Full opinion text
Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. ORDER The opinion filed June 26, 2002 [292 F.3d 597], is ordered amended. The Clerk is instructed to file the amended opinion with Judge Fernandez’s amended concurrence/dissent. Judge Reinhardt’s concurrence in the order denying rehearing en banc, along with Judge O’Scann-lain’s and Judge McKeown’s dissent from that order shall also be filed. The Clerk is also instructed not to accept for filing any new petitions for rehearing and petitions for rehearing en banc in this case. With the opinion thus amended, the panel has voted unanimously to deny the petitions for rehearing. The full court has been advised of the petitions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. RApp. P. 35. The petitions for rehearing are DENIED and the petitions for rehearing en banc are DENIED. See amended opinion by Judge Goodwin infra.
REINHARDT, Circuit Judge, concurring in the order. My -views as to the merits of this issue are set forth in the amended majority opinion authored by Judge Goodwin, and I adhere to them fully. I write separately for two reasons unrelated to the contents of that opinion. I write first to comment on the separate dissent to the denial of rehearing en banc authored by Judge McKeown and joined in by Judges Hawkins, Thomas, and Rawlinson, in which my colleagues appear to express the view that a case should be reheard en banc whenever it involves “a question of exceptional importance.” FED. R. APP. P. 35(a)(2). Second, I am compelled to register my strong disagreement with one particularly unfortunate aspect of Judge O’Scannlain’s principal dissent that reflects a serious misconception of fundamental constitutional principles and the proper role of the federal judiciary. I As to the first question, I disagree with the notion that the importance of an issue is a sufficient reason to take a case en banc, either under the Rule or as a matter of judicial policy. Rule 35(a) advises this court of its discretionary power to order that a case already decided by a three-judge panel be reheard by the full court. Specifically, the rule begins by stating that a “majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” FED. R. APP. P. 35(a) (emphasis added). Subsection two guides such discretionary consideration by stating that one compelling reason to grant rehearing en banc is the “exceptional importance” of a particular case. The most reasonable construction of the Rule is that this court should rehear a case en banc when it is both of exceptional importance and the decision requires correction. See United States v. Burdeau, 180 F.3d 1091, 1092 (9th Cir.1999) (Tashi-ma, J., concurring in the order denying rehearing en banc) (“Subject to rare exceptions, ... we should review the statements in three[-]judge panel opinions only to ‘determine whether the [panel’s] legal error resulted in an erroneous judgment. ....’”) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). A decision may warrant correction because a three-judge panel has reached a result or adopted a legal rale or principle that conflicts with our existing circuit law or that the majority of our court believes is incorrect and needs further review. The fact that three-judge panels often decide cases of exceptional importance, whether it be the constitutionality of a state’s decision to execute an individual who may be innocent, the existence or non-existence of a fundamental right, or the ability of the Congress to require the states to comply with federal law — an issue that some of us thought had been settled by the successful end to the Civil War — is an unremarkable, but undeniably important, aspect of our appellate system. See Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 WASH. L. REV. 213, 218 (1999) (stating that three-judge panels “representing and acting on behalf of the whole court” is a “basic tenet of our intermediate appellate system”). Unless reconsidered en banc, a decision of a three-judge panel is a decision of our court and speaks for our court. Moreover, it ordinarily constitutes the final judicial decision. To rehear a case en banc simply on the basis that it involves an important issue would undermine the three-judge panel system and create an impractical and crushing burden on what otherwise should be, as Rule 35(a) suggests, an exceptional occurrence. See FED. R. APP. P. 35(a) (“An en banc hearing or rehearing is not favored.... ”). According to statistics kept by the Clerk of the court, in 2002 this court decided 5,190 cases on the merits, more than 98% of which were finally decided by three-judge panels. These decisions are not measures of “rough justice,” later to be refined by the en banc court. Unless they decide issues of exceptional importance erroneously, create a direct intra-circuit split, or unless the interests of justice require that the decision be corrected, the opinions of three-judge panels should constitute the final action of this court. II I also feel compelled to discuss a disturbingly wrongheaded approach to constitutional law manifested in the dissent authored by Judge O’Scannlain. The dissent suggests that this court should be able to conclude that the panel’s holding was erroneous by observing the “public and political reaction” to its decision. Dissent at 2783. This is not the first time that the magnitude of the political response regarding an issue has distracted certain members of this court. An equally disturbing misunderstanding of the