Friday, June 28, 2002
Goodwin Stays Enforcement of Pledge Ruling Pending Rehearing Decision
From Staff and Wire Service Reports
A day after he shocked the nation by declaring the Pledge of Allegiance unconstitutional in a Ninth U.S. Circuit Court of Appeals decision, Judge Alfred T. Goodwin yesterday blocked his ruling from being enforced.
Meanwhile, Attorney General John Ashcroft said the Justice Department plans to seek a rehearing and California Gov. Gray Davis and the Elk Grove Unified School District vowed to appeal.
Wednesday’s Ninth Circuit decision ruled the Pledge of Allegiance unconstitutional because the phrase “under God” crosses the line between church and state.
Goodwin, the author of the 2-1 opinion, stayed his decision while the full court determines whether to take additional action.
The appeals court can rehear the case with the same three judges, or an 11-judge panel. It has often overturned controversial three-judge opinions. Goodwin’s latest action has no immediate impact, since the ruling already was on hold by court rules for 45 days to allow for any challenges.
Goodwin’s latest ruling does not overturn the decision, but places it in a permanent state of suspended animation until the court decides otherwise.
Ashcroft said the Justice Department will request a hearing by an 11-judge panel. As of yesterday afternoon, court clerk Cathy Catterson said no petitions for rehearing had been submitted.
Davis said Attorney General Bill Lockyer will file a petition with the court within days to ask for a rehearing. The governor said state attorneys are working with the school district on a procedure formally called a “rehearing en banc.”
Davis, saying he was “personally offended” by the ruling, vowed “decisive action to overturn the decision.”
Vikram Amar, a Hastings College of the Law scholar who closely follows the appeals court, said the latest ruling means that, for now, Wednesday’s opinion finding the pledge unconstitutional “has no legal force or effect.”
“They’re acknowledging the likelihood that the whole Ninth Circuit may take a look at this,” Amar said.
Goodwin’s original ruling sparked outrage across the political spectrum by ruling it is unconstitutional for schoolchildren to recite—or even be forced to listen to—the Pledge of Allegiance, because it referred to God.
The judge’s move yesterday was more symbolic than substantive. Given the general public outrage about the initial ruling, Goodwin wanted to make clear that children, for now, are not barred from reciting the pledge in class, legal experts said.
“This is not your ordinary run-of-the-mill decision,” said Douglas Mirell, a constitutional law attorney at Loeb and Loeb in Los Angeles. “Extraordinary cases may require extraordinary measures in order to clarify for the public and the world exactly what the results of the case are.”
Craig Johnson, a constitutional rights attorney in New York, agreed.
“I think there was a lot of back channel pressure on these judges to put a stay on this given the initial public reaction,” Johnson said. “I think 24 hours after the ruling has been issued, something is going on over there.”
University of Southern California political science professor Alison Renteln said, “Maybe they didn’t expect so much of an outcry.”
Wednesday’s ruling was in response to a California atheist’s bid to keep his second-grade daughter from being exposed to religion in school. The decision was met with widespread criticism, including from Congress and from President Bush, who called it “ridiculous.”
While in Canada for an economic summit, Bush promised to appoint judges who would overturn such rulings.
“America is a nation ... that values our relationship with the Almighty,” Bush told reporters. “We need commonsense judges who understand that our rights were derived from God.”
The Ninth Circuit Court is known as the most liberal appeals court in the nation. Democrats and Republicans have been fighting all year over the pace of the Senate’s confirmation of Bush’s conservative judicial nominations.
Democrats pointed out that it was a Republican, President Nixon, who appointed Goodwin to the appeals court in 1971.
The Ninth Circuit took the case after a federal judge dismissed Sacramento physician Michael Newdow’s lawsuit. The U.S. Supreme Court has never squarely addressed the issue.
Congress approved the change to the pledge, “one nation under God,” at the height of the Cold War after a 1954 campaign by the Knights of Columbus, a Roman Catholic men’s service organization.
The case is Newdow v. Congress, 00-16423.
Copyright 2002, Metropolitan News Company