Newdow v. U.S. Congress

McKEOWN, Circuit Judge, with whom MICHAEL DALY HAWKINS, THOMAS, and RAWLINSON, Circuit Judges, join,

dissenting from the denial of rehearing en banc.

The recitation of the Pledge of Allegiance by school children presents a constitutional question of exceptional importance that merits reconsideration by the en banc court. See Fed. R.App. P. 35(a)(2) (en banc hearing appropriate when “the proceeding involves a question of exceptional importance”). Although not every case of exceptional importance can or should be reheard en banc, this is a case that should be reheard. I respectfully dissent from the court’s decision to deny rehearing en banc.

OPINION

GOODWIN, Circuit Judge.

Michael Newdow appeals pro se a judgment dismissing his challenge to the constitutionality of the words “under God” in 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 satisfy” this requirement. Cal. Educ. Code § 52720 (1989) (hereinafter “California statute”).1 To implement the Califor*483nia statute, the school district that New-dow’s daughter attends has promulgated a policy that states, in pertinent part: “Each elementary school class [shall] recite the pledge of allegiance to the flag once each day.”

The classmates of Newdow’s daughter in the EGUSD are led by their teacher in reciting the Pledge codified in federal law. On June 22, 1942, Congress first codified the Pledge as “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for ah.” Pub.L. No. 623, Ch. 435, § 7, 56 Stat. 380 (1942) (codified at 36 U.S.C. § 1972). On June 14, 1954, Congress amended Section 1972 to add the words “under God” after the word “Nation.” Pub.L. No. 396, Ch. 297, 68 Stat. 249 (1954) (“1954 Act”). The Pledge is currently codified as “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.” 4 U.S.C. § 4 (1998) (Title 36 was revised and recodified by Pub.L. No. 105-225, § 2(a), 112 Stat. 1494 (1998). Section 172 was abolished, and the Pledge is now found in Title 4.)

Newdow does not allege that his daughter’s teacher or school district requires his daughter to participate in reciting the Pledge.2 Rather, he claims that his daughter is injured when she is compelled to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our’s [sic] is ‘one nation under God.’ ”

Newdow’s complaint in the district court challenged the constitutionality, under the First Amendment, of the 1954 Act, the California statute, and the school district’s policy requiring teachers to lead willing students in recitation of the Pledge. He sought declaratory and injunctive relief, but did not seek damages.

The school districts and their superintendents (collectively, “school district defendants”) filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. Magistrate Judge Peter A. Nowinski held a hearing at which the school district defendants requested that the court rule only on the constitutionality of the Pledge, and defer any ruling on sovereign immunity. The United States Congress, the United States, and the President of the United States (collectively, “the federal defendants”) joined in the motion to dismiss filed by the school district defendants. The magistrate judge reported findings and a recommendation that the district court hold that the daily Pledge ceremony in the schools did not violate the Establishment Clause. District Judge Edward J. Schwartz approved the recommendation and entered a judgment of dismissal. This appeal followed.

*484DISCUSSION

A.Jurisdiction

Newdow asks the district court to order the President of the United States (“the President”) to “alter, modify or repeal” the Pledge by removing the words “under God”; and to order the United States Congress (“Congress”) “immediately to act to remove the words ‘under God’ from the Pledge.” The President, however, is not an appropriate defendant in an action challenging the constitutionality of a federal statute. See Franklin v. Massachusetts, 505 U.S. 788, 802-03, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (plurality) (observing that a court of the United States “‘has no jurisdiction of a bill to enjoin the President in the performance of his official duties’ ”) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 18 L.Ed. 437 (1866)).

Similarly, in light of the Speech and Debate Clause of the Constitution, Art. I, § 6, cl. 1, the federal courts lack jurisdiction to issue orders directing Congress to enact or amend legislation. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). Because the words that amended the Pledge were enacted into law by statute, the district court may not direct Congress to delete those words any more than it may order the President to take such action. All this, of course, is aside from the fact that the President has no authority to amend a statute or declare a law unconstitutional, those functions being reserved to Congress and the federal judiciary respectively.

