March 10, 2003
Dispute over 'under God' likely headed to high court
___By Robert Marus
___ABP Washington Bureau
___SAN FRANCISCO (ABP)--A California school district has 90 days to ask the United States Supreme Court to review a ruling by an appeals court that would outlaw recitation of the Pledge of Allegiance in public schools in nine Western states.
___The temporary stay of enforcement was issued by Judge Alfred Goodwin March 4, just four days after the full 9th U.S. Circuit Court of Appeals declined to review a controversial ruling handed down in June by three of its judges.
___In that 2-1 vote, the panel declared the words "under God" in the Pledge of Allegiance to be an unconstitutional government endorsement of religion. The opinion also outlawed recitation of the words in public-school classrooms.
___Despite nearly nationwide protest and mockery of the panel's pledge position, the court's full body of 24 judges declined Feb. 28 to reconsider the matter.
___Nine of the circuit's 24 judges dissented from the decision not to rehear the case. And in an unusual move, six of those magistrates issued a vehement dissenting opinion.
___"With grim insistence," they wrote, "the majority ... continues to stand by its original error--that voluntary recitation of the Pledge of Allegiance in public school violates the establishment clause (of the Constitution) because, according to the two-judge panel majority, it is 'a religious act.' Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear."
___The dissent, written by Judge Diarmuid O'Scannlain, said if recitation of the pledge constituted an impermissible religious act in school, then so should the recitation of the Declaration of Independence, the Constitution and other historic national documents that contain references to God.
___But in a separate opinion concurring with the full panel's decision, Judge Stephen Reinhardt lashed out at what he called "a disturbingly wrongheaded approach to constitutional law" in O'Scannlain's dissent.
___"The dissent suggests that this court should be able to conclude that the panel's holding was erroneous by observing the 'public and political reaction' to its decision," wrote Reinhardt, one of two judges who issued the original decision. "The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties."
___O'Scannlain responded to Reinhardt's complaints in a footnote to his opinion: "My disagreement with the panel majority has nothing to do with bending to the will of an outraged populace, and everything to do with the fact that Judge Goodwin and Judge Reinhardt misinterpret the Constitution and 40 years of Supreme Court precedent. That most people understand this makes the decision no less wrong. It doesn't take an Article III judge to recognize that the voluntary recitation of the Pledge of Allegiance in public school does not violate the First Amendment."
___The case originated with an atheist father, Michael Newdow, who filed suit against the Elk Grove Unified School District. Newdow claimed the school district violated his daughter's religious liberty by forcing her to listen as her government-paid teacher lead her class in recitation of the pledge.
___In the June decision, the divided three-judge panel originally ruled that not only was recitation of the pledge in public schools unconstitutional, but so was the 1954 act of Congress that added the words "under God" to the pledge in the first place. The pledge, originally written in 1892, did not contain the phrase for the first six decades of its existence.
___However, an amended opinion issued with the Feb. 28 decision struck that portion of the original ruling.
___Most Supreme Court observers expect the case to be accepted by that panel next year, and Attorney General John Ashcroft has said the federal government would appeal the case.
___The high court previously addressed government endorsement of generalized religious references--what Justice William Brennan once famously termed "ceremonial deism"--as not violating the First Amendment's bar on government establishment of religion. However, those earlier opinions are not binding on lower courts.
___The case is Newdow v. U.S. Congress.
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