- The Washington Times - Saturday, August 10, 2002


The Justice Department argued yesterday that a three-judge appeals panel ignored Supreme Court rulings when it found that reciting the Pledge of Allegiance in public schools was unconstitutional.

Government attorneys asked for a hearing before all 11 judges of the 9th U.S. Circuit Court of Appeals in San Francisco to reconsider its 2-1 ruling.

In court documents filed yesterday, the government said the Supreme Court already had determined that the words "under God" in the pledge were among "many ceremonial references to our religious heritage and do not establish a religious faith."

The Justice Department also argued that Michael Newdow, who brought the case on behalf of his daughter, did not have the legal standing to do so because he did not have custody of the child.

Mr. Newdow sued the Elk Grove Unified School District, claiming his daughter was injured by being forced to listen to children reciting the pledge. Children cannot be made to say the Pledge of Allegiance in class.

But the government noted that Mr. Newdow did not have custody of the child and that the girl's mother, Sandra Banning, had filed a court motion seeking to intervene in the case. Mrs. Banning wants her daughter to be able to recite the pledge, as it stands, as part of her education.

The government stated in the documents that Mrs. Banning said neither she nor her daughter believed there was anything wrong with reciting the words "under God" in the pledge.

The ruling by the three-judge appeals panel was criticized roundly by President Bush and members of Congress.

The day after the ruling, virtually the entire Senate showed up for a morning prayer to affirm that the United States was "one nation under God."

A nearly full House gathered for an enthusiastic recitation of the pledge and later passed, in a 416-3 vote, a resolution protesting the decision.

Mr. Bush denounced the court ruling as "out of step with the traditions and history of America."

If the ruling is not overturned by the 9th Circuit, the Supreme Court probably will review the case next year, constitutional scholars said. The 9th Circuit is known as the most liberal appeals court in the nation.

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