Newdow nevertheless argues that because the 1954 Act violates the Establishment Clause, Congress should not be protected by the Speech and Debate Clause. This argument misses the jurisdictional, or separation of powers, point. As the Court held in Eastland, in determining whether or not the acts of members of Congress are protected by the Speech and Debate Clause, the court looks solely to whether or not the acts fall within the legitimate legislative sphere; if they do, Congress is protected by the absolute prohibition of the Clause against being “questioned in any other Place.” Id. at 501. “If the mere allegation that a valid legislative act was undertaken for an unworthy purpose would lift the protection of the Clause, then the Clause simply would not provide the protection historically un-dergirding it.” Id. at 508-09, 95 S.Ct. 1813.

B. The State of California as a defendant

The State of California did not join in the motion to dismiss or otherwise participate in the district court proceedings. It did, however, sub silentio, receive the benefit of the district court’s ruling dismissing the complaint. Accordingly, a reversal of the order would result in the reinstatement of the complaint against the state. With respect to the validity of the California statute, however, unlike in the case of the Congressional enactment and the school district policy, no arguments, legal or otherwise, were advanced by the parties in the district court. Thus, we do not address separately the validity of the California statute.

C. Standing

Article III standing is a jurisdictional issue. See United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.1997). Accordingly, it “may be raised at any stage of the proceedings, including for the first time on appeal.” See A-Z Intern. v. Phillips, 179 F.3d 1187, 1190-91 (9th Cir.1999). To satisfy standing requirements, a plaintiff must prove that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and *485particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Newdow has standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter. “Parents have a right to direct the religious upbringing of their children and, on that basis, have standing to protect their right.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 795 (9th Cir.1999) (en banc); see also Grove v. Mead Sch. Dist. No. 351, 753 F.2d 1528, 1532 (9th Cir.1985) (“Appellants have standing to challenge alleged violations of the establishment clause of the First Amendment if they are directly affected by use of [the challenged book] in the English curriculum. [Appellant] has standing as a parent whose right to direct the religious training of her child is allegedly affected.”) (citation omitted).

Newdow has standing to challenge the EGUSD’s policy and practice regarding the recitation of the Pledge because his daughter is currently enrolled in elementary school in the EGUSD. However, Newdow has no standing to challenge the SCUSD’s policy and practice because his daughter is not currently a student there. The SCUSD and its superintendent have not caused Newdow or his daughter an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” Laidlaw, 528 U.S. at 180, 120 S.Ct. 693 (citing Lujan, 504 U.S. at 560-561, 112 S.Ct. 2130).

D. Establishment Clause

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion,” U.S. Const, amend. I, a provision that “the Fourteenth Amendment makes applicable with full force to the States and their school districts.” Lee v. Weisman, 505 U.S. 577, 580, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Over the last three decades, the Supreme Court has used three interrelated tests to analyze alleged violations of the Establishment Clause in the realm of public education: the three-prong test set forth in Lemon v. Kurtzman, 403. U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); the “endorsement” test, first articulated by Justice O’Connor in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), and later adopted by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); and the “coercion” test first used by the Court in Lee.

In 1971, in the context of unconstitutional state aid to nonpublic schools, the Supreme Court in Lemon set forth the following test for evaluating alleged Establishment Clause violations. To survive the “Lemon test,” the government conduct in question (1) must have a secular purpose, (2) must have a principal or primary effect that neither advances nor inhibits religion, and (3) must not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105. The Supreme Court applied the Lemon test to every Establishment case it decided between 1971 and 1984, with the exception of Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the *486case upholding legislative prayer.3 See Wallace, 472 U.S. at 63, 105 S.Ct. 2479 (Powell, J., concurring).

In the 1984 Lynch case, which upheld the inclusion of a nativity scene in a city’s Christmas display, Justice O’Connor wrote a concurring opinion in order to suggest a “clarification” of Establishment Clause jurisprudence. 465 U.S. at 687, 104 S.Ct. 1355 (O’Connor, J., concurring).

