Pledge of Allegiance In the Legal Spotlight

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The decision stunned educators and parents in the Sacramento suburb of Elk Grove, Calif. In Portland, Ore., district officials said it would have little effect on schools. And for some 23,000 students in Quaker schools, the recent ruling by a federal appeals court struck at a practice their own schools reject as a matter of principle.

Educators, politicians, pundits, and other Americans across the country were talking about the Pledge of Allegiance. In a June 26 decision, the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled 2-1 that the practice of reciting the pledge in public schools runs afoul of the First Amendment. The phrase "one nation, under God" in the pledge violates the ban on a government establishment of religion, the panel said.

The ruling by the three-judge panel—which if sustained by the full 9th Circuit court would affect public schools in nine states—sparked bipartisan outrage in Congress and drew strong reactions from other leaders from President Bush on down. The next day, the judge who wrote the opinion issued a stay of his own ruling until the full appeals court can hear the case.

Michael A. Newdow, a Sacramento parent and atheist, filed the lawsuit contending that his 2nd grade daughter's First Amendment rights were violated because she felt 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 ours is 'one nation under God.'" His daughter is a pupil in the 50,000-student Elk Grove Unified School District.

Dr. Newdow, a physician who also holds a law degree, argued the case himself.. After a federal district judge dismissed the suit earlier this year, Dr. Newdow appealed to the 9th Circuit court, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state.

School reaction to the appellate decision was mixed. While children across the country recite the pledge, and some states such as California and Oregon require public schools to start the day with the pledge, students can opt out of the ritual. Under a 1943 U.S. Supreme Court decision, West Virginia State Board of Education v. Barnette, students cannot be required to recite the pledge.

David Gordon, the superintendent of the Elk Grove schools, said he was "shocked" by the court's decision. The day after the ruling, students in year-round schools in the district recited the pledge, just as they always do. "We don't believe that having the words 'under God' is pushing religion," Mr. Gordon said.

While lawmakers and others condemned the ruling, some school officials said it was much ado over not very much.

"A group of principals said to me, 'This is not a big deal for us,'" said Lew Frederick, the public information director of Oregon's 55,000-student Portland school district. "We don't require kids to say it. They can sit quietly or leave the room if they don't. Frankly, we have more pressing [concerns], such as funding and academic issues."

A Nation 'Under Zeus'?

For the 79 Friends, or Quaker, schools nationwide, the ruling didn't cause so much as a ripple—even beyond the fact that it would apply only to public schools.. Quaker schools, which are attended by students whose religious backgrounds range from Christian to Muslim, actively discourage the practice. And most Quaker schools don't fly the American flag either, said Irene McHenry, the executive director of the Friends Council on Education, based in Philadelphia.

Quakers see such practices as competing with the allegiance owed only to God. Quakers, many of whom were conscientious objectors during World Wars I and II and the Vietnam conflict, also refuse to take oaths and don't use religious symbols such as crucifixes.

"We feel that the Pledge of Allegiance is profoundly un- American," said Tom Hoopes, the education coordinator for the Philadelphia Yearly Meeting of the Religious Society of Friends. "It contradicts long- standing Quaker practice and Quaker spiritual teachings."

In the controversial decision, Circuit Judge Alfred T.. Goodwin wrote that the pledge amounts to governmental endorsement of monotheism. He stated that saying the United States is a nation "under God" is the same as saying "we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation under 'no god,' because none of these professions can be neutral with respect to religion."

Judge Goodwin's June 27 stay puts the ruling on hold until all appeals are exhausted. If the 11-judge 9th Circuit court upholds the ruling—which is at odds with a 1992 decision by the 7th Circuit appellate court that recitation of the pledge in public schools is constitutional—the case undoubtedly will be appealed to the U.S. Supreme Court. Most legal experts believe the high court would overturn the ruling.

The three-judge panel's decision, coming amid the heightened patriotic feelings the country has seen since the Sept. 11 terrorist attacks, brought swift condemnation from Democrats and Republicans alike.

President Bush called the decision "ridiculous." U.S. Secretary of Education Rod Paige said he was "firmly entrenched" in support of the pledge's reference to God. Gov. Gray Davis of California said: "What's next? Banning children from singing 'God Bless America'?"

Patriotism and Religion

The wording of the pledge originally was entirely secular. First written in 1892, it didn't include the phrase "under God" until the height of the Cold War. On June 14, 1954, President Eisenhower signed into law a bill inserting that wording to differentiate the United States from the atheist Soviet Union.

Supporters of last month's ruling say it followed the First Amendment and respected freedom of conscience.

"You can be a patriotic American regardless of your religious belief or lack of religion," said the Rev. Barry W. Lynn, the executive director of Americans United for Separation of Church and State, an advocacy group based in Washington. "Our government should never coerce schoolchildren or anyone else to make a profession of religious belief."

Vol. 21, Issue 42, Page 6

Published in Print: July 10, 2002, as Pledge of Allegiance In the Legal Spotlight
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