- The Washington Times - Saturday, March 1, 2003

The 9th U.S. Circuit Court of Appeals yesterday refused to rehear the decision by two judges who shocked the nation when ruling the Pledge of Allegiance unconstitutional because it contains the phrase "one nation, under God."

Yesterday's decision leaves in doubt the right of 9.6 million public school students in nine western states to recite the Pledge once the ban order is formally issued on March 10. A request to postpone that effective date, pending further appeals, is very likely, court officials said.

But it does assure the next step will be at the Supreme Court, which last ruled on the Pledge in 1943 before "under God" was added.

Without committing the Justice Department to lead that appeal, Attorney General John Ashcroft condemned the decision and said the administration will "spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag."

The court's one-page order yesterday did not explain why the case won't be reheard and it directed the clerk of court in San Francisco to reject any further pleas to do so. However, judges on both sides of the issue appended a written debate that spelled out arguments as if they were arguing the appeals.

A majority of the court's 24 judges including all three involved in the original 2-1 decision on June 26 voted to reject Senior Circuit Judge Alfred T. Goodwin's proposal that the 9th Circuit respond to the public outcry by having an 11-member panel reconsider the ruling he wrote. Judge Goodwin voted against his own request.

Six of the nine judges who favored a rehearing declared the original ruling "wrong, very wrong" in a lengthy dissent that said flawed reasoning also would consign "to the chopping block" the Gettysburg Address, Constitution, Declaration of Independence, and the national anthem's fourth verse.

"The Pledge of Allegiance is simply not 'a religious act' as the two-judge majority asserts," the six said in an opinion written by Circuit Judge Diarmuid F. O'Scannlain, a 1986 Reagan appointee. "Reciting the Pledge of Allegiance cannot possibly be an 'establishment of religion' under any reasonable interpretation of the Constitution."

The dissenters said revisions filed yesterday to the original decision technically mean the panel no longer declares unconstitutional the entire 1954 law that added the words "under God," but still holds that reciting the Pledge in schools violates the federal and California constitutions.

Judge Goodwin issued a stay of the original decision, which allowed the Pledge's recitation, but did not do so with the new ruling. Dissenters say that ruling they call "Newdow II" on the books "threatens cash-strapped school districts and underpaid teachers with the specter of civil [rights] actions for money damages."

Sacramento atheist Michael Newdow complained that his daughter, who is 8, should not have to hear the words "under God" in her teacher's daily recitation of the Pledge of Allegiance required by state law.

The girl's mother, Sandra Banning, who has legal custody, objected to involving the child in the lawsuit and said the girl is not opposed to God or the Pledge. The court did not grant the mother's request.

"Surely the Supreme Court will permit school children to invoke God's name while reciting the Pledge of Allegiance," Gov. Gray Davis said in a statement insisting the court must hear a case whose defendants include the president of the United States, the Congress, the state of California, and school districts in Sacramento and Elk Grove.

Jay Sekulow, chief counsel of the American Center for Law and Justice, who represents 17 members of Congress who favored a rehearing, said the court's decision "must not stand."

"The hostility of this appeals court is absurd and underscores faulty conclusions …," he said.

The original decision was written by Judge Goodwin, a 1971 Nixon appointee, joined by Circuit Judge Stephen Reinhardt, appointed by President Carter in 1979. The dissenter to the original ruling and to the revised decision released yesterday was Circuit Judge Ferdinand F. Fernandez, who was appointed by President Bush in 1989.

While Judge Fernandez joined the colleagues who were in the majority to vote against rehearing, he and Judge Goodwin stayed out of yesterday's fray and left Judge Reinhardt to defend the court's refusal to reopen the case.

Their original opinion specifically ruled that the 1954 law adding "under God" to the Pledge, and a California policy requiring teacher-led recitation every day with the added words "violate the Establishment Clause."

"The statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism," said that opinion and yesterday's revised version as well.

All the other judges who commented yesterday said the alterations did not change the effect and Judge Fernandez underscored that point in a revised dissent dismissing claims that references to God were "ceremonial deism."

"Whatever it is called (I care not), such phrases as 'In God We Trust,' or 'under God' have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, 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," Judge Fernandez wrote.

"Those expressions have not caused any real harm of that sort over the years since 1791, and are not likely to do so in the future," he said.

In his comments yesterday, which filled six printed pages, Judge Reinhardt called the six-judge dissent written by Judge O'Scannlain "disturbingly wrongheaded" in suggesting the court should realize its mistake "by observing the public and political reaction to its decision."

"We may not we must not allow public sentiment or outcry to guide our decisions," Judge Reinhardt wrote yesterday. "The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority."

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