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Ban on Reference to God Delayed

Stay gives the high court time to decide whether to review the Pledge of Allegiance case.

March 05, 2003|Henry Weinstein | Times Staff Writer

A federal appeals court Tuesday stayed enforcement of its controversial ruling that use of the words "under God" makes the Pledge of Allegiance unconstitutional when recited in public school classrooms.

U.S. 9th Circuit Court of Appeals Judge Alfred T. Goodwin, a President Richard Nixon appointee, issued a 90-day stay, which allows schoolchildren in nine Western states to continue reciting the pledge, pending a decision by the Supreme Court on whether it will review the case.

Goodwin issued the order in response to a request filed Monday by the Elk Grove School District near Sacramento, where the thorny case arose.

If attorneys for Elk Grove file a petition with the Supreme Court within 90 days, the stay will be extended until the Supreme Court acts, 9th Circuit officials said.

The case began when Michael A. Newdow, the atheist father of an elementary school student in Elk Grove, sued the district, contending that the use of the pledge violates the 1st Amendment.

The 9th Circuit agreed with Newdow in a ruling last June that was condemned by President Bush, Gov. Gray Davis, 99 U.S. senators and more than 400 members of the House of Representatives.

Last Friday, over the dissent of nine of its 24 active judges, the 9th Circuit, which is based in San Francisco, declined to rehear the case. Goodwin's majority opinion said that in the setting of a public school, the pledge is inherently coercive and violates the constitutional ban on government establishment of religion.

That sparked more outrage from government officials, including Atty. Gen. John Ashcroft and Sen. Orrin G. Hatch (R-Utah), chairman of the Senate Judiciary Committee.

On Tuesday, Hatch praised the Senate for passing another resolution in support of the pledge.

He blasted the 9th Circuit majority for failing to explain "how its remarkable ruling could be squared with our government's long-established reference to God in other areas: The United States Supreme Court begins each session with the phrase 'God save the United States and this Honorable Court.' 'God Bless America' is routinely sung at government functions. And this body not only elects a chaplain, but also has begun every session for 207 years with a prayer."

David W. Gordon, Elk Grove's school superintendent, said, "We're very pleased that the 9th Circuit responded so quickly" to the district's request for a stay.

Had Goodwin declined to issue a stay, it would have meant that as of Monday students in the nine Western states -- Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington -- within the 9th Circuit's jurisdiction would have been barred from reciting the pledge as now written.

Newdow declined to return calls seeking comment Tuesday. Last week, he said he would welcome Supreme Court review.

Legal experts said it is likely that the Supreme Court will take the case because the 9th Circuit ruling conflicts with a ruling issued by a federal appeals court in Chicago in 1992.

The Supreme Court has never ruled on the precise issue raised by the case.

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