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THE NATION | THE PLEDGE OF ALLEGIANCE

9th Circuit Puts Its Ruling Against Pledge on Hold

Courts: Enforcement is blocked until appeals are resolved. Political howl of protest continues.

June 28, 2002|MAURA DOLAN and JAMES GERSTENZANG | TIMES STAFF WRITERS

Vowing to fight for the Pledge of Allegiance, U.S. Atty. Gen. John Ashcroft, Gov. Gray Davis and leaders of a Northern California school district declared Thursday that they will ask the U.S. 9th Circuit Court of Appeals to overturn its 2-1 ruling that the pledge is unconstitutional.

Before appeals were even filed, the 9th Circuit judge who wrote Wednesday's opinion issued an unusual order blocking its enforcement until petitions for a rehearing are resolved.

Several legal experts described that order as an acknowledgment that the court is under tremendous public pressure.

On Thursday, elected officials from President Bush on down unleashed a second round of denunciations of the ruling, which said the pledge violated the separation of church and state because it includes the words "under God."

The court ignored the role of religion in American life, Bush said, and was "out of step" with American tradition.

"There is a universal God, in my opinion," the president said.

A spokeswoman for the 9th Circuit said the one-paragraph order Thursday by Judge Alfred T. Goodwin changed nothing, since rulings are customarily put on hold while appeals are pending. The spokeswoman said the order was intended only to clarify that 9th Circuit rulings are not effective immediately.

Several legal analysts said the order indicates that the 9th Circuit will accept as-yet-unfiled petitions to review its decision, and several experts predicted that a larger panel of the court will overturn the ruling before it reaches the U.S. Supreme Court.

The opinion, written by Goodwin, a Republican appointed by President Richard M. Nixon, said the Pledge of Allegiance is an unconstitutional endorsement of religion because of the words "under God."

The case was brought by a Northern California atheist who was upset about teacher-led recitations of the pledge in his daughter's elementary school.

Ashcroft and Davis said they will ask that the three-member panel's decision be reviewed by an 11-member, en banc panel of the court. That panel would include Chief Judge Mary M. Schroeder and 10 other judges chosen randomly.

"I think it will be overturned en banc," said Mark Perry, a Washington lawyer who previously clerked for the 9th Circuit. "The 9th Circuit has been so often and so forcefully reversed by the Supreme Court that it will take this opportunity to clean its own house."

If upheld on appeal, the ruling would prevent public schools within the nine Western states covered by the 9th Circuit from leading students in recitations of the pledge unless the words "under God" were excised.

"The Justice Department will defend the ability of our nation's children to pledge allegiance to the American flag," Ashcroft said in Washington. The federal government will "spare no effort," he said, to ensure that children "can express their patriotism through the time-honored tradition of voluntarily reciting the pledge."

Bush, who had called the court decision ridiculous after it was issued Wednesday, took time out from an economic summit in Canada to deride the decision again Thursday.

He said it shows the need for "common-sense judges who understand that our rights were derived from God. And those are the kinds of judges I intend to put on the bench."

In the Senate, a bill was approved on a 99-0 vote reaffirming support for both the pledge and "In God We Trust" as the national motto.

In the House, members from both parties sang "God Bless America," then joined to pass a resolution, 416 to 3, protesting the 9th Circuit ruling. The three no votes, all Democrats, included two from California: Reps. Pete Stark of Fremont, Michael M. Honda of San Jose and Robert C. Scott of Virginia.

In Sacramento, Davis said he has directed state Atty. Gen. Bill Lockyer to file an appeal and said the opening legal brief would be sent to the 9th Circuit within days. Davis termed the ruling wrong-headed.

His Republican challenger, Bill Simon Jr., questioned the governor's commitment to the issue, holding a news conference to charge that Davis had failed to file any legal arguments defending the pledge tradition in public schools ahead of Wednesday's ruling.

Davis brushed aside Simon's charge, saying the governor's office had not been served with a copy of the complaint and was unaware that the issue was pending before the appellate court.

"Whatever the case in the past," Davis said, "we intend to aggressively pursue an appeal."

In the Assembly, members spoke emotionally in favor of the flag and against the 9th Circuit ruling. The lower house approved a resolution 69 to 0 urging the U.S. Supreme Court to immediately overturn the ruling.

Officials in the Sacramento County school district that was named as a defendant in the suit said they are considering going straight to the nation's highest court. "We will fight this as far as it takes and as long as it takes," said Elk Grove Unified School District Supt. David W. Gordon.

Legal scholars continued to be about the only commentators who did not flat-out denounce Wednesday's ruling. Many said it was based on a plausible reading of U.S. Supreme Court precedents, and some law professors said they believe the panel reached the correct legal decision.

Even they came under fire Thursday. USC constitutional law professor Erwin Chemerinsky, who described the decision as legally correct after it was issued Wednesday, said he has been taken aback by the vitriol of the hate mail he has received via e-mail since then.

"It is really nasty," the professor said.

*

Times staff writers Eric Lichtblau and Richard Simon in Washington, Dan Morain in Sacramento and Scott Gold in Elk Grove contributed to this report.

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