offered the chaplain both thanks and agreement:

"I know I speak for all of our colleagues in thanking Chaplain
Ogilvie for his wonderful prayer this morning. He spoke for
all of us." Id.

The Senate then considered a recodification bill, entitled "An Act To reaffirm the reference to one Nation under God in the Pledge of Allegiance," later that day. 107 Cong. Rec. S6225.36 The recodification bill served two ends: to express the approval of the 2002 Congress of the 1954 Congress's inclusion of "under God" in the Pledge, and to express its disapproval of the constitutional interpretation of the First Amendment by this court in Newdow I.37 It did not make any change to the content of the Pledge or offer any different purpose for its adoption than the religious purpose that motivated the 1954 Congress. In support of the legislation, Senator Jeff Sessions made clear that he considered the Pledge an "expression of faith," that he approved wholeheartedly of what the 1954 Congress had done, and that the Senate should again express its approval of the inclusion of God in the Pledge. He stated that he disagreed not only with Newdow I, but with other limitations on religious expression in public schools:

I am a cosponsor and helped draft this legislation.
I would say this: This is not an itty bitty issue. This
is a big issue. The Congress and States and cities
have been expressing a desire to have, and be
allowed to have, an expression of faith in the public
life of America. The courts have been on a trend for
decades now to constrict that. . . . .

The Supreme Court . . . . has cracked down on
some very small instances of public expression of
faith. Our courts have made decisions such as con-
straining a valedictorian's address at a high school.
Certainly our prayer in schools has been rigorously
constricted or eliminated in any kind of normal
classroom setting, as has the prayer at football
games.

I will just say we hope the courts will reconsider
some of their interpretations of the establishment
clause and the free exercise clause of the first
amendment and help heal the hurt in this country.

Id. at S6226 (emphasis added).

The Senate's bill passed without opposition,38 and was then sent to the House for consideration.39 In its report on the bill, the House Judiciary Committee examined the historical events listed in the legislative findings, and explained why those events were relevant. It concluded that our interpretation of the First Amendment was itself unconstitutional:

Clearly, America has a rich history of referring to
God in its political and civic discourse and acknowl-
edging the important role faith and religion have
played throughout our Nation's history. Thus the
Ninth Circuit's analysis in the Newdow ruling cannot
be supported by any reasonable interpretation of the
Establishment Clause as their holding is inconsistent
with the meaning given the Establishment Clause
since America's founding.

H.R. Rep. 107-659, at 8 (2002).

On October 7, 2002, the Act "To reaffirm the reference to one Nation under God in the Pledge of Allegiance" was brought before the full House of Representatives. 107 Cong. Rec. at H7029. Representative Jim Sensenbrenner, who chaired the Judiciary Committee and submitted the House Report, explained the purpose of the legislation. He, too, expressed his approval of the action of the 1954 Congress in inserting "under God" into the Pledge and said that he thought it necessary for the later Congress to endorse and approve what the earlier Congress had done:

The Newdow ruling is troubling because its analysis
. . . . is inconsistent with any reasonable interpreta-
tion of the Establishment Clause of the First Amend-
ment. Thus, it has become necessary for Congress to
reaffirm its understanding that the text of both the
Pledge and our national motto are legally and histori-
cally consistent with a reasonable interpretation of
the first amendment.

Id. Only two other congressmen offered remarks on the bill. The first, Representative Robert C. Scott, stated that he "agree[d] with the dissent" in Newdow I, although he feared that the proposed legislation would further jeopardize the legal status of the amended Pledge "because if the courts look at the importance that we apparently affix to `one Nation under God' . . . then it diminishes the argument that the phrase has de minimis meaning." Id. at 7030. Representative Ronnie Shows then took to the floor to express his view that "[t]he values we teach at home and church are universal and should not be left outside the schoolhouse door . . . . I am happy that we are today considering a measure that reiterates the importance of our National Motto, and the presence of God in our lives." Id. (emphasis added). The House voted on the legislation the following day, and it passed by an overwhelming margin.40 Id. at H7186. On November 13, 2002, President George W. Bush signed the bill into law.41

As this series of events illustrates, "Congress chose to
explain in great detail its purpose in reaffirming the language
of the Pledge." Maj. op. at 3896. That 2002 Act's legislative
history makes clear that Congress's view of the reference to
"under God" in the Pledge had little to do with "political phi-
losophy," as the majority disingenuously claims, id. at 3902,
and much to do with the concept of religion, including pro-
moting the concept of God in the public schools. As the
House Report, which even the majority accepts as competent
evidence of purpose, see id. at 3912, explicitly states, the
Pledge "is a recognition of the fact that many Americans
believe in God." H.R. Rep. 107-659, at 5. The purpose of the
2002 Act could not be clearer: Congress sought to condemn
our decision in Newdow I, to defend the constitutionality of
the original 1954 amendment that added "under God" to the
Pledge, and to reaffirm "the presence of God in our lives,"
and in our Pledge.

In the end, the decision that the 2002 Congress went to such great lengths to condemn never took effect " though not, of course, because of Congress's legislative action. After our circuit declined to rehear the case en banc, without a single judge so much as suggesting that the 2002 Act had any relevance to the constitutional analysis, the Supreme Court granted certiorari and reversed on prudential standing grounds " a lack of standing of a non-custodial parent to assert the rights of his minor daughter " without addressing the merits of the Establishment Clause question. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). As a result, the state-directed, teacher-led recitation of the "under God" version of the Pledge has ever since 1954 continued, uninterrupted, in public schools throughout the nation " just as the 1954 Congress intended.

E. Jan Roe and Her Child's Constitutional Claim

Today, over six million students attend public school in the State of California.42 At least 190,000 of those students are Buddhist, Hindu or followers of a Native American religion and thus do not believe in traditional monotheism " that is,
the existence of a single, non-metaphorical, supervisory God.43 Over half a million California students come from "secular" families44 " a population that has "nearly doubled" across the country over the past two decades.45 Most of these individuals "moved away from religious observance because they no longer believe in God or religious teachings."46 Indeed, California and the West Coast have "the largest proportion of atheists and agnostics" of any region in the country.47 In California's public schools, over one million students are not sure whether they believe in God, and fully 439,000 students are avowed atheists.48

One atheist student who attends a California public school is the daughter of Jan Roe. Ms. Roe's child was born at the turn of the millennium, and so in September of 2004 the time came for Ms. Roe, a resident of the Rio Linda Union School District, to put her five-year-old daughter on a school bus and send her off for her first day of kindergarten. In so doing, Jan Roe joined the millions of parents in California and across the United States who every September "entrust public schools with the education of their children." Edwards v. Aguillard, 482 U.S. 578, 584 (1987). These parents hope the school teachers will look over their young children and keep them safe, but, just as important, they "condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family." Id.

When the five-year-old Roe child arrived for her first day of kindergarten, her teacher, a state employee, asked the young students to stand, to place their hands on their hearts, and to pledge their allegiance to "one nation, under God." Neither young Roe nor her mother, however, believe in God. Thus, having already learned that she should not tell a lie, young Roe simply stood silently, as her classmates recited in unison the version of the Pledge that requires its proponents to express their belief in God. Everyday thereafter, the children filed into school, and each morning they recited an oath of allegiance to "one nation, under God" " an oath that undeniably "requires affirmation of a belief and an attitude of mind" to which young Roe does not subscribe: a belief that God exists and is watching over our nation. Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). For eight months, the five-year-old Roe faced, every morning, the daily "dilemma of participating" in the amended Pledge, with all that implies about her religious beliefs, or of being cast as a protester for her silent refusal. Lee v. Weisman, 505 U.S. 577, 593 (1992). On some days she quietly endured the gaze of her teacher and her classmates as she refused to say the Pledge, standing in silence as the classroom's lone dissenter; on others she walked out of the room and stood in the hallway by herself, physically removed from the religious "adherents", the "favored members of the [classroom] community," Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000), who were able to swear their fealty to the United States without simultaneously espousing a state-sponsored belief in God that was antithetical to their personal religious views.

In April, 2005, Jan Roe filed this lawsuit on behalf of herself and her child. Her claim is straightforward: The Constitution of the United States, a nation founded by exiles who crossed an ocean in search of freedom from state-imposed religious beliefs, prohibits the purposefully designed, teacher-led, state-sponsored daily indoctrination of her child with a religious belief that both she and her daughter reject.

III. The 1954 Amendment and This Appeal

The history that I have just described permits only one conclusion regarding the constitutionality of the state-directed, teacher-led, daily recitation in public schools of the "under God" version of the Pledge of Allegiance as amended by Congress in 1954. In order to avoid reaching that conclusion, the majority repeatedly and deliberately misstates the issue that is before us.

First and foremost, the "hotly contested issue in this case"
is not, as the majority asserts, "whether Congress' purpose in
enacting the Pledge of Allegiance was predominantly patriotic
or religious." Maj. op. at 3885. For many years prior to 1942,
indeed from since at least the 1930s, the Pledge of Allegiance
was a patriotic and secular exercise widely recited in public
schools and at various public events and in various public
fora. It was officially adopted as such by Congress in 1942.
It is undisputed and indeed indisputable that at that time the
Pledge was solely patriotic and secular and contained no reli-
gious component or element. In 1954 Congress amended the
Pledge by inserting into that patriotic and secular instrument
the religious phrase "under God." The issue here is whether
the amendment to the Pledge " the insertion of the phrase
"under God" " was enacted for a predominantly religious
purpose, not whether the Pledge as a whole was enacted for
such a purpose.

Second, the issue is not "whether [plaintiff] Roechild can prevent other students . . . from saying the Pledge." Maj. op. at 3889; see also id. at 3888. Contrary to the majority's assertion, this case presents no issue about whether young Roe can prohibit other five-year-olds from doing anything at all. Rather, the issue is whether the Constitution prohibits young Roe's state-employed teachers from conducting the state-directed, daily recitation of the "under God" version of the Pledge in public schools. To be sure, as a member of the majority once wrote, prohibiting such recitations "deprives Christians [and other adherents to monotheistic religions] of the satisfaction of seeing the government adopt their religious message as [its] own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes." Cammack v. Waihee, 932 F.2d 765, 785 (9th Cir. 1991) (D. Nelson, J., dissenting) (second alteration original) (quoting County of Allegheny v. ACLU, 492 U.S. 573, 601 n.51 (1989)). Accordingly, the responsibility for any dissatisfaction felt by "other students" cannot be placed, as the majority shamefully seeks to do, upon the shoulders of a kindergartener; it results from the requirements of the Constitution itself.

Third, the majority's assertion that young Roe asks us "to prevent teachers from leading other students [in] reciting the Pledge of Allegiance," maj. op. at 3874, like its related claim that I "would have us strike down the Pledge," id. at 3919, is completely and utterly false. The issue presented by this case involves only the recitation of the words "under God" as a part of the Pledge of Allegiance " the words that Congress added to the Pledge in 1954 " and not the Pledge in its original, pre-amendment secular form. Had one more member of today's panel ruled in favor of the plaintiffs, our decision would have held only that the 1954 amendment to the Pledge was unconstitutional as applied in the context of public schools implementing a state-directed program of daily teacher-led recitations. Public schools could have complied with that ruling simply by having teachers lead students in daily recitations of the Pledge in its pre-1954 form, without the added religious phrase "under God." And our decision would not have held unconstitutional the recitation of any version of the Pledge " with or without the challenged phrase" outside of the public school context.

Finally, as must be obvious even to the majority, the issue in this case is not the purpose of the 2002 Pledge recodification, which merely reaffirmed the 1954 amendment and Congress's purpose in enacting it. The recodification also declared that our court's First Amendment analysis was erroneous and that Newdow I was wrongly decided. See supra Part II.D. The 2002 recodification is of no constitutional consequence, and no one but the two members of the majority has even purported to believe otherwise. Bafflingly, the majority declares that because the 2002 Congress adopted a provision that "reaffirmed the exact language that has appeared in the Pledge for decades," maj. op. at 3895, "[i]t is the 2002 statute . . . that sets forth our current Pledge," id. at 3894, and "[i]t is the 2002 Congress' purpose we are called upon to examine." Id. at 3928. The majority's reliance on the 2002 legislation to obviate the purpose of Congress in 1954 is no more than a transparent tactic intended to divert attention from an obvious constitutional violation towards a substance-less event of no legal consequence.

The deliberate misstatement of the issue presented by a case is not an unusual tactic for a majority that seeks to mislead the reader, as well as other members of the judiciary, in order to prejudice the outcome of a constitutional question. Only twenty-four years ago, in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), the majority misstated the issue before the Court as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." The dissent correctly responded that the true issue was whether the Constitution protected "the fundamental interest all individuals have in controlling the nature of their intimate associations with others." Id. at 206 (Blackmun, J., dissenting). It took the Court seventeen years to overcome the majority's unconstitutional conclusion, which followed inevitably from its fallacious framing of the issue. The Court held in Lawrence v. Texas, 539 U.S. 558, 578 (2003), in unusually blunt terms, that "Bowers was not correct when it was decided, and it is not correct today." The framing of the issue here is even more blatantly erroneous and misleading than was its framing in Bowers, and the majority here must be as aware of that fact as, one may fairly surmise, was the majority in Bowers.

A. Recent Contrivance of the Majority's Novel Theory

Before the majority at some unknown point following the argument in this case conjured up its idea that "[i]t is the 2002 Congress' purpose we are called upon to examine," maj. op. at 3928, no one, lawyer or judge, had thought to offer such a bizarre argument or to attach any constitutional significance to the action of the 2002 Congress. The history of Newdow III makes this clear, as does all of the ensuing Pledge litigation, including the case before us. Three months after the reaffirmation of the Pledge statute, this court issued an amended opinion superseding Newdow I and an order denying rehearing en banc, with two separate dissents and a concurrence in the denial of rehearing en banc. See Newdow v. U.S. Cong., 328 F.3d 482 (9th Cir. 2003) ("Newdow III"), amending 292 F.3d 597 (9th Cir. 2002) ("Newdow I"), rev'd on other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). In striking contrast to today's majority, none of the twelve judges who participated in any of those opinions or orders thought the 2002 reaffirmation important enough even to mention.49 When the case was decided by the Supreme Court shortly afterwards, the opinion of the Court did not include any reference to the 2002 legislation; in fact, it stated that "the Pledge as we know it today" was the result of the 1954 amendment. Elk Grove, 542 U.S. at 7. Three justices wrote concurrences that addressed the constitutional issue, but the 2002 legislation was mentioned in only one fleeting reference that simply noted its enactment. See id. at 26 (Rehnquist, C.J., concurring).

Nor prior to the issuance of today's opinion did any party, intervenor, amicus, or judge in the case presently before us, including the two in the majority, deem the 2002 reaffirmation to be of any legal significance or indeed even worthy of mentioning at any time during the litigation of this appeal. During the hour-long oral argument before this court, no judge, specifically including the two members of today's majority, asked a single question or made a single reference of any kind to the 2002 reenactment. In fact, no one, including any of the counsel arguing the case, noted, referred to, or commented on it during that argument. To put it simply, no one, including the two judges in the majority, thought at the time of argument that the 2002 reaffirmation was in any way relevant. Furthermore, in the more than 500 pages of briefing filed by the parties, the intervenors, and the twelve amici, there were only two places at which the 2002 legislation was even noted, and at those places it was noted and nothing more. The brief of the United States includes one sentence in its history section recording the passage of the 2002 recodification and one citation to that legislative act in connection with the recodification of the motto, "In God We Trust." In that brief, like in all others filed in this litigation, the filing party, here the United States, attached no legal significance to the 2002 reaffirmation of the 1954 amendment. In sum, the parties, intervenors, and amici entirely ignored the 2002 reaffirmation in their discussions over whether the inclusion of "under God" in the Pledge rendered its daily recitation in public schools unconstitutional as applied; they all simply deemed the reaffirmation irrelevant. Accordingly, contrary to the suddenly developed nostra sponte view of two judges of this court, nowhere in the briefs or the oral argument was there any suggestion by the United States or anyone else that "[i]t is the 2002 statute . . . that sets forth our current Pledge," id. at 30, that "[i]t is the 2002 Congress' purpose we are cal led upon to examine," id. at 68, or indeed that the 2002 legislation had any relevance whatsoever to the question of the constitutionality of the recitation of the phrase "under God" as part of the Pledge. No one involved in this case suggested, even remotely, that the 2002 enactment shed any light on the purpose of Congress in amending the Pledge in 1954, or that a new or different purpose now underlies the inclusion of the words "under God" in the Pledge. Nor, of course, did anyone suggest that because Congress disagreed with us as to the meaning of the First Amendment, we should yield to Congress's view.

Other courts have also heard Establishment Clause challenges involving the Pledge of Allegiance in the years since the 2002 reenactment, but like our court, not one of them, not even a single judge, until today even mentioned the 2002 legislation when deciding such a claim. See, e.g., Myers v. Loudon County Pub. Schs., 418 F.3d 395, 398 (4th Cir. 2005) (noting that "[t]he Pledge was amended in 1954" but making no reference to the 2002 statute); Freedom from Religion Found. v. Hanover Sch. Dist., ___ F. Supp. 2d ___, 2009 WL 3227860 (D.N.H. Sept. 30, 2009) (discussing the intent of the 1954 Congress but making no reference to the 2002 statute); Keplinger v. United States, 2006 WL 1455747 (M.D. Pa. May 23, 2006) (Unpub.) (addressing the 1954 legislative history but making no reference to anything that occurred in 2002); see also Croft v. Perry, 604 F. Supp. 2d 932 (N.D. Tex. 2009) (in an Establishment Clause challenge to the Pledge of Allegiance to the Texas state flag, discussing the legislative history of the 1954 federal Pledge amendment but making no reference to the 2002 legislation).

Under these circumstances, one cannot help but wonder how, when, and why the majority decided to afford the 2002 reaffirmation the importance it attributes to it in today's opinion. Rarely, if ever, does a court decide a case, let alone an important constitutional issue, on a ground that no party mentioned, no party briefed, no party argued, the existence of which no intervenor or amicus including the United States deemed to be of any relevance, and as to which the court itself at no time made any inquiry or reference prior to issuing its decision. Certainly no court has ever done so on so spurious a ground as the 2002 reaffirmation, a ground supported by no colorable legal argument and contrary to so many decades of constitutional and other federal law. The best guess as to the reason for the majority's sudden, last-minute reliance on the 2002 reaffirmation is its belated recognition that its principal arguments with respect to the 1954 amendment, on which it had hoped to rely in order to reach its desired result, are all without merit and are easily refuted under controlling Supreme Court law. Nevertheless, I am compelled to address its Hail Mary argument.50

B. Immateriality of the 2002 Legislation

The reasons that the majority may ultimately have been driven to rely on the 2002 enactment as a justification for the 1954 amendment's addition of the phrase "under God" will become obvious in Sections IV and V, infra, where it is explained why the Constitution and the applicable Supreme Court precedent dictate the conclusion that all three Establishment Clause tests preclude the state-directed, teacher-led, daily recitation of the "under God" version of the Pledge in public schools. The reasons that no one but the two members of the majority has ever attempted to justify the 1954 insertion of the words "under God" into the Pledge on the basis of the 2002 "reaffirmation" are evident as well.

The majority argues that "it makes sense that we must examine the purpose of the most recent Congressional enactment" because "[o]therwise, a perfectly valid measure . . . would forever be banned by the politically motivated statements of some legislators." Maj. op. at 3913-14. This argument ignores the actual content and legislative history of both the 1954 enactment of the "under God" amendment and the 2002 reaffirmation of that congressional action. Whether a subsequent Congress could have rehabilitated the "under God" amendment by repudiating the actions of the 1954 lawmakers and then reenacting the amended Pledge for entirely different reasons is not a question presented here: the 2002 Congress did exactly the opposite. The legislation it passed did not purport to do anything more than express disagreement with Newdow I, assert that we misunderstood the meaning of the Establishment Clause, and reaffirm the earlier 1954 congressional action. Neither of the first two pronouncements constituted a lawful exercise of Congress's legislative powers and thus were without legal significance, and the third did not change in any way the facts or law regarding the constitutional question raised by Congress's adoption of the "under God" amendment in 1954, and thus had no effect upon the outcome of this case.

The 2002 Congress simply declared its approval of the 1954 amendment to the Pledge when, in response to Newdow I, it purported to reaffirm the earlier Congress's action, necessarily including the purpose that underlay it. Members of Congress stated their disapproval of Newdow I, in statements on the House and Senate floors and in the text of the reaffirmation itself, insisting that the 1954 law had been constitutionally adopted and applied. See supra Part II.D. Congress did not seek to nullify or change the earlier Congress's original purpose in 1954; at no time did it expressly state that the purpose in 1954 was other than religious, and at no time did it expressly offer any purpose other than religion for its act of affirmation. Certainly, at no point did it suggest that the phrase "under God" was not religious. Rather, what it essentially did was to react, as Congresses have done in the past, to a judicial decision that it did not like by passing legislation or resolutions that attempted to overrule the scope of constitutional protections that the courts had afforded. See City of Boerne v. Flores, 521 U.S. 507 (1997). It did so here by simply setting forth a set of "findings" reporting pre-1954 historical events and a series of judicial decisions, all but one post 1954, in order to explain why our court's interpretation of the Constitution in Newdow I was in error.

