July 1, 2002
Pledge and vouchers cases
put church-state in spotlight
___WASHINGTON--Church and state issues took center stage in a pair of back-to-back court rulings June 26 and 27.
___On the heels of a federal appeals court's ruling that the Pledge of Allegiance is unconstitutional, the U.S. Supreme Court announced its approval of a school voucher program in Ohio.
___President George W. Bush denounced the Pledge of Allegiance ruling as "ridiculous." Senate Majority Leader Tom Daschle called it "nuts."
___The Senate quickly passed a resolution denouncing the ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals. Members of the House of Representatives gathered on the Capitol steps to publicly recite the Pledge of Allegiance.
___Few legal scholars predicted the circuit court's ruling would withstand scrutiny by higher courts. However, the ruling galvanized national attention on an emotional subject just days before Independence Day celebrations.
___The 9th Circuit Court of Appeals is considered one of the most liberal and activist in the nation. Its jurisdiction includes California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
___The case was brought by an athiest in Sacramento, Calif., who complained that his daughter should not have to listen to classmates say the pledge daily at school. No child may be required to recite the pledge, but that provision of non-participation was not enough for Michael Newdow.
___By a 2-to-1 margin, a panel of judges from the 9th Circuit Court sided with Newdow, reasoning that "a profession that we are a nation 'under God' is identical ... to a profession that we are a nation 'under Jesus,' a nation 'under Zeuss' or a nation 'under no god.'"
___Thus, the panel reasoned, reciting the pledge with the words "under God" included amounts to a government establishment of religion, which is disallowed by the First Amendment.
___The words "under God" were added to the pledge in 1954 at the height of the Cold War with Russia.
___Politicians and religious leaders alike lined up to lambaste the circuit court ruling, which does not yet directly affect any school.
___Meanwhile, in Elk Grove, Calif., the suburb of Sacramento where the case originated, the school superintendent told CNN the ruling could provide a great civics lesson for the United States' schoolchildren.
___"It's a teachable moment for our kids, in the sense that Mr. Newdow has every right to bring this challenge and we have every right to fight it," said Superintendent David Gordon. "And one reason we're a strong democracy is that we fight in court, not on the streets, and that's something our kids need to understand because that's what makes us a strong democracy."
___The ruling by the circuit court panel will be challenged all the way to the Supreme Court if necessary, Gordon pledged.
___Experts in church-state affairs, however, predicted the case might not have to go that far. Some predicted the ruling could be overturned by the full 9th Circuit Court.
___The day after the pledge ruling, the U.S. Supreme Court stirred the church-state waters on its own with a ruling on school vouchers.
___The high court ruled 5-4 that a voucher program in Cleveland does not constitute the establishment of religion, even though taxpayer money makes its way to parochial schools.
___Under the Cleveland program, parents may opt out of one of the nation's worst-rated public school systems and receive vouchers to pay for tuition at private schools, including parachial schools. More than 95 percent of the vouchers are used to subsidize religious schooling.
___Voucher opponents argue that the government may not use taxpayer money to fund religious schools, even if the vouchers are first passed through the hands of parents, who choose a private school on their own.
___Voucher proponents argue the pass-through system should be constitutional because the government is not directly paying religious schools.
___ "In sum, the Ohio program is entirely neutral with respect to religion," wrote Chief Justice William Rehnquist. "It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious."
___Dissenting Justice John Paul Stevens called the majority's position "profoundly misguided."
___"Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy," he wrote.
___Justice David Souter said even the abyssmal condition of Cleveland's public schools provides "no excuse" for ignoring the Constitution. "Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these," he wrote.
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