- The Washington Times - Thursday, July 3, 2003

The Pledge of Allegiance is so woven into the national fabric that Americans from kindergarten to the White House voiced shock when a federal appeals court in June 2002 declared it unconstitutional because it includes the words “under God.”

Now the Bush administration, all 50 U.S. governors, the U.S. Senate and the American Legion are among those demanding that the Supreme Court throw out the decision, which was drastically revised in February.

The decision now directly involves only “the policy and practice of teacher-led recitation” in the Elk Grove, Calif., school district that applies to four schools near Sacramento, but now leaves 9.6 million children in 10 states barred from reciting the Pledge.

Despite the national uproar, or perhaps because of it, some lawyers predict the high court won’t bother to hear the case and simply will strike down the decisions in September.

An unsigned opinion by the entire court summarily denouncing the ruling in ringing terms would not be unprecedented, particularly for the often-reversed 9th U.S. Circuit Court of Appeals which weathered three summary judgments on one day last October.

However it happens, the outcome appears certain. Since Congress added the words “under God” on June 14, 1954, no fewer than 15 justices — including six now on the high court — have compared the Pledge to the “In God We Trust” motto on the nation’s currency as usage that does not violate the First Amendment’s clause forbidding “an establishment of religion.”

However, the 9th Circuit panel ignored that and ruled the Pledge “a profession of a religious belief, namely, a belief in monotheism.” Its revisions to that opinion came attached to the full court’s Feb. 27 refusal to rehear the case and was so oblique that not everyone realized how drastically it altered the outcome.

School district attorney Terence Cassidy said that technically the case now boils down to the constitutionality of a school rule.

“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,” the court said in its revision.

Many people seem unaware that the two majority judges, Circuit Judges Alfred T. Goodwin and Stephen Reinhardt, grudgingly abandoned the most sensational part of their original decision overturning an act of Congress.

“The 1954 Act adding the words ‘under God’ to the Pledge … violate the Establishment Clause,” the panel’s original 2-1 decision said.

The dispute was started by atheist physician Michael Newdow, 50, a part-time emergency room doctor who uses his law degree to sue against public mentions of God, including one failed effort challenging mentions of God at presidential inaugurations. Dr. Newdow claimed that his 9-year-old daughter’s civil rights were violated by hearing the teacher recite the Pledge in school.

Dr. Newdow’s actions have drawn considerable criticism. Fox News’ Bill O’Reilly has said that Dr. Newdow “may be the most despised man in America.”

Six days before the 9th Circuit’s February revision, an Alexandria federal judge upheld Virginia’s 2001 requirement that students recite the Pledge of Allegiance each day. U.S. District Judge James C. Cacheris dismissed a lawsuit against Loudoun County schools and said reciting the Pledge is “necessary to the survival” of democracy. That verdict was guided by a 1992 ruling by the 7th Circuit upholding the Pledge in a Wheeling Township, Ill., case.

Elk Grove’s rule says, “Each elementary school class [shall] recite the Pledge of Allegiance to the flag once each day.” It was written to comply with a state law requiring daily patriotic expressions.

Few players in this national drama are sticking to that limited script. Briefs filed so far emphatically ask the justices to affirm the constitutionality of the 1954 law adding “under God” to the Pledge, which was originally established in 1892.

Many interest groups point out that President Abraham Lincoln used a similar phrase in the Gettysburg Address. The Library of Congress transcript records Lincoln as saying “that this nation, under God, shall have a new birth of freedom. …”

“Congress added the words ‘under God’ to the Pledge and they should remain. … Quite simply, the 9th Circuit is wrong,” said Idaho Attorney General Lawrence Wasden, president of the National Association of Attorneys General. On June 11, he announced the nation’s governors unanimously oppose the ruling and filed a brief for 49 of them to the Supreme Court. California Gov. Gray Davis filed separately.

“When the 9th Circuit Court first ruled against the Pledge, the American Legion promised it would see this case all the way to the Supreme Court. We have no intention of backing down now,” Legion National Commander Ronald F. Conley said.

American Legion spokesman Steve Thomas said this week that this remains the goal even though the decision’s status lacks clarity.

“The American people focus on the results, the net effect of the ruling, not necessarily on the finer constitutional points that are debated by jurists. The net effect of the ruling is that young people are denied the opportunity to recite the Pledge of Allegiance,” Mr. Thomas said.

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