nature of our Constitution and the role of the federal judiciary was manifested in Coalition for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir.1997), a case involving a California initiative .on the subject of affirmative action. There, the three-judge panel, in a case that unfortunately was not taken en banc, notwithstanding its exceptional importance, made the following remarkable statement: “A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.” Id. at 699 (O’Scann-lain, J.). The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties. As Justice Jackson recognized: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote. The constitutional system that vests such power in an independent judiciary does not “test[ ] the integrity of ... democracy.” It makes democracy vital, and is one of our proudest heritages. Moreover, Article III judges are by constitutional design insulated from the political pressures governing members of the other two branches of government. We are given life tenure and a secured salary so that, in our unique capacity to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, 177 (1803), we may decide constitutional issues without regard to popular vote, political consequence, or the prospect of future career advancement. Most federal judges do not question the wisdom of this approach. When the federal judiciary is so firmly separated by constitutional structure from the direct influence of politics, we must not undermine that structure by allowing political pressures, polls, or “focus groups” to influence our opinions, even indirectly. This is not to say that federal judges should be completely sequestered from the attitudes of the nation we serve, even though our service is accomplished . not through channeling popular sentiment but through strict adherence to established constitutional principles. The Constitution contemplates occasions when we must be responsive to long-term societal trends— when determining, for example, that which is “cruel and unusual,” see Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), whether in the execution of the mentally retarded, see Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 2247, 153 L.Ed.2d 335 (2002), or the execution of juvenile offenders, see In re Stanford, — U.S.-, 123 S.Ct. 472, 474, 154 L.Ed.2d 364 (2002) (Stevens, J., dissenting from the denial of an application for an original writ of habeas corpus). This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not — we must not — allow public sentiment or outcry to guide our decisions. It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril. Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected. . While the brief separate dissent is deliberately opaque and uninformative, I would suspect that not all of its signatories believe that the general rule they appear to advocate should apply regardless of the "correctness” of the panel opinion. The concept that "exceptional importance” is, without more, a sufficient reason for en banc review is, however, shared by at least several members of the Court and accordingly merits some discussion. . While the Supreme Court unquestionably has the authority to review any or all of the decisions of the Court of Appeals, the Court has elected to hear a remarkably small number of cases in recent years. For example, in the 2001 term, of the 7,852 case filings, the Court heard argument in 88 cases, and disposed of 85 in 76 signed opinions. See Supreme Court of the United States, 2002 Year-End Report on the Federal Judiciary, at http://www.supremecourtus.gov/publicinfo/ year-end/2002year-endreport.html. . Alexander Hamilton was admirably cognizant of the danger of relying on temporary political whimsy: This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. The Federalist NO. 78, at 437 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
O’SCANNLAIN, Circuit Judge, with whom KLEINFELD, GOULD, TALLMAN, RAWLINSON, and CLIFTON, Circuit Judges, join, dissenting from the denial of rehearing en banc. Last June, a two-judge majority of a three-judge panel of this court ruled that the Pledge of Allegiance was unconstitutional simply because of the presence of two offending words: “under God.” It was an exercise in judicial legerdemain which, not surprisingly, produced a public outcry across the nation. Since that time we, as a court, have had the opportunity to order reconsideration of that decision en banc, yet a majority of the 24 active judges eligible to vote has decided not to do so. While there are, no doubt, varied and plausible reasons why this result occurred, I respectfully conclude that our court has made a serious mistake and thus must dissent from its order denying reconsideration. I While I cannot say that a randomly selected 11-judge panel would have ruled differently, I believe that neither the June 2002 version, Newdow v. United States Congress, 292 F.3d 597 (9th Cir.2002) (“Newdow I ”), nor today’s slightly revised version, 328 F.3d 466 (“Newdow IF) to essentially the same effect, is defensible. We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very wrong — wrong because reciting the Pledge of Allegiance is simply not “a religious act” as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense. We should have given 11 judges a chance to determine whether the two-judge majority opinion truly reflects the law of the Ninth Circuit. Reciting the Pledge of Allegiance cannot possibly be an “establishment of religion” under any reasonable interpretation of the Constitution. Perhaps in an effort to avoid ultimate Supreme Court review, Newdow II which replaces it, avoids expressly reaching the technical question of the constitutionality of the 1954 Act. Fundamentally, however, the amended decision is every bit as bold as its predecessor. It bans the voluntary recitation of the Pledge of Allegiance in the public schools of the nine western states thereby directly affecting over 9.6 million students, necessarily implies that both an Act of Congress and a California law are unconstitutional, clearly conflicts with the Seventh Circuit’s decision in Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Township, 980 F.2d 437 (7th Cir.1992), and threatens cash-strapped school districts and underpaid teachers with the specter of civil actions for money damages pursuant to 42 U.S.C. § 1983. Newdow I, the subject of our en banc vote, no longer exists; it was withdrawn after the en banc call failed. The panel majority has evolved to this extent: in Newdow I the Pledge was unconstitutional for everybody; in Newdow II the Pledge is only unconstitutional for public school children and teachers. The remainder of this dissent is directed entirely to Newdow II, which, as shall be demonstrated, differs little from Newdow I in its central holding. With grim insistence, the majority in Newdow II continues to stand by its original error — that voluntary recitation of the Pledge of Allegiance in public school violates the Establishment Clause because, according to the two-judge panel majority, it is “a religious act.” Newdow II, 328 F.3d at 490. Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear. If reciting the Pledge is truly “a religious act” in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto, or the singing of the National Anthem. Such an assertion would make hypocrites out of the Founders, and would have the effect of driving any and all references to our religious heritage out of our schools, and eventually out of our public life. II The Newdow II majority’s primary legal argument is that the Supreme Court’s decision in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), a school prayer case, controls the outcome of this case. In fact, rather than merely following Lee and its predecessors, the two-judge panel majority makes a radical departure from Lee and the cases it purports to apply. To understand why this is so, an examination of the Supreme Court’s school prayer decisions which culminate in Lee is in order. A 1 The fountainhead of all school prayer cases is Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). In Engel the Court considered a school policy whereby children were directed to say aloud a prayer composed by state officials. The Court found that this practice was inconsistent with the Establishment Clause, reasoning that “[the] program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious.” Id. at 424-25, 82 S.Ct. 1261. The Court concluded by stating that the state should leave prayer, “that purely religious function, to the people themselves.” Id. at 435, 82 S.Ct. 1261. In a footnote, it reasoned as follows: There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer’s professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. Id. at 435 n. 21, 82 S.Ct. 1261. The Court drew an explicit distinction between patriotic invocations of God on the one hand, and prayer, an “unquestioned religious exercise,” on the other. Concurring, Justice Douglas wrote that the narrow question presented was whether the state “oversteps the bounds when it finances a religious exercise.” Id. at 439, 82 S.Ct. 1261 (Douglas, J., concurring). Justice Douglas noted that the Pledge of Allegiance, “like ... prayer, recognizes the existence of a Supreme Being.” Id. at 440 n. 5, 82 S.Ct. 1261. However, he noted that the House Report recommending the addition of the words “under God” to the Pledge stated that those words “in no way run contrary to the First Amendment but recognize ‘only the guidance of God in our national affairs.’ ” Id. (quoting H.R.Rep. No. 1693, 83d Cong., 2d Sess., p. 3). 2 The following year, the Supreme Court decided Abington School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). In that case, the Court considered the constitutionality of a Pennsylvania statute requiring that “[a]t least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.” Id. at 205, 83 S.Ct. 1560. The practice in public schools was for a teacher or student volunteer to read the required Bible verses each morning. This in turn was followed by a recitation of the Lord’s prayer. Finally, the class would recite the Pledge of Allegiance to the Flag. Id. at 207-08, 88 S.Ct. 1560. The Court struck down the Bible reading and the practice of reciting the Lord’s prayer as a state prescribed “religious ceremony,” id. at 223, 83 S.Ct. 1560, but said nothing about the practice of reciting the Pledge. As in Engel, the Court took pains to point to the character of the exercises it found wanting. The Court reasoned that “reading ... the verses ... possesses a devotional and religious character and constitutes in effect a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord’s prayer.” Id. at 210, 83 S.Ct. 1560. “The pervading religious character of the ceremony,” wrote Justice Clark, “cannot be gainsaid,” and led to the conclusion that the exercises violated the Establishment Clause. Id. at 224, 83 S.Ct. 1560. The concurring opinions in Schempp were all to the same effect. Justice Douglas agreed with