Appeals Court Lets Stand Pledge Ban; Delays Effect

By Mark Walsh — March 06, 2002 4 min read
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The full federal appeals court in San Francisco has cleared the way for a controversial ruling to take effect that barred public schools from leading the Pledge of Allegiance.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, voted 15-9 against formal reconsideration of the 2-1 ruling last June by a panel of the court that the inclusion of the words “under God” in the pledge was an unconstitutional government establishment of religion. The panel majority pulled back from that position slightly Feb. 28 in a revision of its June opinion that will bar only public schools from leading recitations of the pledge.

Thus, the panel’s ruling, which caused a firestorm last summer and was denounced by President Bush, members of Congress, and numerous commentators, is now the law for a large swath of the Western United States.

However, the court on March 4 agreed to stay, or delay the effect, of the ruling pending the outcome of an appeal to the U.S. Supreme Court. Both the U.S. Department of Justice and the Elk Grove Unified School District said they would appeal the case to the high court.

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state. About 9.6 million students attend public schools in those states.

The 9th Circuit court’s Feb. 28 decision not to reconsider the panel’s ruling provoked a sharp dissent. The panel’s ruling was “wrong because reciting the Pledge of Allegiance is simply not a ‘religious act’ ” and “wrong as a matter of common sense,” said a dissenting opinion by U.S. Circuit Judge Diarmuid F. O’Scannlain.

“Most assuredly, to pledge allegiance to flag and country is a patriotic act,” he added, emphasizing the distinction with italics. “After the public and political reaction last summer, it is difficult to believe that anyone can continue to think otherwise.”

But U.S. Circuit Judge Stephen R. Reinhardt, one of the two original judges to vote against the pledge, wrote an opinion concurring in the full court’s decision not to review the case. His opinion criticized the dissenters for referring to the public outcry of last summer.

“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,” Judge Reinhardt said.

Bipartisan Decisions

The case began when Dr. Michael A. Newdow, a California physician who is an atheist, challenged the pledge on behalf of his daughter, who has not been named in court papers. He sued the Elk Grove district, the state of California, the U.S. Congress, and President Bush.

Dr. Newdow’s case was dismissed by a federal district court and attracted little attention until last June, when the 9th Circuit panel issued its ruling. After that, the 8-year-old girl’s mother, Sandra Banning, came forward to say that her daughter did not object to reciting the pledge in school.

In December, the three-judge panel ruled that even though Dr. Newdow did not have custody of his daughter, he still had a right to object to unconstitutional conduct that she might be subjected to in school. The procedural ruling was important because it essentially kept the case alive.

The full 9th Circuit court then weighed whether to throw out the panel ruling and have a larger panel of judges reconsider the case. The San Francisco-based court has a liberal reputation and is much more likely than other federal judicial circuits to have its rulings overturned by the Supreme Court.

Some observers had viewed the pledge ruling last June as one more out-of-step decision, and many had expected the full appeals court to vote to reconsider it. Of the 24 active judges on the 9th Circuit court, 17 were appointed by Democratic presidents and seven by Republicans.

But such pedigrees may not be the best predictor of judicial action. Six appointees of President Clinton joined one each of President Reagan, President George H.W. Bush, and the current President Bush in dissenting from the Feb. 28 decision—that is, voting for reconsideration by a larger panel of judges. And the 15 judges who let the June ruling stand include four jurists appointed by Republican presidents.

With the full court’s refusal to reconsider the case, the original panel issued a slightly revised version of its opinion that will now become the law in the 9th Circuit, pending Supreme Court review.

In one significant change, the panel majority withdrew language from its opinion of last June that appeared to strike down the 1954 congressional act that added the words “under God” to the pledge. That part of the original opinion had led some legal experts to suggest that the whole pledge was off the books.

The revised opinion states: “In light of Supreme Court precedent, we hold that the school district’s policy and practice of teacher-led recitation of the pledge, with the inclusion of the added words ‘under God,’ violates the establishment clause [of the First Amendment].”

The panel said it did not need to address the issue of the constitutionality of the 1954 law itself.


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