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JUSTICE JOHN PAUL STEVENS -- Do you think that the pledge has the same meaning today as when it was enacted -- when the words, under God, were inserted into the prayer, into the pledge?

MR. OLSON -- It's an important question because the reference to under God in the pledge, as numerous decisions of this court have indicated in dicta, what as a part of a thought process of coming about to the conclusion that it is an acknowledgment of the religious basis of the framers of the Constitution, who believed not only that the right to revolt, but that the right to vest power in the people to create a government became, came as a result of religious principles. In that sense, the Pledge of Allegiance is today, that has that same significance to this country as it did in 1954 when it was amended.

But as this court has also said, and that's the other part of my answer to your question, this court has also said the ceremonial rendition of the Pledge of Allegiance in context repeatedly over the years has caused -- would cause a reasonable observer familiar, as this court's First Amendment Establishment Clause jurisdiction points out -- would cause a reasonable observer to understand that this is not a religious invocation. It is not like a prayer, it is not a supplication, it's not an invocation. It is ----

JUSTICE RUTH BADER GINSBURG -- Your argument is that there's a stronger case now than there would have been 50 years ago?

MR. OLSON -- Yes, Justice Ginsburg, and that is for many reasons, because of the reason that I just made, but also because the Congress revisited this issue in 2002 after the decision below in this case. There are findings in the record which are a part of the brief, with respect to what the pledge means, the context of the pledge in its historical context, in the connection with its civic invocation, its ability to invoke certain principles that are indisputably true, which gave rise to the institutions which have given us freedom over all this period of time.

It is significant that the court in, the Congress, in making those findings, specifically referred to the decisions that I was referring to before, which have been characterized as dicta, but very important dicta, because they explain how the court came to its conclusions. . . .

And to go back to what this court has taught us with respect to the Establishment Clause and the endorsement prong of the Establishment Clause, it's the entire context. It's the nation's history, it's a Pledge of Allegiance to the flag and to the nation for which it stands, and then a descriptive phrase, "under God, indivisible, with liberty and justice for all." So ----

JUSTICE GINSBURG -- Well, why not have it like oath or affirmation? That is, give people a choice, don't say it's got to be all one way or all the other, but say children who want to say under God can say it and children who don't, don't have to say it.

MR. OLSON -- Well, they don't. They don't have to say it. . . .

The Pledge of Allegiance is not what this court has said the Establishment Clause protects against, that is to say, state-sponsored prayers, religious rituals or ceremonies, or the imposition or the requirement of teaching or not teaching a religious doctrine.

The Establishment Clause does not prohibit civic and ceremonial acknowledgments of the indisputable historical fact of the religious heritage that caused the framers of our Constitution and the signers of the Declaration of Independence to say that they had the right to revolt and start a new country, because although the king was infallible, they believe that God gave them the right to declare their independence when the king has not been living up to the unalienable principles given to them by God.

DR. NEWDOW -- Every school morning in the Elk Grove Unified School District's public schools, government agents, teachers, funded with tax dollars, have their students stand up, including my daughter, face the flag of the United States of America, place their hands over their hearts and affirm that ours is a nation under some particular religious entity, the appreciation of which is not accepted by numerous people, such as myself. We cannot in good conscience accept the idea that there exists a deity.

I am an atheist. I don't believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart and say that her father is wrong.

I am saying I as her father have a right to know that when she goes into the public schools she's not going to be told every morning to be asked to stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning. That is an actual, concrete, discrete, particularized, individualized harm to me, which gives me standing, and not only gives me standing, demonstrates to this court how the ----

JUSTICE SANDRA DAY O'CONNOR -- Well, she does have a right not to participate.

DR. NEWDOW -- She has a -- yes, except under Lee v. Weisman she's clearly coerced to participate. If there was coercion in Lee v. Weisman ----

JUSTICE O'CONNOR -- That was a prayer.

DR. NEWDOW -- Well, I'm not sure this isn't a prayer, and I am sure that the Establishment Clause does not require prayer. President Bush, and this is in the Americans United brief, stated himself that when we ask our citizens to pledge allegiance to one nation under God, they are asked to participate in an important American tradition of humbly seeking the wisdom and blessing ----

JUSTICE O'CONNOR -- Yeah, but I suppose reasonable people could look at the pledge as not constituting a prayer.

DR. NEWDOW -- Well, President Bush said it does constitute a prayer.