In its findings, Congress noted a number of times prior to 1954 that the religious term "God" had been used, such as Jefferson's authoring of "Notes on the State of Virginia" and Lincoln's Gettysburg Address, as well as the resolution calling for the proclamation of Thanksgiving Day. Pub. L. No. 107-293, 116 Stat. 2057, 2057-58 (2002). It then noted judicial decisions it apparently deemed inconsistent with Newdow I, id. at 2058-60, and it ended with its finding that Newdow I was "erroneous," id. at 2060. Somewhere in the recitation of historical facts, the majority purports to discover an "absolutely clear" expression of Congress's secular purposes, maj. op. 3902, and an equally clear statement "that we had misunderstood Congress' purpose in our ruling in Newdow III."51 Id. at 3913. The majority does not identify those "absolutely clear" statements, and for good reason: they do not exist.

Had Congress set forth its "secular reasons . . . directly in the statute," as the majority claims, maj. op. at 3895, one would expect that my colleagues could and would simply quote those reasons directly from the statute. Had Congress made an "absolutely clear" statement of its secular purposes, id. at 3902, one would expect that the majority could and would provide an equally clear explanation of what those purposes were. The majority does neither, as Congress never identified any secular purpose underlying its 1954 adoption of the "under God" amendment or its 2002 reaffirmation of that amendment. Instead, the majority variously states that the 2002 Congress's purpose in reaffirming the inclusion of the phrase "under God" in the Pledge was "to underscore the political philosophy of the Founding Fathers," maj. op. at 3876, "to add [a] note of importance . . . [to the] Pledge," id., "to inspire patriotism," id. at 3877, to "recogni[ze] . . . historical principles of governance," id. at 3889, "to describe an attribute of the Republic," id. at 3891-94, to "reference . . . the historical and religious traditions of our country," id. at 3893, and to "inspir[e] and solemniz[e]," id. at 3914. At no point, however, did Congress say in 2002 that it had any purpose in reaffirming the 1954 amendment to the Pledge other than to reaffirm the 1954 Congress's effort to promote religion, especially in the case of public schoolchildren. To the extent that the majority has inferred any specific reasons from the 2002 Act's descriptions of various historical events, that methodology would provide equal support for the conclusion that Congress's purpose was to promote "the Glory of God and the advancement of the Christian Faith"; to hold "that God is just"; to "declare [ ] . . . [r]eligion . . . necessary to good government and the happiness of mankind"; and to "acknowledg[e] . . . the many signal favors of Almighty God."52

The majority cannot support or even clearly express its claim of a secular congressional purpose because at no point was there any statement, in the 2002 Act or in its findings, that there was any purpose other than religion that motivated the 1954 enactment of the "under God" amendment or the 2002 reaffirmation of that earlier congressional action. The 2002 Congress certainly disagreed with Newdow I, but its disagreement was based on our interpretation of the Establishment Clause. See supra Part II.D. Congress did not object to our decision on the basis that we had misunderstood its purpose; rather, it objected to our conclusion that the purpose we found was constitutionally impermissible. The Supreme Court has clearly and consistently stated that legislation seeking to change a court's constitutional decision exceeds congressional authority; if it did not, "no longer would the Constitution be `superior paramount law, unchangeable by ordinary means.' " Boerne, 521 U.S. at 529 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). Notwithstanding any legislation Congress might choose to enact, "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary." Id. at 524. Accordingly, we are bound to evaluate the "under God" version of the Pledge enacted in 1954, without regard to any view that Congress may have expressed as to its constitutionality in the 2002 reaffirmation or any view it may have expressed regarding any constitutional interpretation that we rendered in Newdow I:

When [a court] has interpreted the Constitution, it
has acted within the province of the Judicial Branch,
which embraces the duty to say what the law is. . . .
When the political branches of the Government act
against the background of a judicial interpretation of
the Constitution already issued, it must be under-
stood that in later cases and controversies the Court
will treat its precedents with the respect due them
under settled principles, including stare decisis, and
contrary expectations must be disappointed.

Id. at 536 (citing Marbury, 5 U.S. at 177).

Under these circumstances, it is difficult to comprehend how any reasonable judge could in good faith suggest that the 2002 recodification, even with its introductory recitation of historical events, provides any basis for disregarding the overwhelmingly predominant religious purpose of the 1954 amendment or substituting in its place some vague and inchoate secular purpose, especially knowing that no lawyer in this case and no judge in any similar case has ever offered so unsupportable a theory. Even were we to consider what the majority appears at times to contend is the additional purpose, "add[ing a] note of importance" to the Pledge, maj. op. at 3876, or any other similar purpose to which it seems at other times to allude, such as proclaiming that ours is a "limited government," any such additional purpose would be of minimal significance in light of the overwhelmingly predominant religious purpose evident from the entire legislative record let alone the plain meaning of the words "under God." The majority's approach is directly contrary to McCreary County v. ACLU of Kentucky, 545 U.S. 844, 871-72 (2005), in which the Supreme Court held that even the repeal of a prior enactment does not "erase[ it] from the record of evidence bearing on current purpose," and that a government action taken without "repeal[ing] or otherwise repudiat[ing]" the previous action carries even less weight.53 The majority defies this binding precedent and seizes upon the 2002 recodification in order to make an "implausible claim that governmental purpose has changed." McCreary, 545 U.S. at 874. That argument "should not carry the day in a court of law any more than in a head with common sense." Id.

The majority's decision not only fails to disappoint the illegitimate expectations of the 2002 Congress, it surely exceeds those lawmakers' highest hopes. It acquiesces completely in the congressional disagreement with the judicial interpretation we previously rendered, accepting the interpretation of constitutional law set forth in the legislative findings to the 2002 reaffirmation. Maj. op. at 3896-3902. It would appear, then, that the majority is no more willing to follow the rule of separation of powers than it is to adhere to the fundamental tenets of the Establishment Clause.

C. The Issue: The Constitutionality of the 1954 Amendment
As Applied

"It cannot be the case that Congress may override a constitutional decision by simply rewriting the history upon which it is based." United States v. Enas, 255 F.3d 662, 675 (9th Cir. 2001) (en banc). Nor can a court reach a constitutional conclusion by rewriting the history of the government's actions, or by selectively declaring some of those actions obsolete, as today's majority does. Rather, it is the judiciary's responsibility to undertake an independent examination of both the historical facts and the law, and, ultimately, "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).

Because the 2002 legislation made no effort to modify the wording of the amended Pledge, did not seek to change or disavow the purpose for which the words "under God" were inserted into the previously non-sectarian Pledge, and could not erase the legislative history underlying the 1954 amendment even if Congress so wished, the 2002 reaffirmation could, even under the majority's interpretation, constitute nothing more than an ineffective effort by Congress to overrule a judicial interpretation of the Constitution. The majority therefore does a disservice to the Constitution and the judiciary by purporting to rely on that Act to justify its position regarding the "under God" amendment. We must look to the Pledge as it was amended in 1954 and to the purpose for which that amendment was made. That has, correctly, been the view of our court and all other courts hearing Establishment Clause challenges involving the Pledge; it is the view of the parties to this action, of the intervenors, and of the amici; and it appeared to be the view of the two members of the majority until sometime after oral argument, when my colleagues must have thought that they had discovered, albeit belatedly, an argument that no one else had previously deemed worthy of consideration or had even mentioned " an argument that they hoped might somehow support the result that they desired to reach but could not otherwise attain. My colleagues would have far better performed their duty had they taken their chances and left it to the Supreme Court to revise the law governing the question now before us. For it is only if the Supreme Court were to decide to change its view of the Establishment Clause and overrule the precedent that now binds us, that the state-directed, teacher-led, daily recitation of the Pledge with the words "under God" included could be held to be in compliance with the Constitution.

IV. Establishment Clause Tests

I now turn to the real issue in this case: Does the Establishment Clause, as it has been construed by the Supreme Court, preclude the state-directed, teacher-led, daily recitation of the version of the Pledge, as amended by Congress in 1954, in public schools? The answer is crystal clear. Today's majority not only ignores the historical record and the plain meaning of the words contained in the amendment to the Pledge; it also distorts " when it does not ignore " the applicable Supreme Court doctrine governing the constitutional issues before us. Although the Court's Establishment Clause jurisprudence is often derided as inconsistent,54 the challenges in applying the governing precedents ought not be treated as a license to disregard or rewrite the law that binds us, especially where those precedents unambiguously require a holding contrary to that which a majority of a panel of this court may desire to reach. The Supreme Court's decisions do not merely provide "constitutional `signpost[s],' to be followed or ignored in a particular case as our predilections may dictate." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring in the judgment) (internal citation omitted). Rather, as members of an intermediate appellate court, our duty when existing doctrine clearly governs a case is to apply the law as it is written; "only [the Supreme] Court may overrule one of its precedents." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam).55

In the context of the Establishment Clause, circuit courts and scholars have recognized three separate "tests" that control our analysis: the Lemon test, the endorsement test, and the coercion test. See, e.g., Borden v. Sch. Dist. of E. Brunswick, 523 F.3d 153, 175 (3d Cir. 2008); Mellen v. Bunting, 327 F.3d 355, 370-71 (4th Cir. 2003); DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 410-16 (2d Cir 2001); Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 468 (5th Cir. 2001). There is no need to evaluate the relative merits of the various tests. As the majority acknowledges, the law is clear that each is binding and that the failure to satisfy any one is fatal. See, e.g., Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 818 (5th Cir. 1999), aff'd 530 U.S. 290 (2000) (applying the tests independently); accord Newdow III, 328 F.3d at 487 ("We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them."), rev'd on other grounds sub nom. Elk Grove, 542 U.S. 1 (2004). Here, the choice of test matters little, as the state-directed, teacher-led recitation of the "under God" version of the Pledge clearly fails to meet the constitutional standards under each of the tests, and thus is thrice unconstitutional.

A. The Lemon Test and the "Under God" Amendment

Despite repeated criticisms from various flanks, "[t]he Lemon test remains the benchmark to gauge whether a particular government activity violates the Establishment Clause." Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036, 1042 (9th Cir. 2007). The Supreme Court applied the Lemon test in its most recent Establishment Clause case, see McCreary County v. ACLU of Ky., 545 U.S. 844, 859-67 (2005), as well as its most recent Establishment Clause case involving public schools, see Santa Fe, 530 U.S. at 314. It has "particularly relied on Lemon in . . . case[s] involving the sensitive relationship between government and religion in the education of our children." Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 383 (1985). Indeed, with the exception of Lee v. Weisman, 505 U.S. 577 (1992), see infra Part IV.C, "[i]n no case involving religious activities in public schools has the Court failed to apply vigorously the Lemon factors." Lee, 505 U.S. at 603 n.4 (Blackmun, J., concurring).56

The test itself is well-established: "First, the statute [or practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute [or practice] must not foster `an excessive entanglement with religion.' " Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (internal citation omitted) (emphases added) (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). The secular purpose must predominate; it cannot be "merely secondary to a religious objective." McCreary, 545 U.S. at 864. Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice. Particularly relevant to this case, a finding that a challenged statute or practice had a predominantly religious purpose "make[s] it unnecessary, and indeed inappropriate, to evaluate [its] practical significance." Wallace, 472 U.S. at 61. Thus, "[i]f the law was enacted for the purpose of endorsing religion `no consideration of the second or third criteria [of Lemon] is necessary.' " Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (second alteration in original) (quoting Wallace, 472 U.S. at 56)). Simply put, if the purpose of the statute or practice "is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution." Abington, 374 U.S. at 222.

The majority does not disagree that Lemon is the law of the land, nor does it dispute that a statute or state-sponsored practice that has a predominantly religious purpose necessarily violates the Establishment Clause. Rather, the fundamental error the majority makes that permeates its entire analysis is that it fails to comprehend that the Lemon test must be applied to the 1954 amendment that adds "under God" to the Pledge and not to the Pledge in its entirety. The majority's attempt to ignore the amendment and instead base its analysis on "the Pledge as a whole," maj. op. at 3876, is contrary to the legal principles that bind us for two reasons: First and foremost, the Supreme Court has determined how statutes amending provisions similar to the one before us shall be examined under Lemon and we are obligated to follow its holding. Second, it is the words "under God" contained in the amendment that Jan Roe and her daughter challenge. They raise no question as to the constitutionality of the state-directed recitation of the Pledge as it existed prior to the 1954 amendment, or as it would exist today if the two offending words were stricken; it is only the addition of the religious phrase that they contest. Yet, as evidenced by its deliberate decision not to discuss or even to acknowledge the explicitly religious legislative history of the "under God" amendment to the Pledge, the majority simply refuses to examine the legislative enactment that
was zealously supported and unanimously adopted by 531 Senators and Representatives, signed by the President of the United States, celebrated with the most bellicose and divisive of all religious hymns on the steps of the Capitol, and endorsed by forty-three state legislatures. Instead, my colleagues contend that our analysis should examine "the entire wording of the Pledge as a whole," id. at 3886 n.9 (emphasis added), i.e., the Pledge as it exists today, disregarding the fact that it is only the application of the amendment that is challenged as unconstitutional.

Although the majority's willful blindness toward the exis-
tence and text of the amendment to the Pledge may be a nec-
essary precondition to its reaching its desired outcome in this
case, its refusal to follow controlling Supreme Court prece-
dent reflects remarkable disdain for the law. The Supreme
Court has explicitly held in a case that is indistinguishable
from the one before us that our inquiry must center on the
amendment and not the provision as a whole " in this case
on the specific words Congress enacted in 1954 and inserted
into the Pledge of Allegiance: "under God." In Wallace v. Jaf-
free, a secular and otherwise constitutional statute providing
for a moment of silence in public schools was amended so as
to add an explicitly religious provision stating that the
moment of silence could be employed for prayer. The
Supreme Court struck down that legislative amendment as
violative of the Establishment Clause because of the "textual
differences" introduced by the amendment: "The addition of
[the words] `or voluntary prayer' indicates that the State
intended to characterize prayer as a favored practice." Wal-
lace, 472 U.S. at 60. The majority seeks to evade its obliga-
tion to follow that binding precedent, but it is not free to set
aside, overrule, or ignore it, or to avoid the conclusion that
such binding precedent compels.

If the majority followed the Court's opinion in Wallace, as it is bound to do, it would be required to recognize that the previously secular Pledge of Allegiance was amended with the express purpose of promoting a state-sponsored belief in God and of indoctrinating schoolchildren with that belief. The only permissible conclusion my two colleagues could reach after acknowledging that fact would be that the amendment that results in the state-directed, teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools is, at the least, unconstitutional as applied.

1.

There is no escaping the fact that our decision today is con-
trolled by the Supreme Court's directly on-point analysis in
Wallace v. Jaffree, 472 U.S. 38 (1985). The case is what law
students and their professors used to call a "spotted cow."57
The majority goes through numerous contortions in an effort
to escape the unavoidable conclusion reached by Chief Justice
Burger in dissent: Wallace "render[s] the Pledge unconstitu-
tional." Id. at 88 (Burger, C.J., dissenting).58 These contor-
tions, however, cannot hide the fact that two judges of our
circuit are simply disregarding binding Supreme Court law.

In Wallace, the state of Alabama amended a statute that called for a moment of silence at the beginning of each school day by adding language clarifying that the moment of silence could be used for "voluntary prayer." See Wallace, 472 U.S. at 40 n.2. Unlike here, there was no practical difference in Wallace between the original statute and the revised version that incorporated the amendment; in fact, the Court did not question that under the original statute students could voluntarily pray during mandatory moments of silence if they so desired. Cf. id. at 59; id. at 72-74 (O'Connor, J., concurring in the judgment); id. at 85 (Burger, C.J., dissenting). Still, the Court struck down the statute containing the clarifying "voluntary prayer" amendment as an unconstitutional establishment of religion, reasoning that the "textual differences" between the original and the revised statute conclusively established the religious purpose of the later enactment. Id. at 58 (majority opinion). Laying the two statutes side by side, the Court noted that "[w]hen the differences between [the revised statute] and its . . . predecessor [were] examined," id., it was readily apparent that the amendment "had no secular purpose,"id. at 56. As the Court explained:

[T]he only significant textual difference is the addi-
tion of the words `or voluntary prayer.' . . . Appel-
lants have not identified any secular purpose that
was not fully served by [the law] before the enact-
ment of [the amendment]. Thus, only two conclu-
sions are consistent with the text of the [new law]:
(1) the statute was enacted to convey a message of
state endorsement and promotion of [religion]; or (2)
the statute was enacted for no purpose. No one sug-
gests that the statute was nothing but a meaningless
or irrational act.

Id. at 59 (emphasis added).

In reaffirming Wallace, the Supreme Court has held that "[t]he plain meaning of [a] statute's words . . . can control the determination of legislative purpose." Edwards, 482 U.S. at 594. Here, as in Wallace, it does. The only two operative words the amendment contains, the only two words it added to the Pledge, are the words "under God." The Pledge remains exactly the same except for the insertion of the two new words. Only the most extreme sophistry could permit a reading of those words, "under God," that carries anything but a predominantly religious meaning and a predominantly religious purpose.

To be precise, the ordinary and plain meaning of the word "God" is undeniably religious.59 So it was in the beginning, is now, and ever shall be. Even the majority concedes that examining the words "under God" in isolation would reveal a meaning that "could not be anything but religious." Maj. op. at 3903. Yet despite acknowledging that the purpose inquiry requires us to examine "the plain meaning of the statute's words," id. at 3894, the majority purports somewhat incoherently to examine "Congress' reasons for `the plain meaning of the statute's words,' " id. (emphasis added), and to find in the context of the religious phrase a meaning directly opposite to its plain meaning. In so doing, the majority declines to apply the meaning of the words themselves, but instead substitutes a statutory purpose of its own making.

The majority asserts that although "the words `under God' have religious significance," maj. op. at 3890, the phrase "under God" in the Pledge conveys nothing more than the secular principle that "our nation is founded upon the concept of a limited government," id. at 3909, an odd proposition that occurred to none of the authors or supporters of the amendment. Indeed, a simple reading of the legislative history, and specifically the Congressional Record pertaining to the 1954 amendment, would make it clear to any reasonable person, even to one who could not grasp the plain meaning of the words "under God," that the phrase as used in the amendment is a religious phrase deliberately inserted in the Pledge of Allegiance by Congress for a religious purpose. The congressional authors and supporters of the amendment did not conceal their purpose; they proclaimed it proudly. Congress unequivocally professed its desire to promote religion and faith in a Supreme Being; it did not even hint at the idea that the amendment was intended to proclaim that this country had a government of limited powers.

The majority's concession that "under God" is in fact a religious phrase simply highlights the absurdity of its argument that, when added to the Pledge, the phrase suddenly became a reference to "limited government." Id. at 3909. Nothing in the plain meaning of the words "under God," the legislative history of the statutory amendment, or the history of the events leading up to its adoption in any way suggests any such meaning. With all due respect to my colleagues, their "limited government" argument is pure poppycock, fabricated by the members of the majority in order to obfuscate the issues before us and supported by neither the words of the amendment nor the purpose expressed by Congress. Whether added to the Pledge, inserted into a high school civics textbook, or used in any other manner, the religious phrase "under God" sets forth the proposition, not that our government is one of limited powers, but that our country is subordinate to the deity that rules over us " as in "Lord, our God, ruler of the universe."60 The majority's hapless attempt to give the phrase "under God" a predominantly secular construction serves only to underscore the fact that no relevant distinction between Wallace and this case can be drawn, and that the majority's determination to reach the result it does knows no intellectual bounds.

As in Wallace, once the original statute and its amendment are compared, or as that case puts it, laid side by side, the amendment's religious purpose must become clear even to the members of the majority. In Wallace, Justice O'Connor found it particularly "notable that Alabama already had a moment of silence statute before it enacted" its amendment adding the words "voluntary prayer." Wallace, 472 U.S. at 77 (O'Connor, J., concurring in the judgment). So too, here, the United States already had a patriotic Pledge of Allegiance before Congress added the words "under God" to it in 1954. Indeed, it is hard to "identif[y] any secular purpose that was not fully served by" the original Pledge "before the enactment of" its amendment. Id. at 59 (majority opinion) (emphasis added). The majority contends that the original Pledge did not adequately express the secular notion of "limited government," but, as I have already pointed out, it is sheer sophistry to suggest that the words "one nation under God" somehow mean a nation with a "limited government," rather than a nation subordinate to a higher religious being, or that the words "under God" were added to the Pledge for some other secular purpose. Certainly none of the amendment's sponsors or supporters ever expressed so extraordinary an idea; indeed, they made it clear that their purpose was quite the opposite "to proclaim our nation's dedication to the Almighty." See infra Part IV.A.2.