the majority’s conclusion that the practices at issue violated the Establishment Clause because “the State is conducting a religious exercise.” Id. at 229, 83 S.Ct. 1560 (Douglas, J., concurring). In a lengthy concurrence, Justice Brennan wrote that “[t]he religious nature of the exercises here challenged seems plain.” Id. at 266, 83 S.Ct.. 1560 (Brennan, J., concurring). After surveying the history of devotional exercises in American public schools, Justice Brennan stated that “the panorama of history permits no other conclusion than that daily prayers and Bible readings in the public schools have always been designed to be, and have been regarded as, essentially religious exercises.” Id. at 277-78, 83 S.Ct. 1560. For Justice Brennan, “religious exercises in the public schools present a unique problem” but “not every involvement of religion in public life violates the Establishment Clause.” Id. at 294, 83 S.Ct. 1560. He warned that “[a]ny attempt to impose rigid limits upon the mention of God ... in the classroom would be fraught with dangers.” Id. at 301, 83 S.Ct. 1560. Specifically, he ■wrote that “[t]he reference to divinity in the revised pledge of allegiance ... may merely recognize the historical fact that our Nation was believed to have been founded ‘under God.’ Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which contains an allusion to the same historical fact.” Id. at 304, 83 S.Ct. 1560. Justice Goldberg also wrote separately, stating that “the clearly religious practices presented in these cases are ... wholly compelling.” Id. at 305, 83 S.Ct. 1560 (Goldberg, J., concurring). He reasoned that “[t]he pervasive religiosity and direct governmental involvement inhering in the prescription of prayer and Bible reading in the public schools ... cannot realistically be termed simply accommodation.” Id. at 307, 83 S.Ct. 1560. Like Justice Brennan, Justice Goldberg cautioned that the decision “does not mean that all incidents of government which import of the religious are therefore and without more banned by the strictures of the Establishment Clause.” Id. at 307-08, 83 S.Ct. 1560. He then quoted in full the passage from Engel which drew a distinction between patriotic invocations of God, and unquestioned religious exercises that give rise to Establishment Clause violations. Id. 3 The next case in this line is Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). That case considered the constitutionality of an Alabama statute authorizing a 1-minute period of silence in public schools “for meditation or voluntary prayer.” Id. at 40, 105 S.Ct. 2479. The Court found that “[t]he wholly religious character” of the challenged law was “plainly evident from its text.” Id. at 58, 105 S.Ct. 2479. The legislature’s one and only purpose in enacting the law was “to return prayer to the public schools.” Id. at 59-60, 105 S.Ct. 2479. Justice Powell’s separate concurrence was “prompted by Alabama’s persistence in attempting to institute state-sponsored prayer in the public schools.” Id. at 62, 105 S.Ct. 2479 (Powell, J., concurring). Justice O’Connor wrote separately to suggest that moment-of-silence statutes were not “a religious exercise,” and therefore were constitutional. Id. at 72, 105 S.Ct. 2479 (O’Connor, J., concurring). Justice O’Connor wrote further that “the words ‘under God’ in the Pledge ... serve as an acknowledgment of religion with ‘the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.’” Id. at 78 n. 5, 105 S.Ct. 2479 (quoting Lynch v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring)) (alterations in original). In contrast, the Alabama statute at issue was very different from the Pledge — the state had “intentionally crossed the line [by] affirmatively endorsing the particular religious practice of prayer.” Id. at 84,105 S.Ct. 2479. 4 Finally, there is the Supreme Court’s decision in Lee v. Weisman. The issue presented was “whether including clerical members who offer prayers as part of the official school graduation ceremony” is consistent with the Establishment Clause. 505 U.S. at 580,112 S.Ct. 2649. The graduating students entered as a group in a processional, after which “the students stood for the Pledge of Allegiance and remained standing during the rabbi’s prayers.” Id. at 583, 112 S.Ct. 2649. Justice Kennedy wrote that “the significance of the prayers lies ... at the heart of [the] case.” Id. He framed the inquiry as follows: These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. Id. at 586,112 S.Ct. 2649. The Court in Lee concluded that Engel and its progeny controlled the outcome, writing that “[c]onducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students.” Id. at 587, 112 S.Ct. 2649. As in Engel, Schempp, and Wallace, the crucial factor was the nature of the exercise in which the students were asked to participate. Time and again the Court went out of its way to stress the nature of the exercise, writing that prayer was “an overt religious exercise,” id. at 588, 112 S.Ct. 2649, and that “prayer exercises in public schools carry a particular risk of indirect coercion.” Id. at 592, 112 S.Ct. 2649. The practice was unconstitutional because “the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student.” Id. at 598, 112 S.Ct. 2649. Just like the decisions in Engel and Schempp, the Court in Lee took pains to stress the confines of its holding, concluding that “[w]e do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive,” id. at 597, 112 S.Ct. 2649, and that “[a] relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.” Id. at 598,112 S.Ct. 2649. B Two fundamental principles may therefore be derived from the school prayer cases culminating in Lee. 1 Formal religious observances are prohibited in public schools because of the danger that they may effect an establishment of religion. See Engel, 370 U.S. at 424-25, 82 S.Ct. 1261 (“[D]aily classroom invocation of God’s blessings ... is a religious activity.”); Schempp, 374 U.S. at 210, 83 S.Ct. 1560 (Bible reading followed by the Lord’s prayer “possesses a devotional and religious character and constitutes in effect a religious observance.”); Wallace, 472 U.S. at 58, 105 S.Ct. 2479 (Prayer is of a “wholly religious character.”); Lee, 505 U.S. at 586, 112 S.Ct. 2649 (Prayer written by state officials constitutes a “formal religious exercise”). In each of these cases, the Court took pains to stress that not every reference to God in public schools was prohibited. See En-gel, 370 U.S. at 435 n. 21, 82 S.Ct. 1261 (“patriotic or ceremonial occasions” which contain “references to the Deity” bear “no true resemblance to the unquestioned religious exercise” of prayer); Schempp, 374 U.S. at 301, 83 S.Ct. 1560 (Brennan, J., concurring) (“Any attempt to impose rigid limits upon the mention of God ... in the classroom would be fraught with dangers.”); Wallace, 472 U.S. at 78 n. 5, 105 S.Ct. 2479 (O’Connor, J., concurring) (“the words ‘under God’ in the Pledge” are not unconstitutional); Lee, 505 U.S. at 598, 112 S.Ct. 2649 (“A relentless and all-pervasive attempt to exclude religion ... could itself become inconsistent with the Constitution.”). 2 Once it is established that the state is sanctioning a formal religious exercise, then the fact that the students are not required to participate in the formal devotional exercises does not prevent those exercises from being unconstitutional. See Engel, 370 U.S. at 431, 82 S.Ct. 1261 (“[T]he indirect coercive pressure upon religious minorities to conform” to the prayer exercises “is plain.”); Schempp, 374 U.S. at 210-11, 83 S.Ct. 1560 (“The fact that some pupils, or theoretically all pupils, might be excused from attendance at the exercises does not mitigate the obligatory nature of the ceremony.”); Wallace, 472 U.S. at 57, 105 S.Ct. 2479 (State-sanctioned voluntary prayer in public schools violates Establishment Clause); Lee, 505 U.S. at 592,112 S.Ct. 2649 (“[P]rayer exercises in public schools carry a particular risk of indirect coercion.”). To be sure, Lee is the Court’s most elaborate pronouncement with respect to indirect coercion. It identifies the circumstances in which indirect coercion may be said to be unconstitutional: when the government directs “the performance of a formal religious exercise” in such a way as to oblige the participation of objectors. Lee, 505 U.S. at 586,112 S.Ct. 2649. Ill No court, state or federal, has ever held, even now, that the Supreme Court’s school prayer cases apply outside a context of state-sanctioned formal religious observances. But Newdow II finesses all that, and the sleight of hand the majority uses becomes immediately apparent: obfuscate the nature of the exercise at issue and emphasize indirect coercion. The panel majority simply ignores, because they are inconvenient, the “dominant and controlling facts” in Lee and its predecessors: that Establishment Clause violations in public schools are triggered only when “State officials direct the performance of a formal religious exercise.” 505 U.S. at 586, 112 S.Ct. 2649 (emphasis added); see also Schempp, 374 U.S. at 210, 83 S.Ct. 1560 (“devotional ... religious observance” prohibited); Wallace, 472 U.S. at 58, 105 S.Ct. 2479 (activities of a “wholly religious character” prohibited). A To avoid a flagrant inconsistency with Lee, and with 40 years of Supreme Court precedent, the two-judge panel majority must first examine whether the act of pledging allegiance is “a religious act.” As the Seventh Circuit in Sherman framed it, “Does ‘under God’ make the Pledge a prayer, whose recitation violates the establishment clause of the first amendment?” 980 F.2d at 445. That court answered the question in the negative; the Newdow II majority, in conclusory fashion, simply assumes the affirmative. 328 F.3d at 487 (“[W]e conclude that the school district policy impermissibly coerces a religious act.”) (emphasis added). This assertion belies common sense. Most assuredly, to pledge allegiance to flag and country is a patriotic act. After the public and political reaction last summer, it is difficult to believe that anyone can continue to think otherwise. The fact the Pledge is infused with an undoubtedly religious reference does not change the nature of the act itself. The California statute under which the school district promulgated its policy is entitled “[djaily performance of patriotic exercises in public schools.” Cal. Educ.Code § 52720 (emphasis added). The Pledge is recited not just in schools but also at various official events and public ceremonies, including perhaps the most patriotic of occasions— naturalization ceremonies. Generally, the Pledge is recited while standing, facing a United States flag, with the right hand held over the heart, much like the National Anthem. See 4 U.S.C. § 4 (articulating proper procedure for reciting Pledge); 36 U.S.C. § 301 (during anthem “all present ... should stand at attention facing the flag with the right hand over the heart.”). Whatever one thinks of the normative values underlying the Pledge, they are