- The Washington Times - Wednesday, September 14, 2005

A California federal judge yesterday ruled it is unconstitutional to require children to recite the Pledge of Allegiance in public schools.

U.S. District Judge Lawrence Karlton’s ruling came in a revised lawsuit brought by Michael Newdow, an atheist whose first bid to remove the words “under God” from the pledge was rejected last year by the Supreme Court.

“The pledge is an unconstitutional violation of the children’s right to be free from a coercive requirement to affirm God,” Judge Karlton wrote in yesterday’s decision.

Three Sacramento-area school districts were named in the retooled suit, which features a new set of plaintiffs, including the atheist parents of a seventh-grader and the divorced atheist parent of a third-grader and a kindergartner.

Judge Karlton, 70, was appointed to the court in 1979 by President Carter. The judge cited a 2003 decision by the 9th U.S. Circuit Court of Appeals “that the school districts’ policies violate the establishment clause” as the reason for his decision.

A jubilant Mr. Newdow hailed the news.

“I’m excited,” he said in an interview. “It’s good now that the judge has agreed with me and that the Constitution was upheld. We’ll see how long that lasts.”

The judge also told Mr. Newdow he would sign a restraining order preventing the recitation of the pledge at the Elk Grove Unified, Rio Linda Union and Elverta Joint Elementary school districts, where the plaintiffs’ children attend.

Mr. Newdow promised he’d file a restraining order soon.

House and Senate Republicans criticized Judge Karlton’s ruling.

“The Pledge of Allegiance is a vital, ennobling part of our national identity, and the American people resoundingly support its value in the education of our children,” said House Majority Leader Tom DeLay of Texas. “The ruling is wrong, period, and I look forward to its reversal.”

“This is yet another example of an irresponsible decision by a liberal activist judge unable to separate personal politics from public service,” said Sen. John Thune, South Dakota Republican. “As we work to fill two vacancies in the highest court of the land, today’s news only serves to underscore the importance of appointing judicial nominees who refuse to allow their personal views to shape decisions.”

During oral arguments for the case in July, Judge Karlton threw out several parts of Mr. Newdow’s revised lawsuit, saying the plaintiff’s argument that the entire pledge is unconstitutional would not make it past a higher court. Rather, the judge said, the case should focus on whether saying the pledge in public schools is an unacceptable endorsement of religion.

Derek Gaubatz, director of litigation for the Becket Fund, a religious liberties group opposing Mr. Newdow, described the judge as an “old-time liberal.”

“He telegraphed to everyone how he wanted to rule,” Mr. Gaubatz said. “He wanted to strike the pledge down, but he wanted to rely on the prior 9th Circuit decision so they could do his dirty work.”

He said the Becket Fund will appeal the case to the 9th Circuit, which sided with Mr. Newdow in 2003. The Supreme Court struck down that ruling in June 2004, but did not rule on the merits of the case. Instead, the high court said Mr. Newdow, the divorced, noncustodial father of a fourth-grader in the Elk Grove district, did not have legal standing as a plaintiff.

Lee Strang, an assistant law professor at Ave Maria School of Law in Ann Arbor, Mich., said the public should not be surprised that the issue has resurfaced.

“The Supreme Court has been all over the map on this issue,” he said. “Their establishment clause case law has been such a muddle because you have these shifting coalitions of justices who come together to arrive at sometimes unprincipled results.”

Judge Karlton was “pushing the limits” of his job description, Mr. Strang said, “but judges have been known to guide litigants in subtle and not-so-subtle ways.”

“I think the judge made the right call,” said Rob Boston of Americans United for Separation of Church and State. “The whole question of patriotism and the religious content of the pledge hasn’t been explored like it should be. A student should be able to express patriotism and love of country without making a religious affirmation at the same time.”

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