The Pledge of Allegiance, recited by millions of American children at the start of each school day, is unconstitutional because it describes the United States as "one Nation, under God," a federal appeals court ruled yesterday.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled 2 to 1 that the reference to God, which was added to the pledge by Congress in 1954, amounts to an official endorsement of mono- theism. Thus, the San Francisco-based court said, both the 1954 law and a California school district's policy requiring teachers to lead children in the pledge violate the First Amendment prohibition against the establishment of a state religion.
If the ruling is allowed to stand, schoolchildren could no longer recite the pledge, at least in the nine western states covered by the court.
"A profession that we are a nation 'under God' is 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,' because none of these professions can be neutral with respect to religion," Judge Alfred T. Goodwin, an appointee of President Richard M. Nixon currently serving as a semi-retired senior judge, wrote for the three-judge panel. Goodwin was joined by Stephen Reinhardt, an appointee of President Jimmy Carter.
The case was brought by Michael A. Newdow, a Sacramento atheist, who did not want his daughter to have to recite the pledge in her second-grade class in the Elk Grove school district. After a federal district judge dismissed his lawsuit, Newdow, arguing the case himself, appealed to the 9th Circuit.
The ruling comes as patriotic and religious feelings are running high because of the war against terrorism -- and on the day before the Supreme Court was set to redefine the church-state boundary in a major case regarding taxpayer-funded vouchers for private and parochial education.
It immediately rekindled an issue whose incendiary potential was demonstrated during the 1988 presidential election. Republican candidate George H.W. Bush blasted Democratic nominee Michael S. Dukakis for his decision as Massachusetts governor to veto mandatory recitation of the pledge in the state's public schools.
Yesterday, President George W. Bush led politicians of both parties in a chorus of denunciation, saying through spokesman Ari Fleischer that the court's decision was "ridiculous."
House Majority Whip Tom DeLay (R-Tex.) called it "sad" and "absurd."
House Minority Leader Richard A. Gephardt (D-Mo.), a possible presidential candidate, said, "I see no reason to change the time-tested, venerable pledge that is such a central part of our country's life and our nation's heritage."
Another possible contender, Sen. John Edwards (D-N.C.), called the ruling "wrong."
House members gathered on the front steps of the Capitol to recite the Pledge of Allegiance en masse. The Senate unanimously approved a resolution sponsored by its Democratic and Republican leaders that expressed support for the reference to God in the pledge, and instructed the Senate's legal counsel to intervene in the case. The vote was 99 to 0, with Sen. Jesse Helms (R-N.C.) absent.
Calling the decision "just nuts," Majority Leader Thomas A. Daschle (S.D.), yet another possible Democratic presidential candidate, urged the entire body to be on hand this morning when the Senate begins its work by saying the pledge. Few senators usually are on hand for the pledge.
Fleischer said the Justice Department is considering "how to seek redress." The options include asking the full 9th Circuit to reconsider the case or taking the matter directly to the Supreme Court.
If the ruling stands in the 9th Circuit, it is likely the high court would review it, since it clashes with a decision by the Chicago-based U.S. Court of Appeals for the 7th Circuit upholding the pledge.
School is out for the summer, but the 9th Circuit's ruling would not take effect for 60 days, pending the government's appeal. The states that would be directly affected are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Critics of the ruling echoed views expressed by the lone dissenter on the panel, Senior Judge Ferdinand F. Fernandez, who was appointed by President George H.W. Bush. Fernandez contended that there is only a "minuscule" risk that the use of the phrase "under God" would "bring about a theocracy or suppress someone's beliefs."
Under his two colleagues' view, he wrote, " 'God Bless America' and 'America the Beautiful' will be gone [from public places] for sure, and . . . currency beware!" Coins and bills carry the slogan "In God We Trust."
Goodwin's opinion insisted that the 9th Circuit's ruling was merely the logical extension of Supreme Court cases that have prohibited organized prayer in the classroom and at high school graduations and football games.
Under these precedents, Goodwin wrote, the officially sponsored recitation of the phrase "under God" -- added at the height of the Cold War for the express purpose of distinguishing American values from the atheistic norms of the Soviet Union -- amounted to not only state endorsement of religion, but also a subtle form of coercion over elementary school students.
"Although [individual] students cannot be forced to participate in recitation of the pledge, 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," Goodwin wrote.
Although the 9th Circuit is the most liberal federal appeals court in the country -- its rulings are frequently reversed by the more conservative Supreme Court -- legal analysts from across the ideological spectrum said yesterday that it was not stretching the high court's past cases.
"I don't think this is necessarily a wacko 9th Circuit result," said Washington lawyer Christopher Landau, a former law clerk to Justice Antonin Scalia, who dissented in the cases the 9th Circuit cited to support its decision. "This is the Supreme Court reaping what it sowed."
"It is eminently defensible," said Eugene Volokh, a specialist in church-state law at UCLA Law School. "I'm not sure it's ultimately the right result. But the court is applying principles the Supreme Court has established."
Volokh suggested, however, that a majority of the court may ultimately decide that "under God" in the pledge, like the cry of "God save the United States and this honorable court," which opens each Supreme Court oral argument, qualifies as what the late justice William Brennan once called "ceremonial deism" -- traditional references to a higher power so frequently invoked that they have lost any specific religious meaning.
"There is still a very credible argument that at some point you have to stop trying to relentlessly extirpate religious symbolism from the life of a country that is after all very religious," said Volokh, who served as a law clerk to Justice Sandra Day O'Connor.