Atheist Michael Newdow, seen in 2004, has fought a lengthy battle against… (Mannie Garcia / Getty Images )
The Pledge of Allegiance to "one nation under God" doesn't violate a citizen's right to be free of state-mandated religion, a divided federal appeals court ruled Thursday in reversing one of its most controversial decisions.
In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals said no federal law requires students to recite the pledge or the religious reference in it.
The 9th Circuit had ruled in 2002 in a case brought by Sacramento atheist Michael Newdow that the wording violated the Establishment Clause of the Constitution's 1st Amendment, which prohibits the enactment of any law or official policy in support of a religion.
A U.S. Supreme Court review in 2004 ducked the constitutional question. The justices threw out Newdow's lawsuit against the Elk Grove Unified School District, which his daughter attended, on grounds that he lacked standing to sue because he didn't have primary custody of the girl.
Joined by other Sacramento-area parents opposed to the pledge, Newdow, a physician with a law degree, brought an identical challenge against the Rio Linda Union School District practice of leading daily pledges and secured a ruling in his favor from U.S. District Judge Lawrence K. Karlton. The judge cited the 9th Circuit's holding that Congress rendered the pledge unconstitutional when it added the words "under God" in 1954, in a Cold War-era gesture against the godless communism of the Soviet Union.
Thursday's ruling brings the 9th Circuit in line with other federal appeals courts in upholding a school's right to conduct the patriotic ritual. That unity among the circuit courts makes it unlikely that the Supreme Court will again review the decision, both Newdow and those in favor of preserving the "under God" reference said.
"This is not a politically popular cause and those who would disenfranchise a majority have the power to do it," said Newdow, who endured virulent scorn and death threats after the 2002 ruling. He conceded that the 9th Circuit reversal could prove the last word in his quest to have the pledge deemed unconstitutional. Despite the bleak outlook, he said he would petition for rehearing by a full 11-judge panel of the 9th Circuit and for Supreme Court review.
In a separate case decided Thursday, the same three-judge panel rejected Newdow's challenge to the imprinting of "In God We Trust" on the national money, citing a Supreme Court ruling that the phrase constitutes a national motto.
"Not every mention of God or religion by our government or at the government's direction is a violation of the Establishment Clause," wrote Judge Carlos T. Bea, citing tax exemptions for religious groups and Nativity displays on government property that have passed high-court review.
"The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God--the Founding Fathers' belief that the people of this nation are endowed by their Creator," wrote Bea, an appointee of President George W. Bush, who was joined in the decision by Judge Dorothy W. Nelson.
Judge Stephen Reinhardt dissented, writing that "the state-directed, teacher-led daily recitation in public schools of the amended 'under God' version of the Pledge of Allegiance . . . violates the Establishment Clause of the Constitution."
Nelson and Reinhardt were both appointed by President Carter; Reinhardt was part of the 2-1 majority in the 2002 ruling that struck down the pledge as unconstitutional.