Justice O’Connor’s “endorsement” test effectively collapsed the first two prongs of the Lemon test:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions.... The second and more direct infringement is government endorsement or disapproval of religion. Endorsement 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.

Id. at 687-88, 79 L.Ed.2d 604 (O’Connor, J., concurring).

The Court formulated the “coercion test” when it held unconstitutional the practice of including invocations and benedictions in the form of “nonsectarian” prayers at public school graduation ceremonies. Lee, 505 U.S. at 599, 112 S.Ct. 2649. Declining to reconsider the validity of the Lemon test, the Court in Lee found it unnecessary to apply the Lemon test to find the challenged practices unconstitutional. Id. at 587,112 S.Ct. 2649. Rather, it relied on the principle that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so.” Id. (citations and internal quotation marks omitted). The Court first examined the degree of school involvement in the prayer, and found that “the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position.” Id. at 590, 112 S.Ct. 2649. The next issue the Court considered was “the position of the students, both those who desired the prayer and she who did not.” Id. Noting that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools,” id. at 592, 112 S.Ct. 2649, the Court held that the school district’s supervision and control of the graduation ceremony put impermissible pressure on students to participate in, or at least show respect during, the prayer, id. at 593, 112 S.Ct. 2649. The Court concluded that primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting. Id. at 594, 112 S.Ct. 2649.

Finally, in its most recent school prayer case, the Supreme Court applied the Lemon test, the endorsement test, and the coercion test to strike down a school district’s policy of permitting student-led “invocations” before high school football *487games. See Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 310-16, 120 S.Ct. 2266, 147 L.Ed.2d 295. Citing Lee, the Court held that “the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.” Id. at 312, 120 S.Ct. 2266. Applying the Lemon test, the Court found that the school district policy was facially unconstitutional because it did not have a secular purpose. Id. at 314-16. The Court also used language associated with the endorsement test. Id. at 315, 120 S.Ct. 2266 (“[T]his policy was implemented with the purpose of endorsing school prayer.”); id. at 317, 120 S.Ct. 2266 (“Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail”).

We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them. Because we conclude that the school district policy impermissibly coerces a religious act and accordingly hold the policy unconstitutional, we need not consider whether the policy fails the endorsement test or the Lemon test as well.

In the context of the Pledge, the statement that the United States is a nation “under God” is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation “under God” is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase “one nation under God” in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and — since 1954 — monotheism. A profession that we are a nation “under God” is identical, for Establishment Clause purposes, to a profession that we are a nation “under Jesus,” a nation “under Vishnu,” a nation “under Zeus,” or a nation “under no god,” because none of these professions can be neutral with respect to religion. The school district’s practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates.

The Supreme Court recognized the normative and ideological nature of the Pledge in Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. There, the Court held unconstitutional a school district’s wartime policy of punishing students who refused to recite the Pledge and salute the flag. Id. at 642, 63 S.Ct. 1178. The Court noted that the school district was compelling the students “to declare a belief,” id. at 631, 63 S.Ct. 1178, and “requiring] the individual to communicate by word and sign his acceptance of the political ideas [the flag] ... bespeaks,” id. at 633, 63 S.Ct. 1178. “[T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.” Id. The Court emphasized that the political concepts articulated in the Pledge4 were idealistic, not descriptive: “ ‘[Liberty and justice for all,’ if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement.” Id. at 634 n. 14, 63 S.Ct. 1178. The Court concluded that: “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 *488or force citizens to confess by word or act their faith therein.” Id. at 642, 63 S.Ct. 1178.

The school district’s policy here, like the school’s action in Lee, places students in the untenable position of choosing between participating in an exercise with religious content or protesting. The defendants argue that the religious content of “one nation under God” is minimal. To an atheist or a believer in non-Judeo-Christian religions or philosophies, however, this phrase may reasonably appear to be an attempt to enforce a “religious orthodoxy” of monotheism, and is therefore impermissible. As the Court observed with respect to the graduation prayer in Lee: “What to most believers may seem nothing more than a reasonable 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 religious orthodoxy.” Lee, 505 U.S. at 592, 112 S.Ct. 2649.

The coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students.5 Furthermore, under Lee, non-compulsory participation is no basis for distinguishing Barnette from the case at bar because, even without a recitation requirement for each child, the mere presence in the classroom every day as peers recite the statement “one nation under God” has a coercive effect.6 The coercive effect of the Pledge is also made even more apparent when we consider the legislative history of the Act that introduced the phrase “under God.” These words were designed to be recited daily in school classrooms. President Eisenhower, during the Act’s signing ceremony, stated: “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.” 100 Cong.Rec. 8618 (1954) (statement of Sen. Ferguson incorporating signing statement of President Eisenhower).7 All in all, there can be little doubt that under the controlling Supreme Court cases the school district’s policy fails the coercion test.8

*489The Supreme Court has addressed the Pledge in passing, and we owe due deference to its dicta. See United States v. Baird, 85 F.3d 450, 453 (9th Cir.1996). Our opinion, however, is not inconsistent with this dicta. In Allegheny, the Court noted that it had “considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.” 492 U.S. at 602-03, 109 S.Ct. 3086. And in Lynch, the Court observed that students recited the pledge daily, but only to support its point that there is a long tradition of “official acknowledgment” of religion. 465 U.S. at 674, 676, 104 S.Ct. 1355. Neither of these two references speaks to the issue here. We may assume arguendo that public officials do not unconstitutionally endorse religion when they recite the Pledge, yet it does not follow that schools may coerce impressionable young schoolchildren to recite it, or even to stand mute while it is being recited by their classmates.

Our decision is not inconsistent with En-gel, which approved of encouraging students to “recitfe] historical documents such as the Declaration of Independence which contain references to the Deity or ... sing[ ] officially espoused anthems which include the composer’s professions of faith in a Supreme Being.” 370 U.S. at 435 n. 21, 82 S.Ct. 1261. The Pledge differs from the Declaration and the anthem in that its reference to God, in textual and historical context, is not merely a reflection of the author’s profession of faith. It is, by design, an affirmation by the person reciting it. “I pledge” is a performative statement. See J.L. Austin, How to Do Things with Words (J.O. Urmsson & Marina Sbisa eds., Harvard Univ. Press 1975) (1962). To pledge allegiance to something is to alter one’s moral relationship to it, and not merely to repeat the words of an historical document or anthem.

The only other United States Court of Appeals to consider the issue is the Seventh Circuit, which held in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir.1992), that a policy similar to the one before us regarding the recitation of the Pledge of Allegiance containing the words “one nation under God” was constitutional. The Sherman court first stated that:

If as Barnette holds no state may require anyone to recite the Pledge, and if as the prayer cases hold the recitation by a teacher or rabbi of unwelcome words is coercion, then the Pledge of Allegiance becomes unconstitutional under all circumstances, just as no school may read from a holy scripture at the start of class.

980 F.2d at 444. It then concludes, however, that this reasoning is flawed because the First Amendment “[does] not establish general rules about speech or schools; [it] call[s] for religion to be treated differently.” Id. We have some difficulty understanding this statement; we do not believe that the Constitution prohibits compulsory *490patriotism as in Barnette, but permits compulsory religion as in this case. If government-endorsed religion is to be treated differently from government-endorsed patriotism, the treatment must be less favorable, not more.

The Seventh Circuit makes an even more serious error, however. It not only refuses to apply the Lemon test because of the Supreme Court’s criticism of that test in Lee, but it also fails to apply the coercion test from Lee. Circuit courts are not free to ignore Supreme Court precedent in this manner. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a ease, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). Instead of applying any of the tests announced by the Supreme Court, the Seventh Circuit simply frames the question as follows: “Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods?” 980 F.2d at 445. For the reasons we have already explained, this question is simply not disposi-tive of whether the school district policy impermissibly coerces a religious act.

