Court Affirms Pledge Ruling

A federal appeals court unanimously rejected an effort aimed at scuttling its decision that the Pledge of Allegiance is unconstitutional when recited in classrooms, ruling Wednesday that the Sacramento father who filed the controversial lawsuit on behalf of his daughter has legal standing to proceed in court.

In a separate 3-0 ruling, the U.S. 9th Circuit Court of Appeals rebuffed an attempt by the U.S. Senate to formally intervene in the case, but the court said it would be happy to consider a friend-of-the-court brief from the Senate.

The court’s ruling in June that the pledge violates the Constitution’s prohibition against the establishment of religion is on hold as appeals play out. That decision struck down a 1954 law that added the words “under God” to the pledge.

The court’s action precipitated harsh criticism from President Bush, Gov. Gray Davis and the Senate, which condemned it in a 99-0 vote.

In its 3-0 ruling Wednesday, the San Francisco-based court rejected an appeal from the girl’s mother, Sandra Banning, who contended that the girl’s father, Michael Newdow, an avowed atheist, could not challenge the pledge on behalf of the third-grader because he did not have custody of her.

In addition, the court ordered Newdow to respond by Dec. 24 to the Elk Grove School District’s request that the full appeals court rehear the controversial June decision.

Although Wednesday’s rulings were procedural in nature, Judge Alfred T. Goodwin, an appointee of President Nixon, and Judge Stephen Reinhardt, an appointee of President Carter who joined Goodwin in the 2-1 June ruling, used language that showed no sign that the judges were trimming their sails.

“When schoolteachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized ‘under God,’ ” Goodwin wrote.

“While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter’s exposure to his views, he can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view.”

“The pledge to a nation ‘under God,’ with its imprimatur of governmental sanction,” Goodwin added, “provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.”

Such strong language makes it highly unlikely that the three-judge panel will agree to rehear the case, setting in motion a vote by the 24-judge court on whether the case should be reheard by an en banc, 11-judge panel. It takes a vote of 13 of the judges for the court to grant such a hearing, and a decision is not expected before February.

Judge Ferdinand P. Fernandez, who wrote a stinging dissent to the June ruling, issued a brief concurring opinion Wednesday.

Fernandez emphasized that he agreed only on the fact that Newdow had standing to continue the case.

“Despite the order’s allusions to the merits of the controversy, we decide nothing but the narrow standing issue,” Fernandez, an appointee of former President Bush, wrote. In June, he wrote that the Constitution was “not designed to drive religious expression out of public thought.”

A firestorm of criticism erupted within hours of that ruling and soon thereafter author Goodwin stayed it pending further proceedings.

Both USC constitutional law professor Erwin Chemerinsky, a liberal, and UCLA constitutional law professor Eugene Volokh, a conservative, said they thought Goodwin’s language Wednesday was noteworthy.

“I was struck by the majority remaining quite unrepentant on the merits,” Volokh said. “It is an interesting indication that they were not at all persuaded by the firestorm of opposition to the decision.”

“I don’t think Goodwin would have written this in the normal case,” Chemerinsky said. “He wrote to signal that he believes the court was right.”

A clearly pleased Newdow, 49, said, “Judge Goodwin writes beautifully and I concur wholeheartedly in his views. This is not an issue of what is a correct religion, but whether government should be involved in this matter.”

Stephen Parrish, the attorney representing Banning, the schoolgirl’s mother, said she was not displeased with the ruling.

“All she wanted was to make sure that the child was not a party to the case and the court recognized that when it said Newdow is no longer claiming to represent the child. In that respect, Sandra Banning has accomplished what she wanted, which is to get her child out of the case,” Parrish said.

The 9th Circuit cited decisions from a federal appeals court in Chicago and two California appellate decisions in ruling that Newdow has standing to pursue the case even though Banning has sole legal custody.

A state court custody order provides that Newdow retains various parental rights, including the right to inspect his daughter’s school and medical records.

“California state courts have recognized that noncustodial parents maintain the right to expose and educate their children to their individual religious views, even if those religious views contradict those of the custodial parent or offend her,” Goodwin wrote.

Fernandez wrote the other decision, rejecting the Senate’s request to formally intervene in the case. The Justice Department already has intervened and has submitted a brief, along with the Elk Grove Unified School District, asking that the full court rehear the case.

Fernandez, citing legal precedent, said the Senate had not shown that it has “suffered an ‘injury in fact’ -- an invasion of a legally protected interest which is ... concrete and particularized” -- the prerequisite to gain standing as an intervenor.

“A public law, after enactment, is not the Senate’s any more than it is the law of any other citizen or group of citizens in the United States. It is a law of the United States of America, and the government is already represented in this by the attorney general.”

Patricia M. Bryan, a lawyer for the Senate, said, “We obviously disagree with the court’s decision.” But she added that she was pleased that the 9th Circuit “made it clear” that it was willing to hear the Senate’s views in a friend-of-the court brief.

The 9th Circuit, without explanation, also rebuffed California’s attempt to formally intervene in the case in support of the pledge.

Later in the day, Davis expressed dismay.

“If the Supreme Court can begin each day invoking God’s blessing, then surely America’s schoolchildren can start with the Pledge of Allegiance,” he said. “The court got the first decision wrong. They should not compound that error by silencing California’s voice.”

John C. Eastman, a constitutional law professor at Chapman University School of Law in Orange, said he was disturbed that the 9th Circuit had agreed to accept a friend-of-the court brief only from the Senate and had rejected requests to file such briefs from a dozen groups, including the American Legion, the Christian Legal Society and Idaho Gov. Dirk Kempthorne.