unquestionably patriotic in nature. Indeed, it is precisely because of the Pledge’s explicitly patriotic nature that in 1943 the Supreme Court ruled that no one is required to Pledge allegiance against their will. West Virginia v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In contrast, to pray is to speak directly to God, with bowed head, on bended knee, or some other reverent disposition. It is a solemn and humble approach to the divine in order to give thanks, to petition, to praise, to supplicate, or to ask for guidance. Communal prayer, by definition, is an even more forceful and profound experience for those present. Little wonder that the Supreme Court has recognized the “unique problem” and “particular risk” posed by school prayer to nonparticipating students. Lee, 505 U.S. at 592, 112 S.Ct. 2649 (“[Pjrayer exercises in public schools carry a particular risk of indirect coercion.”); Schempp, 374 U.S. at 294, 83 S.Ct. 1560 (Brennan, J., concurring) (noting that prayers in public schools “present a unique problem”). Not only does the panel majority’s conclusion that pledging allegiance is “a religious act” defy common sense, it contradicts our 200-year history and tradition of patriotic references to God. The Supreme Court has insisted that interpretations of the Establishment Clause must comport “with what history reveals was the contemporaneous understanding of its guarantees.” Lynch, 465 U.S. at 673, 104 S.Ct. 1355; see also Schempp, 374 U.S. at 294, 83 S.Ct. 1560 (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.”) (Brennan, J., concurring). The majority’s unpersuasive and problematic disclaimers notwithstanding, New-dow II precipitates a “war with our national tradition,” McCollum v. Bd. of Ed., 333 U.S. 203, 211, 68 S.Ct. 461, 92 L.Ed. 649 (1948), and as Judge Fernandez so eloquently points out in dissent, only the purest exercise in sophistry could save multiple references to our religious heritage in our national life from Newdow II’s axe. Of course, the Constitution itself explicitly mentions God, as does the Declaration of Independence, the document which marked us as a separate people. The Gettysburg Address, inconveniently for the majority, contains the same precise phrase — “under God” — found to constitute an Establishment Clause violation in the Pledge. After Newdow II, are we to suppose that, were a school to permit — not require — the recitation of the Constitution, the Declaration of Independence, or the Gettysburg Address in public schools, that too would violate the Constitution? Were the “founders of the United States ... unable to understand their own handiwork[?]” Sherman, 980 F.2d at 445. Indeed, the recitation of the Declaration of Independence would seem to be the better candidate for the chopping block than the Pledge, since the Pledge does not require anyone to acknowledge the personal relationship with God to which the Declaration speaks. So too with our National Anthem and our National Motto. Our national celebration of Thanksgiving dates back to President Washington, which Congress stated was “to be observed by acknowledgment with grateful hearts, the many and signal favours of Almighty God.” Lynch, 465 U.S. at 675 n. 2,104 S.Ct. 1355. Congress made Thanksgiving a permanent holiday in 1941, and Christmas has been a national holiday since 1894. Are pere Newdow’s constitutional rights violated when his daughter is told not to attend school on Thanksgiving? On Christmas day? Must school outings to federal courts be prohibited, lest the children be unduly influenced by the dreaded intonation “God save these United States and this honorable Court”? A theory of the Establishment Clause that would have the effect of driving out of our public life the multiple references to the Divine that run through our laws, our rituals, and our ceremonies is no theory at all. B As if all of this were not enough, the Supreme Court has gone out of its way to make it plain that the Pledge itself passes constitutional muster. In two of the school prayer cases, the Court noted without so much as a hint of disapproval the fact that the students, in addition to being subject to formal religious observances, also recited the Pledge of Allegiance. See Schempp, 374 U.S. at 207-08, 83 S.Ct. 1560 (noting that the practice in public schools consisted of Bible reading and recitation of the Lord’s prayer, followed by recitation of the Pledge); Lee, 505 U.S. at 583, 112 S.Ct. 2649 (noting that “the students stood for the Pledge of Allegiance and remained standing during the rabbi’s prayers.”). Several other Supreme Court cases contain explicit references to the constitutionality of the Pledge. See Engel, 370 U.S. at 440 n. 5, 82 S.Ct. 1261 (Douglas, J., concurring) (“[The Pledge] in no way run[s] contrary to the First Amendment”) (quoting H.R. Rep. No. 1693, 83d Cong., 2d Sess., p. 3); Schempp, 374 U.S. at 304, 83 S.Ct. 1560 (Brennan, J., concurring) (“[R]eciting the pledge may be no more of a religious exercise than the reading aloud of Lincolns’ Gettysburg Address.”); Wallace, 472 U.S. at 78 n. 5, 105 S.Ct. 2479 (O’Connor, J., concurring) (“[T]he words ‘under God’ in the Pledge ... serve as an acknowledgment of religion.”); Co. of Allegheny v. ACLU, 492 U.S. 573, 602-03, 109 S.Ct. 3086, 106 L.Ed.2d 472 (Blackmun, J., for the court) (“Our previous opinions have considered in dicta ... the pledge, characterizing [it] as consistent with the proposition that government may not communicate an endorsement of religious belief.”); Lynch