Federal court rules Pledge of Allegiance unconstitutional

By Jonathon King, Sun-Sentinel, Posted June 27 2002

http://www.sun-sentinel.com/news/local/southflorida/sfl-pledge062702.story?coll=sfla%2Dhome%2Dheadlines

“And to the Republic, for which it stands, one nation, ----------, indivisible, with liberty and justice for all.” Everyone who’s been to school in the past five decades knows what’s missing in that final stanza of the Pledge of Allegiance.

But on Wednesday, a federal appeals court in California declared the Pledge unconstitutional because of the words “under God.”

Although many doubt the unique ruling will stand, if it did, schoolchildren in the nine Western states covered by the court could no longer recite the at the beginning of their day.

In a 2-1 decision, the 9th U.S. Circuit Court of Appeals said the reference to God amounts to a government endorsement of religion in violation of the Constitution’s Establishment Clause, which requires a separation of church and state.

“A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion,” Judge Alfred T. Goodwin wrote for the three-judge panel.

In Canada, where President Bush was taking part in an economic summit, a White House spokesman said: “The president’s reaction was that this ruling is ridiculous.”

In Washington, House members gathered on the front steps of the Capitol to recite the Pledge en masse — the same place they defiantly sang God Bless America the night of the Sept. 11 attacks. And senators, who were debating a defense bill, angrily stopped to unanimously pass a resolution denouncing the decision.

The possibility, however remote, of the Pledge being banned or rewritten seemed equally implausible to South Floridians across the political and social spectrum Wednesday.

“One hardly knows whether to laugh or cry,” said Katie Muniz, Florida Gov. Jeb Bush’s director of communications. “I think most Americans will dismiss this as another example of our court system run amok.”

To Sarah Sinett, a Boca Raton mother of two who has recited or led the Pledge for four decades as a child or as an adult involved in Girl Scouting, the ruling seemed “silly.”

“As a child growing up it never crossed my mind — it’s just what you do,” she said. “I’d have to say that if a child came forward and said they couldn’t do this for religious reasons I’d make an accommodation but in my world, it’s just never happened.”

Laughter was the immediate reaction of Bob Jarvis, professor of legal ethics at Nova Southeastern University.

“The 9th Circuit is once again marching off to it’s own drummer,” said Jarvis, who admitted he had not yet read the entire text of the ruling.

The 9th Circuit, Jarvis said, is well-known for its liberal stance and unique rulings. Yet history is replete with examples of defendants questioning the inclusion of religious words in government texts and presentations.

“My gut would say the Supreme Court would turn the ruling away,” Jarvis said. “But the defendant did convince one of three judges.”

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state. Those are the only states directly affected. However, the ruling does not take effect for several months, to allow further appeals. The government can ask the court to reconsider, or take its case to the U.S. Supreme Court.

The case was brought by Michael A. Newdow, a Sacramento atheist who objected because his second-grade daughter was required to recite the Pledge at the Elk Grove school district. A federal judge had already dismissed his lawsuit.

Newdow, a doctor who holds a law degree and represented himself, once lived in Fort Lauderdale and brought a similar, but unsuccessful, suit against the Broward County School Board in 1998. In his California suit he called the Pledge a “religious idea that certain people don’t agree with.”

The disputed words “under God” have not always been part of the Pledge, which was first given national publicity through the official program of the National Public School Celebration of Columbus Day in October 1892.

It wasn’t until 1954 that President Eisenhower signed legislation inserting “under God” after the words “one nation,” and wrote that “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.”

In Wednesday’s ruling the appeals court noted that the U.S. Supreme Court has said students cannot be compelled to recite the Pledge.

But even when the Pledge is voluntary, “the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge.”

It is that sense of religious endorsement that supporters of the ruling said holds legitimacy.

“This is going to be unpopular. It’s going to be hard to swallow, especially in the mood of the country after what happened on Sept. 11,” said Howard Simon, executive director of the Florida chapter of the ACLU. “But it was just the ‘under God’ phrase that’s been struck down. It’s important to make the distinction between patriotic devotion and religious devotion and based on the principle on which the country was founded, this was a correct and courageous decision.”

Correct and courageous were not the descriptive terms used by potent religious leaders as news of the ruling spread.

“This is a deplorable ruling that must be overturned,” said Dr. D. James Kennedy, senior minister of Coral Ridge Presbyterian Church in Fort Lauderdale.

“It is at odds with the facts and the law. If ‘under God’ goes, then surely some misguided legal purist on the federal bench will, one day soon, determine that the Declaration of Independence [‘endowed by their Creator’] and the U.S. Constitution [‘Done…in the year of our Lord’] must go as well.”

