Establishment clause prohibits congress mandating state

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. To implement the California statute, the school district that Newdow'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 all.” Pub.

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”). Code § 52720 (1989) (hereinafter “California statute”). He sought declaratory and injunctive relief, but did not seek damages. 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. Schwartz approved the recommendation and entered a judgment of dismissal. The magistrate judge reported findings and a recommendation; District Judge Edward J. 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.

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