The majority also suggests that the amendment to the Pledge advances the secular purpose of steeling Americans' hearts and minds against Communism. But, again, it is difficult to see how this secular purpose "was not fully served" by the original Pledge, Wallace, 472 U.S. at 59, which, like the current Pledge, emphatically began with the words, "I pledge allegiance to the flag of the United States of America." In the midst of the Cold War, could there possibly have been a more forceful renunciation of the foreign doctrine of Communism? The man who wrote the Pledge certainly did not think so. In the 1920s, Francis Bellamy, who at that time was very "preoccup[ied] with subversives and radicals" in America, "especially German Americans . . . Communists, `Bolshevists,' and anarchists," wrote a manifesto that "spelled out his vision of how the Pledge of Allegiance" " that is, the original Pledge of Allegiance, without the words "under God", "could be used to promote patriotism and ward off un-Americanism." ELLIS, supra note 5, at 68-71 (emphasis added). Bellamy's understanding of the words that he authored confirms the obvious: a pledge of allegiance to a national flag is, by definition, supremely patriotic. Except in theocracies, such a pledge does not become more patriotic by amending it to include a personal affirmation of belief in God.61

As the dissenting Chief Justice in Wallace stated, the court's opinion in that case "render[s] the [amended] Pledge unconstitutional . . . . That [must] be the consequence of [its] method of focusing on the difference between [the current statute] and its predecessor statute . . . ." Wallace, 472 U.S. at 88 (Burger, C.J., dissenting). Chief Justice Burger was correct, at least to the extent that public schoolchildren may not be subjected to the daily state-directed, teacher-led recitation of the version of the Pledge that includes the words "under God" as added by the statutory amendment. Rather, when the Pledge is recited by schoolchildren in such circumstances, it must be the traditional, purely patriotic version that they recited for decades prior to the enactment of the 1954 religious amendment.

The majority, however, seeks to avoid Wallace's dispositive effect, employing three different tactics in its effort to escape the necessary consequence of its reasoning and holding. First, the majority argues that the plaintiffs here lack the standing to challenge the 1954 amendment that added "under God" to the Pledge. Maj. op. at 3880-81. Second, it implies that Wallace has been effectively overruled. Id. at 3887-92. Finally, it purports to apply Wallace without ever actually applying its reasoning or holding. Id. at 3892-93. Each of these tactics is more contorted than the one that precedes it, and none even colorably provides any basis for freeing the majority from its obligation to follow binding Supreme Court law.

The majority's first attempt to avoid the result compelled
by Wallace is simply a diversion. The majority haplessly
argues that Jan Roe and her daughter lack the standing to
challenge the 1954 amendment "because nothing in the
Pledge actually requires anyone to recite it," and therefore
plaintiffs cannot show that its wording "causes them to suffer
any concrete and particularized injury." Maj. op. at 3881.62
The majority repeatedly emphasizes that no direct challenge
to the wording of the Pledge is before us on appeal, and
explains that "[o]nly California Education Code " 52720 and
the School District's Policy are at issue in this case." Id. at
3880. How, then, does the majority manage to "hold that the
Pledge of Allegiance does not violate the Establishment
Clause"? Id. at 3877 (emphasis added). Has the majority
admitted to rendering an unconstitutional advisory opinion?

The answer, of course, is that the plaintiffs have challenged the "under God" version of the Pledge as applied to them through the School District's policy. Accord maj. op. at 3884 ("Because the School District's Policy states that recitation of the Pledge will fulfill the policy, we also examine the Pledge itself."). Accordingly, all of the effort the majority expends discussing the Roes' standing with respect to the 1954 amendment is entirely beside the point. No one disputes that Jan Roe and her daughter do have standing to challenge the application to them of the amendment at issue: the state-directed, teacher-led, daily recitation of the religious version of the Pledge in California's public schools. "The Supreme Court has repeatedly found federal jurisdiction for challenges to the activities of state agencies administering federal programs . . . . It has not mattered a jurisdictional whit that the agency was enforcing federal statutes, as well as pursuing state ends."63 Green v. Dumke, 480 F.2d 624, 628 (9th Cir. 1973) (citing cases). Here, Congress explicitly intended the "under God" version of the Pledge of Allegiance to be employed as a tool of religious indoctrination by state employees in state institutions " i.e., public school teachers in public schools. In so doing, it embarked on "a federal-state cooperative venture," id.; see also id. at n.6, a venture that when carried out every morning in Roe's daughter's classroom creates precisely the constitutional injury Roe and her daughter allege. The majority's confused and internally inconsistent discussion of standing thus at best misperceives the nature of the inquiry before us. At worst, it is a deliberate attempt to obfuscate the fact that Wallace squarely controls the merits of this case.

Before embarking on its second effort to avoid Wallace, the majority notes that the Wallace Court found evidence of an impermissible religious purpose not only in the "textual difference" between the original statute and the subsequent amendment, but also in the legislative history of the amendment; the amendment sponsor's testimony in district court; the court documents filed by the governor who signed the amendment into law; and a prayer statute passed one year after the amendment's adoption. Maj. op. at 3886. One might expect, based on this explanation of Wallace, that the majority would go on to examine not only the textual difference between the 1954 amendment and the original Pledge statute, but also the legislative history of the 1954 amendment; the public comments of Representative Rabaut, the amendment's sponsor, and the statements of President Eisenhower, who signed the amendment into law; as well as the other religiously-motivated laws passed within two years of the amendment's adoption. See infra Part IV.A.2; see also supra Parts III.B-C. Each of those sources compels the same conclusion: the 1954 Congress added "under God" to the Pledge for an overwhelmingly religious purpose. None of these sources, however, is examined by the majority.

Unwilling to reach the result that Wallace would dictate, the majority, after ignoring the sources of information that Wallace identified as relevant, goes even further. It abandons its acknowledgment that Wallace requires an examination of the two words introduced by the Pledge amendment, and reverts to its original claim that we must "examine the Pledge as a whole." Maj. op. at 3886. Although the majority does not provide a coherent explanation for its abrupt change in course, it appears to contend that Wallace has been tacitly overruled by later Supreme Court decisions. Specifically, the majority appears to assert that more recent Supreme Court cases have made "context" the touchstone of the Lemon analysis and that "context" now refers solely to the objects or words immediately surrounding the religious item or phrase being challenged " here, the twenty-nine other words in the Pledge of Allegiance surrounding the words "under God." In short, the majority's statement that the issue is the constitutionality of the Pledge as a whole, rather than the constitutionality of the amendment, is directly contrary to Wallace.

As an initial matter, I note that it is the Supreme Court's "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). My colleagues have no authority to "conclude [that the Supreme Court's] more recent cases have, by implication, overruled an earlier precedent." Agostini v. Felton, 521 U.S. 203, 237 (1997). To the contrary, "the Court of Appeals on its own authority should [not] take[ ] the step of renouncing" Supreme Court decisions; "[i]f a precedent of th[e Supreme] Court has direct application in a case . . . the Court of Appeals should follow the case which directly controls," even if it believes, mistakenly or otherwise, that the controlling Supreme Court authority "appears to rest on reasons rejected in some other line of decisions."64 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Here, far from being implicitly "rejected in some other line of decisions," Wallace's reasoning and holding as to how to evaluate, for Establishment Clause purposes, an amendment to a statute, has been consistently and repeatedly reaffirmed by the Supreme Court in the intervening decades since it was decided.65 So, disregarding all those cases, my colleagues simply proceed with their untenable argument in derogation of another set of controlling Supreme Court decisions.

In suggesting, probably out of a feeling of necessity, that Wallace has been overruled by some new definition of "context," my colleagues do not rely on a majority opinion from the Supreme Court, or even on an opinion by a minority composed of one or more justices, involving an amendment to a statute. Rather, they rely on Justice Breyer's one-judge opinion concurring in the judgment in Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring in the judgment), relating to an entirely different matter. Maj. op. at 3891, 3893. In Van Orden, Justice Breyer analyzed the constitutionality of the placement of a monument of the Ten Commandments on government property and considered a number of factors, such as its relationship to other monuments on the same property. However, that case is in no way relevant to the question presented in Wallace or to the case presently before us. Justice Breyer's concurrence did not relate to the interpretation of a statute and certainly not to how courts should determine the purpose and intent of amendments to statutory provisions, which, of course, was the question in Wallace and is the question here. Indeed, given that hanging copies of the Ten Commandments in public-school classrooms indisputably violates the Constitution, see Stone v. Graham, 449 U.S. 39 (1980) (per curiam), it is clear that Justice Breyer's concurrence in Van Orden regarding the placement of a monument containing those commandments on the grounds of the Texas State Capitol has no bearing whatsoever on the state-directed, teacher-led daily recitation of the religious version of the
Pledge in public schools. Moreover, this court has already held in Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir. 2008), that Van Orden must be limited to facts "closely analogous" to the placement of monuments on public land. Not only are the facts in Van Orden wholly unlike the facts in the case before us, but the legal questions involved are far different. Thus, the factors to which we look in our consideration of context must, as our court has already held, id., necessarily be considerably different.

Under the majority's new constitutional definition of "context," the government may undertake any religious act so long as the preexisting nonreligious acts that are somehow related to the new act remain in effect. This approach is entirely inconsistent with common sense as well as with Establishment Clause jurisprudence.66 For example, if Congress decided to carve the face of Jesus onto Mount Rushmore, that act would certainly be unconstitutional despite the presence on that Mount of four nonreligious faces. It is the religious nature of the governmental action, not the previously secular context within which that action is placed, that determines the constitutionality of such a change. Under the majority's reasoning, it would be of no consequence whether Congress had inserted the words "under God," or the words "under Jesus," or "under the Father, the Son, and the Holy Ghost" into the Pledge of Allegiance, given the Pledge's otherwise secular or patriotic context. The Pledge is a patriotic not a religious exercise, the majority tells us, and therefore a religious message may be inserted. Yet surely, not even the majority would hold that the insertion of the two additional religious phrases set forth above would be consistent with the Establishment Clause.

Finally, after spending eight pages attempting to replace Wallace's reasoning with its new definition of "context," and a total of twenty-nine pages arguing that we must examine the Pledge "as a whole," the majority ultimately purports to acknowledge that it must apply Wallace to the "under God" amendment itself " an effort to which it devotes a mere two sentences. Maj. op at 3893-94. One "who has a good conscience doesn't walk so fast."67 Indeed, the only two sentences in which the majority explains how Wallace applies to this case are rife with error and without legal support:68

Focusing, as we must, on how the text of the statute
is used, Van Orden, 545 U.S. at 701 (Breyer, J. con-
curring), we see that the addition of "or voluntary
prayer" to the statute in Wallace was used to encour-
age students to participate in a religious exercise "
the very prayer enacted [one year later]. Here, the
addition of "under God" was used to describe an
attribute of the Republic, "one Nation under God" "
a reference to the historical and religious traditions
of our country, not a personal affirmation through
prayer or invocation that the speaker believes in
God.

Id. In the end, the majority's "analysis" consists only of a
conclusion announced ex cathedra.

In sum, the majority fails in its duty to follow Wallace; it cannot declare the case overruled or replace the Court's reasoning with its own contrary rationale. Under Wallace, the majority is required to examine, rather than ignore, the text of the amendment. An examination of that text and the plain meaning of its words clearly reveals the explicitly religious purpose motivating the amendment to the Pledge. The words "under God" are undeniably religious, and the addition to the Pledge of Allegiance of words with so plain a religious meaning cannot be said, simply because it might assist the majority in obtaining its objective, to be for a purpose that is predominantly secular. The words certainly were not inserted for the purpose of "reinforc[ing] the idea that our nation is founded upon the concept of a limited government." Maj. op. at 3909. As I have stated earlier in this dissent and as I reiterate here, the suggestion by the majority that the purpose of inserting the phrase "under God" into the Pledge was to remind us that we have a "limited government" finds no support in the record and is wholly without merit.

Wallace explicitly requires us to compare the original statute to the amended form and to examine what the amendment has added. Where the addition is religious, the addition must be invalidated. Here, Wallace unquestionably requires us to strike down as unconstitutional the state-directed, teacher-led daily recitation of the "under God" language in the Pledge of Allegiance in the public schools. Omitting the two words added by the 1954 amendment and returning to the recitation of the secular version of the Pledge that was used in public schools for decades prior to the adoption of the amendment would cure the violation of the Establishment Clause at issue here.

2.

As I have explained above, the majority, in determining the purpose of the amendment, refuses to give the words "under God" their plain meaning, as required by Wallace, 472 U.S. at 58, by Edwards, 482 U.S. at 594, and by McCreary, 545 U.S. at 862, and indeed by elementary principles of statutory interpretation. As I have also explained, the majority has refused to follow controlling Supreme Court law with respect to examining the "context" of the amendment. Compare Wallace, 472 U.S. at 58-61 with maj. op. at 3886-92. In addition, the majority's treatment of legislative history, which would alone be dispositive of the constitutionality of the "under God" amendment as applied, is even more startling, and is at least as defiant of binding precedent. Fully cognizant of the damning evidence contained in the pages of the Congressional Record and of the conclusion that the evidence compels, the majority boldly asserts that we are legally prohibited from so much as considering the numerous, indeed unanimous, proreligion statements offered by every senator and representative who spoke on the subject of including the words "under God" in the Pledge of Allegiance. Maj. op. at 3895, 3912. All who spoke, as noted earlier, favored the insertion of the words and none opposed the proposal. The majority cites McCreary, 545 U.S. at 867-68, for the proposition that we may not consider "the statement of one or more individual members of Congress, but [only] what the committees putting forth the amendment actually stated."69 Maj. op. at 3912. Nothing in McCreary remotely supports that assertion. What that binding Supreme Court precedent does state is that we must "rel[y] on a statute's text and the detailed public comments of its sponsor[s], when we [examine] the purpose of a state law" challenged on Establishment Clause grounds.70 McCreary, 545 U.S. at 862 (emphasis added) (citing Edwards, 482 U.S. at 586-88). I agree with the majority that "[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it." Maj. op. at 3911 n.27 (quoting United States v. O'Brien, 391 U.S. 367, 384 (1968)). However, the Supreme Court has stated that in the ordinary course of determining "the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature."71 O'Brien, 391 U.S. at 383 (emphasis added). Accordingly, when not only one legislator makes a speech expressing an explicitly religious purpose for enacting a law but "scores of others" unanimously, vociferously and zealously echo that very same purpose, we are not permitted to ignore such powerful evidence of legislative intent. When "openly available data support[ ] a commonsense conclusion that a religious objective permeated the government's action," McCreary, 545 U.S. at 863, the congressional purpose may be said to be undeniably religious.

Were the majority willing to follow controlling Supreme Court precedent and to acknowledge the legislative history of the Pledge that is detailed in this opinion, it could not deny that the history uniformly and overwhelmingly demonstrates a predominant religious purpose for the 1954 amendment. Here, the legislative history shows lockstep unanimity " each and every senator and representative to comment on the addition of the words "under God" to the Pledge unequivocally and zealously proclaimed religious motivations for his actions. See supra Part II. The unanimous, uncontradicted words of our legislators are clear: "under God" was inserted in the Pledge to further the religious views and principles of millions of Americans, to reinforce their belief that God exists and to promote faith in his Being, indeed to reflect that we are subordinate to his Will. To those citizens who might be in doubt, the words were intended to let them know that such were the views and principles of all "true Americans," to indoctrinate them firmly in those American beliefs, and to try to resolve the doubts they might possess. Most pertinent here, the words were inserted in the Pledge so that schoolchildren throughout the land would repeat them daily and become imbued with the religious concepts that guided the authors and sponsors of the amendment, the other members of Congress, and the President of the United States. As Senator Wiley proclaimed, the lawmakers believed that there could be no "better training for our youngsters . . . than to have them, each time they pledge allegiance to Old Glory, reassert their belief, like that of their fathers and their fathers before them, in the all-present, all-knowing, all-seeing, all-powerful Creator." 100 Cong. Rec. 5915. Accordingly, as President Eisenhower declared when he signed the Pledge amendment into law, the lawmakers intended that "[f]rom [that] day forward, the millions of our school children [would] daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty." Id. at 8618.

Indeed, when the drafters of the enactment offered a legal justification in defense of that statute's validity under the First Amendment, they did not deny that the amendment was religious in nature, but simply contended that the religious act on the part of the government was not prohibited by the Establishment Clause. Specifically, the Senate Report asserts:

Adoption of the resolution would in no way run con-
trary to the provisions of the first amendment to the
Constitution. This is not an act establishing a reli-
gion. A distinction exists between the church as an
institution and a belief in the sovereignty of God.
The phrase "under God" recognizes only the guid-
ance of God in our national affairs . . . . Neither will
this resolution violate the right of any person to dis-
believe in God or reject the existence of God. The
recognition of God in the pledge of allegiance to the
flag of our Nation does not compel any individual to
make a positive affirmation in the existence of God
in whom one does not believe.72

As any law student will quickly recognize, both of the justifications put forward in the Senate Report declaring the enactment constitutional have since that time been flatly rejected by the Supreme Court: It is indisputable that the First Amendment prevents more than simply the establishment of a statesponsored "Church as an institution" and that the Bill of Rights' protections extend beyond those instances in which the government actually "compels an individual to make a positive affirmation" of a religious belief. See, e.g., Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947); Abington, 374 U.S. at 233 (Brennan, J., concurring)("[N]othing in the text of the Establishment Clause supports the view that the prevention of the setting up of an official church was meant to be the full extent of the prohibitions against official involvements in religion."); see also Engel v. Vitale, 370 U.S. 421, 430 (1962) ("The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated . . . whether . . . laws operate directly to coerce nonobserving individuals or not."). Moreover, when we consider, as we do here, the application of the amendment to the state-directed, teacher-led, daily recitation of the amended Pledge in public schools, it is clear that the plaintiff and other like-minded children are compelled "to make a positive affirmation in the existence of God in whom [they do] not believe," or to become "outsiders, not full members of the . . . community."73 Either way, they are deprived of their constitutional rights. See infra Part III.C. When the unconstitutional rationales for Congress's enactment are stripped away, nothing remains, and the explanation in the Senate Report as to why including the religious phrase "under God" in the Pledge is constitutional is shown to be without legal foundation.74

Finally, to the extent that "the circumstances surrounding [the] enactment," Santa Fe, 530 U.S. at 315, are relevant here, the circumstances further support the obvious conclusion that the words "under God" exist in the Pledge to serve an overwhelmingly religious purpose. For starters, we have an enactment that was literally drafted in the pulpit: As the primary legislative sponsors of the 1954 Act all proudly proclaimed, Reverend Docherty "put God in [the] Pledge."75 There can be no denying the tremendous impact of the Reverend who declared "theological war . . . against modern, secularized, godless humanity", a war that Congress adopted as its own when it rewrote the Pledge of Allegiance. The majority dismisses the impact Docherty had on his powerful congregation, which included the man who wrote the primary "under God" bill as well as the President who signed it " because "Reverend Docherty was never elected to office." Maj. op. at 3911 n.27. He was never elected, but Congress enthusiastically endorsed his proposal and wrote it into law, telling the nation plainly and clearly that it was his, and why it was adopting it. Moreover, in directing us to look at the "circumstances surrounding" a statute's enactment, Santa Fe, 530 U.S. at 315 (emphasis added), the Supreme Court tells us not to limit our inquiry to the motivations of the elected officials who actually enacted the statute. Nor are we supposed to ignore the socio-political climate of the time: During the two years surrounding the adoption of the revised version of the Pledge, Congress passed a law adding the words "In God We Trust" to all paper money, replaced "E Pluribus Unum" with "In God We Trust" as the national motto, mandated an annual National Day of Prayer that continues to this day,76 constructed a prayer room onsite at the Capitol building, and entertained, though it ultimately rejected, a constitutional amendment that read: "This nation devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of Nations, through whom are bestowed the blessings of Almighty God." See ELLIS, supra note 5, at 126. In this historical context, "[i]nserting the words `under God' into the Pledge of Allegiance . . . must be understood as only one of many actions taken in the early years of the Eisenhower presidency that were designed to inject religious faith into public life." Id. at 126-27. The public recognized this reality far more clearly than do my two colleagues in the majority: Thousands of citizens wrote to their congressmen expressing their view that the new version of the Pledge "reflected a spiritual awakening in our country." 100 Cong. Rec. 7761.77

In sum, even aside from the plain meaning of the words "under God" and the context in which we are required to examine them, the legislative history of the amendment to the Pledge and the surrounding circumstances provide overwhelming evidence that the state-directed, teacher-led, daily recitation of its religious version in public schools cannot possibly pass muster under any sound application of the Lemon test. The unanimous statements made by every legislator to speak in the House and Senate and included in the official legislative reports unabashedly announced that the purpose of including the words "under God" in the Pledge was to "acknowledge the dependence of our people and our Government upon the moral directions of the Creator." See H.R. Rep. No. 83-1693, at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. In light of the clear and open declaration of purpose, there can be no denying that "the enactment exceeds the scope of legislative power as circumscribed by the Constitution," Abington, 374 U.S. at 222, or at the least does so when and as it is applied to state-directed, teacher-led, daily recitation of the amended Pledge in public schools.

