Law & Courts

Supreme Court Is Next Stop For Pledge Ban

By Mark Walsh — March 12, 2003 5 min read
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The full U.S. Court of Appeals for the 9th Circuit, in San Francisco, declined late last month to reconsider a June 2002 ruling by a panel of its judges that said the inclusion of the words “under God” in the pledge was an unconstitutional government establishment of religion. Both the California school district involved and the Bush administration said last week they would appeal the decision to the high court.

The full U.S. Court of Appeals for the 9th Circuit, in San Francisco, declined late last month to reconsider a June 2002 ruling by a panel of its judges that said the inclusion of the words “under God” in the pledge was an unconstitutional government establishment of religion. Both the California school district involved and the Bush administration said last week they would appeal the decision to the high court.

On Feb. 28, the three-judge panel of the 9th Circuit reissued its ruling, with one important revision. While last June the 2-1 panel majority suggested that the 1954 federal statute adding “under God” was itself unconstitutional, the final opinion pulled back from that position and held only that recitations of the pledge led by public schools violated the U.S. Constitution.

Schools in the nine states of the 9th Circuit may continue to lead the pledge for the time being because the appellate panel also delayed the effect of its ruling pending review by the Supreme Court. Those states, serving some 9.6 million children in public schools, are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state.

Nine of the 9th Circuit court’s 24 active judges voted to reconsider the panel’s ruling. The panel’s decision caused a firestorm of criticism last summer and was denounced by President Bush, members of Congress, and numerous commentators.

The full appeals court’s decision not to rehear the case provoked a sharp dissent. The panel’s ruling “was wrong, very wrong,” wrote U.S. Circuit Judge Diarmuid F. O’Scannlain, “because reciting the Pledge of Allegiance is simply not a ‘religious act.’”

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

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 Judge O’Scannlain 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.

Revised Opinion

The case began when Dr. Michael A. Newdow, a California physician who holds a law degree and is an atheist, challenged the pledge on behalf of his daughter, who has not been named in court papers. He sued the 52,500-student Elk Grove Unified School 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 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.

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 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 year as one more out-of-step decision, and many had expected the full appeals court to vote to reconsider it.

With the full court’s refusal to rehear the case, the original panel issued the slightly revised version of its June opinion.

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.

Unresolved Question

The Bush administration and the Elk Grove district immediately made it clear that the case was far from over.

“The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag,” U.S. Attorney General John Ashcroft said in a statement. The department had filed papers asking the 9th Circuit court to reconsider the case.

After the court action on Feb. 28, David Gordon, the superintendent of the Elk Grove district, initially ordered his schools to stop leading the pledge. But early last week, the 9th Circuit court clarified that its ruling would not take effect until March 10. And on March 4, U.S. Circuit Judge Alfred T. Goodwin issued a 90-day stay to allow the ruling to be appealed. The stay will continue in effect if the Supreme Court grants review.

On Dr. Newdow’s Web site, www.restorethepledge.com, he says the political reaction against the pledge ruling last year was “a beautiful illustration of the importance of an independent judiciary.”

“Such a reasonable decision could not have been made by politically sensitive judges,” he adds.

The pledge case is now headed for a court that starts each public session with the words: “God save the United States and this honorable court.”

The high court has never ruled directly on the inclusion of “under God” in the pledge or similar official government references to a deity, such as “In God We Trust” on currency. U.S. Circuit Judge Ferdinand F. Fernandez, the dissenter on the three-judge panel in the case, pointed to several Supreme Court cases that have made approving references to the pledge and motto.

“Such phrases as ‘In God We Trust,’ or ‘under God,’” Judge Fernandez said, “have no tendency to establish a religion in this country or to suppress anyone’s exercise, or nonexercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity.”

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