Friday, March 12, 2010
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Ninth Circuit Upholds Use of ‘God’ in Pledge, on U.S. Currency
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday upheld the use of the words “under God” in the Pledge of Allegiance and “In God We Trust” on U.S. currency, rejecting arguments that the phrases violate the separation of church and state.
A divided three-judge panel rejected two legal challenges by Sacramento atheist Michael Newdow, who claimed the references to God disrespect his religious beliefs.
“The Pledge is constitutional,” Judge Carlos Bea wrote for the majority in the 2-1 ruling on that claim. “The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded.”
The same court ruled in Newdow’s favor in 2002 after he sued his daughter’s school district for having students recite the pledge at school.
That lawsuit reached the U.S. Supreme Court in 2004, but the high court ruled that Newdow lacked the legal standing to file the suit because he didn’t have custody of his daughter, on whose behalf he brought the case.
So Newdow, who is a doctor and a member of the California State Bar, filed an identical challenge on behalf of other parents who objected to the recitation of the pledge at school.
In 2005, U.S. District Judge Lawrence K. Karlton of the Eastern District of California decided in Newdow’s favor, ruling that the pledge was unconstitutional.
“I want to be treated equally,” Newdow said when he argued the case before the Ninth Circuit in December 2007. He added that supporters of the phrase “want to have their religious views espoused by the government.”
Establishment Clause
However, Bea yesterday rebuffed Newdow’s contentions that California Education Code Sec. 52720 and the school district’s policy of having teachers lead students in a daily recitation of the pledge—which individual students could opt out of—violated the Establishment Clause.
Bea noted that Newdow lacked standing to challenge the 1954 amendment to the pledge inserting “under God” since no federal statute required students to recite the pledge. He also said that Sec. 57520, which requires each school to conduct “patriotic exercises daily” expresses a secular purpose and does not mandate the text of the pledge or any other patriotic exercise.
The judge then opined that even though the words “under God” have religious significance, that did not convert the pledge into a prayer or other religious exercise because the phrase refers to “historical and religious traditions of our country, not a personal affirmation through prayer or invocation that the speaker believes in God.”
Not ‘Religious Exercise’
Bea also wrote that the pledge had neither the purpose nor effect of endorsing religion, and did not coerce students to support or participate in religion or in a religious exercise.
Judge Dorothy W. Nelson joined Bea in his opinion, but Judge Stephen Reinhardt dissented.
“The undeniably religious purpose of the ‘under God’ amendment to the Pledge and the inherently coercive nature of its teacher-led daily recitation in public schools ought to be sufficient under any Establishment Clause analysis to vindicate [the plaintiffs’] constitutional claim, and to require that the Pledge of Allegiance, when recited as part of a daily state-directed, teacher-led program, be performed in its original, pre-amendment secular incarnation that served us so well for generations,” he wrote.
The case is Newdow v. Rio Linda Union School District, 05-17257.
In a separate 3-0 ruling, the court also upheld the inscription of the national motto “In God We Trust” on coins and currency, saying that the phrase is ceremonial and patriotic, not religious. That challenge was also brought by Newdow.
Writing again, Bea said Newdow had standing to challenge inscription of the motto on coins and currency due to his frequent, unwelcome contract with it. But the judge wrote that Newdow’s Religious Freedom Restoration Act claim that the motto represented a governmental endorsement of religion was foreclosed by Supreme Court precedent.
Reinhardt concurred separately, writing that the result was required under the Rio Linda decision, but he renewed his criticism.
“I am required to follow that precedent, no matter how misguided…,” he said. “I do not express any view as to what result I might have reached in the absence of the numerous errors of constitutional law that the majority made in Rio Linda, and the erroneous result it reached.”
The case is Newdow v. LeFevre, 06-16344.
Reached yesterday on his cell phone, Newdow said he hadn’t been aware that the appeals court had ruled against him.
“Oh man, what a bummer,” he said.
Newdow said he would comment further after reading the decisions.
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