In light of Supreme Court precedent, we hold that the school district’s policy and practice of teacher-led recitation of the Pledge, with the inclusion of the added words “under God,” violates the Establishment Clause.

In addition to the relief that Newdow seeks against the school district — relief to which he is entitled — Newdow seeks a declaration as to the constitutionality of the 1954 Act. The district court did not discuss that question because it dismissed Newdow’s complaint on the basis of its holding that the school district’s policy did not violate the First Amendment. Given our contrary holding, we must consider whether to grant Newdow’s claim for declaratory relief as to the Act. Normally, whether to decide a claim for declaratory judgment is left to the discretion of the district court. 28 U.S.C. § 2201(a); see also Government Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir.1998). We doubt that, given the relief to which we decide Newdow is entitled, the district court would have exercised its discretionary power to resolve, in the present case, the additional issue as to which New-dow seeks declaratory relief. Accordingly, we decline to reach that issue here.

The judgment of dismissal is vacated with respect to Newdow’s claim that the school district’s Pledge policy violates the Establishment Clause and the cause is remanded for further proceedings consistent with our holding. Plaintiff is to recover costs on this appeal.

REVERSED AND REMANDED.

. The relevant portion of California Education Code § 52720 reads:

In every public elementary school each day during the school year at the beginning of *483the first regularly scheduled class or activity period at which the majority of the pupils of the school normally begin the schoolday, there shall be conducted appropriate patriotic exercises. The giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy the requirements of this section.

. Compelling students to recite the Pledge was held to be a First Amendment violation in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ("[Tjhe action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”). Barnette was decided before the 1954 Act added the words "under God” to the Pledge.

. In Marsh, the Court "held that the Nebraska Legislature's practice of opening each day’s session with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. [The] holding was based upon the historical acceptance of the practice that had become 'part of the fabric of our society.' " Wallace, All U.S. at 63 n. 4, 105 S.Ct. 2479 (Powell, J., concurring) (quoting Marsh, 463 U.S. at 792, 103 S.Ct. 3330).

. Barnette was decided before "under God” was added, and thus the Court’s discussion was limited to the political ideals contained in the Pledge.

. The "subtle and indirect” social pressure which permeates the classroom also renders more acute the message sent to non-believing school-children that they are outsiders. See Lee, 505 U.S. at 592-93, 112 S.Ct. 2649 (stating that "the risk of indirect coercion” from prayer exercises is particularly "pronounced" in elementary and secondary public school because students are subjected to peer pressure and public pressure which is "as real as any overt compulsion”).

. The objection to the Pledge in Barnette, like in the case at bar, was based upon a religious ground. The Pledge in the classroom context imposes upon schoolchildren the constitutionally unacceptable choice between participating and protesting. Recognizing the severity of the effect of this form of coercion on children, the Supreme Court in Lee stated, "the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.” 505 U.S. at 593, 112 S.Ct. 2649.

.In addition, the legislative history of the 1954 Act makes it plain that the sponsors of the amendment knew about and capitalized on the state laws and school district rules that mandate recitation of the Pledge. The legislation's House sponsor, Representative Louis C. Rabaut, testified at the Congressional hearing that "the children of our land, in the daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its origins.” This statement was incorporated into the report of the House Judiciary Committee. H.R. Rep. No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N 2339, 2341.

. In Aronow v. United States, 432 F.2d 242 (9th Cir.1970), this court, without reaching the question of standing, upheld the inscription of the phrase "In God We Trust” on our coins and currency. But cf. Wooley v. Maynard, 430 U.S. 705, 722, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (Rehnquist, J., dissenting) (stating that the majority’s holding leads logically to the conclusion that "In God We Trust” is an unconstitutional affirmation of belief). In any event, Aronow is distinguishable in many ways from the present case. The most important distinction is that school children are not coerced into reciting or otherwise actively led to participating in an endorsement of the markings on the money in circulation.