A federal appeals court in San Francisco yesterday declared the Pledge of Allegiance an unconstitutional endorsement of religion and ruled that California no longer may require its recitation each morning in public schools.
“The statement that the United States is a nation ‘under God’ is an endorsement of religion,” two of the three judges of a panel of the 9th U.S. Circuit Court of Appeals said. “It is a profession of a religious belief, namely, a belief in monotheism.”
Even before Congress added the “under God” in 1954, the Supreme Court had ruled no one could be forced to recite the Pledge, but yesterday’s decision said simply having to hear it every day violates the First Amendment ban on the establishment of religion.
“We hold that the 1954 act adding the words ‘under God’ to the Pledge, and [the] policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause,” said the majority opinion, written by Circuit Judge Alfred T. Goodwin and concurred in by Circuit Judge Stephen Reinhardt. Judge Goodwin was appointed by President Nixon, Judge Reinhardt by President Carter.
President Bush believes that “this ruling is ridiculous,” White House spokesman Ari Fleischer told reporters accompanying the president at a summit meeting in Canada.
Reaction on Capitol Hill was intense, with a group of lawmakers gathering on the Capitol steps to recite the Pledge and the Senate preparing an unusual session last night to authorize its counsel to intervene in further appeals.
Lawyers and legal scholars overwhelmingly predicted the decision will be reversed, possibly by the 9th Circuit Court itself at a rehearing before an enlarged 11-judge panel.
“I would bet an awful lot on that,” said Harvard law professor Laurence Tribe, a specialist on constitutional law who has argued many cases before the U.S. Supreme Court.
The two judges ruled that the phrase ‘under God’ constitutes religion, a point the judges said would be more clearly understood by substituting such phrases as “a nation under Vishnu, a nation under Zeus, or a nation under no god.”
Circuit Judge Ferdinand F. Fernandez, who was appointed to the court by the first President Bush, dissented in an opinion that predicted “God Bless America” and “America The Beautiful” also face bans in public places along with the third stanza of the “Star-Spangled Banner” and U.S. currency bearing the words “In God We Trust.”
“That will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses, or phrases, are uttered, read, or seen,” said Judge Fernandez.
Congressional reaction to the decision was remarkably nonpartisan, with Sen. John Edwards, North Carolina Democrat and a leader of the Senate Prayer Breakfast group, predicting reversal if it is reviewed by the Supreme Court, where each session is opened with the words, “God save the United States and this honorable court.”
Tom DeLay, the whip of the House Republican majority, protested the ruling by adding the words “God Bless America” to the top of his official Web site. House Majority Leader Dick Armey called for a “celebration” of the Pledge instead of “shame.” “The 9th Circuit couldn’t be more wrong on this one,” he said. “A judge who believes the Pledge of Allegiance is unconstitutional doesn’t belong on the bench.”
Sen. Tom Daschle of South Dakota, the leader of the Democratic majority in the Senate, called the ruling “nuts.” The Senate, debating a defense bill, angrily interrupted that debate to pass by 99 to 0 a resolution denouncing the decision. Sen. Jesse Helms, the North Carolina Republican who was the other senator, was absent because of illness.
Religion-law activist Jay Sekulow called it “very troubling” for courts to aid those who would remove all mention of God from the public arena. “This is one of the most absurd legal rulings of our time,” said Mr. Sekulow, chief counsel of the American Center for Law & Justice, which pledged to fight the case. “The appeals court missed the mark and is rewriting law instead of interpreting it.”
The opinion is binding on courts in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
“We are certainly considering seeking further review in the matter,” said Justice Department lawyer Robert Loeb.
The 2-1 decision all but certain to come before the Supreme Court next term if the 9th Circuit doesn’t reverse itself before then was delivered in a case filed and personally argued by Michael A. Newdow of Sacramento, who describes himself as an atheist, on behalf of his daughter who attends a second-grade class in a school in the Elk Grove farming district, near Sacramento. Mr. Newdow argued that his daughter was forced each day to listen to her teacher recite the Pledge containing the words “under God,” which the judges said coerces children who don’t believe in God.
“I’m an American citizen,” Mr. Newdow told the Associated Press. He called the Pledge a “religious idea that certain people don’t agree with. I don’t like my rights infringed upon by my government.”
California law requires each elementary school to begin the day with “appropriate patriotic exercises” and, like most schools, Elk Grove administrators chose the Pledge.
Terence J. Cassidy, a lawyer for the school district, said he had expected the court to rule the phrase “innocuous” from a religious point of view or at least beneath court notice. “Every school district I represent says the Pledge every day, and I venture to say almost every school in California does the same.”
Judge Fernandez’s dissent said much the same.
“I cannot accept the [striking] of the simple phrase ‘under God’ from our Pledge of Allegiance, when it is obvious that its tendency to establish religion in this country or to interfere with the free exercise [or non-exercise] of religion is de minimis,” Judge Fernandez wrote.
Clergyman Francis Bellamy wrote the original Pledge in 1892. Congress adopted a revised version on June 22, 1942, as follows: “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation indivisible, with liberty and justice for all.” On Flag Day 1954, Congress amended it at the instigation of Rep. Louis C. Rabaut, Michigan Democrat, adding “under God.”
The San Francisco panel determined that Mr. Newdow has standing to sue so many years after the law was enacted because it said he sustained legal injury when his daughter was forced 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 our’s [sic] is ‘one nation under God.’ The coercive effect of this policy is particularly pronounced in the school setting given the age and impressionability of schoolchildren”
In 1943, in a challenge brought by Jehovah’s Witnesses, the U.S. Supreme Court said that no one could be forced to pledge allegiance.
“Even without a recitation requirement for each child, the mere fact that a pupil is required to listen every day to the statement ‘one nation under God’ has a coercive effect,” the two judges of the panel said yesterday. “The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”