The litigation against the Ten Commandments is but one example of the widespread assault on religious liberty. There are many more.
In California, for instance, another atheist named Michael Newdow filed a lawsuit seeking to remove the words “one nation under God” from the Pledge of Allegiance. And in 2002 the Ninth Circuit Court of Appeals agreed with him, ruling that the Constitution forbids schoolchildren from reciting “one nation under God.”
When Elk Grove Unified School District v. Newdow went to the Supreme Court, Texas led the states in defense of the Pledge of Allegiance. The amicus curiae (Latin for friend of the court) brief we authored was joined by all fifty states—every Republican and every Democratic attorney general—one of very few briefs in history to get support from every single state.
At the same time as we were circulating our brief, I was helping lead the trial team defending the Texas redistricting plan that the Legislature had just adopted. I still remember well, during breaks in the trial, calling my fellow SGs urging them to join our brief in Newdow. The last couple of states to join, I must confess, I had some fun with, telling the SGs “you know, if your boss wants to be the only attorney general in America not to support the Pledge of Allegiance, well, that’s certainly political courage.…” They all joined.
In our brief, we detailed the history of the Pledge of Allegiance. The text of the Pledge was adopted by Congress in 1942, and the words “under God” were added separately twelve years later. It was the height of the Cold War in 1954, and Congress added the words “under God” to illuminate a key distinction between our government and those of communist nations. Congressional Committee Reports from the time of the 1954 amendment note that, whereas the communists were “spiritual[ly] bankrupt,” our government recognized the importance of each human “endowed by [God] with certain inalienable rights which no civil authority may usurp.”
We argued that acknowledging the Almighty was consistent with our “history and ubiquity,” as Justice O’Connor had put it in Lynch v. Donnelly, a 1984 case upholding, 5–4, the town’s Christmas nativity scene in Pawtucket, Rhode Island. As the majority opinion observed in Lynch, “[o]ur history is replete with official references to the value and invocation of Divine guidance,” including official Thanksgiving and Christmas holidays, House and Senate chaplains, the national motto “In God We Trust,” the Pledge of Allegiance, religious paintings in the National Gallery, and Moses holding the Ten Commandments on the frieze of the Court. Lynch quoted at length President Franklin D. Roosevelt’s 1944 Proclamation of Thanksgiving:
[I]t is fitting that we give thanks with special fervor to our Heavenly Father for the mercies we have received individually and as a nation and for the blessings He has restored, through the victories of our arms and those of our Allies, to His children in other lands.… To the end that we may bear more earnest witness to our gratitude to Almighty God, I suggest a nationwide reading of the Holy Scriptures during the period from Thanksgiving Day to Christmas.
Ultimately, the Court agreed with us unanimously. But it did so only on alternative procedural grounds, namely that because Michael Newdow was a non-custodial parent, he didn’t have standing to bring a claim on behalf of his school-age daughter. Therefore, by an 8–0 vote (Justice Scalia recused), the Court vacated the Ninth Circuit decision below.
By avoiding the merits issue in Newdow, the Court avoided the sharp divides that typically accompany religious liberty cases. But that was the exception rather than the rule. In another major religious-liberty case I helped litigate, Salazar v. Buono—the Mojave Desert Memorial Cross case—those divisions emerged yet again.
On a barren rock in the midst of the 1.6 million-acre Mojave Desert National Preserve, in 1934, the Veterans of Foreign Wars erected a memorial for those who gave their lives in World War I. For seven decades, this simple white Latin cross—standing alone atop Sunrise Rock—stood unmolested as a quiet testament to the bravery of so many fallen heroes.
For decades, the memorial was tenderly cared for by Riley Bembry, himself a World War I veteran who helped erect it in remembrance of his fallen brothers. Shortly before Bembry died in 1984, he handed caretaking duties over to over to his friend Henry Sandoz and his wife, Wanda, who faithfully looked after the cross.
But then in 2001 the American Civil Liberties Union took notice and brought a case arguing that the Constitution prohibits ever seeing the image of a cross on public land. The ACLU prevailed in federal district court and again in the Ninth Circuit Court of Appeals. As a result, the federal courts ordered that the veterans memorial be covered up with a large burlap sack, tied with an iron chain and padlock at the bottom. Later, the sack was replaced with a plywood box.
The case went up to the Supreme Court and, along with my good friend Kelly Shackelford of the First Liberty Institute, I had the privilege of representing the Veterans of Foreign Wars, the American Legion, the Military Order of the Purple Heart, and several other veterans groups. In total, we represented over 3 million veterans nationwide, as amici (friends of the court), defending the constitutionality of the monument.
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