CHIEF JUSTICE WILLIAM H. REHNQUIST -- Well, but he -- we certainly don't take him as the final authority on this. What you say is, "I pledge allegiance to the flag of the United States of America and to the republic for which it stands." So that certainly doesn't sound like anything like a prayer.

DR. NEWDOW -- Not at all.

CHIEF JUSTICE REHNQUIST -- Then why isn't General Olson's categorization of the remainder as descriptive, one nation under God, with liberty and justice for all? You can disagree it's under God, you can disagree that it's -- has a liberty and justice for all, but that doesn't make it a prayer.

DR. NEWDOW -- First of all, I don't think that we want our -- that the purpose of the Pledge of Allegiance is to disagree that it's liberty and justice for all. I think the whole purpose of the pledge is to say that, and this court has stated it's an affirmation of belief, an attitude of mind when we pledge, and I think you have to take all the words. It says under God. That's as purely religious as you can get and I think it would be an amazing child to suddenly come up with this knowledge of the history of our society and what our nation was founded on.

CHIEF JUSTICE REHNQUIST -- What if, instead of the Pledge of Allegiance, the school required the children to begin their session by singing "God Bless America"? Would that make your case weaker or stronger? . . .

DR. NEWDOW -- I think that if they stood up the child and they said, "Stand up, face the flag, put your hand on your heart and you say God bless America," I think that would clearly violate the line as well, just as "in God we trust."

CHIEF JUSTICE REHNQUIST -- Well, my hypothesis is that they ask the children to stand and to sing the patriotic song "God Bless America."

DR. NEWDOW -- I think the court would have to go through its normal procedures and say, was this done for religious purpose? Does it have religious effects? Is it attempting to endorse religion? We would look at the text ----

JUSTICE GINSBURG -- Sounds pretty much, much more like a prayer than under God, God bless America.

DR. NEWDOW -- I don't think so. I mean, we're saying that this nation is under God. I mean, Congress told us itself when it passed the law.

JUSTICE GINSBURG -- And if children who say God bless Mommy and God bless Daddy, they think they're saying a prayer.

DR. NEWDOW -- They think they're saying God bless, yes, and when they say, if Daddy and Mommy were under God, they'd be also assuming that there was a God there if they said that, and especially if they're stood up in the public schools. If they did that ----

JUSTICE GINSBURG -- It's two words sandwiched in the middle of something, and the child doesn't have to say those words. . . .

JUSTICE STEPHEN G. BREYER -- Does it make you feel any better, and I think the answer's going to be no, but there is a case called Seeger, which referred to the Constitution, to the statute that used the word, "supreme being," and it said that those words, "supreme being," included a set of beliefs, sincere beliefs, which in any ordinary person's life fills the same place as a belief in God fills in the life of an orthodox religionist. So it's reaching out to be inclusive, maybe to include you, I mean, because many people who are not religious nonetheless have a set of beliefs which occupy the same place that religious beliefs occupy in the mind and woman of a religious mind in men and women.

So do you think God is so generic in this context that it could be that inclusive? . . .

And if it is, then does your objection disappear?

DR. NEWDOW -- I don't think so, because if I'm not mistaken with regard to Seeger, Seeger, the government was saying what Seeger thought about religion and what's occupied in Seeger's mind. Here it is the government and there's a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. And in that case we're talking about protecting that individual's right for him to say in his view that this occupies the same thing as God.

Here we're talking about government, everybody on the way here is government. It's Congress that stuck the two words, under God, into the pledge, clearly for a religious purpose. It's the State of California that says, go ahead, use the Pledge of Allegiance, which is now religious. It is the City of Elk Grove that says, now we're going to demand----

JUSTICE BREYER -- But what I'm thinking there is that perhaps when you get that broad in your idea of what is religious, so it can encompass a set of religious-type beliefs in the minds of people who are not traditionally religious, when you are that broad and in a civic context, it really doesn't violate the Establishment Clause because it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge.

DR. NEWDOW -- You're referring to the two words, "under God?"

JUSTICE BREYER -- Yeah, under God is this kind of very comprehensive supreme being, Seeger-type thing.

DR. NEWDOW -- I don't think that I can include 'under God' to mean 'no God,' which is exactly what I think. I deny the existence of God, and for someone to tell me that under God should mean some broad thing that even encompasses my religious beliefs sounds a little, you know, it seems like the Government is imposing what it wants me to think of in terms of religion, which it may not do. Government needs to stay out of this business altogether. . . .

