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House passes bill to protect pledge from federal courts

WASHINGTON (BP)–The U.S. House of Representatives approved legislation Sept. 23 that would prevent federal courts from considering challenges to the Pledge of Allegiance.

The House voted 247-173 for the Pledge Protection Act, H.R. 2028. The measure would remove legal challenges to the pledge’s content from the jurisdiction of all federal courts, including the Supreme Court. Instead, state courts would determine the constitutionality of the pledge within their jurisdictions.

The Senate appears unlikely to pass the court-stripping legislation before it adjourns this year.

The House action came three months after the Supreme Court protected the phrase “under God” in the pledge without ruling on its constitutionality under the First Amendment’s ban on government establishment of religion.

The justices unanimously agreed to overrule the Ninth Circuit Court of Appeals’ decision that a California school district’s policy requiring recitation of the pledge is unconstitutional. A majority, however, based the court’s opinion on a technical rather than a constitutional matter, deciding atheist Michael Newdow did not have legal standing to represent his daughter in the challenge to the pledge.

As a result of the decision, American schools maintained the right to have the recitation of the pledge as part of their classroom practice, but the possibility exists the high court may rule in a later case that “under God” violates the establishment clause.

The Pledge Protection Act is needed because of judges like those who ruled for the Ninth Circuit, said House Majority Leader Tom DeLay, R.-Texas.

“Many federal judges have made no secret of their hostility to traditional values and religion in the public square,” DeLay said in a written statement after the vote, “and the Pledge Protection Act will make sure those judges can’t impose their personal prejudices on the rest of us. State courts should be free to determine this issue without the interference of unaccountable federal judges.”

The head of Americans United for Separation of Church and State, however, called the bill a “dramatic assault on the courts and individual rights, wrapped in phony patriotism.”

“The supporters of this bill have shown callous disregard for long-standing constitutional principles,” AU Executive Director Barry Lynn said in a written release. “The federal courts should be open to all Americans seeking protection of their constitutional rights.”

In its June opinion in the pledge case, the Supreme Court majority said a California Superior Court ruling that Sandra Banning, the mother of Newdow’s elementary-age daughter, “makes the final decisions” when there is a disagreement between the parents means he “lacks the right to litigate as [his daughter’s] next friend.”

Rep. Todd Akin, R.-Mo., is chief sponsor of the Pledge Protection Act.

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