A Circuitous Court; Pledge Decision Is Judicial activism.(OPED)

Article excerpt

Byline: Orrin G. Hatch, SPECIAL TO THE WASHINGTON TIMES

The Ninth Circuit Court of Appeals' decision striking down the Pledge of Allegiance as unconstitutional because it contains the phrase "under God," is an outrageous example of judicial activism and overreaching. It also underscores the importance of our third branch of government - the courts - to our personal rights and freedoms.

The Constitution was never intended to be hostile to God and religion. The purpose of the so-called Establishment Clause - the part of the First Amendment that prohibits the government from establishing an official religion - is to prohibit the government from discriminating against one religion by favoring another. That clause was certainly never intended to mandate that government ban religious sentiment and culture from all aspects of public and civic life.

Saying the words "one nation under God" does not establish a state religion or discriminate among religions. The Ninth Circuit completely failed to explain how its remarkable ruling could be squared with our government's long-established reference to God in other areas. The Supreme Court begins each session with the phrase "God save the United States and this Honorable Court." "God Bless America" is sung routinely at many government functions. And the body in which I am proud to serve, the U.S. Senate, not only elects a chaplain (the current chaplain, Lloyd John Ogilvie is the 61st), but also has begun every session for 207 years with a prayer.

The Newdow decision is a wild exaggeration of the Supreme Court's 1943 case West Virginia Board of Education vs. Barnette, which held that the government cannot force people to recite the pledge. It is also flatly inconsistent with a unanimous, decade-old ruling of the Seventh Circuit, Sherman vs. Community Consolidated School District, where the court held that "schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate." This is truly a remarkable feat of judicial activism, showing why the American people should demand that President Bush's nominees should no longer be delayed by the U.S. Senate.

The Newdow decision makes clear what a lot of legal scholars have known for some time: The Ninth Circuit is out of the mainstream of both American law and culture. The Supreme Court overturns Ninth Circuit opinions more frequently than any other court. In 1999-2000, the Supreme Court reversed nine of the 10 Ninth Circuit cases it considered. In 1998-99, it reversed 14 of the 18 Ninth Circuit cases it heard. In 1997-98, it reversed 13 out of 17 Ninth Circuit cases. And in 1996-97, in an extraordinary term, the Supreme Court reversed 27 of the 28 cases it considered from the Ninth Circuit. This is a court with activist judges who threaten religious rights as well as our constitutional government.

What's the problem? The lack of balance. Of the 23 active judges on that court, 17 were appointed by Democratic presidents (14 by President Clinton alone), and only six were appointed by Republicans. …