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Round 2: Judge rules pledge in schools unconstitutional

SACRAMENTO, Calif. (BP)–In re-treading ground that had already been covered, a federal judge ruled Sept. 14 that requiring students to recite the Pledge of Allegiance containing the words “under God” in public schools is unconstitutional.

Michael Newdow, a Sacramento atheist, had filed a suit and gotten the Ninth U.S. Circuit Court of Appeals in San Francisco to rule in 2002 that the pledge was unconstitutional, but once it reached the Supreme Court, the justices ruled in 2004 that Newdow lacked appropriate legal standing to file the case because he did not have full custody of his daughter, on whose behalf he sued.

The high court’s ruling left open the door for Newdow to round up other parents of elementary school children who said their children were offended by the daily reciting of the pledge. In January, Newdow filed a similar federal suit on behalf of three unnamed parents asking the court to rule as unconstitutional a 1954 law inserting the phrase “under God” into the pledge.

U.S. District Judge Lawrence Karlton ruled in Sacramento Sept. 14 that the three families have the right to sue and that the pledge’s reference to “one nation under God” violates children’s right to be “free from a coercive requirement to affirm God.” Karlton said he was bound by the precedent set by the Ninth Circuit the first time around.

Because the judge limited his ruling to the three Sacramento-area school districts listed in the lawsuit, a ruling by either the Ninth Circuit or the U.S. Supreme Court would be required for wider impact.

The Supreme Court has an increased chance of hearing the case given that the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., upheld a Virginia law in August requiring public schools to lead daily Pledge of Allegiance recitations, ruling that the pledge is a patriotic exercise, not a religious affirmation similar to a prayer.

Observers predict the pledge case would not return to the Supreme Court before the 2006-07 session, which heightens the importance of who is selected to fill the two current court vacancies left by Chief Justice William Rehnquist’s death and Associate Justice Sandra Day O’Connor’s retirement.

Karlton’s ruling was handed down as chief justice nominee John Roberts was in the midst of confirmation hearings before the Senate Judiciary Committee, but Sen. Jeff Sessions, R.-Ala., refrained from asking Roberts’ opinion on the decision since the case may yet be presented to the court, according to a report by The San Francisco Chronicle.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, simply called the ruling “absurd.”

“It shows the degree to which some federal judges carry their hostility to the religious heritage of our nation,” he said in a statement to Baptist Press. “What’s next? Taking ‘In God We Trust’ off of our money? If the Ninth Circuit Court of Appeals does not strike down this ludicrous ruling, the U.S. Supreme Court undoubtedly will, particularly with John Roberts as chief justice.

“If, for some unfathomable reason, the Supreme Court were to uphold this California federal judge’s decision, I predict you will see the fastest ratification of an amendment to the Constitution in our nation’s history,” Land added. “Congress and state legislatures will rush to compete with each other to see who can most quickly ratify an amendment that will guarantee the constitutionality of the Pledge of Allegiance. Nine out of 10 Americans disagree with this ruling; you cannot subvert the will of 90 percent of Americans forever.”

The Washington-based Becket Fund for Religious Liberty announced immediately after the ruling that it would appeal the decision to the Ninth Circuit and to the Supreme Court if necessary.

“This decision is legally flawed and we’re hopeful that the decision ultimately will be overturned,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which supports the pledge. “This is another example of a federal district court exhibiting hostility toward a time-honored tradition which has been defended by numerous justices including Justice O’Connor who said eliminating such references ‘would sever ties to a history that sustains this nation even today.’

“This decision underscores the importance of the federal judiciary and who serves on the Supreme Court of the United States,” Sekulow added. “The pledge clearly acknowledges the fact that our freedoms in this country come from God, not government, and we’re hopeful this flawed decision will ultimately be rejected.”

In response to Karlton’s announcement that he would soon issue a stay ordering that the practice of reciting the pledge be halted in certain Sacramento schools, William Donohue, president of the Catholic League, called on California public school teachers to engage in civil disobedience.

“Now that U.S. District Judge Lawrence Karlton has said he would sign a restraining order banning the recitation of the Pledge of Allegiance in some California school districts, the time has come for patriotic teachers in those schools to practice civil disobedience,” he said. “They need to lead their students in the pledge, bellowing the dreaded words ‘under God.’

“But nothing should be done until the television cameras are in place. The sight of teachers being handcuffed by the police would be an invaluable teaching moment,” Donahue added. “Settling this issue in court is fine, but it is inadequate: it’s time to shock the conscience of the nation by bringing this matter directly into their living rooms.”

Tom Minnery, Focus on the Family Action’s vice president of government and public policy, expressed regret that the Pledge of Allegiance is again under fire.

“Once again, we are haunted by the terrible ruling by the Ninth Circuit that attempted to eradicate God from the public square,” he said in a statement. “This country was founded on the acknowledgement of God and His blessings on this land. And now, because the Supreme Court failed to rule on the merits of Michael Newdow’s original case, ‘under God’ is in the crosshairs again.”

Minnery added that Karlton’s ruling “further underscores the importance of swiftly confirming Judge John Roberts to the Supreme Court. It is only a matter of time before this case is brought back to Washington — and it is imperative that Roberts, a strict constructionist, is leading that court.”

The phrase “under God” was added to the pledge in 1954 by legislation that recognized a belief that “from the time of our earliest history our peoples and our institutions have reflected the traditional concept that our nation was founded on a fundamental belief in God,” according to the House Report that accompanied its passage.

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