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THE NATION | THE PLEDGE OF ALLEGIANCE

Pledge of Allegiance Violates Constitution, Court Declares

Law: The phrase 'under God,' added in 1954, undermines separation of church and state, 9th Circuit panel decides. Ruling is widely derided and will be appealed.

June 27, 2002|MAURA DOLAN | TIMES STAFF WRITER

SAN FRANCISCO — 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."

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