3.

The majority argues that the purpose of the amendment of the Pledge of Allegiance in 1954 was not predominantly religious because the words "under God" are simply a reference to the limited powers of our national government. That is, of course, an argument dreamt up by my colleagues that can nowhere be found in the Congressional Record. In addition, my colleagues have apparently forgotten that it is the Constitution that sets forth the limitations on government power, not, as far as our laws are concerned, God. The limitations on the power of our government are found in the Ninth and Tenth Amendments, which reserve certain powers to the states and reserve all other powers not granted to the federal government to "We the People." See U.S. CONST. pmbl., art. I "" 8, 9, amends. IX, X. The Bill of Rights also limits the actions the government may take. There is, however, no mention of God in the Constitution, nor of the theory that the government has limited powers because it is "under God." Indeed, the words "limited government," as the majority uses them, appear to constitute an assertion that God granted certain rights to the people and limited the rights that government could possess. Maj. op. at 3904-05. Right or wrong, this is in itself an expression of a religious viewpoint, perhaps one with which most people might agree, but an expression that nevertheless would not further the majority's argument that the purpose of adding "under God" to the Pledge was secular and not religious.

The "omission of a reference to the Deity [from the Constitution] was not inadvertent; nor did it remain unnoticed." Leo Pfeffer, The Deity in American Constitutional History, 23 J. CHURCH & STATE 215, 217 (1981). Although many early Americans strenuously opposed the Framers' commitment to secularism and their decision to break with tradition by omitting God from the text of the Constitution, "[t]he advocates of the secular state won, and it is their Constitution we revere today." ISAAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION 28 (2d ed. 1997).78 The decision by the Founding Fathers cannot be reversed, nor the structure of the Constitution changed, as the majority suggests Congress did by inserting two words into the Pledge of Allegiance. Nor, certainly, was that the intent of Congress when it sought to promote a belief in God by making that belief a part of the Pledge.

The majority's contrived efforts to distort both history and binding Supreme Court law are inconsistent with our duty as judges, as defined by the Court. "[I]t is . . . the duty of the courts to `distinguis[h] a sham secular purpose from a sincere one.' " Santa Fe, 530 U.S. at 308 (second alteration in original) (quoting Wallace, 472 U.S. at 75 (O'Connor, J., concurring in the judgment)). This duty necessarily bars the courts themselves from superimposing a sham secular purpose onto an explicitly religious statute, as the majority does today.79 Twenty years ago, Justice O'Connor declared that she had "little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one." Wallace, 472 U.S. at 75 (O'Connor, J., concurring in the judgment). Little did she anticipate that it would be a court that would create the sham secular purpose. The majority opinion demonstrates either that Justice O'Connor's confidence in the ability of the courts to distinguish a religious from a secular purpose was misplaced, or that, even though their constitutional duty is clear, courts will in some circumstances not only be unwilling to perform it, but will themselves engage in the very actions against which she was confident that they would protect us.80

To the extent that, notwithstanding all the controlling legal principles to the contrary, one could accept the concept advanced by the majority that a purpose of the insertion of the words "under God" in the Pledge was to somehow celebrate our history or remind us that we have a "limited government" (and it is unlikely that a reasonable judge could do so) it defies reason to contend that the use of the term God did not have a religious purpose as well. One would have to ignore all the applicable law and all the relevant facts to reach such a conclusion. That the predominant purpose was religious is demonstrated beyond dispute by the legislative history of the amendment. See supra Part II.A-C. Such a conclusion is also evident from simple logic and reason. The term "God" is a religious term in every sense of the word, as the majority admits. Moreover, the majority suggests no other instance in which the word "God" was used by a legislative body for a predominantly non-religious purpose. To conclude that Congress would use the term "God" for a predominantly secular purpose when amending the Pledge of allegiance surely defies common sense.

Under the plain meaning of the words of the amendment to the Pledge, its context, the legislative history of its enactment, and all of the surrounding circumstances, there can be no doubt that the purpose of adding the words "under God" to the Pledge of Allegiance was predominantly, if not exclusively, religious and that the daily recitation in public schools of the Pledge in its amended form violates the Lemon test,81 and thus the Establishment Clause.

B. The Endorsement Test and the "Under God"
Amendment

Although an objective application of the Lemon test that adheres to Supreme Court precedent requires, without more, a ruling in favor of Jan Roe and her child, I turn now to the remaining Establishment Clause tests to show that the Roes would prevail under each of them as well, and that with respect to each the majority's reasoning seriously misperceives or misrepresents the nature and function of the First Amendment. The second Establishment Clause test announced by the Supreme Court, the endorsement test, is in essence "a gloss on Lemon that encompasse[s] both the purpose and effect prongs." Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 714 (M.D. Pa. 2005). Under the endorsement test, "we must examine both what [the government] intended to communicate . . . and what message [it] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government's] action . . . . An [impermissible] answer to either question should render the challenged practice invalid." Lynch v. Donelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). Accordingly, where, as here, a clear violation of the first Lemon prong exists, so too does a violation of the endorsement test. Still, the endorsement test is valuable in that it captures even more forcefully than Lemon the powerful sense of alienation nonadherents experience when the government embraces and broadcasts a religious belief:

[T]he religious liberty protected by the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

Wallace v. Jaffree, 472 U.S., 38, 69 (1985) (O'Connor, J., concurring in the judgment) (emphases added) (quoting Lynch, 465 U.S. at 688 (O'Connor, J., concurring)); accord Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10 (2000) (same). How much greater must be the sense of exclusion in the case of a child in a schoolroom " a schoolroom where his classmates are the insiders and, because he is a non-adherent, he will no longer be a "full member of the . . . community." Id.

In conducting the endorsement analysis, "[t]he relevant question[ ] is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion]." Santa Fe, 530 U.S. at 308 (quoting Wallace, 472 U.S. at 76 (O'Connor, J., concurring in the judgment)). How could anyone "acquainted with the text and legislative history" of the statute that amended the Pledge in order to indoctrinate our children conclude anything other than that the state-directed, teacher-led daily recitation of the "under God" version of the Pledge "conveys a message of exclusion to all those who do not adhere to the favored beliefs"? Lee v. Weisman, 505 U.S. 577, 606 (1992) (Blackmun, J., concurring). An atheist familiar with the Pledge's legislative history could hardly ignore the legislation's chief proponents' statements that "[a]n atheistic American is . . . a contradiction in terms," 100 Cong. Rec. 1700, that "the forces of anti-God and antireligion . . . spread . . . dangerous and insidious propaganda," id. at 7760, or that "evil" stems "[f]rom the root of atheism," id. at 1700. How could atheist, agnostic, Hindu, or Buddhist children asked every day by their state employed teachers to recite the amended version of the Pledge feel anything but "that they are outsiders,"82 Santa Fe, 530 U.S. at 309, when an author of the "under God" amendment to the Pledge publicly proclaimed that people's "citizenship is of no real value . . . unless [they] can open [their] souls before God and before Him conscientiously say, `I am an American,' " or when the President of the United States has declared that anyone who "truly loves America" will proudly say the Pledge as amended? 100 Cong. Rec. 7765, 8618 (emphases added). The effect on young schoolchildren of the amendment under the policy of the Rio Linda school district, and the policies of school districts
throughout the nation, is undeniable.

The majority agrees that some schoolchildren may perceive the amended Pledge as an endorsement of religion, but argues that under Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001), "a child's understanding cannot be the basis for our constitutional analysis." Maj. op. at 3922. The majority's reliance on Good News is directly contrary to that opinion's express rationale. In Good News, the Court held that a private group's use of a public school's facilities for afterschool religious events would not violate the Establishment Clause, despite "the possibility that elementary school children may witness the [group's] activities on school premises." Good News, 533 U.S. at 119. It expressly distinguished cases involving messages conveyed "by state teachers during the schoolday to children required to attend." Id. at 117 (emphasis original). Unlike in those cases, because "members of the public writ large [were] permitted in the school after hours pursuant to [its] community use policy," the Court did not limit its analysis to whether endorsement would be perceived by children, but also considered the perception of the school's activities among the adult members of the community. Id. at 118. In short, Good News looked to the entire audience, not just to the children voluntarily in it.

Here, young Roe's state-employed teachers conduct the state-directed daily recitation of the Pledge in a public school classroom during school hours. Five-year-olds are not the "youngest members of the audience," they are the entire audience; "the public writ large" does not attend kindergarten classes. In fact, as the Supreme Court pointed out in Good News, "in the normal classroom setting" the children are "all the same age." 533 U.S. at 118. In an as-applied challenge like the one before us, a practice must be analyzed in terms of those who actually experience its effects. As the majority is well aware, we are here examining only the effects of the daily classroom recitation of the religious version of the Pledge on public schoolchildren and are not considering the constitutionality of the use of that version of the Pledge in other circumstances. Indeed, because it is alleged that the recitation of the Pledge in the classroom is designed to indoctrinate schoolchildren with a religious belief, see supra Part II.C, it would make no sense to analyze its constitutionality in terms of its hypothetical effect on adults.

It is, in fact, the children's lackof understanding of the full
meaning of the Pledge that renders it such a powerful tool of
indoctrination. A study conducted twenty years after the
Pledge was amended to include the words "under God" found
that "grade school children make sense of the Pledge of Alle-
giance by focusing on a word they understand, most com-
monly `God,' which leads them to such conclusions as `The
most important part is . . . talking about God,' or `We better
be good cause God is watching us even if He is invisible.' "83
This result is precisely what the members of Congress who
amended the Pledge intended when they confidently stated
that "each time the[ children] pledge allegiance to Old Glory,
[they will] reassert their belief . . . in the all-present, all-
knowing, all-seeing, all-powerful Creator." 100 Cong. Rec.
5915. It is also precisely what the Establishment Clause seeks
to prohibit. For under our Constitution, the indoctrination of
religious beliefs, including belief in God, is "committed to the
private sphere," Lee, 505 U.S. at 589 " i.e., to family and the
Church (read, Synagogue, Mosque, Temple, et al.). Under no
circumstances is that function to be commandeered by the
State.

It was over a half-century ago that Justice Jackson wrote the words that transformed the relationship of the state to the individual, words that have ever since marked our First Amendment jurisprudence: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, [or] religion . . . ." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Unfortunately, today the majority is clearly charting its course by a far different constellation with a far less enduring First Amendment.

C. The Coercion Test and the "Under God" Amendment

Because the state-directed, teacher-led daily recitation of the "under God" version of the Pledge "violate[s] both the Lemon test and the Endorsement test, we are not required to determine that [it] also run[s] afoul of the Coercion Test to hold [it] antithetical to the Establishment Clause." Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 818 (5th Cir. 1999), aff'd 530 U.S. 290 (2000) (applying Establishment Clause tests independently). The coercion test, set forth in Lee v. Weisman, 505 U.S. 577 (1992), did not replace the Lemon analysis or the endorsement test. See id. at 587 ("[W]e do not accept the invitation . . . to reconsider our decision in Lemon v. Kurtzman."); id. at 604 (Blackmun, J., concurring) ("[N]othing in [Lee is] inconsistent with the essential precepts of the Establishment Clause developed in our precedents."). Rather, Lee created a third test with a separate threshold that a statute or practice must also meet in order to comply with the Establishment Clause: "[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. . . ." Id. at 587 (majority opinion) (emphasis added). Accordingly, if a statute or practice fails to pass the coercion test, that is reason enough to hold it unconstitutional. See id. at 604 (Blackmun, J., concurring) ("Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient.").

1.

The Supreme Court has been especially sensitive to the use
of coercion in cases involving "young impressionable chil-
dren" in public school. Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 307 (Goldberg, J., concurring). As it
stated in Edwards v. Aguillard, 482 U.S. 578, 585 (1987),
when evaluating state-sponsored religious activity in the
classroom we "must [be] mindful of the particular concerns
that arise in the context of public elementary and secondary
schools." The Supreme Court has never lost sight of the spe-
cial danger presented by the promotion of religious views by
public school teachers: In over six decades of adjudicating
Establishment Clause challenges, the Supreme Court has
never once upheld a statute or practice that promotes religion
or religious beliefs in public schools or that coerces students
to express or adopt any religious views.84

In Lee, the Supreme Court emphasized the "heightened
concerns with protecting freedom of conscience from subtle
coercive pressure in the elementary and secondary public
schools." 505 U.S. at 592. The coercive pressure inherent in
the school setting played a central role in the Court's analysis:

Our decisions in [Engel and Abington] recognize,
among other things, that prayer exercises in public
schools carry a particular risk of indirect coercion.
The concern may not be limited to the context of
schools, but it is most pronounced there. . . . What
to most believers may seem nothing more than a rea-
sonable request that the nonbeliever respect their
religious practices, in a school context may appear to
the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce a reli-
gious orthodoxy.

Id. (emphasis added; citations omitted). Because of that inherent pressure, the Court's solicitude for the injury experienced by "the dissenter of high school age" was not lessened by the fact that it occurred at a graduation ceremony for which attendance was ostensibly voluntary. Id. at 593-94.

Here, the plaintiff on appeal is a five-year-old child compelled by law to attend school. Every day her teacher, a state employee, leads her and her classmates in a state-directed exercise explicitly designed to inculcate a religious belief in each of them " a belief in God. Such deliberate indoctrination exploits the fact "that children mimic the behavior they observe[,] or at least the behavior that is presented to them as normal and appropriate," FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1813 (2009), and "that children are disinclined at this age to step out of line or to flout `peer group norms,' " Abington, 374 U.S. at 290 (Brennan, J., concurring). As the Supreme Court has repeatedly explained, the very nature of coercive activity is that it exerts enormous "pressure upon religious minorities to conform to the prevailing officially approved religion" and its practices, even though they reject that officially endorsed religious belief. Engel, 370 U.S. at 431 (emphasis added).

A child subjected to state-sponsored, teacher-led religious indoctrination has two choices: participation or refusal. The fact that a young, impressionable schoolchild recites the religious Pledge does not necessarily mean that he does so "willingly." Contra maj. op. at 3874. To the contrary, rather than label himself an oddball, a troublemaker, and an outcast, rather than subject himself to humiliating name calling, harassment and derision, he may simply prefer to conform, formally pledging his adherence to a religious belief that is antithetical to his true philosophical views. For these children who conform unwillingly, coercion has had its effect: They have chosen to forego their constitutional rights rather than to face the consequences of not doing so. But the coercive effect is no less severe for those students who adhere to their principles and refuse to affirm a state-held religious belief that is contrary to their own. Those students, including Jan Roe's daughter, must either remain silent or leave the classroom, neither of which options avoids the injury they suffer or cures the constitutional violation to which they have been subjected. See Abington, 374 U.S. at 224-25. Rather, children who choose either of these options are separated from their classmates either literally or by the silence they maintain, and, as a result, every day are in fact " `outsiders, not full members of the . . . community.' " Santa Fe, 530 U.S. at 309 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)).

The majority takes inconsistent positions regarding the coercive effect of religious indoctrination in public school classrooms. First, it asserts that allowing children the option of "participating in . . . religious exercises" in public schools demonstrates "one of the great principles of our nation." Maj. op. at 3919. Later, however, it acknowledges that providing such an "option" does not render the state's conducting of a religious practice constitutional, because the coercive pressure still remains. Id. at 3923. Under binding Supreme Court law, the latter position is unquestionably correct. The Free Exercise Clause "has never meant that a majority could use the machinery of the State to practice its beliefs." Abington, 374 U.S. at 226. If it attempts to do so, "the fact that individual students may absent themselves [or remain silent] . . . furnishes no defense to a claim of unconstitutionality under the Establishment Clause." Id. at 224-25 (emphasis added). As the Court expressly stated in Lee, the government may not "place objectors in the dilemma of participating, with all that implies, or protesting. . . . . To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means." Lee, 505 U.S. at 593-94.

The intense social and psychological pressure at issue, pressure that is enormous when brought to bear against a five-year-old child, leaves no doubt that a public school classroom is a coercive environment, as defined in Lee. Indeed, the majority ultimately concedes that every day that young Roe goes to school she is "coerced to participate" in the state-directed, teacher-led recitation of the "under God" version of the Pledge of Allegiance. Maj. op. at 3923. And so it must, as all nine of the Justices in Lee agreed that impermissible coercion occurs in a public-school classroom where attendance is mandatory, if that classroom is used to promote religious beliefs or expression.85

2.

Given that the majority inevitably concedes, as it must, that
the classroom environment at issue in this case exerts signifi-
cant coercive pressure to conform on children such as young
Roe, and that allowing her the option of remaining silent or
leaving the room would not cure the constitutional violation,
it is left with only two equally unpersuasive arguments as to
why the daily recitation of the "under God" version of the
Pledge does not violate the coercion rule. First, the majority
contends that the Pledge is not a "religious exercise." Accord
Elk Grove, 542 U.S. at 31 (Rehnquist, C.J., concurring in the
judgment). Second, the majority argues that the recitation of
the Pledge is a "patriotic activity." Maj. op. at 3926-27
(emphasis added).

The majority's analysis can in fact be boiled down to one
sentence: "the Pledge is not a prayer." Maj. op. at 3923. To
meet the coercion standard, my colleagues first conclude that
"Lee's indirect coercion analysis" applies "only if the govern-
ment coerces students to engage in a religious exercise." Id.
at 3926 (emphasis added). This may be the majority's deter-
mination in this case, but it most certainly is not the holding
of the Supreme Court in Lee.

To the contrary, in Lee the Court held that "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise . . . ." Lee, 505 U.S. at 587 (emphasis added). Apparently the same convenient willful blindness that prevents the majority from reading the Pledge's legislative history prevents it from reading the word "or" in the preceding sentence. Otherwise, it would surely be forced to concede that Lee's coercion analysis applies when the government coerces someone "to support or participate in religion," and not just "to [participate in] religious exercises." If the Lee majority's word is not good enough for the majority in this case, Justice Scalia's dissent, one part of which reflected the agreement of all members of the Court, should be sufficient. In that part, Justice Scalia said, "I have no quarrel with the Court's general proposition that the Establishment Clause `guarantees that government may not coerce anyone to support or participate in religion . . . .' " Id. at 642 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)).

If the unanimous conclusion reached by the Court in Lee still does not persuade my colleagues that their holding today is erroneous, perhaps they should simply read once again the very cases that they contend support their overly narrow reading of Lee. The majority asserts with regard to those cases that "all" of the activities "have been invalidated by the Supreme Court as unconstitutional school-sponsored religious exercises." Maj. op. at 3888 (emphasis added). But if the anticoercion rule applied only in the case of "religious exercises," as the majority contends, then at least two important decisions would have to be erased from the U.S. Reports.

In Edwards v. Aguillard, which was a coercion case,86 the Supreme Court struck down as violative of the Establishment Clause a statute mandating "instruction in `creation science' " in public schools. 482 U.S. at 581. A lecture in creation science, the Court held, supports religion through "the presentation of a religious viewpoint." Id. at 596. Of course, such a lecture contains none of the attributes of a "religious exercise" that have been identified by the majority. It does not "invite divine intercession," "express personal gratitude," or "ask forgiveness." See maj. op. at 3889. It is "led by a teacher, not by a clergyman or other religious leader." See id. at 3892. Students listening to the instruction "do not kneel, nor don yarmulkes, veils, or rosaries," see id., or make "a solemn avowal of divine faith and supplication for the blessings of the Almighty." See id. at 3926 (quoting Engel, 370 U.S. at 424-25). If there is a definition of "religious exercise" broad enough to encompass the teaching of "scientific critiques of prevailing scientific theories," Edwards, 482 U.S. at 593, the majority has not provided it.

