Pledge of Allegiance Violates Constitution, Court Declares

The Pledge of Allegiance violates the U.S. Constitution because the words “under God” endorse religion, a federal appeals court ruled Wednesday.

In the first such ruling in the nation, a panel of the U.S. 9th Circuit Court of Appeals struck down a 1954 law passed by Congress that added the reference to God to the pledge. The court said the words “under God” violate the establishment clause of the 1st Amendment, which requires the separation of church and state.

The decision sparked a swift, angry reaction across the nation, including a flurry of denunciations by public figures including President Bush and Gov. Gray Davis. Bush called it “ridiculous” and Davis said he was “extremely disappointed” that a court would rule against “one of our most profound human expressions of American patriotism.”

The 2-1 ruling prohibits public schools in the nine Western states covered by the 9th Circuit from reciting the pledge with the words “under God.” Several legal scholars said they do not expect the ruling to be upheld on appeal, although they said it represented a plausible interpretation of U.S. Supreme Court precedent.

“I think the odds of that are about as great as an asteroid hitting Los Angeles tomorrow,” said Harvard’s Laurence Tribe, a constitutional law professor.

Judge Alfred T. Goodwin, a Republican appointee of President Nixon, wrote the ruling and Judge Stephen R. Reinhardt, a liberal Democrat appointed by President Carter, concurred. It came in a lawsuit filed by a Sacramento County atheist who was offended that his daughter’s public school teacher led students in reciting the pledge.

“In the context of the pledge,” Goodwin wrote for the court, “the statement that the United States is a nation ‘under God’ is an endorsement of religion.” The court panel said the reference to God is equivalent to a declaration “that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god.’ ”

In dissent, Judge Ferdinand F. Fernandez wrote that the Constitution was “not designed to drive religious expression out of public thought.”

“The danger that phrase presents to our 1st Amendment freedoms is picayune at most,” Fernandez wrote.

He warned that the ruling eventually could jeopardize the singing in public settings of the nation’s most treasured patriotic songs and even make vulnerable the words “In God We Trust” on coins and bills.

“ ‘God Bless America’ and ‘America the Beautiful’ will be gone for sure,” wrote Fernandez, appointed by former President George Bush, “and while use of the first and second stanzas of the ‘Star Spangled Banner’ will be permissible, we will be precluded from straying into the third.

“And currency beware!”

Michael A. Newdow, 49, brought the lawsuit on behalf of his second-grade daughter at an Elk Grove elementary school near Sacramento. Newdow is an emergency room physician by training and also has a law degree.

He said he hasn’t worked recently and “fights the government” as a profession. He represented himself in the court case and said he will argue before the U.S. Supreme Court if the case gets there.

Flushed with victory, Newdow predicted that the decision will be upheld because it is correct. “I think it’s cool the Constitution gives every citizen the right to defend it,” he said.

David W. Gordon, superintendent of Elk Grove schools, said the district will appeal the ruling, either by asking for a rehearing before the 9th Circuit or by taking the case directly to the U.S. Supreme Court. The parties have 14 days to file for a rehearing, which, if granted, would stay implementation of the decision. If there is no appeal, the opinion would take effect in 21 days.

‘We Need ... the Pledge’

“It’s something we feel very strongly about, that we need to continue saying the pledge in our classrooms,” Gordon said. He said the schools “don’t try to impose religion on our kids.”

The 9th Circuit stressed in its ruling that the words “under God” were added to the Pledge of Allegiance by Congress in 1954 to make a political and religious statement at a time when the country was terrified of communism.

The pledge was first written in 1892 with no reference to God. A Baptist socialist minister is generally credited with penning it. “I pledge allegiance to my flag,” wrote Francis Bellamy, “and to the republic for which it stands, one nation, indivisible, with liberty and justice for all.”

Public school students first recited the pledge that year when they saluted the flag in a celebration to mark the 400th anniversary of Christopher Columbus’ voyage to America.

