ACLU Letter to the House of Representatives Urging Opposition to H.R. 2389, "The Pledge Protection Act of 2005"

Document Date: June 6, 2006


Dear Representative,

The American Civil Liberties Union strongly urges you to oppose H.R. 2389, “the Pledge Protection Act of 2005.” H.R. 2389 is an extreme measure that would remove jurisdiction from all federal courts, including the Supreme Court, over any constitutional claim involving the Pledge of Allegiance or its recitation.

H.R. 2389 would slam shut the federal court house doors to religious minorities, parents, schoolchildren and others who seek nothing more than to have their religious and free speech claims heard before the courts most uniquely suited to entertain such claims. Further, by entirely stripping all federal courts of jurisdiction over a particular class of cases, H.R. 2389 raises serious legal concerns, violating principles of separation of powers, equal protection and due process. The bill undermines public confidence in the federal courts by expressing outright hostility toward them, threatens the legitimacy of future congressional action by removing the federal courts as a neutral arbiter, and rejects the unifying function of the federal judiciary by denying federal courts the opportunity to interpret the law. H.R.2389 would deny the U.S. Supreme Court its historical role as the final authority on resolving differing interpretations of federal constitutional rights. As a result, each of the 50 state supreme courts would be a final authority on these federal constitutional questions. This would potentially create a situation where we could have as many as 50 different interpretations of any relevant federal constitutional question.

It is in apparent recognition of many of these concerns that no federal bill withdrawing federal jurisdiction in cases involving fundamental constitutional rights has become law since the Reconstruction period. Federal courts were established to interpret federal law and to ensure that the states and the government did not violate the protections in the federal constitution. An effort to deny the federal courts, particularly the U.S. Supreme Court, of jurisdiction over the very sort of claim they were established to hear–governmental conduct that violates a constitutional right–is an extreme attack on the role of federal courts in our system of checks and balances. It strikes at the very intent of the Founders.

While the supporters of this bill see it as an appropriate response to recent court decisions that they dislike concerning the words “under God” in the Pledge, the impact of H.R. 2389 would NOT be limited merely to that issue. This bill would remove jurisdiction over ALL constitutional claims, related to the pledge, from ALL federal courts. This could potentially undermine decades of well-established Supreme Court precedents by denying access to the federal courts in cases brought to enforce existing constitutional rights for religious minorities. For example, over sixty years ago, the Supreme Court decided the case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In Barnette, the Supreme Court struck down a West Virginia law that mandated schoolchildren to recite the Pledge of Allegiance. Under the West Virginia law, religious minorities faced expulsion from school and could be subject to prosecution and fined, if convicted of violating the statute’s provisions. In striking down that statute, the Court reasoned: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds . . . 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, religion, or other matters of opinion.” 319 U.S. at 639-40.

In 2004, a panel of the U.S. Court of Appeals for the Third Circuit held that a Pennsylvania law mandating recitation of the Pledge, even when it provided a religious exception, violated the Constitution because it violated the free speech rights of the students. Circle School v. Pappert, 381 F.3d 172 (3d Cir. 2004). In Pappert, the court found that: "It may be useful to note our belief that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem. But the rights embodied in the Constitution, particularly the First Amendment, protect the minority–those persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection." Pappert, 381 F.3d at 183.

First comes marriage then comes the Pledge… Where will it end? Passage of H.R. 2389 would set a dangerous precedent for responses by Members of Congress to court decisions with which they disagree. In the 109th Congress alone, Congress is considering court-stripping legislation related to the Pledge of Allegiance, marriage, governmental acknowledgement of God, and impeachment of judges for considering certain religion cases.

Over the years, Congress has considered legislation designed to strip court jurisdiction on the issues such as public school busing, voluntary prayer and abortion. Fortunately, none of those proposals was adopted by Congress because legislators understood that setting a precedent for stripping the courts of their jurisdiction over a particular issue might, in the future, be used by some other group of advocates, when in the majority, to establish its views as the law of the land, safely out of the reach of the courts. We urge members of this Committee to oppose passage of H.R. 2389 and not to abandon this tradition of thoughtfulness and restraint.


Caroline Fredrickson

Terri A. Schroeder
Legislative Analyst

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