Pledge Protection Act (H.R. 2028)

Categories: Advocacy Letter

Recipient: U.S. House of Representatives


September 21, 2004

Dear Representative:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil rights coalition representing people of color, women, children, older Americans, persons with disabilities, gays and lesbians, major religious organizations, labor unions, and civil and human rights groups, we urge you to vote against H.R. 2028, the “Pledge Protection Act of 2003.” LCCR firmly believes that access to the courts must not be slammed shut – especially by laws that will block the federal courthouse doors. H.R. 2028, the so-called “Pledge Protection Act,” will do exactly that – deny Constitutional rights to religious minorities by stripping the courts of jurisdiction.

LCCR strongly opposes any proposal that would eliminate access to the federal judiciary for any group of Americans. For over 50 years, the federal courts have played an indispensable role in the interpretation and enforcement of civil rights laws. When Congress has sought to prevent the courts from exercising this role, such efforts ultimately tend to do little more than enshrine discrimination in the law. Fortunately, in most instances, cooler heads prevail. In the 1970s, for example, some members of Congress unsuccessfully sought to strip the courts of jurisdiction to hear cases involving desegregation efforts such as busing – legislation that would have done nothing but preserve racial inequality. More recently, however, at the height of anti-immigrant sentiment in 1996, Congress succeeded in enacting immigration laws that stripped courts of the ability to hear appeals by legal immigrants who were challenging harsh new deportation laws – laws that were so extreme that the Supreme Court ultimately had no choice but to step in and scale them back.

The judicial branch has often been the sole protector of the rights of minority groups against the will of the popular majority. Any proposal to interfere with this role through “court-stripping” proposals would set a dangerous precedent that would harm all Americans. Allowing the courthouse doors to be closed to one minority group, as H.R. 2028 would do to religious minorities, is not only unjustified in itself, but will also set a dangerous precedent that will ultimately weaken the rights of any other group that may be forced to turn to the courts for justice. Further, H.R. 2028 threatens the separation of powers established by the Constitution, and undermines the unique function of the federal courts to interpret Constitutional law. This legislation deprives the federal courts of the ability to hear cases involving religious and free speech rights of students, parents, and other individuals. The denial of a federal forum to plaintiffs to vindicate their Constitutional rights would force plaintiffs out of federal courts, which are specifically suited for the vindication of federal interests, and into state courts, which may be hostile or unsympathetic to these federal claims, and which may lack expertise and independent safeguards provided to federal judges under Article III of the Constitution. It is in apparent recognition of this concern that no federal bill withdrawing federal jurisdiction in cases involving fundamental Constitutional rights has become law since the Reconstruction period.

H.R. 2028 would deny access to the federal courts in cases to enforce existing constitutional rights for religious minorities. Over sixty years ago, the Supreme Court decided the case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In Barnette, the Supreme Court struck down a West Virginia law that mandated schoolchildren to recite the Pledge of Allegiance. Under the West Virginia law, religious minorities faced expulsion from school, and could be subject to prosecution and fined, if convicted of violating the statute’s provisions. In striking down that statute, the Court reasoned: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds . . . 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.” (319 U.S. at 639-40)

LCCR urges you to vote against H.R. 2028 because of the dangers to Constitutional protections and civil rights laws and enforcement posed by its enactment. If you have any questions, please feel free to contact Rob Randhava, LCCR policy analyst, at (202) 466-6058, or Nancy Zirkin, LCCR deputy director, at (202) 263-2880. Thank you for your consideration.


Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director