Newdow
Newdow v. US Congress
Opinion
Concurrence in Part
Fernandez, J.
concurring and dissenting:
I concur in parts A, B arid C 1 of the majority opinion, but dissent as to part D.
*613 We .are asked to hold that inclusion of the phrase “under God” in this nation’s Pledge of Allegiance violates the religion clauses of the Constitution of the United States. We should do no such thing. We should, instead, recognize that those clauses were not designed to drive religious expression out of public thought; they were written to avoid discrimination.
We can run through the litany of tests and concepts which have floated to the surface from time to time. Were we to do so, the one that appeals most to me, the one I think to be correct, is the concept that what the religion clauses of the First Amendment require is neutrality; that those clauses are, in effect, an early kind of equal protection provision and assure that government will neither discriminate for nor discriminate against a religion or religions. See Gentala v. City of Tucson, 244 F.3d 1065, 1088-86 (9th Cir.) (en banc) (Fernandez, J., dissenting), cert. granted and judgment vacated by — U.S. -, 122 S.Ct. 340 , 151 L.Ed.2d 256 (2001); Goehring v. Brophy, 94 F.3d 1294, 1306-07 (9th Cir.1996)…
Lead Opinion
Goodwin, J.
Partial Concurrence and Partial Dissent by Judge FERNANDEZ.
OPINION
Michael Newdow appeals a judgment dismissing his challenge to the constitutionality of the words “under God” in 1 the Pledge of Allegiance to the Flag. Newdow argues that the addition of these words by a 1954 federal statute to the previous version of the Pledge of Allegiance (which made no reference to God) and the daily recitation in the classroom of the Pledge of Allegiance, with the added words included, by his daughter’s public school teacher are violations of the Establishment Clause of the First Amendment to the United States Constitution.
FACTUAL AND PROCEDURAL BACKGROUND
Newdow is an atheist whose daughter attends public elementary school in the Elk Grove Unified School District (“EGUSD”) in California. In accordance with state law and a school district rule, EGUSD teachers begin each school day by leading their students in a recitation of the Pledge of Allegiance (“the Pledge”). The California Education Code requires that public schools begin each school day with “appropriate patriotic exercises”' and that “[t]he giving of the Pledge of Allegiance to the Flag of the United States of America shall…