Pledge Dispute Heads to Justices
Byline: Frank J. Murray, THE WASHINGTON TIMES
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. …