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Court rules against Pledge of Allegiance

SAN FRANCISCO -- The Pledge of Allegiance, recited daily by millions of schoolchildren, is unconstitutional, a federal appeals court ruled Wednesday, drawing outrage from politicians and sending shock waves through the nation's public schools and legal academies.

In a case from Elk Grove, the 9th U.S. Circuit Court of Appeals ruled that Congress violated the Constitution's "establishment clause" by adding the words "under God" to the simple 29-word declaration in 1954 to advance religion during the height of the Cold War.

The establishment clause, a part of the First Amendment, bars the government from setting up an official religion or taking steps in that direction.

Constitutional law experts said the ruling was plausible, though politicians ranging from President Bush to Senate Majority Leader Thomas Daschle, D-S.D., called it "ridiculous" and "just nuts."

The establishment clause has provided the legal basis for a long string of Supreme Court decisions restricting prayer in public schools, public funding of parochial schools and other activities that promote religion or coerce student religious participation.

But Wednesday's 2-1 ruling by the highest court in the West appeared to be the first to ban the Pledge of Allegiance.

"I think one of the reasons an appellate court hasn't confronted this directly in the past is that most plaintiffs thought they would lose," said Alan Brownstein, an expert on church-state issues at the University of California, Davis.

The plaintiff who thought otherwise was Dr. Michael A. Newdow, a Sacramento atheist and emergency room physician with a law degree who acted as his own lawyer. He lost in U.S. District Court in Sacramento but won in the 9th Circuit.

Quoting from a 1985 Supreme Court decision, Circuit Judge Alfred Goodwin of Pasadena wrote, "The government must pursue a course of complete neutrality toward religion."

The pledge is not neutral, Goodwin said, because "it is a profession of a religious belief, namely, a belief in monotheism," which would be analytically identical "to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god.' "

Goodwin, who was joined by Judge Stephen Reinhardt of Los Angeles, also ruled that even if the pledge were valid, the Elk Grove district would be in violation of the establishment clause by requiring a daily teacher-led recitation.

The third judge, Ferdinand Fernandez of Pasadena, dissented, saying there was little danger that reciting "under God" in the pledge "will tend to bring about a theocracy or suppress somebody's beliefs."

Members of the House of Representatives reacted by reciting the pledge in unison from the Capitol steps, and senators passed a resolution condemning the opinion.

Gov. Gray Davis and his gubernatorial opponent, Republican Bill Simon, also blasted the decision.

In prepared statements, Davis said teaching the pledge "is critical to fulfilling the civic mission of our schools, especially after Sept. 11," while Simon's campaign called the decision "an insult to all Americans, particularly our veterans."

At a judicial conference in the Southwest, the opinion was greeted with gasps. Participants were stunned, not by the ruling's contents, but because it had never happened before, one attendee said.

In Sacramento, phones were ringing off the hook at the office of a conservative legal expert on school religion issues, who said dozens of local school officials sought guidance after receiving calls from anxious parents -- even with many schools on summer break.

The lawyer, Christian Keiner, said he told the school officials to do nothing until the last shoe drops.

"Given the makeup of the (Supreme) Court, it's very possible the decision will not stand," he said.

If it does, the decision will be binding throughout nine states, including California, which passed a law in 1989 requiring public schools to begin each school day with the Pledge of Allegiance or other "appropriate patriotic exercise."

Pam Slater, spokeswoman for the state Department of Education, said the state has no way of knowing how many districts require the pledge.

Practices in the Sacramento area vary from reciting the pledge every morning in Roseville to having principals and teachers choose a patriotic ritual, song or discussion each day in the Sacramento City Unified School District.

Elk Grove school officials released a statement saying they wished to defend the pledge and expected either to ask for reconsideration by a larger panel of 9th Circuit judges or seek review in the U.S. Supreme Court.

If upheld by the Supreme Court, the ruling would overturn compulsory pledge recitation laws, which 27 states now have, according to the Education Commission of the States in Denver.

"I think the Supreme Court plainly is going to reverse this thing," said Jesse Choper, the leading church-state authority at the University of California, Berkeley.

Although the high court never has ruled on the subject officially, he said, writings by various justices going back 40 years have treated the pledge as a patriotic or ceremonial exercise, not a religious one. Today's justices, generally more conservative, probably would agree, he said.

Brownstein, however, disagreed with Choper about the prevailing trend in the high court's church-state decisions.

The Supreme Court ruled in 1992 that nonsectarian prayers at public school graduation ceremonies are unconstitutional and, in 2000, that student-led invocation ceremonies before high school football games also violate the establishment clause.

"The court has started to pay more attention to religious messages and ... seems to be moving toward a neutrality model," Brownstein said. "It's hard to say that something like adding religious language into a governmental message is neutral."

Erwin Chemerinsky, a constitutional law professor at the University of Southern California, said the phrase in "In God We Trust" on the $1 bill could be the next to go. The constitutionality of such expressions "is doubtful when motivated by a desire to advance religion," he said.

In Elk Grove, meanwhile, Blake Leighton, 14, a student at Harriet G. Eddy Middle School, was not bothered by the decision.

"Taking out 'under God' doesn't change your patriotism. It just matters that you say the pledge, period," he said.

But Mark Lewis, a math teacher at Samuel Jackman Middle School, said he won't change his own pledge, no matter how the courts rule.

"From now on, when I say the Pledge of Allegiance, I'll say the 'under God' internally," he said.


About the Writer

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The Bee's Claire Cooper can be reached at (415) 551-7701 or ccooper@sacbee.com . Bee staff writers Jennifer Morita and Niesha Gates contributed to this report.


Pledge history

The pledge has changed four times since its inception:

* Original: "I pledge allegiance to my flag and the republic for which it stands, one nation, indivisible, with liberty and justice for all."

* Author: Francis Bellamy, a Baptist minister pressured to leave his Boston church because of his socialistic sermons. It stemmed from his cousin's writing on a utopian society.

* Sept. 8, 1892: The pledge was published in The Youth's Companion, where Bellamy worked, to celebrate the public schools' quadricentennial celebration for Columbus Day.

* 1923 and 1924: At The National Flag Conference, American Legion and the Daughters of the American Revolution officials changed the words, "my flag," to "the flag of the United States of America" for fear children of immigrants might confuse "my flag" for their homeland's flag.

* 1942: Congress officially recognizes the pledge.

* 1943: The U.S. Supreme Court ruled that schoolchildren could not be forced to recite it.

* 1954: Congress, after a campaign by the Knights of Columbus, added the words, "under God," inspired by the Cold War and the threat of "godless communists." The change was endorsed by Dwight D. Eisenhower.

Source: John Baer, "The Pledge of Allegiance, A Centennial History"; and www.usflag.org ; www.whatdoyaknow.com.

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