v. Donnelly, 465 U.S. 668, 676, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (Burger, C.J., for the court) (“Other examples of reference to our religious heritage are found ... in the language ‘One nation under God,’ as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children — and adults — every year.”). The panel majority’s answer to these myriad statements from our high court is summarily to dismiss them as dicta. However, “dicta of the Supreme Court have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold. We should not blandly shrug them off because they were not a holding.” Zal v. Steppe, 968 F.2d 924, 935 (9th Cir.1992) (Noonan, J., concurring and dissenting in part); see also United States v. Baird, 85 F.3d 450, 453 (9th Cir.1996) (“[W]e treat Supreme Court dicta with due deference.”). C The Newdow II majority, then, finds itself caught between a rock and a hard place — the recitation of the Pledge is not a formal religious act, while patriotic invocations of God do not give rise to Establishment Clause violations. It nonetheless manages to skirt these obstacles to reach its indirect coercion analysis. Newdow II’s conclusory foray into the social sciences is a case study, an advertisement, for why it is that the Supreme Court has anchored coercion analysis only to those situations where “formal religious exercises” take place in our public schools. The panel majority seeks to protect dissenters at the risk of courting some unpopularity, but this is not the test. “[Ojffense alone does not in every case show a violation .... and sometimes to endure social isolation or even anger may be the price of conscience or nonconformity.” Lee, 505 U.S. at 597-98, 112 S.Ct. 2649. The New-dow II majority’s expansive application of the coercion test is ill-suited to a society as diverse as ours, since almost every cultural practice is bound to offend someone’s sensibilities. In affording Michael Newdow the right to impose his views on others, Newdow II affords him a right to be fastidiously intolerant and self-indulgent. In granting him this supposed right, moreover, the two-judge panel majority has not eliminated feelings of discomfort and isolation, it has simply shifted them from one group to another. Newdow II’s psychological ipse dixit is also delivered without reference or regard to our collective experience in the half-century since the passage of the offending statute. In that time, generations of Americans have grown up reciting the Pledge, religious tolerance and diversity has flourished in this country, and we have become a beacon for other nations in this regard. As Judge Fernandez observes, “it is difficult to detect any signs of incipient theocracy springing up since the Pledge was amended in 1954.” Newdow I, 292 F.3d at 614 n. 4 (Fernandez, J., dissenting). IV In fairness to the Newdow II panel majority, its professed “neutrality” does have some plausible basis in the case law of the Supreme Court, which has undoubtedly constructed a “fractured and incoherent doctrinal path” in the Establishment Clause area, broadly speaking. Sep. of Church and State Comm. v. City of Eugene, 93 F.3d 617, 622 (9th Cir.1996) (O’Scannlain, J., concurring). Indeed, its Establishment Clause cases sometimes “more closely resemble ad hoc Delphic pronouncements than models of guiding legal principles.” Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 282 (5th Cir.1996) (Jones, J., dissenting from denial of rehearing en banc). Supreme Court Justices themselves have recognized that if some of its reasoning “were to be applied logically, it would lead to the elimination” of many cherished, long-standing practices. Co. of Allegheny, 492 U.S. at 674 n. 10, 109 S.Ct. 3086 (Kennedy, J., dissenting). With respect to the issue presented in this case, however, the Supreme Court has displayed remarkable consistency — patriotic invocations of God simply have no tendency to establish a state religion. Even Justice Brennan, that most stalwart of separationists, recognized that some official acknowledgment of God is appropriate “if the government is not to adopt a stilted indifference to the religious life of the people.” Lynch, 465 U.S. at 714, 104 S.Ct. 1355 (Brennan, J., dissenting). The decision reached in Newdow II does precisely that: it adopts a stilted indifference to our past and present realities as a predominantly religious people. But Newdow II goes further, and confers a favored status on atheism in our public life. In a society with a pervasive public sector, our public schools are a most important means for transmitting ideas and values to future generations. The silence the majority commands is not neutral — it itself conveys a powerful message, and creates a distorted impression about the place of religion in our national life. The absolute prohibition on any mention of God in our schools creates a bias against religion. The panel majority cannot credibly advance the notion that Newdow II is neutral with respect to belief versus non-belief; it affirmatively favors the latter to the former. One wonders, then, does atheism become the default religion protected by the Establishment Clause? In short, a lack of clarity in the Supreme Court’s Establishment Clause cases generally does not help to explain or to justify the panel majority’s decision with respect to this particular issue. Put simply, the panel was asked to decide whether the recitation of the Pledge of Allegiance in public schools amounted to a government establishment