Similarly, Stone v. Graham, 449 U.S. 39 (1980) (per curiam), is another coercion case that did not involve a religious exercise. In that case, the Court struck down a statute that "require[d] the posting of a copy of the Ten Commandments . . . on the wall of each public classroom in the State." Id. at 39. Surely, merely sitting in a room that has a copy of the Ten Commandments hanging on the wall does not constitute a "religious exercise." See maj. op. at 3889 (a religious exercise "is always active"). In fact, the Court held that by being compelled to sit in the classroom with the Ten Commandments affixed to the wall, the students were subjected to a "religious practice." Stone, 449 U.S. at 42. The Court struck down the statute because its "effect" was "to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the [Ten] Commandments." Id. (emphasis added).

Thus, there are at least two Supreme Court cases that inval-
idated state practices supporting religion in the public schools
as coercive, and therefore violative of the Establishment
Clause, even though those practices did not constitute a "reli-
gious exercise." Accordingly, Lee must be understood to hold,
as it explicitly states, "that government may not coerce any-
one to support or participate in religion or its exercise," Lee,
505 U.S. at 587 (emphasis added), and not simply, as the
majority states, that the government may not coerce anyone
to engage in religious exercises.87

What might the Supreme Court have had in mind when it described government action that coerces someone "to support or participate in religion"? Here, too, Lee provides the answer: "The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State." Id. at 589 (emphasis added). The notion that the State cannot coerce religious belief or expression is as old as the Court's first Establishment Clause case, see Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) ("The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government . . . . can force nor influence a person . . . to profess a belief or disbelief in any religion." (emphasis added)), and as current as its most recent decision, see McCreary County v. ACLU of Ky., 545 U.S. 844, 881 (2005) ("This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual." (emphasis added)), with an unbroken line of cases in between. In fact the very first case to strike down religious practices in public schools said, "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Engel, 370 U.S. at 431 (emphases added).

As the Supreme Court has made clear, the Pledge requires an affirmation of a belief. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943) ("[The] pledge requires affirmation of a belief and an attitude of mind."). Until its amendment in 1954, the Pledge was solely an affirmation of belief in, and loyalty to, one's country. But the "under God" amendment added another component. Under the 1954 amendment, there is no conceivable way that the plain text, let alone the history, of the Pledge as amended can be read in any way other than as an affirmation of what the author of the amendment referred to as "the definitive factor in the American way of life[:] . . . belief in God." 100 Cong. Rec. 1700 (emphasis added). One simply cannot in good faith daily affirm loyalty to a nation "under God" if one does not believe that God exists, questions whether there is a God, or believes in polytheism.

No one can deny that the Pledge requires the speaker to engage in a performative act that binds him to a particular belief " a belief in a nation "under God."88 Indeed, even the majority appears to concede that one cannot recite the amended Pledge without "affirming a belief in God." Maj. op. at 3923. A student reciting the Pledge of Allegiance to "one nation, under God" personally adopts that language, which expresses an undeniable and unavoidable religious tenet: God exists, and he is watching over our country. The conception of "God" espoused in that statement is inconsistent even with many theistic, let alone atheistic or agnostic, religious philosophies.89 It is impossible to pledge allegiance to a "nation under God" without professing an unmistakably "religious belief," Lee, 505 U.S. at 589: there is a God whom our nation is under, or to whom our nation is subordinate. Anyone coerced to express such a belief is, by definition, coerced to affirm a belief in God and thus "to support . . . religion." Id. at 587. Thus, the majority's attempt to limit the coercion test to a religious exercise fails.

3.

In its second attempt to avoid the strictures of Lee, the majority argues that the prohibition against coercing school-children to embrace religion does not apply to the recitation of the amended Pledge because that recitation is simply a "patriotic exercise designed to foster national unity and pride." Maj. op. at 3877 (quoting Elk Grove, 542 U.S. at 6); see also id. at 62. I do not dispute that the recitation of the Pledge both as originally written and as amended is a patriotic exercise or that the version codified in 1942 was indeed "designed to foster national unity and pride."90 But where a religious message is inserted into a patriotic exercise, or into any other secular exercise, in order to promote religion and, more particularly, to inculcate in children a religious belief, the exercise as amended runs afoul of the Establishment Clause. Surely, as noted earlier, if Congress had amended the Pledge so as to describe the United States as "one nation under Jesus," "one nation under Jesus Christ," or "one nation under the Father, the Son, and the Holy Ghost," even the majority, one might hope, would not contend that, because the recitation of the Pledge was and is a patriotic exercise, no unconstitutional coercion would result from the state-directed, teacher-led daily recitation of the Pledge in its amended form. The analysis can be no different for the recitation of the amended version of the Pledge, with the inserted phrase "under God."91 In all those instances, the Pledge would be equally patriotic. It is irrelevant for purposes of the Establishment Clause whether a state-directed effort to indoctrinate schoolchildren with a belief in religion, or in this case, more specifically a belief in God, is incorporated into a patriotic or some other secular exercise or constitutes a stand-alone message all by itself. It is the content of the religious message not the vehicle in which it is contained that matters. Government is simply not permitted to engage in the indoctrination of religious beliefs, whatever the means by which it may choose to deliver them. The solution is obvious: excise the offending material from the patriotic or secular message. That is particularly easy to do where, as here, the religious component of the message has been separately inserted by a legislative amendment into existing, non-offending patriotic or other secular material.

The majority's reading of Lee ignores the fundamental principles underlying decades of Establishment Clause jurisprudence. In so doing, the majority deems religious indoctrination in public schools permissible under the coercion test so long as it is not part of a religious activity. This holding is dangerous and far-reaching, as well as unprecedented and unfounded. After today, if this court were to take the majority's holding seriously, or purport to follow it in relevant cases, public-school students in this circuit could be subjected to regular lectures promoting Christianity as the true religion, cf. Edwards, 482 U.S. 578 (creationism instruction), or required to enroll in "character development" programs that extolled the superiority of Jesus over all others as a spiritual leader. They would no longer have a claim under Lee v. Weisman because the practices they would be challenging would be included within otherwise lawful secular programs. Surely this utter evisceration of the coercion test is not what the Supreme Court intended when it vindicated Deborah Weisman's constitutional rights. Moreover, religious minorities of all stripes would quickly suffer under the rule the majority propounds, were we to apply it beyond the narrow confines of the Pledge of Allegiance. It should be apparent to all that regardless of the majority's heart-felt desire to justify the coercive recitation of the amended Pledge by California's public schoolchildren and its willingness to ignore the controlling law in order to reach that objective, a proper application of the coercion test precludes not only religious exercises but all other state sponsored efforts to inculcate religious beliefs in America's public schoolchildren, even if inserted in the middle of a course in mathematics or incorporated in any other secular or patriotic activity.

D. Application of the Tests to the 2002 Legislation

I have explained why the 2002 reaffirmation of the Pledge statute is of no relevance, as it simply sets forth Congress's view that the 1954 amendment was constitutional and that our interpretation of the Constitution in Newdow I was erroneous, and thus it offers no different purpose for the adoption of the amendment. See supra Part III. However, the foregoing review of the Lemon, endorsement, and coercion tests demonstrates why, even had Congress advanced a secular purpose for both the 1954 "under God" amendment and its 2002 reaffirmation, including the secular messages that the majority purports to believe that Congress intended to convey: that we live under "limited government," or more generally that we should recognize our nation's "historical principles of governance", the amendment as applied in the case of the state-directed, teacher-led, daily recitation of the Pledge would still have failed to comply with the Establishment Clause. It would have failed the Lemon test because its principal purpose would still have been religious, and because the "principal or primary effect" of the amendment, the affirmation of a personal belief in God, would still have unquestionably "advance[d] . . . religion." Lemon, 403 U.S. at 612-13 (citation omitted) (emphasis added). It would have failed the endorsement test because such recitations would still have sent the message to nonadherents of religion and to nonadherents of religions that embrace monotheism "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Santa Fe, 530 U.S. at 309-10 (quoting Lynch, 465 U.S. at 688 (O'Connor, J., concurring)). Finally, it would have failed the coercion test because such recitations would still have coerced schoolchildren "to support or participate in religion," and to profess a belief, whether held by them or not, in God. Lee, 505 U.S. at 587. In short, the "under God" version of the Pledge is, under all three tests, unconstitutional as applied, not only when considered in light of Congress's actual purpose in adopting the amendment in 1954, but even when considered in light of the purpose that the majority would erroneously impute to Congress in reaffirming the amendment in 2002.

V. The Inapplicability of Alternative Theories

As the foregoing analysis demonstrates, the statesponsored, teacher-led daily recitation of the "under God" version of the Pledge in public schools is unconstitutional under any Establishment Clause doctrine that might be applied. Ordinarily, one would expect an outcome required by binding Supreme Court precedent to end the debate. However, faced with the formidable outcry that would surely arise in defense of the "under God" version of the Pledge were the Constitution to be faithfully applied, judges both on this court and others, in an effort to sustain the unsustainable, have cast about in search of alternative theories " theories not grounded in any Establishment Clause principles announced by the Supreme Court. Such theories include the notions that appellate courts must uphold the state-sponsored recitation of the "under God" version of the Pledge on the basis of statements made in Supreme Court dicta or in individual concurring or dissenting opinions of some of the various justices, on the ground that the religious version of the Pledge is constitutional under the putative doctrine of ceremonial deism, and for the reason that any harm caused by its recitation in public schools is de minimis and therefore not worthy of our attention. These alternative theories, one or two of which today's majority may be relying on, at least in part, and the other of which is relied on by our colleagues on other circuits, provide no legitimate support for holding the "under God" version of the Pledge constitutional as applied. I will start with the least dangerous, the nose-counting dicta and dissents theory. The two which could cause serious harm to the First Amendment rights of minorities, and with at least one of which the majority appears to flirt at times, I will save for last.

A. Supreme Court Dicta

The majority proudly asserts that by its decision today we "join our sister circuits who have held [that] similar school policies do not violate the Establishment Clause." Maj. op. at 3877. My colleagues properly do not, however, embrace the reasoning relied upon by the two other circuits that have so held. Both of those circuits predicate their conclusions on Supreme Court dicta or the views expressed by individual Supreme Court justices. See Myers v. Loudon County Pub. Schs., 418 F.3d 395, 402 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch. Dist., 980 F.2d 437, 446-48 (7th Cir. 1992). Because that is the only basis, other than that on which today's majority relies, on which any circuit court has upheld state-directed, teacher-led daily recitations of the "under God" version of the Pledge, I explain why the majority here could not legitimately "join our sister circuits" in their erroneous reasoning.

The argument set forth by the Fourth and Seventh circuits is essentially this: The Supreme Court has authored "repeated dicta . . . respecting the constitutionality of the Pledge," Myers, 418 F.3d at 402, and those dicta "proclaim[ ] that [the] practice is consistent with the establishment clause," Sherman, 980 F.2d at 448; appellate courts, therefore, should follow the purported rule established in the dicta because "[i]f the Justices are just pulling our leg" we should "let them say so." Sherman, 980 F.2d at 448. Cleverly or not cleverly worded as this argument may be, it fails in both its major and minor premises: First, the so-called dicta "respecting the constitutionality of the Pledge," Myers, 418 F.3d at 402, in fact do not say that the Pledge is "consistent with the establishment clause," Sherman, 980 F.2d at 448. Second, the Supreme Court's holdings issued after each of the dicta was written do not support adherence to the "rule" that our colleagues on the Fourth and Seventh Circuit have read into preexisting dicta. It is those subsequent holdings that must control the reasoning and decisions of the courts of appeals.

The assertion that the Supreme Court has "proclaim[ed] that [the Pledge] is consistent with the establishment clause," id. (emphasis added), is inconsistent with the language of the purported dicta on which that assertion is based. Proponents of the dicta argument assert that "[t]he Supreme Court has spoken repeatedly on the precise issue we address today." Myers, 418 F.3d at 409 (Motz, J., concurring in the judgment); id. at 402 (majority opinion) (relying on "repeated dicta from the Court"). However, in over six decades of Establishment Clause jurisprudence, the Supreme Court has in fact made only two statements regarding the Pledge of Allegiance in its opinions.92 The first of these appeared in Lynch v. Donelly, a case decided in 1984. In that case, the Court simply notes, in a preliminary discussion, that the "under God" language in the Pledge is one among many "examples of reference to our religious heritage" that is reflected in numerous well-established national customs and practices. Lynch v. Donnelly, 465 U.S. 668, 676 (1984). Contrary to what the Fourth and Seventh Circuits assert, the statement in Lynch in no way expresses the view that the Pledge passes any of the three Establishment Clause tests or that the practice of daily, state-directed, teacher-led recitation of the amended Pledge by public schoolchildren is constitutional. The sole mention of the Pledge amounts to no more than a single prefatory historical reference, after which it is not discussed again.93

Moreover, as the author of that historical reference wrote
soon thereafter, in his view intervening Supreme Court law "
specifically, the Supreme Court's decision in Wallace v. Jaf-
free " rendered the version of the Pledge that includes the
phrase "under God" unconstitutional. Dissenting from the
Court's holding in Wallace, a case that ought to govern the
majority's analysis today, Chief Justice Burger wrote just one
year after authoring the opinion in Lynch:

Congress amended the statutory Pledge of Alle-
giance 31 years ago to add the words `under God.'
Do the several opinions in support of the judgment
today render the Pledge unconstitutional? That
would be the consequence of their method of focus-
ing on the difference between [the challenged stat-
ute] and its predecessor statute . . . .

Wallace, 472 U.S. at 88 (Burger, C.J., dissenting) (citation omitted); see also id. at n.3. Thus Wallace rendered any thought that the Chief Justice might have harbored that the amended Pledge was constitutional no longer valid. A dictum, let alone a mere reference, recognized by its own author as having no further validity cannot bind us at all and certainly could not do so in the face of subsequent holdings that strip the reference of any force or effect. Such subsequent opinions include not only Wallace but also Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe, each of which made substantial contributions to Establishment Clause jurisprudence, and each of which contained holdings that conflict with the tenets underlying Chief Justice Burger's "dictum" in Lynch.

The second purported dictum "proclaiming" the Pledge's
constitutionality is the following statement from County of
Allegheny v. ACLU:

Our previous opinions have considered in dicta the
motto and the pledge, characterizing them as consis-
tent with the proposition that government may not
communicate an endorsement of religious belief.
Lynch, 465 U.S., at 693 (O'Connor, J., concurring);
id., at 716-717 (Brennan, J., dissenting). We need
not return to the subject . . . because there is an obvi-
ous distinction between creche displays and refer-
ences to God in the motto and the pledge.

492 U.S. 573, 602-03 (1989) (emphasis added). This passage is a far cry from an assertion by the Supreme Court, in dicta or otherwise, that the Pledge "is consistent with the establishment clause." Sherman, 980 F.2d at 448. To the contrary, despite the Court's unusual characterization of statements in a prior concurrence and dissent as "[o]ur previous opinions," the Supreme Court in Allegheny simply reported the fact that a concurrence and a dissent in Lynch state in dicta that the amended Pledge is constitutional. However, neither that concurrence nor dissent spoke for the Court, and those are the only two opinions Allegheny cites when it refers to "[o]ur previous opinions" characterizing the Pledge, in dicta, as constitutional. The Court in Allegheny itself expressly declined to comment on the validity of those prior "dicta" or on the Pledge's constitutionality, recognizing that the issue was irrelevant to the case before it. Id. Furthermore, like the "dictum" in Lynch, the statement in Allegheny was written in 1989, predating Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe, core holdings that govern our analysis today. Finally, neither the "dictum" in Allegheny nor the "dictum" in Lynch
expressed a view on the merits of the constitutional question before us. A plain reading of the "dicta" and of subsequent Supreme Court decisions makes it apparent that the dicta argument relied upon by the Fourth and Seventh Circuits provides a very slim reed indeed " in fact, no reed at all.

There is also no merit to the minor premise asserted by the Fourth and Seventh Circuits that appellate courts should treat dicta as controlling. As all courts and judges have recognized, Supreme Court dicta, like all others, are not binding, and they certainly cannot serve as a justification for ignoring supervening Supreme Court precedent. Dicta or not, an intermediate court of appeals is required to follow binding Supreme Court cases unless and until the Supreme Court overrules them. Moreover, the only reason Supreme Court dicta enjoy greater weight than the dicta of lower courts is that they are a "prophecy of what the Court might hold." United States v. MonteroCamargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (internal quotations omitted). Prophecies may be of some value when there are no binding precedents that govern the outcome; they are of no relevance, however, when relying on them would require an intermediate appellate court to ignore Supreme Court law that is handed down after those prophecies, that is contrary to them and that controls the decision. If the value of a Supreme Court dictum lies in its forecasting ability, then surely when "what the Court might hold" turns out to be the opposite of what the Court later does hold the dictum must lose whatever authority it might once have had.

Perhaps aware that the author of one of the two "dicta" acknowledged that his view had been rejected in a subsequent opinion of the Court, that the other "dictum," like the first, does not actually speak to the merits of the issue in this case, and that the two dicta together do not carry any weight in light of the various intervening developments in the law, proponents of the dicta argument must rely on other data to bolster their claim that the Supreme Court has implicitly instructed lower courts how to decide the issue presently before us. The Fourth Circuit, in search of such additional data, based its validation of the "under God" version of the Pledge not just on the overruled purported dicta in Lynch and Allegheny, but also on the views of "individual Justices" whom it characterizes as "hav[ing] made clear that the Establishment Clause . . . does not . . . make unconstitutional the daily recitation of the Pledge in public school." Myers, 418 F.3d at 405 (emphasis added). The Fourth Circuit goes on to cite a string of individual concurrences and dissents from various justices before emphatically declaring "not one Justice has ever suggested that the Pledge is unconstitutional." Id. at 406 (emphasis in
original).

Although some might consider a nose count of every justice ever to have sat on the Supreme Court, past or present, alive or dead, an absurd method of deciding a constitutional question concerning fundamental rights " or any other question for that matter " I need not comment on the propriety of the Fourth Circuit's approach because it fails on its own terms.94 Only the judicial equivalent of Enron accounting could yield a conclusion that "not one justice" has ever stated that the Pledge is unconstitutional under the Supreme Court precedents that we, as intermediate court judges, are bound to follow. In fact, quite the opposite: the only current Justice to have ever directly addressed the merits of the issue before us concluded that [a]dherence to Lee would require [a court] to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day.
. . . .

. . . . Whether or not we classify affirming the
existence of God as a "formal religious exercise"
akin to prayer, it must present the same or similar
constitutional problems.

Elk Grove, 542 U.S. at 46, 48 (Thomas, J., concurring in the judgment). Justice Thomas unequivocally rejected the holding issued by today's majority that Lee turns entirely on whether a challenged practice constitutes a "formal religious exercise." Cf. supra Part IV.C. Lest there be any confusion, Justice Thomas made his point crystal clear: "[A]s a matter of our precedent, the Pledge policy is unconstitutional." Elk Grove, 542 U.S. at 49.

Six other Justices have reached the same conclusion, four of them in opinions written after the two "dicta" in Lynch and Allegheny upon which the Fourth and Seventh Circuits so heavily rely. In Lee, Justice Scalia, joined by three of his colleagues, declared: "[S]ince the Pledge of Allegiance has been revised since Barnette to include the phrase `under God,' recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction [invalidated today] . . . . Logically, that ought to be the next project for the Court's bulldozer." See Lee, 505 U.S. at 639 (Scalia, J., dissenting, joined by Rehnquist, C.J., and White and Thomas, JJ.). Similarly, in Allegheny, Justice Kennedy, writing for himself and three other Justices, wrote:

[B]y statute, the Pledge of Allegiance to the Flag
describes the United States as "one Nation under
God." To be sure, no one is obligated to recite this
phrase, but it borders on sophistry to suggest that the
"reasonable" atheist would not feel less than a "full
member of the political community" every time his
fellow Americans recited . . . a phrase he believed to
be false.

492 U.S. at 672 (Kennedy, J., dissenting, joined by Burger, C.J., and White and Scalia, JJ.) (internal citations omitted); see also Wallace, 472 U.S. at 88 (Burger, C.J., dissenting);95 Engel v. Vitale, 370 U.S. 421, 450 & n.9 (1962) (Stewart, J., dissenting).96 For those keeping score, an accurate nose count would thus contain more justices asserting that the Pledge is unconstitutional under existing Supreme Court precedents than justices expressing the contrary view.97 Were these justices to apply currently binding Supreme Court law, they would, without doubt, hold, unlike the majority today or the other two circuits to have decided the issue, that state-sponsored, teacher-led recitation of the "under God" version of the Pledge of Allegiance in public schools does not pass constitutional muster.

How, then, does the Fourth Circuit conclude that "not one Justice has ever suggested that the Pledge is unconstitutional"? Myers, 418 F.3d at 405 (emphasis in original). The answer to this question is quite revealing: The court construes the votes of Justice Thomas and the other justices cited above as "pro-Pledge" votes because those justices disagree with existing Supreme Court precedents, which some of them have stated they would overturn. In other words, these justices believe that intermediate appellate courts are required to hold the Pledge unconstitutional, regardless of whether they would exercise their own prerogative as Supreme Court justices to overrule the precedents that bind us today. Their opinions may not, of course, be counted in favor of the holding reached by the Fourth and Seventh Circuits.