JUSTICE DAVID H. SOUTER -- What do you make of this argument? I will assume that if you read the pledge carefully, the reference to "under God" means something more than a mere description of how somebody else once thought. We're pledging allegiance to the flag and to the republic. The republic is then described as being under God, and I think a fair reading of that would be I think that's the way the republic ought to be conceived, as under God. So I think there's some affirmation there. I will grant you that.

What do you make of the argument that in actual practice the affirmation in the midst of this civic exercise as a religious affirmation is so tepid, so diluted then so far, let's say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar. It's sometimes, you know the phrase, the Rostow phrase, the ceremonial deism.

What do you make of that argument, even assuming that, as I do, that there is some affirmation involved when the child says this as a technical matter?

DR. NEWDOW -- I think that that whole concept goes completely against the ideals underlying the Establishment Clause. We saw in Minersville v. Gobitis and West Virginia v. Barnette, something that most people don't consider to be religious at all to be of essential religious value to those Jehovah's Witnesses who objected. And for the government to come in and say, "we've decided for you this is inconsequential or unimportant" is an arrogant pretension, said James Madison. He said in his memorial ----

JUSTICE SOUTER -- Well, I think the argument is not that the government is saying, we are defining this as inconsequential for you. I think the argument is that simply the way we live and think and work in schools and in civic society in which the pledge is made, that whatever is distinctively religious as an affirmation is simply lost. It's not that the government is saying, "you've got to pretend that it's lost." The argument is that it is lost, that the religious, as distinct from a civic content, is close to disappearing here.

DR. NEWDOW -- And again, I don't mean to go back, but it seems to me that is a view that you may choose to take and the majority of Americans may choose to take, but it doesn't -- it's not the view I take, and when I see the flag and I think of pledging allegiance, It's like I'm getting slapped in the face every time, bam, you know, 'this is a nation under God, your religious belief system is wrong.'

And here, I want to be able to tell my child that I have a very valid religious belief system. Go to church with your mother, go see Buddhists, do anything you want, I love that --the idea that she's being exposed to other things, but I want my religious belief system to be given the same weight as everybody else's. And the government comes in here and says, "No, Newdow, your religious belief system is wrong and the mother's is right and anyone else who believes in God is right." . . .

JUSTICE BREYER -- So it's not perfect, it's not perfect, but it serves a purpose of unification at the price of offending a small number of people like you. So tell me from ground one why the country cannot do that?

DR. NEWDOW -- Well, first of all, for 62 years this pledge did serve the purpose of unification, and it did do it perfectly. It didn't include some religious dogma that separated out some -- Again, the Pledge of Allegiance did absolutely fine and got us through two world wars, got us through the Depression, got us through everything without God, and Congress stuck God in there for that particular reason, and the idea that it's not divisive I think is somewhat, you know, shown to be questionable at least by what happened in the result of the Ninth Circuit's opinion. The country went berserk because people were so upset that God was going to be taken out of the Pledge of Allegiance.

CHIEF JUSTICE REHNQUIST -- Do we know what the vote was in Congress apropos of divisiveness to adopt the under God phrase?

DR. NEWDOW -- In 1954?

CHIEF JUSTICE REHNQUIST -- Yes.

DR. NEWDOW: It was apparently unanimous. There was no objection. There's no count of the vote.

CHIEF JUSTICE REHNQUIST -- Well, that doesn't sound divisive.

DR. NEWDOW -- That's only because no atheist can get elected to public office.

CHIEF JUSTICE REHNQUIST -- The courtroom will be cleared if there's any more clapping. Proceed, Mr. Newdow. . . .

JUSTICE ANTHONY M. KENNEDY -- You say this is the same as the prayer in Lee v. Weisman?

DR. NEWDOW -- No, not at all. I'm saying it's a religious exercise, and clearly the whole idea, the intent of Congress was ----

JUSTICE KENNEDY -- You're saying both are religious exercises?

DR. NEWDOW -- Well, I think religious exercise is a larger set, prayer is a subset. I would say again the president of the United States considers the pledge in that subset. Whether or not you do or I do is somewhat, I think, irrelevant, because the question ----

JUSTICE KENNEDY -- Well, now, let's suppose, I thought the case turned on whether this was a religious exercise. . . .

DR. NEWDOW -- I think it definitely is, and it is because the two words are, "under God," and I can't see of anything that's not religious, under God. . . . It fails the endorsement test, it fails the outsider test. Imagine you're this one child with a class full of theists, and you have this idea that you want to perhaps at least consider, and you have everyone imposing their view on you. It fails every test this court has ever come up with, and there's a principle here, and I'm hoping the court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all.

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