of religion. The answer to that question is clearly, obviously, no. We made a grave error in failing to take New-dow I en banc, and we have failed to correct that error ourselves. Now we have Newdow II. Perhaps the Supreme Court will have the opportunity to correct the error for us. I must respectfully dissent from the order denying reconsideration en banc. . Judge Reinhardt's protestations to the contrary notwithstanding, I, too, believe that "[o]ur judicial charge is to stand above the inflamed passions of the public.” Dazo v. Globe Airport Sec. Serv., 295 F.3d 934, 943 (9th Cir.2002) (O’Scannlain, J., concurring and dissenting). My disagreement with the panel majority has nothing to do with bending to the will of an outraged populace, and everything to do with the fact that Judge Goodwin and Judge Reinhardt misinterpret the Constitution and 40 years of Supreme Court precedent. That most people understand this makes the decision no less wrong. It doesn’t take an Article III judge to recognize that the voluntary recitation of the Pledge of Allegiance in public school does not violate the First Amendment. . This case presents the classic situation required for our court to rehear a case en banc. En banc consideration would have allowed us to correct the error of a prior panel’s decision with respect to the Pledge and resolve a constitutional question of exceptional importance that affects the lives of millions of school children who reside within the geographical boundaries of the Ninth Circuit. See Fed. R.App. P. 35(a). The exceptional importance of this case reinforces the need for correction of the panel’s mistaken view of our Constitution. . U.S. Const, amend. I. ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”) (emphasis added). . See U.S. Dep’t of Ed., Nat’l Ctr. for Ed. Statistics, available at http://nces.ed.gov/ pubs2002/snf_report/table_01_l.asp. The approximate figure is for the school year 2000-01, comprising the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, as well as Guam and the Northern Marianas. . 4 U.S.C. § 4 (“The Pledge of Allegiance to the Flag: 1 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.’ "). . Cal. Educ.Code § 52720. This section provides that "at the beginning of the first regularly scheduled class or activity period ... 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.’’ . U.S. Const, art. VII. (“Year of our Lord ”) (emphasis added). . The Declaration of Independence contains multiple references to God. The founders claimed the right to "dissolve the political bands" based on "the Laws of Nature and of Nature’s God.” The most famous passage, of course, is that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Subsequently, the signatories "appeal[] to the Supreme Judge of the world to rectify their intentions.” . On November 19, 1863, President Lincoln declared "that this Nation, under God, shall have a new birth of freedom — and that Government of the people, by the people, for the people, shall not perish from the earth.” . See 36 U.S.C. § 302. (" ‘In God we trust' is the nationalmotto.”) (emphasis added). . See 36 U.S.C. § 301(a) ("The composition consisting of the words and music known as the Star-Spangled Banner is the national anthem."). In fact, the Anthem is much more explicitly religious in content than the Pledge, and much more than a ‘mere’ profession of the composer's faith in a Supreme Being, as the majority would have it. See Newdow II, 328 F.3d at 489. Consider the following passage from the fourth stanza: "Blest with victory and peace, may the heaven-rescued land, Praise the Power that hath made and preserved us a nation. Then conquer we must, when our cause is just, And this be our motto: ‘In God is our trust.' ” (emphasis added). . See infra footnote 9. . See infra footnote 8. . See 5 U.S.C. § 6103(a). . See id. . Indeed, even our own court's formal announcement to open sessions contains the offending word: "Hear ye! hear ye! All persons having business with the honorable, the United States Court of Appeals for the Ninth Circuit will now draw near, give your attention and you will be heard, for this court is now in session. God save these United States and this honorable Court.” (emphasis added). . Other courts have, unremarkably enough, not been so flippant when it comes to considering consistent Supreme Court dicta on this issue. See Sherman, 980 F.2d at 448 ("[A]n inferior court had best respect what the majority says rather than read between the lines. If the Court proclaims that a practice is consistent with the establishment clause, we take its assurances seriously. If the Justices are just pulling our leg, let them say so."); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) ("[T]his court considers itself bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements."); ACLU v. Capitol Square Review, 243 F.3d 289, 301 n. 10 (6th Cir.2001) ("We should ... be amazed if the Supreme Court were now to question the constitutionality of the [revised Pledge]”). Indeed, the unanimity on this point relative to New-dow II is striking. . See Michael W. McConnell, Religious Freedom at the Crossroads, 59 U.Chi.L.Rev. 115, 189 (1992).
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”). To implement the California 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. 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. DISCUSSION 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 particularized 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