Although my colleagues have not made the error made by
"our sister circuits" that they are proud to join, they could not
have reached the result they do without disregarding clearly
binding Supreme Court law, as recognized by a number of
Supreme Court justices, past and present. Disregarding that
binding Supreme Court law is not within the authority of cir-
cuit court judges. Accordingly, my colleagues seriously err in
reaching the result they do in this case.

B. Ceremonial Deism

It is unclear whether by its vague, disjointed, and indirect allusions to "ceremonial deism" the majority intended to rely on that theory. Ceremonial deism is itself a hazily defined, never formally adopted doctrine under which it may be asserted that phrases that would otherwise constitute unconstitutional establishment of religion have, with respect to the particular usage at issue, become so interwoven into America's social fabric that they no longer convey a religious message of sufficient potency to offend the Constitution. The majority implicitly invokes this "doctrine" when it cites Marsh v. Chambers, 463 U.S. 783 (1983), for the proposition that "the nation's historical practices can outweigh even obvious religious concerns under the Establishment Clause."98 Maj. op. at 3916. It also appears to endorse or at least approve Justice Brennan's dissent in Lynch v. Donelly, which explicitly relied upon ceremonial deism, id. at 22 n.11, although Justice Brennan himself expressed some uncertainty about his position.99

Whatever the merits of the majority's "ceremonial references to God" approach in other contexts, Supreme Court precedent precludes us from applying to this case the doctrine discussed by Justices Brennan and O'Connor and implicitly followed by the Court in Marsh: that in certain circumstances a practice with a sufficient historical acceptance is less susceptible to, or more immune from, challenge on Establishment Clause grounds. Marsh approved the time-honored opening of a legislative session with a chaplain's prayer. A teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools is, however, far different from the opening ceremony of a legislative session, and so the Court made clear in Lee. Lee explained that

[i]nherent differences between the public school sys-
tem and a session of a state legislature distinguish
this case from Marsh v. Chambers, 463 U.S. 783
(1983). . . . The atmosphere at the opening of a ses-
sion of a state legislature where adults are free to
enter and leave with little comment and for any num-
ber of reasons cannot compare with the constraining
potential of the . . . school [environment, where] stu-
dent[s must] attend. The influence and force of a for-
mal exercise in a school . . . are far greater than the
prayer exercise we condoned in Marsh. The Marsh
majority in fact gave specific recognition to this dis-
tinction and placed particular reliance on it in
upholding the prayers at issue there. 463 U.S. at 792.
Today's case is different. [In school], teachers and
principals must and do retain a high degree of con-
trol over the precise contents of the program, . . . the
movements, the dress, and the decorum of the stu-
dents. . . . Our Establishment Clause jurisprudence
remains a delicate and fact-sensitive one, and we
cannot accept the parallel relied upon by petitioners
and the United States between the facts of Marsh
and the case now before us. Our decisions in Engel
v. Vitale and School Dist. of Abington v. Schempp
require us to distinguish the public school context.

505 U.S. at 596-97 (internal citations omitted). Thus, Lee precludes the use of ceremonial deism to justify state-sponsored religious activity in public school classrooms, including teacher-led daily recitations of the "under God" version of the Pledge of Allegiance.

There are two other reasons that the application of ceremonial deism to the amended version of the Pledge is not consistent with the principles underlying that so-called legal doctrine. First, historically speaking, the contention asserted by Justice O'Connor that the Pledge has settled into a secular social niche because it is a "practice [that] has been employed pervasively without engendering significant controversy" is simply inaccurate. Elk Grove, 542 U.S. at 38 (O'Connor, J., concurring in the judgment); cf. Allegheny, 492 U.S. at 631 (O'Connor, J., concurring). When the bill amending the Pledge was first introduced in 1954, thirty-five million Americans opposed the addition of the words "under God" to the traditional oath.100 Today, that number is even larger: When this court issued its opinion in 2002 striking down the daily, teacher-led recitation of the "under God" version of the Pledge as unconstitutional, over thirty-nine million Americans agreed with our decision.101 Moreover, in the five and a half decades since the Pledge was amended to convey an explicitly religious purpose, numerous legal challenges have been filed seeking to remedy the purported constitutional harm suffered by millions of Americans who do not subscribe to a belief in God as prescribed by the "under God" version of the Pledge. Indeed, these challenges began shortly after the Pledge was amended and have been pursued consistently throughout the intervening decades.102 The fact that judges or justices may be willing to ignore the "significant controversy" the Pledge has engendered does not mean that the controversy does not exist or has not continued uninterruptedly over time.103

Second, even if we were free to do so, this court could not reasonably adopt the doctrine of ceremonial deism in this case because that doctrine, at least as it would be applied here, would necessarily be predicated on a fundamentally illogical premise. Specifically, it makes no sense to state that in the context of the daily recitation of the amended Pledge in public schools the phrase "under God" has, over time, "lost through rote repetition any significant religious content." Lynch, 465 U.S. at 716 (Brennan, J., dissenting). Prayers are regularly the subjects of "rote repetition," and, if anything, grow only more religious over time. Those Christians who have recited the Lord's Prayer for the past two thousand years would be shocked to learn that, by virtue of their doing so, the prayer has lost its religious significance. So too would Jews who have recited the Sh'ma, the Jewish declaration of faith, two times a day for approximately the same length of time, or Muslims who turn toward Mecca five times daily and repeat the Shahadah, reciting the words "There is no God but God, and Muhammad is his prophet." The amended Pledge was intended to be regularly recited in schools across the nation in order to teach "the schoolchildren of America" to have "faith in the Almighty God," 100 Cong. Rec. 6919 (1954), and to "train[ ] . . . our youngsters[,] . . . each time they pledge allegiance[,] . . . [to] reassert their belief . . . in the all-present, all-knowing, all-seeing, all-powerful Creator," id. at 5915. Moreover, fifty years after the Pledge was amended to incorporate an explicitly religious message, forty-three state legislatures had passed laws either encouraging or outright requiring daily recitation of the amended version of the Pledge in public schools. Surely the drafters and promoters of the 1954 "under God" amendment, the Congress that so enthusiastically enacted the religious mandate, and the hundreds of state legislators who directed the incorporation into the school day of the religious version of the Pledge, did not promote its daily recitation by public school students in order to have the words "under God" become of less and less religious significance each year.

Next, no one would suggest that the remainder of the Pledge has lost its patriotic meaning as the years have gone by. It would seem particularly unreasonable, therefore, to suggest that the religious phrase in the Pledge would somehow lose its meaning through repetition while the patriotic themes would retain their force and continue to grow even stronger over time. See Sherman, 980 F.2d at 448 (Manion, J., concurring); cf. Van Orden, 545 U.S. at 696 (Thomas, J., concurring) ("Repetition does not deprive religious words or symbols of their traditional meaning. Words like `God' are not vulgarities for which the shock value diminishes with each successive utterance."). Perhaps most disappointed of all if the word "God" were to lose its religious significance would be Reverend Docherty, the original proponent of the amendment, and President Eisenhower, who said when he signed the bill incorporating the phrase "under God" in the Pledge that "millions of our school children will daily proclaim . . . the dedication of our Nation and our people to the Almighty" and added that "nothing could be more inspiring than" the "rededication of our youth" that would occur "on each school morning."104 Thus, another argument for ceremonial deism would appear to be wholly without merit here.

The logical flaws inherent in the theory of ceremonial deism as applied to the recitation of the amended Pledge in public schools, as well as the erroneous historical assumptions on which application of that "doctrine" to the issue before us depends, explain why whatever the utility of the doctrine may be in other circumstances, it is of no possible use here. These infirmities may also explain why the theory has never actually been adopted elsewhere. As Thomas Paine so accurately observed, "a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises . . . a formidable outcry in defence of custom." THOMAS PAINE, COMMON SENSE 1 (Courier Dover Pub. 1997) (1776). In most cases, ceremonial deism represents mainly the judiciary's less than courageous response to that outcry. Applying the doctrine makes it possible to conclude that in some instances state-sponsored religious practices are not unconstitutional simply because they enjoy broad and longstanding support from a religious majority. One observer has written that the doctrine can only invite abuse and, over time, will "yield[ ] an ever expanding sphere of activities courts [will] f[i]nd to be permissible forms of" state-sponsored religious endorsement. Epstein, supra note 14, at 2087. Here, fortunately, we need not speculate about the wisdom or availability of such a policy: As described supra at 4055, the Supreme Court has made it clear that the principle of ceremonial deism may not be applied in the case of religious practices in public schools.

C. The De Minimis Theory

The doctrine of ceremonial deism that the majority appears at times to embrace bears a close relationship to a final rescue theory supported by some members of this court and others. See, e.g., Newdow v. U.S. Cong., 328 F.3d 466, 490 (9th Cir. 2003) (Fernandez, J., dissenting);105 Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999). This theory, which is often referred to as the theory of the "de minimis constitutional violation," would, if applicable, support the conclusion that the state-sponsored, teacher-led daily recitation of the "under God" version of the Pledge of Allegiance in public schools constitutes no more than an insignificant violation of the Constitution causing insignificant injury that can be overlooked or ignored. Like ceremonial deism, the de minimis theory operates on an ad hoc basis to protect the religious preferences of the majority when those preferences conflict with the constitutional rights of the minority.106 Of course, the more disenfranchised the religious minority, the more likely it is that such a defense will succeed. But our constitutional protections are of little value if courts refuse to employ them on behalf of members of the most marginalized and detested religious groups, such as atheist children like young Roe. In a 2005 survey conducted by the Pew Research Center, fully fifty percent of Americans said that they had either a "mostly unfavorable" or "very unfavorable" opinion of atheists.107 This is twice the number of people who harbored similar antipathy toward Muslims, the next least appreciated religious minority. Indeed, "atheists are ranked lower than any other minority or religious group when Americans are asked whether they would vote for or approve of their child marrying a member of that group."108 Any plaintiff who has ever pursued an Establishment Clause challenge can attest to the very real prejudice atheists experience in America. See, e.g., ELLIS, supra note 5, at x. It is no accident that today's plaintiffs are known only by aliases; in the United States, in the twenty-first century, members of a religious minority suing for their constitutional rights still face genuine danger of harassment or physical abuse. See id.; cf. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 n.1 (2000) (describing "intimidation" and "harassment" against plaintiffs).

Embracing the de minimis theory here would countenance an injury to the disfavored atheist minority, as well as to others with "different" views, in order to sustain the religious preferences of the God-fearing majority. This illustrates the inevitable result of defining injury in the absence of empathy:109 the harms I suffer justify redress, but the harms you suffer do not; my belief is worthy of constitutional protection, but your belief is of no consequence.

In any event, however tempting it might be to resolve this case under the de minimis theory's simple and direct approach, once again we are not free to do so. The Supreme Court has held that "the embarrassment and the intrusion of [a] religious exercise cannot be refuted by arguing that . . . [it is] of a de minimis character." Lee v. Weisman, 505 U.S. 577, 594 (1992). The reasons for this are self-evident. As was made clear in Abington v. Schempp, "the measure of the seriousness of a breach of the Establishment Clause has never been thought to be the number of people who complain of it," 374 U.S. at 264 (Brennan, J., concurring), nor is it any defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. That amendment is a fragile instrument. "The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, `it is proper to take alarm at the first experiment on our liberties.' " Id. at 225 (majority opinion). For this reason, the "Constitution . . .
requires that we keep in mind `the myriad, subtle ways in which Establishment Clause values can be eroded.' " Santa Fe, 530 U.S. at 314 (quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O'Connor, J., concurring)).

Finally, I note that there are those who would suggest that minor constitutional violations can be countenanced because the judiciary will always stand vigilant in the face of more "significant" threats against our liberty. Indeed, this was the approach that the Supreme Court itself adopted when, at a low point in its Establishment Clause jurisprudence, it announced with "abundant assurance that there is no real threat [to liberty] `while this Court sits.' " Marsh v. Chambers, 463 U.S. 83, 795 (1983) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223) (1928) (Holmes, J., dissenting)). But as the history of the Pledge of Allegiance as well as other more significant events in judicial history demonstrate, that is not always the case. Although some might think that judges are capable of making all of their decisions strictly on the basis of objective legal analyses, today's decision represents but an example of how far they may stray from the governing law. The Marsh statement is at best aspirational. The threat to First Amendment safeguards still exists today. "[I]n the hands of government what might begin as tolerant expression of religious views may end in a policy to indoctrinate and coerce." Lee, 505 U.S. at 591-92. "[T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943). We cannot, sadly, always count on today's courts to protect First Amendment freedoms, at least not those of individuals. Sometimes the reasons are difficult to discern. Here, unfortunately, those reasons would appear to be fairly obvious.

VI. Conclusion

I end where I began. Today's majority opinion will undoubtedly be celebrated by a large number of Americans as a repudiation of activist, liberal, Godless judging. That is its great appeal; it reaches the result favored by a substantial majority of our fellow countrymen and thereby avoids the political outcry that would follow were we to reach the constitutionally required result. Nevertheless, by reaching the result the majority does, we have failed in our constitutional duty as a court. Jan Roe and her child turned to the federal judiciary in the hope that we would vindicate their constitutional rights. There was a time when their faith in us might have been well placed. I can only hope that such a time will return someday.

As a judge of an intermediate appellate court, I would hold that our decision is controlled by the binding Supreme Court precedents governing this case. We are required to follow those precedents regardless of what we believe the law should be or what we think that the Supreme Court may hold in the future. Were today's majority to examine the amended Pledge as applied "through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause." Marsh v. Chambers, 463 U.S. 783, 796 (1983) (Brennan, J., dissenting). Following settled precedents, I conclude that the state-directed, teacher-led daily recitation in public schools of the amended "under God" version of the Pledge of Allegiance, unlike the recitation of the historic secular version, without the two added words, contravenes the rules and principles set forth in Lemon v. Kurtzman, Santa Fe v. Doe, and Lee v. Weisman. Accordingly, we are, in my view, required to hold that the amendment, as applied, violates the Establishment Clause of the United States Constitution. I should add that I firmly believe that the existing Supreme Court cases and doctrine reflect the true purpose and values of the Establishment Clause and of our Constitution as a whole, and that the holding that we should, but do not, reach best ensures the rights and liberties of the schoolchildren of this country. Finally, I firmly believe that any retreat from the existing Supreme Court doctrine and cases would constitute a most unfortunate diminution of the freedom of all our citizens.

Had my views prevailed here, our decision would not preclude daily recitation of the Pledge of Allegiance by public schoolchildren. To the contrary, public schoolchildren would be free to recite the Pledge as it stood for more than sixty years, a patriotic Pledge with which many of us grew up, a patriotic Pledge that is fully consistent with the Establishment Clause. All that would be required would be the deletion of the two words added by an amendment designed to promote religion and to indoctrinate schoolchildren with a religious belief. As has long been agreed in this nation, the teaching of religious views is the function of the family and the Church, not the State and the public school system.

As a judge of this court, I deeply regret the majority's decision to ignore the Pledge's history, the clear intent and purpose of Congress in amending the Pledge, the numerous Supreme Court precedents that render the school district's course of conduct unconstitutional as applied, and the very real constitutional injury suffered by Jan Roe and her child, and others like them throughout this nation.

Accordingly, I dissent.

False facts, misplaced priorities, rotten decision

2010-01-24T19:52:00.081Z

Our Supreme Court judges are called Justices, not Fundamentalists, because their profession is to respect underlying universal ethical principles of social welfare rooted in empiricism, not to mechanically and superficially apply literal readings of old laws without regard to the logical implications and empirical realities of the current social context. The majority's radical 5-4 ruling this week in "Citizens United v. Federal Election Commission" relied heavily on the fiction that corporations are indistinguishable from voluntary political associations of citizens (such as Political Action Committees) to reach the foolish and unreasonable conclusion that corporations should have the same 1st amendment protections as individual citizens. To support their disingenuous first amendment rationale, they created various supplemental falsehoods, including the fictions that large sums of money have no corrupting influence on politicians absent proof of a quid pro quo, that corporate policy is democratically controlled by shareholders, and that the law they struck down "banned" corporate political spending. They also overlooked or ignored relevant facts, such as the facts that shareholder's economic interests compromise their ability to act on their political convictions and widespread stock ownership via mutual funds makes it more difficult both to monitor and to alter particular holdings.

Justice Stevens, in a lengthy, clear, and relatively easy to understand (despite some legal citations and jargon), dissent joined by the remaining three Justices, had no difficulty identifying the obvious false factual basis and misplaced priorities of the five Fundamentalists whose overreaching ruling parodied our constitution with their cynically superficial "free-speech" arguments. The dissent burst the majorities 1st amendment hot air balloon in one sentence: "Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least." Because of the historical importance of this decision, the enormity of its failures, and the threat to our democracy that these Fundamentalists sitting as Supreme Court Justices potentially pose, I quote excerpts of the dissent in this blog:

".... Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case."

"The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case."

"In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."

"....Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed, through the normal process of litigation, a record about the actual effects of §203, its actual burdens and its actual benefits, on all manner of corporations and unions.4 Claims of facial invalidity often rest on speculation,” and consequently “raise the risk of premature interpretation of statutes on the basis of factually barebones records.” Id., at 450 (internal quotation marks omitted). In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent. Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert. The Court now negates Congress’ efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting any entity other than Citizens United.5"

"....It is all the more distressing that our colleagues have manufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutes and precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “[I]f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment)."

"Consider just three of the narrower grounds of decision that the majority has bypassed. First, the Court could have ruled, on statutory grounds, that a feature-length film distributed through video-on-demand does not qualify as an “electioneering communication” under §203 of BCRA, 2 U. S. C. §441b. BCRA defines that term to encompass certain communications transmitted by “broadcast, cable, or satellite.” §434(f)(3)(A). When Congress was developing BCRA, the video-on-demand medium was still in its infancy, and legislators were focused on a very different sort of programming: short advertisements run in television or radio. See McConnell, 540 U. S., at 207. The sponsors of BCRA acknowledge that the FEC’s implementing regulations do not clearly apply to video-on demand transmissions. See Brief for Senator John McCain et al. as Amici Curiae 17–19. In light of this ambiguity, the distinctive characteristics of video-on demand, and “[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657 (1895), the Court could have reasonably ruled that §203 does not apply to Hillary."

"Second, the Court could have expanded the MCFL exemption to cover §501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations. Citizens United professes to be such a group: Its brief says
it “is funded predominantly by donations from individuals who support [its] ideological message.” Brief for Appellant5. Numerous Courts of Appeal have held that de minimis business support does not, in itself, remove an otherwise
qualifying organization from the ambit of MCFL.14 This Court could have simply followed their lead.15"

"Finally, let us not forget Citizens United’s as-applied constitutional challenge. Precisely because Citizens United looks so much like the MCFL organizations we have exempted from regulation, while a feature-length video-on-demand film looks so unlike the types of electoral advocacy Congress has found deserving of regulation, this challenge is a substantial one. As the appellant’s own arguments show, the Court could have easily limited the breadth of its constitutional holding had it declined to adopt the novel notion that speakers and speech acts must always be treated identically—and always spared expenditures restrictions—in the political realm. Yet the Court nonetheless turns its back on the as-applied review process that has been a staple of campaign finance litigation since Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and that was affirmed and expanded just two Terms ago in
WRTL, 551 U. S. 449."

" ....Our cases have repeatedly pointed out that, “[c]ontrary to the [majority’s] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending.” Austin, 494 U. S., at 660; see also McConnell, 540 U. S., at 203–204; Beaumont, 539 U. S., at 162–163. For starters, both statutes provide exemptions for PACs, separate segregated funds established by a corporation for political purposes. See 2 U. S. C. §441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West 2005). “The ability to form and administer separate segregated funds,” we observed in McConnell, “has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view.” 540 U. S., at 203. "

"The laws upheld in Austin and McConnell leave open many additional avenues for corporations’ political speech. Consider the statutory provision we are ostensibly evaluating in this case, BCRA §203. It has no application to genuine issue advertising—a category of corporate speech Congress found to be far more substantial than electionrelated advertising, see McConnell, 540 U. S., at 207—or to Internet, telephone, and print advocacy.31 Like numerous statutes, it exempts media companies’ news stories, commentaries, and editorials from its electioneering restrictions, in recognition of the unique role played by the institutional press in sustaining public debate.32 See 2 U. S. C. §434(f)(3)(B)(i); McConnell, 540 U. S., at 208–209; see also Austin, 494 U. S., at 666–668. It also allows corporations to spend unlimited sums on political communications with their executives and shareholders, §441b(b)(2)(A); 11 CFR §114.3(a)(1), to fund additional PAC activity through trade associations, 2 U. S. C. §441b(b)(4)(D), to distribute voting guides and voting records, 11 CFR §§114.4(c)(4)–(5), to underwrite voter registration and voter turnout activities, §114.3(c)(4);§114.4(c)(2), to host fundraising events for candidates within certain limits, §114.4(c); §114.2(f)(2), and to publicly endorse candidates through a press release and press conference, §114.4(c)(6)."