After a campaign by the Knights of Columbus, a Catholic group, Congress added the reference to God. The 9th Circuit said the sole purpose of the addition was to “advance religion in order to differentiate the United States from nations under communist rule.”

The statement that the United States is a nation “under God” professes a religious belief in monotheism, not a mere acknowledgment that many Americans believe in a deity, the court said.

Goodwin wrote, “To recite the pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and--since 1954--monotheism.”

The practice by schools to have teachers lead students in reciting the pledge “aims to inculcate in students a respect for the ideals set forth in the pledge, and thus amounts to an endorsement of these ideals,” the court said.

In addition to suing his daughter’s school district, Newdow also named Congress, then-President Clinton and the state of California as defendants. The court said that a president and Congress were not appropriate defendants in the suit. The court did not address a state law that requires public schools to begin their days with an “appropriate patriotic” exercise.

Legal scholars said the ruling was based on a reasonable analysis of cases decided by the U.S. Supreme Court. The high court has ruled in recent years that school prayer, graduation prayers at public schools and student-led prayers at public football games are unconstitutional.

“The majority decision is actually a very plausible reading of the Supreme Court precedents,” said UCLA law professor Eugene Volokh, a conservative scholar.

But he said the ruling was “certainly not an open-and-shut reading” of the principles set down by the Supreme Court. He said the ruling conflicts with a decision by the 7th Circuit Court of Appeals based in Chicago, which found several years ago that the pledge was constitutional. “The Supreme Court is almost certainly going to have to decide this,” Volokh said.

UC Berkeley constitutional law expert Jesse Choper said he thinks the 9th Circuit got it right legally, but he also expects that the Supreme Court will overturn the decision.

“You could get a panel of any federal appellate court anywhere in the country who could come this way plausibly,” Choper said. “They could. But most judges will say, ‘Yeah, but intuitively, this just goes too far.’ ”

USC constitutional law professor Erwin Chemerinsky said he agreed with the ruling and contended that it is impossible to predict what the high court will do.

“It is an issue largely of symbolic importance,” he said. “I could imagine the court turning this case down, or I could imagine it taking it because it is an interesting question.”

In previous cases, U.S. Supreme Court justices have described the reference to God in the Pledge of Allegiance as “ceremonial deism,” not religion.

Choper said references to God have been regarded as “part of a patriotic ceremony, and that is what is going to make a difference in the Supreme Court.”

Scholars Cite Safeguards

The high court already has ruled that schoolchildren cannot be required to recite the pledge if they feel it conflicts with their views, and some scholars said students probably could ask to be removed from settings where the pledge is recited under case law decided long before Wednesday’s ruling.

The 9th Circuit panel said voluntary recital of the pledge ignores the fact that young students may feel coerced.

“Given the age and impressionability of schoolchildren ... the policy is highly likely to convey an impermissible message of endorsement to some, and disapproval to others of their beliefs regarding the existence of a monotheistic God,” the court wrote.

Supreme Court justices have made occasional comments in other cases indicating acceptance of the “one nation under God” wording of the pledge. “However, the Court has never been presented with the question directly, and has always clearly refrained from deciding it,” Goodwin wrote in his ruling.

Several critics of Wednesday’s ruling observed that each session of the U.S. Supreme Court is opened with a declaration, “God save the United States and this honorable court.”

White House Press Secretary Ari Fleischer said, “This ruling is ridiculous.”

Fleischer was asked if the president supported a call by the National Republican Congressional Committee to urge House members to tell school districts to ignore the decision. “I don’t think it comes down to what anybody is telling people,” Fleischer said. “People are going to feel very strongly about this themselves and take the actions that they are going to take.”

Brian D. Myers, an Elk Grove school board member, noted that district students have long had the opportunity to “opt out” of the pledge or skip the “under God” line. He said the court should have found a way to accommodate those who don’t choose to recite the pledge without “throwing the baby out with the bathwater.”

Times staff writer Scott Gold contributed to this report.