Said Rabbi Anthony Fratello of Temple Shaarei Shalom west of Boynton Beach: “We have ‘In God we trust’ on our money. It’s vanilla enough of a point that it doesn’t necessarily advocate one religion over another. If students or people don’t feel comfortable saying the Pledge because of the reference to God, they should have the freedom to omit that line while still saying the remainder of Pledge.”

Legal ramifications and constitutional interpretations aside, the ruling was greeted by many with a discouraging shake of the head.

“Oh geez. How sad,” said Susan Whelchel, a Palm Beach County School Board member and a veteran of 15 years in the classroom. “While I believe in freedom of religion, it’s a shame everything we stood for since the founding of the country is being challenged in a court of law.”

Kim McCoy, Linda Kliendienst and Bill Gibson contributed to this report. It was supplemented by wire reports. Jonathon King can be reached at jking@sun-sentinel.com and at 954 356-4691

-- Anonymous, June 27, 2002

Answers

There are related stories at the link above.

So, Whatcha tink o dat?

-- Anonymous, June 27, 2002

Posted on Wed, Jun. 26, 2002

Lawmakers Condemn Court on Pledge

JESSE J. HOLLAND, Associated Press Writer

h ttp://www.miami.com/mld/miami/news/breaking_news/3549945.htm

WASHINGTON (AP) - Congress and the White House, reacting with lightning speed, condemned as an outrage and "just nuts" a federal appeals court decision Wednesday declaring the Pledge of Allegiance unconstitutional.

House members gathered on the front steps of the Capitol to recite the Pledge of Allegiance en masse - the same place they defiantly sang "God Bless America" the night of Sept. 11 attacks.

Senators, who were debating a defense bill, angrily stopped to unanimously pass a resolution denouncing the decision of a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco.

The 99-0 vote, with Sen. Jesse Helms, R-N.C., absent, came less than four hours after the court ruled that the use of the words "under God" violates the Constitution's clause barring establishment of religion.

Lawmakers also said they would push for a constitutional amendment authorizing the words "under God" if the Supreme Court doesn't reverse the decision barring the pledge in public schools.

"This decision is just nuts," said Senate Majority Leader Tom Daschle, D-S.D., who called on senators to arrive early Thursday morning to publicly recite the pledge.

The Senate also took the unusual move of voting from their desks in the Senate chamber, with each senator in turn standing and voting "aye." The last time senators voted from their desk was Feb. 11, 1999, on the impeachment of then-President Clinton.

President Bush's spokesman, Ari Fleischer, branded the appeals court decision "ridiculous" and said the Justice Department would fight it. He did not say how.

"This decision will not sit well with the American people," Fleischer said, speaking at an economic summit Bush was attending in Canada. "Certainly it does not sit well with the president of the United States."

Fleischer said the Supreme Court and Congress open each session with references to God, and the Declaration of Independence refers to God or the creator four times. "The view of the White House is that this was a wrong decision," Fleischer said.

Attorney General John Ashcroft said the Justice Department believes in the right of Americans to say the pledge. "The decision is directly contrary to two centuries of American tradition," Ashcroft said. [No it isn't. The phrase 'under God' was added in 1954, and the pledge was started in 1892, 110 years ago.]

The decision was written by Judge Alfred T. Goodwin, whom Senate President Pro Tem Robert Byrd, D-W.Va., called an "atheist lawyer."

"I hope his name never comes before this body for any promotion, because he will be remembered," said Byrd.

"Our founding fathers must be spinning in their graves," said Sen. Kit Bond, R-Mo. "What is next? Will the courts now strip 'so help me God' from the pledge taken by new presidents? This is the worst kind of political correctness run amok."

"Will our courts, in their zeal to abolish all religious faith from public arenas, outlaw 'God Bless America' too?" added fellow Missouri Republican Rep. Roy Blunt. "The great strength of the United States is that we are and will continue to be, despite the liberal court's decision, one nation under God."

Democrats pointed out that it was a Republican, President Nixon, who appointed Goodwin to the appeals court in 1971.

Sen. Joseph Lieberman, D-Conn., a former vice presidential candidate, immediately called for a constitutional amendment to make sure the words stay in the pledge: "There may have been a more senseless, ridiculous decision issued by a court at some time, but I don't remember it." [You'd think he would have referred to SCOTUS and the election ruling. LOL]

"Let us not wait for the Supreme Court to act on this," said Sen. John Warner, R-Va. "Why don't we go ahead and formulate this amendment, put it together, have it in place, presumably with all 100 United States senators."