"At the time Citizens United brought this lawsuit, the only types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications;33 (2) capable of reaching at least 50,000 persons in the relevant electorate;34 (3) made within 30 days of a primary or 60 days of a general federal election;35 (4) by a labor union or a non-MCFL, nonmedia corporation;36 (5) paid for with general treasury funds; and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”38 ..."

"So let us be clear: Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue. Laws such as §203 target a class of communications that is especially likely to corrupt the political process, that is at least one degree removed from the views of individual citizens, and that may not even reflect the views of those who pay for it. Such laws burden political speech, and that is always a serious matter, demanding careful scrutiny. But the majority’s incessant talk of a “ban” aims at a straw man."

"....Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural persons, much less members of our political community, and the governmental interests are of the highest order. Furthermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimination or political favoritism."

"....49).51 Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech."

"In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw."

"The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty," given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.” Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall, C. J.) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129 (“The framers of the First Amendment could scarcely have anticipated its application to the corporation form. That, of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to be the beneficiary of the free speech guaranty—the individual”). In light of these background practices and under standings, it seems to me implausible that the Framers believed “the freedom of speech” would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections."

"....Although JUSTICE SCALIA makes a perfectly sensible argument that an individual’s right to speak entails a right to speak with others for a common cause, cf. MCFL, 479 U. S. 238, he does not explain why those two rights must be precisely identical, or why that principle applies to electioneering by corporations that serve no “common cause.”"

"JUSTICE SCALIA also emphasizes the unqualified nature of the First Amendment text. Ante, at 2, 8. Yet he would seemingly read out the Free Press Clause: How else could he claim that my purported views on newspapers must track my views on corporations generally? Ante, at 6.57 Like virtually all modern lawyers, JUSTICE SCALIA presumably believes that the First Amendment restricts the Executive, even though its language refers to Congress alone. In any event, the text only leads us back to the questions who or what is guaranteed “the freedom of speech,” and, just as critically, what that freedom consists of and under what circumstances it may be limited. JUSTICE SCALIA appears to believe that because corporations are created and utilized by individuals, it follows (as night the day) that their electioneering must be equally protected by the First Amendment and equally immunized from expenditure limits. See ante, at 7–8. That conclusion certainly does not follow as a logical matter, and JUSTICE SCALIA fails to explain why the original public meaning leads it to follow as a matter of interpretation."

"The Court has surveyed the history leading up to the Tillman Act several times, see WRTL, 551 U. S., at 508–510 (Souter, J., dissenting); McConnell, 540 U. S., at 115; Automobile Workers, 352 U. S., at 570–575, and I will refrain from doing so again. It is enough to say that the Act was primarily driven by two pressing concerns: first, the enormous power corporations had come to wield in federal elections, with the accompanying threat of both actual corruption and a public perception of corruption; and second, a respect for the interest of shareholders and members in preventing the use of their money to support candidates they opposed. See ibid.; United States v. CIO, 335 U. S. 106, 113 (1948); Winkler, “Other People’s Money”: Corporations, Agency Costs, and Campaign Finance Law, 92 Geo. L. J. 871 (2004)."

".... The Taft-Hartley Act of 1947 is of special significance for this case. In that Act passed more than 60 years ago, Congress extended the prohibition on corporate support of candidates to cover not only direct contributions, but independent expenditures as well. Labor Management Relations Act, 1947, §304, 61 Stat. 159. The bar on contributions “was being so narrowly construed” that corporations were easily able to defeat the purposes of the Act by supporting candidates through other means. WRTL, 551 U. S., at 511 (Souter, J., dissenting) (citing S. Rep. No. 1, 80th Cong., 1st Sess., 38–39 (1947))."

"After Buckley, corporations and unions figured out how to circumvent the limits on express advocacy by using sham “issue ads” that “eschewed the use of magic words” but nonetheless “advocate[d] the election or defeat of clearly identified federal candidates.” McConnell, 540 U. S., at 126. “Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads.” Id., at 127. Congress passed §203 to address this circumvention, prohibiting corporations and unions from using general treasury funds for electioneering communications that “refe[r] to a clearly identified candidate,” whether or not those communications use the magic words. 2 U. S. C. §434(f)(3)(A)(i)(I). "

"When we asked in McConnell “whether a compelling governmental interest justifie[d]” §203, we found the question “easily answered”: “We have repeatedly sustained legislation aimed at ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’ ” 540 U. S., at 205 (quoting Austin, 494 U. S., at 660)."

"The case on which the majority places even greater weight than Buckley, however, is Bellotti, 435 U. S. 765, claiming it “could not have been clearer” that Bellotti’s holding forbade distinctions between corporate and individual expenditures like the one at issue here, ante, at 30. The Court’s reliance is odd. The only thing about Bellotti that could not be clearer is that it declined to adopt the majority’s position. Bellotti ruled, in an explicit limitation on the scope of its holding, that “our consideration of a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” 435 U. S., at 788, n. 26; see also id., at 787–788 (acknowledging that the interests in preserving public confidence in Government and protecting dissenting shareholders may be “weighty . . . in the context of partisan candidate elections”). Bellotti, in other words, did not touch the question presented in Austin and McConnell, and the opinion squarely disavowed the proposition for which the majority cites it. "

"The majority attempts to explain away the distinction Bellotti drew—between general corporate speech and campaign speech intended to promote or prevent the election of specific candidates for office—as inconsistent with the rest of the opinion and with Buckley. Ante, at 31, 42–44. Yet the basis for this distinction is perfectly coherent: The anticorruption interests that animate regulations of corporate participation in candidate elections, the “importance” of which “has never been doubted,” 435 U. S., at788, n. 26, do not apply equally to regulations of corporate participation in referenda. A referendum cannot owe a political debt to a corporation, seek to curry favor with a corporation, or fear the corporation’s retaliation. Cf. Austin, 494 U. S., at 678 (STEVENS, J., concurring); Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 299 (1981). The majority likewise overlooks the fact that, over the past 30 years, our cases have repeatedly recognized the candidate/issue distinction. See, e.g., Austin, 494 U. S., at 659; NCPAC, 470 U. S., at 495–496; FCC v. League of Women Voters of Cal., 468 U. S. 364, 371, n. 9 (1984); NRWC, 459 U. S., at 210, n. 7. The Court’s critique of Bellotti’s footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a critical piece of its analysis as unsupported and irreconcilable with Buckley. Bellotti, apparently, is both the font of all wisdom and internally incoherent."

"The Bellotti Court confronted a dramatically different factual situation from the one that confronts us in this case: a state statute that barred business corporations’ expenditures on some referenda but not others. Specifically, the statute barred a business corporation “from making contributions or expenditures ‘for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation,’ ” 435 U. S., at 768 (quoting Mass. Gen. Laws Ann., ch. 55, §8 (West Supp. 1977); alteration in original), and it went so far as to provide that referenda related to income taxation would not “ ‘be deemed materially to affect the property, business or assets of the corporation,’ ” 435 U. S., at 768. As might be guessed, the legislature had enacted this statute in order to limit corporate speech on a proposed state constitutional amendment to authorize a graduated income tax. The statute was a transparent attempt to prevent corporations from spending money to defeat this amendment, which was favored by a majority of legislators but had been repeatedly rejected by the voters. See id., at 769–770, and n. 3. We said that “where, as here, the legislature’s suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended.” Id., at 785–786 (footnote omitted)."

Bellotti thus involved a viewpoint-discriminatory statute, created to effect a particular policy outcome. Even Justice Rehnquist, in dissent, had to acknowledge that “avery persuasive argument could be made that the [Massachusetts Legislature], desiring to impose a personal income tax but more than once defeated in that desire by the combination of the Commonwealth’s referendum provision and corporate expenditures in opposition to such a tax, simply decided to muzzle corporations on this sort of issue so that it could succeed in its desire.” Id., at 827, n. 6. To make matters worse, the law at issue did not make any allowance for corporations to spend money through PACs. Id., at 768, n. 2 (opinion of the Court). This really was a complete ban on a specific, preidentified subject. See MCFL, 479 U. S., at 259, n. 12 (stating that 2 U. S. C.§441b’s expenditure restriction “is of course distinguishable from the complete foreclosure of any opportunity for political speech that we invalidated in the state referendum context in . . . Bellotti” (emphasis added))."

"The majority grasps a quotational straw from Bellotti, that speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation. Ante, at 30–31. Of course not, but no one suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the expenditures at issue were subject to First Amendment scrutiny, the restrictions on those expenditures were justified by a compelling state interest. See McConnell, 540 U. S., at 205; Austin, 494 U. S., at 658, 660. We acknowledged in Bellotti that numerous “interests of the highest importance” can justify campaign finance regulation. 435 U. S., at 788–789. But we found no evidence that these interests were served by the Massachusetts law. Id., at 789. We left open the possibility that our decision might have been different if there had been “record or legislative findings that corporate advocacy threatened imminently to under mine democratic processes, thereby denigrating rather than serving First Amendment interests.” Ibid.

"In sum, over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to “ ‘[p]reserv[e] the integrity of the electoral process, preven[t] corruption, . . . sustai[n] the active, alert responsibility of the individual citizen,’ ” protect the expressive interests of shareholders, and “ ‘[p]reserv[e] . . . the individual citizen’s confidence in government.’ ” McConnell, 540 U. S., at 206–207, n. 88 (quoting Bellotti, 435 U. S., at 788–789; first alteration in original) ...."

"The majority’s rejection of the Buckley anticorruption rationale on the ground that independent corporate expenditures “do not give rise to [quid pro quo] corruption or the appearance of corruption,” ante, at 42, is thus unfair as well as unreasonable. Congress and outside experts have generated significant evidence corroborating this rationale, and the only reason we do not have any of the relevant materials before us is that the Government had no reason to develop a record at trial for a facial challenge the plaintiff had abandoned. The Court cannot both sua sponte choose to relitigate McConnell on appeal and then complain that the Government has failed to substantiate its case. If our colleagues were really serious about the interest in preventing quid pro quo corruption, they would remand to the District Court with instructions to commence evidentiary proceedings.66 "

"Rather than show any deference to a coordinate branch of Government, the majority thus rejects the anticorruption rationale without serious analysis.67 Today’s opinion provides no clear rationale for being so dismissive of Congress, but the prior individual opinions on which it relies have offered one: the incentives of the legislators who passed BCRA. Section 203, our colleagues have suggested, may be little more than “an incumbency protection plan,” McConnell, 540 U. S., at 306 (KENNEDY, J., concurring in judgment in part and dissenting in part); see also id., at 249–250, 260–263 (SCALIA, J., concurring in part, concur ring in judgment in part, and dissenting in part), a disreputable attempt at legislative self-dealing rather than an earnest effort to facilitate First Amendment values and safeguard the legitimacy of our political system. This possibility, the Court apparently believes, licenses it to run roughshod over Congress’ handiwork."

"We have no record evidence from which to conclude that BCRA §203, or any of the dozens of state laws that the Court today calls into question, reflects or fosters such invidious discrimination. Our colleagues have opined that “ ‘any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.’ ” McConnell, 540 U. S., at 249 (opinion of SCALIA, J.). This kind of airy speculation could easily be turned on its head. The electioneering prohibited by §203 might well tend to favor incumbents, because incumbents have pre-existing relationships with corporations and unions, and groups that wish to procure legislative benefits may tend to support the candidate who, as a sitting officeholder, is already in a position to dispense benefits and is statistically likely to retain office. If a corporation’s goal is to induce officeholders to do its bidding, the corporation would do well to cultivate stable, long-term relationships of dependency. "

"So we do not have a solid theoretical basis for condemning §203 as a front for incumbent self-protection, and it seems equally if not more plausible that restrictions on corporate electioneering will be self-denying. Nor do we have a good empirical case for skepticism, as the Court’s failure to cite any empirical research attests. Nor does the legislative history give reason for concern. Congress devoted years of careful study to the issues underlying BCRA; “[f]ew legislative proposals in recent years have received as much sustained public commentary or news coverage”; “[p]olitical scientists and academic experts . . . with no self-interest in incumbent protectio[n] were central figures in pressing the case for BCRA”; and the legislation commanded bipartisan support from the outset. Pildes, The Supreme Court 2003 Term Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 137 (2004). Finally, it is important to remember just how incumbent-friendly congressional races were prior to BCRA’s passage. As the Solicitor General aptly remarked at the time, “the evidence supports overwhelmingly that incumbents were able to get re-elected under the old system just fine.” Tr. of Oral Arg. in McConnell v. FEC, O. T. 2003, No. 02–1674, p. 61. “It would be hard to develop a scheme that could be better for incumbents.” Id., at 63. "

"Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation, it also overlooks the distinctive considerations raised by the regulation of corporate expenditures. The majority fails to appreciate that Austin’s antidistortion rationale is itself an anticorruption rationale, see 494 U. S., at 660 (describing “a different type of corruption”), tied to the special concerns raised by corporations. Understood properly, “antidistortion” is simply a variant on the classic governmental interest in protecting against improper influences on officeholders that debilitate the democratic process. It is manifestly not just an “ ‘equalizing’ ” ideal in disguise. Ante, at 34 (quoting Buckley, 424 U. S., at 48).69 "

"The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” 494 U. S., at 658–659. Unlike voters in U. S. elections, corporations may be foreign controlled.70 Unlike other interest groups, business corporations have been “effectively delegated responsibility for ensuring society’s economic welfare”;71 they inescapably structure the life of every citizen. “ ‘[T]he resources in the treasury of a business corporation,’ ” furthermore, “ ‘are not an indication of popular support for the corporation’s political ideas.’ ” Id., at 659 (quoting MCFL, 479 U. S., at 258). “ ‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’ ” 494 U. S., at 659 (quoting MCFL, 479 U. S., at 258)"

"It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established."

"It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least."

"In this transactional spirit, some corporations have affirmatively urged Congress to place limits on their elecioneering communications. These corporations fear that officeholders will shake them down for supportive ads, that they will have to spend increasing sums on elections in an ever-escalating arms race with their competitors, and that public trust in business will be eroded. See id., at 10–19. A system that effectively forces corporations to use their shareholders’ money both to maintain access to, and to avoid retribution from, elected officials may ultimately prove more harmful than beneficial to many corporations. It can impose a kind of implicit tax.73"

"The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today. "

"There is yet another way in which laws such as §203 can serve First Amendment values. Interwoven with Austin’s concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind of coerced speech: electioneering expenditures that do not “reflec[t] [their] support.” 494 U. S., at 660–661. When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill.Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions. "

"The PAC mechanism, by contrast, helps assure that hose who pay for an electioneering communication actually support its content and that managers do not use general treasuries to advance personal agendas. Ibid. It ‘allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members.’ ” McConnell, 540 U. S., at 204 (quoting Beaumont, 539 U. S., at 163). A rule that privileges the use of PACs thus does more than facilitate the political speech of like-minded shareholders; it also curbs the rent seeking behavior of executives and respects the views of dissenters. Austin’s acceptance of restrictions on general treasury spending “simply allows people who have in vested in the business corporation for purely economic reasons”—the vast majority of investors, one assumes—“to avoid being taken advantage of, without sacrificing their economic objectives.” Winkler, Beyond Bellotti, 32 Loyola LA) L. Rev. 133, 201 (1998). "

"... The Court dismisses this interest on the ground that abuses of shareholder money can be corrected “through the procedures of corporate democracy,” ante, at 46 (internal quotation marks omitted), and, it seems, through Internet-based disclosures, ante, at 55.76 I fail to understand how this addresses the concerns of dissenting union members, who will also be affected by today’s ruling, and I fail to understand why the Court is so confident in these mechanisms. By “corporate democracy,” presumably the Court means the rights of shareholders to vote and to bring derivative suits for breach of fiduciary duty. In practice, however, many corporate lawyers will tell you that “these rights are so limited as to be almost nonexistent,” given the internal authority wielded by boards and managers and the expansive protections afforded by the business judgment rule. Blair & Stout 320; see also id., at 298–315; Winkler, 32 Loyola (LA) L. Rev., at 165–166, 199–200. Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem. Most American households that own stock do so through intermediaries such as mutual funds and pension plans, see Evans, A Requiem for the Retail Investor? 95 Va. L. Rev. 1105 (2009), which makes it more difficult both to monitor and to alter particular holdings. Studies show that a majority of individual investors make no trades at all during a given year. Id., at 1117. Moreover, if the corporation in question operates a PAC, an investor who sees the company’s ads may not know whether they are being funded through the PAC or through the general treasury."

"If and when shareholders learn that a corporation has been spending general treasury money on objectionable electioneering, they can divest. Even assuming that they reliably learn as much, however, this solution is only partial. The injury to the shareholders’ expressive rights has already occurred; they might have preferred to keep that corporation’s stock in their portfolio for any number of economic reasons; and they may incur a capital gains tax or other penalty from selling their shares, changing their pension plan, or the like. The shareholder protection rationale has been criticized as underinclusive, in that corporations also spend money on lobbying and charitable contributions in ways that any particular shareholder might disapprove. But those expenditures do not implicate the selection of public officials, an area in which “the interests of unwilling . . . corporate shareholders [in not being] forced to subsidize that speech” “are at their zenith.” Austin, 494 U. S., at 677 (Brennan, J., concurring). And in any event, the question is whether shareholder protection provides a basis for regulating expenditures in the weeks before an election, not whether additional types of corporate communications might similarly be conditioned on voluntariness. "

"Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power. Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades."

Complaint to Maryland Dept. of Natural Resources regarding Venture Crew

2010-01-05T03:23:00.005Z

John Griffin
Secretary
Maryland Department of Natural Resources

Mr. John Griffin:

Are you aware that the Boy Scouts of America (BSA) agreed four years ago to stop issuing charter agreements to government entities, after the ACLU threatened a lawsuit? While BSA has equal access rights to government facilities, chartering Venture Crew 202 is not equal access, that is clearly privileged access. Since BSA is a private organization that discriminates against non-theistic agnostics and atheists, government entities that charter such units are very likely violating federal civil rights law. The Exploring program was moved to a BSA subdivision, Learning For Life, that does not deny membership to atheists back in 1998 because of the legal problems resulting from Explorer Posts chartered to police and fire departments. As you should be aware, Venturing is not part of the Learning for Life subsidiary.

Some of us consider our government's compliance with civil rights law to be a serious obligation that should be uniformly enforced. We do not, will not, and cannot accept the notion that there is a hole cut out from the non-discrimination umbrella over the heads of the atheist citizens of this state. If this failure by the Maryland Department of Natural Resources to comply with civil rights law doesn't stop it could provoke a lawsuit.

Thank you for your consideration of this complaint.

Columnist Kristoff equates peace with liberal theology

2009-11-28T17:15:00.064Z

In his recent column "The Religious Wars" (NY Times, November 26), Nicholas D Kristoff promotes as "more thoughtful" books written by Robert Wright and Karen Armstrong that advocate for liberal theism and religious belief. He expresses hopes that these books mark "an armistice in the religious wars, a move away from both religious intolerance and irreligious intolerance". However, the arguments for theism and religion made by Robert Wright and Karen Armstrong are actually less thoughtful than the competing arguments by the New Atheists. Furthermore, it is counterproductive to assert that such dubious beliefs are necessary for peace and tolerance.

For example, Mr. Wright's argument that "to the extent that 'god' grows, that is evidence - of higher purpose" is unconvincing. What goes on in peoples' heads regarding their definitions of gods, and the ways those definitions have changed over history, are no evidence for anything outside of people's heads other than maybe the influences on them of their contemporary experiences. His entire book, starting with the title, is built on conflating a fictional god with non-fictional concepts of god. He writes about the latter while referring to the former as if merely imagining something's existence suffices to confirm its existence. Ms. Armstrong makes this same fundamental error, arguing as if merely imagining concepts of god, and we all agree that such concepts really do exist in people's heads, evidences a non-fictional god's "ineffable presence". She skirts around the simpler and more obvious explanation for the only evidences of substance favoring her ill-defined god's presence being placebo effects: There is no god for us to understand.

