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Published in Print: September 4, 2002, as Law Update

Law Update

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Bush Administration Calls for Reversal of Pledge Ruling

The Bush administration has joined with a California school district and others in calling for a federal appeals court to reverse the June ruling that the inclusion of "under God" in the Pledge of Allegiance runs afoul of the U.S. Constitution.

"Reciting the pledge is a permissible patriotic act, like reciting the Declaration of Independence, not an act of religious devotion, like repeating a government-composed prayer," says a brief filed last month by the U.S. Department of Justice in the highly publicized case.

The department asked the U.S. Court of Appeals for the 9th Circuit, in San Francisco, to review the controversial ruling against the pledge by a three-judge panel of the court. Because of the large number of judges who sit on the court, such rehearings are typically conducted by an 11-judge panel rather than by all 23.

A 9th Circuit panel ruled 2-1 on June 26 that the addition of "under God" to the pledge by Congress in 1954 violated the First Amendment's prohibition of a government establishment of religion. The court ruled in a lawsuit brought by Michael Newdow, a self-proclaimed atheist who sued Congress and the 52,500-student Elk Grove Unified School District in northern California, where his 8-year-old daughter attends school. The daughter's name has not been revealed in court papers. ("Pledge of Allegiance in the Legal Spotlight," July 10, 2002.)

The ruling created a firestorm over the summer as politicians and commentators rushed to denounce the court panel. The panel delayed the effect of its ruling pending the possible rehearing by a larger 9th Circuit panel, so schools in the nine states in the 9th Circuit have been free to continue leading the pledge as before. Those states are: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Further complicating the picture was the entry last month into the case by Sandra Banning, the mother of the 8-year-old. She argues that Dr. Newdow, a physician who also holds a law degree, does not have custody of their daughter and thus lacks legal standing to challenge the pledge on the girl's behalf.

Ms. Banning gave interviews over the summer making clear she does not share the atheistic views of Dr. Newdow, her former boyfriend, and contending that her daughter is a church-going Christian.

The issue of standing could give an 11-judge panel of the 9th Circuit a procedural way out of the case without having to decide the constitutionality of the pledge. The three-judge panel agreed Dr. Newdow had standing because as a parent he may challenge a practice that interferes with his right to direct the religious education of his child.

The panel did not appear to be aware that Dr. Newdow lacked full custody of his daughter. However, the panel also ruled that Dr. Newdow had legal standing to challenge the federal pledge statute on his own.

In its brief seeking a rehearing, the Justice Department argues that the panel was wrong and that Dr. Newdow had not suffered an "individualized, direct, and concrete injury" that would allow him to challenge the pledge law.

But the department used most of its brief to defend the pledge itself. It says the 9th Circuit panel failed to heed several references in U.S. Supreme Court rulings that the inclusion of "under God" in the pledge does not establish a religion in violation of the First Amendment.

The department cited two cases from the 1980s in which the high court considered religious displays on public property, Lynch v. Donnelly and Countyof Allegheny v. ACLU.

"In both cases, the Supreme Court clearly used its approval of the pledge as a baseline with which to adjudicate the constitutionality of other government actions," the department says in its brief. A decision on whether the 9th Circuit court will have an 11-judge panel rehear the case is expected soon.

Voucher Analysis

The Supreme Court's ruling in June upholding the Cleveland voucher program was big news, and its full implications are just beginning to be digested in law reviews and policy journals.

In an unusual move, the Pew Forum on Religion and Public Life asked eight constitutional scholars to join together on a document explaining some of the larger principles to emerge from the decision. The scholars included some who had argued that the Cleveland program should be upheld, and some who had argued that it was an unconstitutional government establishment of religion. ("Justices Settle Case, Nettle Policy Debate," July 10, 2002.)

The principal drafter of the group's analysis was Thomas Berg, a professor at the University of St. Thomas Law School in Minneapolis.

The key criteria coming out of the Supreme Court's ruling in Zelman v. Simmons-Harris are that a constitutional voucher program be neutral toward religion; that money flow to religious schools only through the decisions of individuals; and that the program offer genuine secular options, the statement says.

The scholars address a question that has come up in the minds of some analysts since the ruling: Was the perceived failing condition of the Cleveland public schools, which was clearly a motivating factor for the Ohio legislature's enactment the voucher program in 1995, a necessary element in making the program constitutional? It would be "questionable," the scholars say, whether a state "could offer private school vouchers as the only alternative to a failing public system, without any reforms or supplements to the public system like Cleveland's community and magnet schools and tutorial assistance."

The authors agree that state courts are the next legal battlefield over vouchers, with the possibility that state constitutions could be used to block programs that include religious schools. But "for the most part," the document says, "state and local officials who choose to create voucher programs can look to Zelman for guideposts on how to draft a valid program that includes religious schools as participants."

—Mark Walsh

Vol. 22, Issue 1, Page 14

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