[1]SAN FRANCISCO (BP)–One of the nation’s most liberal federal courts cited the Founding Fathers Thursday in ruling that teacher-led recitation of the Pledge of Allegiance in public schools — with the phrase “under God” — is constitutional.
In doing so, the three-judge panel of the Ninth Circuit Court of Appeals turned back a lawsuit from atheist Michael Newdow, who argued the phrase amounted to an unconstitutional government establishment of religion. Newdow won at the same court in 2002 before losing at the U.S. Supreme Court, which ruled he did not have legal standing to file the case. The 2002 decision by the Ninth Circuit — it struck down the Pledge’s “God” reference as unconstitutional — sparked a firestorm that even drew a reaction from Congress.
Newdow re-filed the suit in 2005 along with other parents within the Rio Linda Union School District in California, giving him legal standing. The Supreme Court had said he lacked legal standing because he did not have primary custody of his daughter.
Thursday’s 2-1 Ninth Circuit ruling was much different from that 2002 ruling, partially because it was a different three-judge panel. The same panel Thursday also upheld the “In God We Trust” motto and inscription on money in a suit that also was filed by Newdow.
The Founders, Judge Carlos T. Bea wrote for the majority in the Pledge ruling, “believed that the people derive their most important rights, not from government, but from God.” He pointed to the Declaration of Independence as an example.
“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 and for which we continue to strive: one Nation under God — the Founding Fathers’ belief that the people of this nation are endowed by their Creator with certain inalienable rights,” Bea wrote, citing various phrases in the Pledge.
[2]Bea, a nominee of President George W. Bush, was joined in the 60-page majority opinion by Judge Dorothy W. Nelson, a President Carter nominee. Judge Stephen Reinhardt, another Carter nominee, wrote a 133-page dissent. He was in the majority in the 2002 decision.
Citing Supreme Court precedent on Ten Commandments monuments, the majority said it is constitutional for children to cite the Pledge with the “under God” reference because the phrase is just two words surrounded by words whose focus is not religious. The focus of the Pledge is patriotic, the court said.
“We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge — its wording as a whole, the preamble to the statute, and this nation’s history — demonstrate that it is a predominantly patriotic exercise,” Bea wrote. “… If the Pledge were solely: ‘We are under God’s rule’, would it make a difference? It would. There would be an argument that this was nothing more than a prayer.”
Students, the court noted, are not required to say the Pledge and can remain silent.
“What is at issue is whether [the plaintiffs] can prevent other students, who have no such objection, from saying the Pledge,” Bea wrote.
In a separate 3-0 ruling that spanned only 14 pages, the same Ninth Circuit panel also upheld the national motto “In God We Trust” and its inclusion on the nation’s money. The majority cited a 1970 opinion by the same court. Reinhardt reluctantly joined the majority opinion, saying he was bound by the ruling the court had just issued in the Pledge of Allegiance case.
“It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion,” the 1970 ruling read. “Its use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.”
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Michael Foust is an assistant editor of Baptist Press. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.