WASHINGTON (BP)–A federal appeals court’s affirmation of its ruling against the Pledge of Allegiance on religious grounds did not reduce criticism in spite of its revision of the original opinion.
The U.S. Ninth Circuit Court of Appeals announced Feb. 28 it would not reconsider a June decision in which it ruled the pledge’s inclusion of “under God” is a violation of the First Amendment’s ban on government establishment of religion. A three-member panel issued the earlier opinion, but the court had been asked to rehear the case as an 11-member panel.
While rejecting that option in its latest announcement, the divided court issued an amended opinion that basically maintained the central holding in the case but tightened its reach. The revised decision did not strike down a 1954 federal law adding “under God” to the pledge, as its June ruling had. Instead, the amended opinion rejected a California school district’s policy sponsoring recitations of the pledge. The ruling by the court, which is located in San Francisco, will affect public school classrooms in the nine western states of the Ninth Circuit.
The only recourse for a reversal of the decision is the U.S. Supreme Court.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, called the amended version a “distinction without a difference.”
“That is the kind of distinction lawyers make that has no difference in reality,” Land said. “The court is still denying the constitutional rights of children in nine states and going in the face of 200 years of American history.”
The Ninth Circuit Court “underscored its well-earned reputation as the most liberal federal court in America, as well as the most hostile to religious expression in public venues,” Land said.
William Donohue, president of the Catholic League for Religious and Civil Rights, even called for civil disobedience.
“It is up to the teachers in the nine western states affected by this decision to break the law,” Donohue told CNSNews.com. “They should instruct their students on the meaning of civil disobedience and then practice it. All they need to do is call the cops and local TV reporters, and then recite the Pledge of Allegiance in their presence.”
He also called for the two judges in the panel’s majority to be impeached.
“Make no mistake about it,” Donohue said. “It is not enough for the U.S. Supreme Court to overturn this ruling. Judicial malpractice has been committed, and those responsible must be removed from the bench … not because most Americans disagree with them, but because of jurisprudential incompetence.”
Jay Sekulow, chief counsel of the American Center for Law and Justice, said, “This is a very troubling development and one that cannot go unchallenged. The hostility of this appeals court is absurd and underscores faulty conclusions that must not stand.”
The ACLJ will represent members of Congress and citizens in asking the Supreme Court to take the case, Sekulow said.
Attorney General John Ashcroft signaled the Justice Department would support a review of the opinion, saying in a brief statement it “will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. For centuries our nation has referenced God as we have expressed our patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, ‘God save this honorable Court.'”
The ERLC’s Land called for Americans to urge Ashcroft to appeal the decision to the high court, “where it will undoubtedly be overturned decisively,” he said. Land said the Justice Department should ask the Supreme Court to delay implementation of the opinion until it rules, so “the children in the nine states under the Ninth Circuit’s jurisdiction are not deprived in the meantime of their right to recite the Pledge of Allegiance, including ‘one nation under God,'” he said.
Land also requested public support for congressional measures to protect the pledge.
At least one church-state organization welcomed the Ninth Circuit’s decision.
“The government should not link religion and patriotism,” said Barry Lynn, executive director of Americans United for Separation of Church and State. “Public schools cannot coerce children into taking part in religious exercises, even seemingly benign and generic ones. The phrase ‘under God’ may seem innocuous to many, but to those who object to it, nothing less than freedom of conscience is at stake.”
Officials of the Elk Grove Unified School District, the Sacramento, Calif.,-vicinity district involved in the case, said the pledge would not be recited in their schools beginning March 3, according to USA Today.
The Ninth Circuit panel’s June decision immediately ignited a firestorm of criticism — and not just from religious conservatives. The panel quickly stayed enforcement of the ruling. The Senate promptly approved a resolution affirming the pledge by a 99-0 vote. In early October, the House of Representatives passed a similar measure by a 401-5 vote.
In affirming the thrust of his June opinion, Judge Alfred Goodwin wrote the phrase “under God” is “a profession of a religious belief, namely, a belief in monotheism.”
“A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, 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,” Goodwin wrote.
Judge Diarmuid O’Scannlain wrote one of two dissenting opinions arguing a larger panel should have reheard the case. He differentiated the panel’s decisions by saying in the first the pledge “was unconstitutional for everybody,” while in the revised version it is “only unconstitutional for public school children and teachers.”
The panel’s revised ruling “confers a favored status on atheism in our public life,” O’Scannlain wrote. “The absolute prohibition on any mention of God in our schools creates a bias against religion. One wonders, then, does atheism become the default religion protected by the Establishment Clause?”
In addition to California, the states affected by the decision are Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Michael Newdow, a self-described atheist, initiated the case on behalf of his daughter. After the panel ruled for Newdow in June, it was revealed his 8-year-old daughter did not oppose the pledge. Sandra Banning, the girl’s mother, said her daughter enjoyed reciting the pledge. Banning, who has sole custody of the girl, also said her daughter and she are members of Calvary Chapel of Laguna Creek, an evangelical church in Elk Grove, Calif.
Banning, who was never married to Newdow, filed suit in August challenging Newdow’s standing in the case and asking her daughter be removed from it. She expressed concern her daughter, who has remained unnamed, would be harmed by a “lifetime of public scorn” if she is incorrectly perceived as the “little atheist girl that attacked the pledge.”
The Ninth Circuit, however, decided Newdow still could continue his suit on his own.