Controversial Ruling on Pledge Reaffirmed

Times Staff Writer

The U.S. 9th Circuit Court of Appeals on Friday reaffirmed its controversial ruling that reciting the words "under God" in the Pledge of Allegiance in public schools violates the U.S. Constitution. It gave schools in California and eight other Western states -- with 9.6 million students -- until March 10 to stop the practice.

The decision, which rejected pleas from California school districts and the Bush administration, sets up a likely confrontation before the U.S. Supreme Court later this year. The appeals court or the high court could order a stay of the ruling, but unless one of them does, the decision automatically will take effect.

The Elk Grove school district, covering the Sacramento suburb where the legal case began, said it plans to immediately suspend recitation of the pledge to comply with the court's ruling, which reiterated that the words "under God" constitute a government endorsement of religion when used in a public school setting.

Supt. David W. Gordon said the district was "very disappointed" and plans to ask for a stay and for review by the Supreme Court.

He said the pledge would not be recited without the words "under God" because "we want our kids to say the pledge as it is."

The 9th Circuit's action was immediately decried by Gov. Gray Davis, U.S. Atty. Gen. John Ashcroft and Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah), among others, but praised by organizations favoring the separation of church and state and by some constitutional scholars.

"The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag," Ashcroft said.

Hatch called the decision outrageous and predicted that the Supreme Court would take the case because the U.S. 7th Circuit Court of Appeals in Chicago had issued a contrary ruling. The Supreme Court has never considered the precise issue raised by this case.

Barry Lynn, executive director of Americans United for Separation of Church and State, countered that "there is no question that when you turn a political affirmation into a religious creed statement, you have violated the Constitution."

In June, the 9th Circuit ruled the pledge unconstitutional by a 2-1 vote, a decision assailed by President Bush and condemned by the U.S. Senate in a 99-0 vote the day it was issued.

The decision was stayed pending the possibility of review by a larger panel of judges.

It takes a vote of at least 13 of the 9th Circuit's 24 active judges to obtain such a review, and those favoring it failed to get the votes, according to Friday's court order.

The full vote was not made public, but nine judges took part in dissents, saying they favored a rehearing.

Judge Diarmuid O'Scannlain, a Ronald Reagan appointee and leader of the San Francisco-based court's conservative wing, issued a blistering opinion on behalf of six of the dissenters, saying the original ruling "contradicts our 200-year history and tradition of patriotic references to God."

The three other judges, led by M. Margaret McKeown, a Bill Clinton appointee, wrote that the court should have held a rehearing simply because the case was so important.

In response, Judge Stephen Reinhardt, a Jimmy Carter appointee who took part in the original decision, said the fact that the case was legally significant was not a reason to automatically grant review. All but 2% of the court's cases last year were decided by three-member panels, he emphasized.

He assailed O'Scannlain's dissent for what he called a "disturbingly wrong-headed" suggestion that public outcry should have persuaded the Circuit Court to rehear the case.

"The Bill of Rights, is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties," Reinhardt wrote.

While announcing that the case would not be reheard, the court also released an amended majority opinion Friday that narrowed the basis of the decision.

Judge Alfred T. Goodwin, a Richard Nixon appointee who wrote the majority opinion, made it clear Friday that the ruling applied only to use of the Pledge of Allegiance in public schools.

In addition, Goodwin wrote that in the setting of a public school, the pledge was inherently "coercive" to children and violated the constitutional ban on government establishment of religion.

The Supreme Court formulated the "coercion test" in a 1992 ruling, Lee vs. Weisman, which held "unconstitutional the practice of including invocations and benedictions in the form of 'nonsectarian' prayers at public school graduation ceremonies," Goodwin wrote.

In that case, the Supreme Court held that the prayers "bore the imprint of the state and thus put school-age children who objected in an untenable position."

The Pledge of Allegiance was originally composed in 1891, but the words "under God" were not added until 1954, when a federal law was passed aimed at distinguishing the U.S. from the Soviet Union and its "godless communism."

When he signed the bill, President Eisenhower stated: "From this day forward, the millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the almighty."

Goodwin cited those remarks Friday in concluding that "in the context of the pledge, the statement that the United States is a nation 'under God' is a profession of a religious belief, namely a belief in monotheism."

"The school district's policy ... places students in the untenable position of choosing between participating in an exercise with religious content or protesting," Goodwin wrote. "The coercive effect of the policy here is particularly pronounced in the school setting, given the age and impressionability of schoolchildren."

On the other hand, the 9th Circuit majority pulled back from another part of its sweeping June decision in which it declared that the 1954 federal law that added the words "under God" was unconstitutional.

"This is a more limited holding," said USC constitutional law professor Erwin Chemerinsky, a liberal who praised the original decision.

"This holding fits better with what the plaintiff's central claim is about -- objecting to the use of the pledge in school."

Judge Ferdinand Fernandez, who dissented from the original ruling, did so again Friday.

"Although the majority now formally limits itself to holding that it is unconstitutional to recite the pledge in public classrooms, its message that something is constitutionally infirm about the pledge itself abides and remains a clear and present danger to all similar public expressions of reverence," Fernandez wrote.

The suit challenging the pledge was filed by Michael A. Newdow, a Sacramento atheist, who contended that it coerced his daughter, an Elk Grove elementary school student.

After the June ruling came down, the girl's mother, who has primary custody of the child, said that she was religious and had no objection to the pledge. But late last year, the 9th Circuit said Newdow still had standing to bring the case.

"The Constitution has been upheld, like it's supposed to be," Newdow said Friday. "I hope it gets to the Supreme Court so that we can get a pronouncement which everyone understands, that when you take religious dogma and thrust it into the midst of government, you are violating the establishment clause."

Several school districts, including Los Angeles Unified, said they would order that recitation of the pledge be halted March 10 unless there is a stay.

Dick Van Der Laan, spokesman for Long Beach Unified, said his district would not halt the pledge immediately. "Millions of children have uttered these words for half a century, so waiting a few days

Professor Jesse Choper, a freedom of religion expert at UC Berkeley's Boalt Hall School of Law, said it was likely that the Supreme Court would grant a review. "It's a very significant case," said Choper, who emphasized that "the Supreme Court has been less than crystal clear" on what constitutes a violation of the Constitution's ban on the establishment of religion.

He said that the 9th Circuit decision reflects "a logical extension" of earlier Supreme Court rulings on the establishment clause, but that the high court is likely to go the other way.

Eugene Volokh, a conservative constitutional scholar at the UCLA School of Law, also predicted that the high court would topple the ruling. "You can't reduce the establishment clause to a simple rule that ignores 200 years of American tradition of acknowledgment of God in patriotic ceremonies," Volokh said.

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Times staff writer Erika Hayasaki contributed to this report.

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