If Mr. Kristoff is serious about wanting to promote more harmony between theists and atheists then he would do much better to refrain from calling our disagreements a "war" and mischaracterizing atheists as exhibiting "intolerance", being "combative", and being more "extreme" than liberal theists (or pantheists, agnostics, faitheists, or whatever they consider themselves to be), such as Wright and Armstrong, simply because those atheists sincerely and publicly disagree with liberal theists about the existence of a "higher purpose" and/or an "ineffable presence" deity. Atheists as a group are only guilty of expressing their conscience regarding the direction of the overall weight of the evidence on these questions. Liberal theists surely have beliefs that are on one end of the spectrum on other questions without self-labeling themselves to be "at the extremes". Liberal theists surely publicly disagree with other people over other questions without self-labeling themselves as intolerant and combative. Is it too much to ask of Mr. Kristoff not to label others as he wouldn't label himself?

Disbelief in all gods (of the "god did it" varieties, not the concepts of gods) is no more responsible for conflict than disbelief in Greek gods or than disbelief in other likely fictions, including Kristoff's own favored "more beneficent and universal deity". Its more modest, and more reasonable, to follow the evidence (verifiable, empirical, reproducible, evidence) wherever it takes us, instead of insisting on staying forever with a particular conclusion. Utilizing an evidence based approach makes it both easier to reach agreement and easier to disagree without mislabeling such disagreement as war and mislabeling as intolerant and combative the people with whom we disagree.

AP news article slanted against atheist activism

2009-11-22T19:18:00.035Z

The national religion reporter for Associated Press, Eric Gorski, apparently motivated by an increase in the number of campus affiliates of the Secular Student Alliance "from 80 in 2007 to 100 in 2008 and 174 this fall", authored a recently published article titled "Atheist student groups flower on college campuses". The news article is well written and presents facts about atheist campus clubs with a neutral, even sympathetic, tone. Yet the article's selection of quotations and focus also has a pronounced bias against non-establishment of monotheism activism. Mr. Eric Gorski selected quotes from atheists that promote the article's underlying theme that confrontational activism and anti-religion sentiment are positively correlated negatives, in contrast with a more cooperative, and therefore positive, example of activism disliked by anti-religion atheists that focuses on other general concerns of liberals (in this case more civic equality for gays).

Mr. Gorski asks "Should student atheist groups go it alone or build bridges with Christian groups? Organize political protests or quiet discussion groups? Adopt the militant posture of the new atheists? Or wave and smile?" If only because of time and resources constraints, these are some of the choices of focus and emphasis that atheist groups may, to some extent, confront. But Mr. Gorski over dramatizes these choices by presenting at least some of these choices as being in conflict with each other when, in fact, they are all mutually compatible and self-consistent.

The article cites one atheist campus club that decided to join a liberal religious group in supporting equal legal status for gays as exemplifying a controversy among atheists over whether to work with religious groups. Here the article focuses on an alleged conflict between such cooperative activism and the anti-religion sentiment of some atheists. It then cites that club's decision to avoid taking a position against a university chapel's religious symbols because some members "fear repercussions and don't think a fight is worth it." A club member who was identified at the start of the article as exemplifying the "wave and smile", "happy face of atheism" is quoted as supporting that decision on the grounds that she is uncomfortable with "calling out religion as wrong." That quote incorrectly conflates lobbying a secular educational institution to exhibit neutrality between various religious and non-religious viewpoints with "calling out religion as wrong".

The article then quotes an organizer for the Secular Student Alliance saying "college students can be a little more susceptible to the more reactionary anti-religion voices, partly because it's so new to them. My impression is after a couple of years, they mellow out." Maybe after a couple years a more pro-religion atheist will become more anti-religion in orientation? Like the question of atheism versus theism, answers to questions regarding the nature of the influences of religions on societies should not be regarded as predetermined, fixed conclusions, but subject to weight of the evidence evaluation and discussion. Either way, surely the sentiments for and against religion are separable, and indeed separate, from the sentiment for civic equality between different religions and between atheism and theism. Independently of how pro-religion or anti-religion we are individually, groups of atheists can be, and arguably we should be, willing to be a little confrontational, and even a little militant, on behalf of such civic equality while also waving and smiling and joining with theists of all religious orientations for debate and coalition politicking.

Christian Smith, director of the Center for the Study of Religion and Society at the University of Notre Dame and "a principal investigator on the youth and religion study" is quoted at the conclusion of this article. He is cited as asserting that campus atheist groups are better off without militancy. Young adults are taught their entire lives to be nonjudgmental, that different points of views are OK and that there is no one truth, he said. "If I were advising atheists and humanists, I would say their long-term prospects are much better if they can successfully create this space where people view them as happy, OK, cooperative, nice people."

Those atheists who appear to some people to be confrontational and militant on behalf of promoting more civic equality and/or who do think that what is true is sometimes singular and exclusive to multiple competing falsehoods are also happy, cooperative, nice people. Indeed, contrary to what Christian Smith says, most adults, young and old, including most religious adults and most theists, justifiably think truth is sometimes singular and exclusive to a competing multitude of falsehoods. Furthermore, most such adults justifiably prefer that others share their own insights regarding which is which. There should be no acceptable double standard here with regard to atheists. The real issue is not how firmly or exclusively one holds to any particular belief, but whether the belief is properly justified and held in proper proportion to the overall weight of the evidence.

How to identify a history book not written for accuracy.

2009-10-26T23:03:00.014Z

Why is it that professors with Phd's are still publishing academic books asserting as a historical fact that George Washington and "all of his successors" appended the phrase "so help me God" to their oath of office? In a brief recent correspondance with one such history book author I heard several of the common defenses. Here are the defenses and my reaction to them.

One response is that there are a number of eyewitness accounts. This is simply incorrect. There is insufficient reason to assume that Washington Irving's claim that GW appended that phrase was based on his hearing that phrase being appended as a six year old. The others who first made this claim in the mid to late 1850's, 65 years after the event, were either not born, illiterate infants, and/or not in the vicinity of the inaugural at that time, and were as a group in social contact with each other. We have one eyewitness account from the French minister that quotes the oath. I explain this in more detail below.

Another, more common response is that the presidents used religious themes and that this lends credence to accounts that they finished with SHMG. This is OK as an argument in defense of the opinion that all of the presidents appended SHMG, although as a defense of a such a sweeping opinion it is weak, especially since we have a audio recording proving that least one president did not append SHMG and eyewitness accounts of some presidents not appending SHMG. But putting the contrary evidence aside, that still does not even come close to justifying claiming that GW, let alone all presidents, appended SHMG as a historical fact. The bottom line is that there is no evidence that our presidents appended that phrase to the presidential oath of office prior to Confederate president Jefferson Davis doing so. It is my opinion, for example, that Jefferson Davis wanted to confer upon the Confederacy a sense of moral superiority by appending that phrase as a contrast with the United States presidential inaugurals which up to that time apparently did not include that phrase. I think the evidence supports my opinion much better than it supports the contrary opinion that all presidents appended SHMG. But professors with Doctorates of Philosophy who falsely publish that it is a historical fact that all presidents appended that phrase in serious acadamic reference books and textbooks for history and political science students are in effect suppressing the legitimacy of such justified opinions that are consistent with the evidence. This is a foul thing for such professors to be doing, they are in effect abusing their professional titles for the purpose of misleading propagandizing.

Another common response is to simply ignore the fact that there is no evidence that any other president, let alone that all of the other presidents, appended that phrase prior to the Civil War. Instead, the professor tries to change the subject and question the motives of the person protesting that there is no evidence at all, and/or emphasizes the catch all "you can't prove they didn't all say it" defense as if that is sufficient justification for claiming they did say it. The motives of the people criticizing the professors who make this assertion of historical fact, for which there is literally no evidence whatsoever, is to challenge the falsification of history by monotheists for sectarian political purposes. It is the professors responsibility to show that there is sufficient evidence to qualify this 'they all appended "SHMG"' assertion as a historical fact, not the critics responsibility to show that they are religious monotheists who support establishment of monotheism and have proof it was not said in order to have credibility as a critic.

Because I consider all email exchanges to be private unless both parties agree to publish them, I will not reveal the name of the professor or the academic reference book he authored that falsely claims it is a historical fact that all presidents appended this phrase. I will display the emails below with identifying information removed:

My initial email:

The following is from your book [removed]: [removed]

I am not aware of any contemporaneous eyewitness evidence that any president appended "SHMG" to their oath office prior to the Civil War. The confederate president, Jefferson Davis, appears to be the first who we can say with any confidence appended that phrase to a presidential oath of office. If you are aware of evidence that "all" presidents appended that phrase to their oath of office, or for that matter to anything else that they said during their inauguration, then please tell us know about that evidence. Otherwise, please refrain from publishing such a sweeping statement in a textbook as if it is a historical statement when it clearly is not.

The notion that George Washington added "So help me God" to his presidential oath made its debut in the mid-nineteenth century and was first promoted in a published format by Rufus W. Griswold (February 13, 1815 – August 27, 1857) in his book, Republican Court, or American Society in the Days of George Washington, pgs 140-141 (1854). A website maintained by the Edgar Allen Poe Society identifies Griswold as "a failed Baptist minister turned editor" who slandered Poe after Poe died, claiming that "he forged letters by Poe and made changes in the texts of Poe's work to support his lies, portraying Poe as a fiend and a drug addict."

Here's how the debut took place. Early on in Griswold's inaugural narrative, just after Washington had completed pronouncing the words of the oath, he writes:

The Bible was raised, and as the President bowed to kiss the sacred pages, he said, audibly, 'I swear,' and he added, with fervor, his eyes closed, that his whole soul might be absorbed in supplication, 'So help me God.'

Soon afterwards, when Griswold has finished describing Washington's inaugural ceremony, he then adds this tidbit about Washington Irving:

Few persons are now living who witnessed the induction of the first President of the United States into his office; but walking, not many months ago, near the middle of a night of unusual beauty, through Broadway - at that hour scarcely disturbed by any voices or footfalls except our own - Washington Irving related to Dr. [John Wakefield] Francis [1789 - 1861] and myself his recollections of these scenes, with that graceful conversational eloquence of which he is one of the greatest of living masters. He had watched the procession till the President entered Federal Hall, and from the corner of New street and Wall street [a sideway's location about 200 feet away] had observed the subsequent proceedings in the balcony.

One may want to assume that Griswold had used Washington Irving as his source for asserting that Washington had added the "supplication, 'So help me God'," to his presidential oath, but if that is the case, it is not spelled out by Griswold. Furthermore, could six year old Washington Irving, from a distance of 200 feet in a crowd, have seen George Washington momentarily close his eye and then accurately recalled this sixty years latter? Irving's nephew's long biography of his uncle, The Life and Letters of Washington Irving, by Pierre Monroe Irving, 1869, G.P. Putnam's sons, doesn't mention Washington Irving viewing the first presidential inauguration, even briefly, although it did describe Irving's personal encounter with Washington as a young boy. Irving had discussed his biography project with his nephew since the 1840s, and Pierre was assisting his uncle with writing it in the mid-1850s. So if Irving was recalling the inaugural based on his personally witnessing the events then Pierre would certainly have been privy to this and presumably would have recognized its importance to his project. This lack of confirmation that Irving witnessed the first presidential inauguration thus leaves room for doubt that six year old Irving really was a witness to the inauguration as Griswold claimed.

Three years later, when Washington Irving's narrative describing the inaugural ceremony was published, he, too, left out any reference to a source he might have used. That may not be unusual by itself for historians of that period, but what is extremely problematic for Irving's reliability as a credible historian is that he apparently stole his narrative (with the exception of GW adding SHMG) from the Memoir of Eliza S. M. Quincy. Here is the footnote at bottom of page 52:

The previous pages, which describe the entrance and inauguration of Washington, were sent to Mr. Irving, in 1856, at his request, by the Editor, and are inserted in his "Life of Washington," vol iv. pp. 510, 513, 514, but without reference to their source.

Elsewhere in Irving's GW biography, Irving says that two horses pulled GW's Carriage of State. Newspapers of the day said that the Carriage of State, loaned out by the Beekman family, was pulled by four horses. It was one of the few carriages that had four horses. So much for Irving having "watched the procession" while it moved, out of his sight, along Broad Street. Indeed, Irving apparently did little if any original research for his popular biography of George Washington. According to The Religious Beliefs of Our Presidents, by Franklin Steiner, 1936, most of Washington Irving's biography of George Washington is copied from the biography written by historian Sparks. Similarly, in his article on Washington in the Dictionary of American Biography (1936), J C Fitzpatrick wrote, "Washington Irving, Life of GW (5 vols., 1855-1859) is satisfactory from most viewpoints, though its reliance on [Jared] Sparks lessens the confidence it would otherwise command."

For more information see the January 12, 2009 History News Network article, “So Help Me God”: A George Washington Myth that Should Be Discarded, by Professor Peter Henriques.

Furthermore, the notion that George Washington initiated a precedent, tradition, or custom by adding SHMG to his oath that other presidents have followed appears to have first materialized in the middle of the 1900's during the height of the Cold War! The earliest document we have found that explicitly characterizes appending shmG to the presidential oath as an inaugural tradition is from an article in the Herald Press, January 20, 1953 . This particular notion appears to be a twentieth century invention. A book The Soul of George Washington by Joseph Buffington, (1936) page 144 says 'When he took it in that form and he then bowed his head and kissed the Sacred Book and, with the deepest feeling, uttered the words "so help me God." These latter words, now accompanying the foregoing one in official oaths we owe to George Washington.' In other words, he is claiming that the post-Civil War legal oaths that "now" included that phrase were following a GW precedent, but he did not claim it set an earlier precedent for presidential oaths. As far as we have been able to determine it appears nowhere in anything published in the 1800's.

Sincerely,
Mathew Goldstein

The professors first response:

Aside from the considerable number of eyewitness accounts (you mention several, although you have decided they are not credible), you also might take a look at Washington's first inaugural address, which goes on and on at great length about the Deity. Even if you are correct (I don't see how you could prove it, but that's a question about the logic of social science and historical inquiry) on the particular SHMG issue, the fact that Washington and other presidents used religious themes at their inaugural is simply a matter of historical fact, easily developed through a simple reading of their addresses. This lends credence to accounts that they finished up with SHMG.

So I wonder what point you are trying to make. If it is some point about separation of church and state at the time, the historical record indicates that such separation, while existing under the Constitution ("No religious test...") for certain purposes, did not generally prevent people from swearing oaths to God at judicial and political ceremonies.

My second attempt to get the professor to address the issue of the evidence for his assertion:

Thank you for your quick response.

The 1850's publications claiming GW said "SHMG" are not eyewitness accounts, only one of the authors was alive, old enough to be fluent in English, and in the vicinity. That one author, Washington Irving, did not self-claim to be recalling an oath recitation he heard as a six year old. Again, Irving's published account of the event was copied without attribution from an eyewitness, Eliza Susan Morton Quincy, who, like all of the other known eyewitnesses, didn't claim that GW appended that phrase (someone else later added the "SHMG" to her original account about a decade after she had died, a copy of which, without the SHMG, can be found in The Inauguration of Washington, by Clarence Winthrop Bowen). The best eyewitness account we have of the oath recitation, the only one that actually quotes the oath recitation, was written by a French minister who stood on the stage near GW. That account does not mention GW appending "SHMG".

Donald Ritchie, co-author of the Oxford Guide to the US Gov't, made this statement to Lisa Miller in a Jan 20, 2009 newsweek article titled God and the Oath of Office
Did Washington swear to God? That legend may be as apocryphal as the one about the cherry tree: "The fact is, according to Donald Ritchie, a historian at the Senate Historical Office, we have no idea what most 19th-century presidents have said about God as they were sworn in because for most of American history there were no microphones and no recording devices." Maybe you had a secret "recording device" hidden away somewhere to support your claim about "all his successors"?

If Donald Ritchie can publically make this modest statement then so can you. Of course we shouldn't hide or disguise the fact that most presidents, including GW, utilized religious themes at their inaugurations, just please confine yourself to the evidence when doing so. We have no evidence, for example, that GW made any reference to deity during his second inaugural, which, unlike his first inaugural, was conducted according to GW's direction. In the first inaugural the presence of a bible, the lifting of the bible to his face, the church service, even the writing of the inaugural speech, were actions initiated by or carried out by others on short notice, which is why the absence of any religious references during his second inauguration is significant. Regardless of any other history, the significance of the oath history stands on its own and shouldn't be modified to match the religious preferences of the textbook's author(s) or the potential readership or purchasers.

Given that it is your textbook that asserts GW appending "SHMG" set a precedent that was followed by all other presidents, it seems to me kind of hypocritical for you to accuse me of making too big a deal about this. Are you going to continue to spout this so-called history as real or are you going to fess up to the fact that there are no, zero, known eyewitness accounts that GW ever said "SHMG" during either of his inaugurations?

The professors refusal to engage the issue of the evidence is final:

Please don't e-mail me or contact me again. I am not interested in exchanges with people who are obnoxious. Go write your own reference book if you don't like ours.

Supreme Court threatens to undermine our political free speech rights

2009-09-13T00:24:00.018Z

The Supreme Court is currently weighing a free speech dispute. At its narrowest, the case tests whether it is constitutional to prohibit the primary election season broadcasting by a cable television video-on-demand service of a movie attacking candidate Hillary Clinton that was promoted by a non-profit organization. Congressional law restricts the spending of money by corporations and labor unions for partisan purposes during elections. Money and speech are linked since money buys access to billboards, pamphlets, signs, research, letters, radio, television, internet web pages, transportation, hotels, meeting hall rentals, telephone calls, etc. The Supreme Court could just rule on the specifics of this case, but the conservative Supreme Court majority appears to be eager to make a sweeping first amendment free speech decision against the existing court precedents upholding congressional restrictions on partisan spending by corporations and labor unions.

All free speech law should be firmly rooted in giving priority to the speech of individuals because all speech originates as an action of individuals and because civil rights are people-centered. Corporations, as legal constructs, should not have free speech priority over individuals, particularly with regard to political speech which has civil rights priority over other forms of speech. Individuals have free speech rights to associate with others of like mind and pool their resources to promote their shared viewpoint. Accordingly, corporations and labor unions in the United States can sponsor Political Action Committees, or PACs, which are associations of individuals to promote the partisan political interests of the corporation or labor union. PACs fulfill the requirement of rooting free speech in individuals and give both for-profit and non-profit organizations, including corporations and labor unions, equal opportunity to influence the political process with all other associations of individuals.

The conservative judges on the Supreme Court are endorsing weak arguments that corporations are entitled to the same free speech rights as individuals. They are claiming that somehow the 1st amendment free speech right for individuals is being denied when corporations and labor unions can't spend their general funds on political parties and candidates. Those are strange arguments, they defy common sense.

The fortune 100 companies in 2007 reported over 500 billion in profits. The profits of major United States corporations is no doubt well over a trillion a year. Political parties and candidates in the United States take in about 3 billion dollars a year. The numbers demonstrate that when corporate general funds start flowing to political parties and candidates they can, and probably will, dominate over the speech of individuals. Corporations tend to favor more freedom to sell anything, no matter the costs to health and future generations, using any means, no matter how dishonest, while paying the least salaries and benefits to workers, without accountability to anyone else and without paying taxes. They also favor unfair restrictions on and advantages over competitors. Corporations will contribute their profits to the political party and candidates who agree to favor laws that will impose such skewed outcomes. Giving the same legal privileges to labor unions doesn't create a balance here, corporations have much more money to spend than labor unions do.

For most people, the bulk of their stock ownership is in publicly traded stock. Shareholders get to vote for the corporate board of directors, but its far from an epitome of a democratic process. The board of directors nominating committee selects the candidates and shareholders can only vote yes or no for the nominees. Furthermore, voting is weighted by number of shares, and retirement, insurance, and investment funds, who collectively hold a large portion of corporate stock, neither disclose their votes nor ask the individual investors who own the shares how to vote their shares. Most corporations either do not issue public stock or place all ownership of the company's stock in the hand of a relatively small number of people who do not trade the stock publicly on the stock market, so there isn't even the pretense of larger public democratic control over how such corporate profits are spent.

Even if shareholders did have control over the policies of the corporation, which in practice they mostly do not, the fact remains that shareholders own stock because they want to make a profit, or at least not lose money to inflation. Similarly, the employees, who enable the corporation to accumulate profits, are working for the corporation to earn money. Employees usually own little or no stock in the corporations that employ them. Unlike contributors to corporate and union PACs, shareholders and employees are not a group of like minded individuals associating for the purpose of promoting or opposing political parties and candidates. It is anti-democratic to place investors and employees and union members in the coerced inferior position of having some portion of their investments and earnings that are under the control of corporate and union executives spent by those corporate and union executives on behalf of (or against) political parties and candidates.

If the Supreme Court rules that corporations and labor unions have a first amendment political free speech right to spend their general funds on political parties and candidates then they will be undermining the political free speech rights of individuals.