Court Lets Stand the Ban on 'God' in Pledge

By ADAM LIPTAK
New York Times

2/28/03

The federal appeals court that outraged much of the country last summer when it declared the Pledge of Allegiance unconstitutional because of the words "under God" refused yesterday to reconsider that ruling.

At least until the United States Supreme Court takes up the case, which legal experts consider highly likely, children in public schools in the nine Western states that the appeals court covers will be barred from reciting the full pledge.

Over the vehement objections of nine of its 24 judges, the appeals court, the United States Court of Appeals for the Ninth Circuit, in San Francisco, let stand a slightly modified version of the 2-to-1 decision that a three-judge panel of that court handed down in June. The panel said then that the phrase "under God" in the pledge violated the separation of church and state mandated by the Constitution. Yesterday, the panel shifted the focus to public school decisions that allow the voluntary recitation of the words.

The June ruling was almost immediately stayed, pending a review and decision by the full court. The decision yesterday surprised legal experts. Some experts speculated that some of the judges had voted against rehearing the case simply to hasten a Supreme Court review.

Attorney General John Ashcroft indicated that the government would ask the Supreme Court to review the case. "The Justice Department," Mr. Ashcroft said in a statement, "will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge."

Lawyers for the states and the federal government did not respond to questions about asking the Supreme Court to stay the decision, which formally takes effect next Friday. The appeals court covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Gov. Gray Davis of California said: "At the start of every court session, the Supreme Court invokes God's blessing. So does the Senate and the House of Representatives. Surely, the Supreme Court will permit schoolchildren to invoke God's name while reciting the Pledge of Allegiance."

Eugene Volokh, a professor of law at the University of California at Los Angeles, said that "the Supreme Court will almost certainly agree to hear the case," partly because "this is a hot button issue in which a majority of the justices probably disagree with the panel" and partly because of a disagreement between two appeals courts. The Ninth Circuit decision is at odds with a decision in 1992 by the United States Court of Appeals for the Seventh Circuit, in Chicago.

The Ninth Circuit panel that rendered the pledge ruling in June issued an amended version of that decision yesterday. Like the earlier decision, the vote was 2 to 1. The decision now stops short of declaring the law passed by Congress in 1954 that added the words "under God" to the pledge unconstitutional. The panel focuses instead on public school decisions that allow voluntary recitations of the words.

The distinction makes the decision less sweeping. It may now not apply by implication to reciting the pledge in other official settings or to similar phrases in other laws and governmental statements.

The panel majority sided with the plaintiff, Michael A. Newdow of Sacramento, an atheist who said his daughter was injured when forced to listen to teachers lead a pledge that includes the assertion that there is a God. Mr. Newdow did not respond to requests for comment.

Denials of petitions for full-court rehearings are usually dry one- or two-sentence affairs. That was not so yesterday.

Judge Diarmuid F. O'Scannlain, writing for six judges, called the panel decision "wrong, very wrong — wrong because reciting the Pledge of Allegiance is simply not a `religious act' as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense.