Monday, March 3, 2003
Ninth Circuit Rejects En Banc Rehearing in Pledge of Allegiance Case
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals on Friday rejected a request to rehear the case that led to its widely criticized ruling that reciting the Pledge of Allegiance in public schools is unconstitutional because of the words “under God.”
The case could go next to the U.S. Supreme Court.
Attorney General John Ashcroft condemned the decision and said the Justice Department will “spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag.” But he stopped short of saying the administration will appeal to the high court.
In June, a three-judge panel of the Ninth Circuit ruled 2-1 that the words “under God” amount to a government endorsement of religion and violate the separation of church and state. The ruling and the opinion by Judge Alfred Goodwin were attacked by President Bush, Congress and many others, and the Bush administration asked the full Ninth Circuit to reconsider.
But the panel voted unanimously to deny petitions for rehearing and less than a majority of the 24 active judges on the circuit voted for en banc rehearing.
The June ruling, which applies to the nine Western states the court covers, had been put on hold until the full court reviewed it.
It was not immediately clear when the ban might take effect for the millions of public school students in those states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Appellate rulings take several weeks to take effect, to give each side an opportunity to appeal.
The challenge was brought by Sacramento atheist Michael Newdow, who objected to his 8-year-old daughter’s listening to the words “under God” in school. The words were added by Congress in 1954 during the Cold War to distinguish democracy from “godless Communism.”
Friday’s ruling effectively reaffirmed that part of the original decision. Though the ban will not go into effect immediately, officials at the Sacramento-area Elk Grove Unified School District where the girl attends school said students would not recite the pledge starting Monday morning.
Students instead will sing patriotic songs or read poems.
“We don’t want to take a chance on anyone feeling we’re violating the law,” said district superintendent Dave Gordon, who promised to appeal the case to the Supreme Court.
Reached in Houston as he was traveling back to California, Newdow praised the court for “upholding the Constitution. That’s what they are supposed to do.
“This makes our country stronger when everyone’s views are given equality, especially when it comes to religion,” said Newdow, who received death threats last summer when the court ruled.
Told that Elk Grove’s 52,000 students would no longer be asked to recite the pledge, he added, “It’s good to know they’re following the Constitution. I’m still confused as to what it is they’re trying to accomplish by fighting this.”
It was not immediately clear when the ban might be enforced for all of the 9.6 million students who live in the nine states covered by the Ninth Circuit. As with all appellate rulings, the pledge ban doesn’t take effect for several weeks, to give each side an opportunity to appeal.
The three judges who took part in the original ruling — Goodwin and Stephen Reinhardt on one side, Ferdinand F. Fernandez on the other — did not change their positions during the appeal.
In separate opinions filed with the order denying rehearing, Reinhardt and Judge Diarmuid F. O’Scannlain traded barbs over the proper role of federal appellate courts and the meaning of the Constitution.
O’Scannlain labeled the original ruling “wrong, very wrong” and noted that it provoked a nationwide public outcry. He said the decision defies common sense and “contradicts our 200-year history and tradition of patriotic references to God.”
“The absolute prohibition on any mention of God in our schools creates a bias against religion,” he wrote.
That prompted Reinhardt to lash out at the “disturbingly wrong-headed” suggestion that the public outcry should have persuaded the court to reconsider. The idea, he said, “reflects a serious misconception of fundamental constitutional principles and the proper role of the federal judiciary.”
The Constitution was meant to insulate Article III judges from political pressure, he said. Reinhardt also noted that the Bill of Rights “is 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, in a footnote:
“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.”
Fernandez authored a partial concurrence and partial dissent in which he objected to the core of the original rulingóthat the pledge violates the Establishment Clauseóand said that the words “under God” have caused no real harm over the years, “except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life.”
O’Scannlain’s 18-page dissent from the denial of en banc rehearing was joined by Judges Andrew J. Kleinfeld, Ronald M. Gould, Richard C. Tallman, Johnnie B. Rawlinson, and Richard R. Clifton.
Judge M. Margaret McKeown authored a much briefer, one-paragraph dissent from denial of rehearing en banc and was joined by Rawlinson, Hawkins and Judge Sidney Thomas.
The lawsuit became a parental rights case that pitted Newdow against the girl’s mother, Sandra Banning.
In response to the court’s original ruling, Banning asserted that her daughter is not harmed by reciting the pledge and is not opposed to God. But the court said Newdow had legal standing to bring the case on behalf of his daughter.
U.S. Rep. Frank Lucas, R-Okla., introduced a bill Thursday for a constitutional amendment protecting the pledge. He had first introduced the measure after the court’s ruling last year.
“We literally are one court ruling away from the Pledge of Allegiance being banned in nine western states of America,” Lucas said Friday.
The case is Newdow v. U.S. Congress, 00-16423.
Copyright 2003, Metropolitan News Company