Judge Revives Battle Over Pledge

A federal judge in Sacramento ruled Wednesday that it was unconstitutional to require public school children to recite the words “under God” in the Pledge of Allegiance, reviving a contentious legal fight that inflamed the cultural wars over religion’s place in government.

U.S. District Judge Lawrence K. Karlton said he was bound by the U.S. 9th Circuit Court of Appeals, which in 2002 ruled that the words “under God,” added by Congress in 1954 during the McCarthy era, rendered the pledge unconstitutional.

Michael A. Newdow, the atheist who won the 9th Circuit ruling, ultimately lost his case last year before the U.S. Supreme Court. Without deciding the constitutional question of separation of church and state, the high court ruled that Newdow had no legal standing to sue on behalf of his grade-school daughter because he did not have primary custody.

Newdow still lacks standing, but his new lawsuit may go forward because he has added plaintiffs who are parents with full custody of their children, Karlton decided. The ruling affects the Elk Grove Unified School District, the Eleverta Joint School District and the Rio Linda Union School District in Sacramento County.

Religious conservatives, joined by Gov. Arnold Schwarzenegger, immediately denounced Karlton’s decision in a replay of the uproar that ensued when the 9th Circuit first ruled in Newdow’s favor. They said Karlton’s ruling would become a weapon in their battle to ensure that the U.S. Senate confirms President Bush’s conservative nominees to the high court. The Supreme Court has the final say on the pledge’s constitutionality.

The nomination of John G. Roberts Jr., a conservative jurist whom Bush selected to replace the late Chief Justice William H. Rehnquist, is before the U.S. Senate. Bush has yet to nominate a successor to Justice Sandra Day O’Connor, who has said that she will retire when her successor is in place.

“Here we go again,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, a religious liberties group that litigates constitutional questions. Wednesday’s ruling “emphasizes in a very significant way what is really at stake” with the confirmation hearings, Sekulow said.

“Today’s ruling illustrated why we need judges who are umpires applying settled law rather than activists intent on imposing their own ideology,” said Mathew D. Staver, head of Liberty Council, a religious liberties group. Roberts has told the Senate that he believes that judges should be umpires, not policymakers.

“When the 9th Circuit Court of Appeals delivered the craziest ruling in American history by striking down the Pledge of Allegiance three years ago, the U.S. Supreme Court stepped in and stopped the insanity,” said Randy Thomasson, president of Campaign for Children and Families, a religious liberties group. “The lower courts striking down the pledge again is like a dog returning to its vomit.”

Gov. Schwarzenegger issued a statement urging the school districts to appeal the ruling.

“As an immigrant to America, one of the proudest days of my life was when I became a citizen of the United States,” the governor said in a statement to the media. “Reciting the Pledge of Allegiance always reminds me of the history of our nation’s founding, the principles of our great democracy and the many sacrifices Americans have made to protect our country.”

Karlton said he would be obligated to issue an order blocking the school districts from having children recite the pledge once an appropriate motion was made. Michael Pott, a lawyer for the school districts, said they would ask Karlton to put such an order on hold pending an appeal to the 9th Circuit.

Many critics of Karlton’s ruling said Wednesday that they would not be surprised if the 9th Circuit upheld it. But the law has changed since the first pledge ruling, and a new decision would have to take those changes into account. The high court earlier this year permitted a monument of the Ten Commandments on Texas’ state capitol grounds.

Karlton, citing the high court precedents, said he was relieved that he did not have to rule independently on the pledge’s constitutionality. The high court, in its recent rulings, said that government activities that endorsed religion were banned but those that asserted religious heritage were permitted.

Karlton called the distinction “utterly standardless” and said the rulings have made it possible for judges to reach “preposterous” decisions that would marginalize “not only atheists and agnostics ... but also Jews, Buddhists, Confucians, Sikhs, Hindus and other religious adherents.”

The ultimate resolution of the constitutional question will depend on the “subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance,” wrote Karlton, an appointee of President Jimmy Carter.

Newdow, an emergency room doctor with a law degree, has a daughter in the Elk Grove district. Although he has never practiced law for a living, Newdow has been relentless in his legal efforts to disentangle religion and government.

Newdow could not be reached for comment Wednesday. A statement issued by the American Humanist Assn. quoted Newdow as saying: “A federal judge did as he was supposed to do and upheld the Constitution. We should be thankful that we have a judiciary that will do that.”

Steven M. Ladd, superintendent of the Elk Grove district, said it had long “supported the Pledge of Allegiance as an appropriate patriotic exercise for willing students.”

“We are disappointed that our district, as well as two other school districts listed in this complaint, need to continue to devote time, energy and resources to defend this case,” Ladd said.

Kevin Reed, general counsel of the Los Angeles Unified School District, said the district would watch the case closely as it moved to appellate courts. “My advice to my clients will be, ‘Wait and see what the appellate courts do,’ ” Reed said.