WASHINGTON (BP)–Efforts to reverse the ruling against the Pledge of Allegiance have been set in motion on five legal fronts.
The Bush administration has filed documents seeking a hearing before a panel of 11 of the 24 judges of the Ninth Circuit Court of Appeals in San Francisco concerning the failure of the initial three-judge panel to uphold Supreme Court precedents that the words “under God” in the Pledge of Allegiance are constitutional.
According to the papers filed by the Justice Department, the Supreme Court specifically concluded in cases decided in 1984 and 1989 that the words “under God” in the pledge are among many ceremonial “reference[s] to our religious heritage” that do not “establish a religion or a religious faith, or tend to do so.”
“Reciting the Pledge is a permissible ‘patriotic’ act, like reciting the Declaration of Independence, not an act of religious devotion, like repeating a government-composed prayer,” the Justice Department petition, filed Aug. 9, said, drawing upon an opinion by Justice William Brennan in 1963.
The three-judge panel, in its June 26 ruling on the pledge, acknowledged the Supreme Court’s statements but said they were not formal rulings.
The Justice Department also asserted that Michael Newdow, who waged the suit, “clearly lacks standing” to challenge the Pledge of Allegiance statute “since the statute does not require anyone to recite the Pledge and since its mere enactment does not aggrieve him in any constitutionally cognizable sense.”
Also, according to the documents, a legal initiative Aug. 5 — a declaration submitted to the San Francisco court by Sandra Banning, mother of Newdow’s daughter — may call into question whether Newdow has proper parental standing to challenge a policy allowing his 8-year-old daughter to recite the pledge in school.
Banning has never been married to Newdow and noted in the motion she filed with the Ninth Circuit Court of Appeals that she has had legal custody of their daughter since February, with “the sole right to represent [her daughter’s] legal interests and make all decisions about her education.”
Soon after the ruling on the pledge, Banning acknowledged that she and her daughter, who has remained unnamed, are members of an evangelical church in California, Calvary Chapel of Laguna Creek in Elk Grove, Calif. — and they have no objection to the Pledge of Allegiance.
“I do not wish for my daughter, for the rest of her life, to be known as ‘the atheist child who hated the Pledge,'” Banning said in the declaration. “It is therefore imperative that the court allow the [case] to go forward, if at all, without my daughter as a party.”
Banning, in her motion, asked the court “to acknowledge the child has not been harmed” by the Pledge of Allegiance. In a Fox News interview in July, Banning said her daughter, a third-grader, told her, “I’m still going to say ‘one nation under God.’ I’ll say it quietly so no one will know I’m breaking the law.”
Newdow responded to Banning’s motion by saying, “I’m still a parent and still have a right to keep the government from indoctrinating my child,” according to a report in the San Francisco Chronicle.
In a third legal development, the American Center for Law and Justice announced Aug. 13 it has filed a brief on behalf of itself and 17 members of Congress asking for a re-hearing of the pledge ruling.
“Not only is there tremendous public support for reversing this damaging decision, but there is ample legal precedent to do so as well,” said Jay Sekulow, chief counsel with the ACLJ, based in Virginia Beach, Va. “At the end of the day, we’re confident the Pledge of Allegiance that included the phrase ‘One nation under God’ will be upheld as constitutional.”
The brief, which is posted on the ACLJ website at www.aclj.org, contends that the phrase “One nation under God” does not violate the Establishment Clause of the First Amendment and simply echoes the sentiments found in the Declaration of Independence and recognizes the undeniable truth that America’s freedoms come from God. The brief also cites numerous U.S. Supreme Court cases in defense of its position.
In the other two developments in the case:
— the state of California filed a motion July 25 asking the federal appeals court to reverse the three-judge panel’s ruling. California Attorney General Bill Lockyer stated in the appeal, “The depth and breadth of the public outcry at the panel’s decision should leave little doubt that the pledge, as it is recited today, serves the secular purpose of fostering patriotism and a sense of unity among Americans.”
— the local school district targeted in the case, Elk Grove Unified School District, filed a motion Aug. 5 asking for Newdow’s case to be dismissed. The school district noted that Newdow, because of Banning’s legal status, “does not have the right to control [his daughter’s] education.” The district also stated that “under God” was added to the Pledge of Allegiance “to acknowledge the role of God in history” but was not done so for a specifically religious purpose.
Compiled by Erin Curry & Art Toalston.