House Speaker Dennis Hastert, R-Ill., led GOP calls to put more conservative judges on the federal courts. The 9th Circuit Court is known as the most liberal appeals court in the nation.

Democrats and Republicans have been fighting all year over the pace of the Senate's confirmation of Bush's conservative judicial nominations. Three of Bush's 9th Circuit nominees, Carolyn Kuhl, Richard Clifton and Jay Bybee, have yet to be voted on by the Democratic-controlled Senate.

"This highlights what the fight over federal judges is all about," Senate Republican leader Trent Lott, R-Miss. "We feel that putting men and women on the appellate courts who would make this kind of decision is bad for America."

[Talk about a can of worms!]

-- Anonymous, June 27, 2002

Usually I'm an Ashcroft supporter because we agree on the Second Amendment, but his agenda is showing through this one. I don't really think that the argument that "this is the way we always did it" should have any validity where the Constitution is concerned, even if that were true.

For my money, the 1954 Joint Resolution was unconstitutional.

Meanwhile, there is no guarantee that the Supreme Court would accept the appeal.

I was thinking last night how the purpose of staying the pledge as a group is so that you can be publicly part of that group. The point (IMO) is that you are all supposed to say, lockstep, the same thing with the same cadence, otherwise it loses its impact. It's not like we are ever told to take a moment of silence to pledge whatever we want.

So, even though someone can omit what words they don't like, or add what they want, it seems to defeat the purpose of doing a group pledge. I'm thinking it was one of a variety of examples when I was very young that I knew I had to play the hypocrite. IOW, I was taught from a very young age to lie. I'd like to think the Constitution was supposed to spare me from that in that this was a matter of religion. (Didn't strictly apply to me, I 'spose, because these were private schools. But I still felt very uncomfortable and unable to talk to anyone about it.) I don't buy that I was just a kid and didn't know what I was saying.

-- Anonymous, June 27, 2002

I also feel uncomfortable saying the pledge with "one nation under God" in it. I just keep my mouth shut when that part comes 'round. Or anything else that's similar.

-- Anonymous, June 27, 2002

Git, I just keep my mouth shut, or maybe I say it anyway. What bothers me (and it's not an especially large gnat as things go), is that I know the folks around me assume certain things about the folks making the pledge, that we're all referring to the same god. I was raised Episcopal, but it never clicked, and I was NEVER able to directly raise my doubts with anyone growing up. In fact, it's one of two things about me that I consider absolutely core to my being, that I don't feel comfortable sharing with folks.

Actually, I worked out an alternative last evening. What do you think, Git? How about if we slur it a bit and say, "One nation under garden". Do you think any one would notice? At least I could say that one with conviction. ;^)

-- Anonymous, June 27, 2002

under garden? How about gawd? utter gawd? LOL

I'll leave y'all to talk this out. I have to go to work.

-- Anonymous, June 27, 2002

We're on teh right track here. How about "One nation under guard?" That fits!

-- Anonymous, June 27, 2002

it fits too well.

scary.

-- Anonymous, June 28, 2002

I worry about where all this is going to end. I (like Frank Sinatra) would prefer that "America the Beautiful" be our national anthem. Yet it contains the words "God shed His grace on thee."

-- Anonymous, June 28, 2002

Another way to look at these references is within the historical framework in which they were written.

Here's one example: the words "under God" were added to the pledge in 1954. What a different US then! The Cuban missile crisis was still several years away.

Being old doesn't make it right, but I have more patience when I consider the history.

-- Anonymous, June 28, 2002

Actually, I find it a bit unsettling that young kids are required to recite the pledge by rote. They can't really understand what they're saying at a very young age and it's a pretty meaningless, boring thing to them. When they get a bit older, I think they should study it and perhaps also be required to memorize it for future reference. But I don't think they should be forced to spout it every day.

But then, I don't like public displays of affection so I suppose it's more a matter of a personal foible. I'm very foibly.

-- Anonymous, June 28, 2002

A related piece of news: I had lunch with a friend who keeps up with the Virginia political situation more than I do for my new state of residence. He said that the Va. legislature has mandated that "In God we trust" be posted in every classroom of the public school system, starting I believe today.

-- Anonymous, June 28, 2002

Ah, Peter. You reminded me of two sayings:

"In God we trust; in politics, we pray."

"In God we trust; all others pay cash."

Ohhhhhhhhhhh. I need a vacation from my vacation. (;

-- Anonymous, June 29, 2002