SAN FRANCISCO A federal appeals court panel drew outrage from across the political spectrum by ruling yesterday that it is unconstitutional for schoolchildren to recite the Pledge of Allegiance, but the decision may not last long.
Some scholars say the ruling, which takes issue with the phrase "one nation under God," will likely either be overturned by the U.S. Supreme Court or reversed by the full 9th U.S. Circuit Court of Appeals.
"I would bet an awful lot on that," said Harvard University scholar Laurence Tribe.
Charles Haynes, First Amendment Center senior scholar, agreed, saying the decision "will very likely be overturned because it is inconsistent with prior lower court rulings and the views of Supreme Court justices found in the majority opinions of various church-state cases."
Yesterday's 2-1 ruling was in response to an atheist's bid to keep his second-grade daughter from being exposed to religion in school.
Circuit Judge Alfred T. Goodwin said leading schoolchildren in a pledge that says the United States is "one nation under God" is as objectionable as making them say "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."
The decision was met with widespread criticism.
President Bush found the ruling "ridiculous." Senate Majority Leader Tom Daschle, D-S.D., called it "just nuts." Sen. Christopher Bond, R-Mo., said it was "political correctness run amok."
"The Supreme Court itself begins each of its sessions with the phrase 'God save the United States and this honorable court,' " said White House spokesman Ari Fleischer. "The Declaration of Independence refers to God or to the creator four different times. Congress begins each session of the Congress each day with a prayer, and of course our currency says, 'In God We Trust.' "
If allowed to stand, the ruling from the nation's most-overturned Circuit Court would bar schoolchildren from reciting the pledge at least in the nine Western states the 9th Circuit covers. The decision does not take effect for several months.
Constitutional amendment introduced
Meanwhile, Sen. Mary Landrieu, D-La., yesterday introduced a constitutional amendment to allow references to God on U.S. currency and in the pledge, according to a news release from her press secretary.
"While God is infallible, clearly the judges are not," Landrieu said in a statement. "From the Dred Scott decision, which proclaimed African Americans to be property, to the twisted logic used today by the 9th Circuit Court, the courts have made decisions that are clearly wrong."
Landrieu said she hoped the courts would make her amendment unnecessary.
"I am confident that our court system will correct itself. But barring that, I offer this legislation as an option for this body to ensure that the Pledge of Allegiance is restored to its rightful place."
Landrieu's amendment stipulates that any reference to God in the Pledge of Allegiance or on U.S. currency shall not be construed as affecting the establishment of religion.
The Senate yesterday unanimously approved a resolution condemning the appeals court decision.
Criticism is nothing new to the 9th Circuit, which tends to make liberal, activist opinions. It also often hears cases that tend to challenge the status quo on issues like environmental laws, property rights and civil rights.
Case brought by Sacramento atheist
The court took up the case after a federal judge dismissed the lawsuit brought by Michael Newdow, a Sacramento physician with a law degree who represented himself.
"This is my parental right to say I don't want the government telling my child what to believe in," he said.
Newdow, an atheist, says he was trying only to draw a line between church and state not provoke a national furor when he went to court to challenge the Pledge of Allegiance.
Two years ago, Newdow sued because his second-grade daughter was compelled to listen to her classmates recite the pledge at the Elk Grove school district.
"Many people who are upset about this are people who just don't understand," Newdow said yesterday. "People have to consider what if they were in the minority religion and the majority religion was overpowering them."
Newdow said he sued the school district and Congress, among others, in an effort to restore the pledge to its pre-1954 version.
He said he had received a barrage of threatening phone calls because of the panel's ruling.
The U.S. Supreme Court has never squarely addressed the issue, Harvard scholar Tribe said. The high court has said schools can require teachers to lead the pledge but ruled students cannot be punished for refusing to recite it.
"It could be said that references to God in the Pledge and on our money constitute government 'endorsement' of religion," said the First Amendment Center's Haynes. "But such 'ceremonial deism' has been part of the warp and woof of American public life since the nation was founded.
"True, the courts are generally stricter in applying the establishment clause in the public schools and that's the only possible reason that this decision has any hope of being upheld," Haynes said. "But unlike state-imposed religious exercises, patriotic exercises that mention God are unlikely to be seen by the Supreme Court as coercive as long as kids are allowed to opt out."
But University of Southern California Law School professor Erwin Chemerinsky said he believed the appeals court was right.
"I believe the government can't act to advance religion," he said. "That's what Congress did by putting 'under God' in the pledge."
The appeals panel said President Eisenhower alluded to the religious aspects of the pledge on June 14, 1954, when he signed the insertion of the phrase "under God" into law.
"Millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty," Eisenhower said.
Dissenting Judge Ferdinand F. Fernandez, appointed by the first President Bush, chided the decision by Goodwin, a Nixon appointee, and Judge Stephen Reinhardt, appointed by President Carter.
Under "Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings," Fernandez wrote.
"'God Bless America' and 'America the Beautiful' will be gone for sure, and while use of the first and second stanzas of 'The Star Spangled Banner' will still be permissible, we will be precluded from straying into the third," he added.
Fernandez said the same logic would apply to using "In God We Trust" on the nation's currency.
Bond, the Missouri senator, had similar complaints.
"Our Founding Fathers must be spinning in their graves. This is the worst kind of political correctness run amok," Bond said. "What's next? Will the courts now strip 'so help me God' from the pledge taken by new presidents?"
Congress approved the change to the pledge at the height of the Cold War after a campaign by the Knights of Columbus, a Roman Catholic men's service organization. Americans deluged Congress with mail supporting the change, and religious leaders said the United States' pledge should be different from that of communist countries.
The appeals panel noted in yesterday's ruling that the U.S. Supreme Court has said students cannot hold religious invocations at graduations and cannot be compelled to recite the pledge.
But the appeals panel went a step further, ruling the Constitution protects students who don't believe in a monotheistic deity from even having to make an "unacceptable choice between participating and protesting."
The government had argued that the religious content of "one nation under God" is minimal, but the appellate court said the phrase can reasonably be seen by atheists or believers in certain non-Judeo-Christian religions as an attempt "to enforce a 'religious orthodoxy' of monotheism."
In other school-related religious cases, the high court has said that schools cannot post the Ten Commandments in public school classrooms. In March, a federal appeals court ruled that Ohio's motto, "With God, all things are possible," is constitutional and is not an endorsement of Christianity even though it quotes the words of Jesus.
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The appeals court gives parties time to appeal, and the government can also appeal to the Supreme Court.
In an extraordinary show of defiance, virtually the entire Senate showed up for a morning prayer today, heads bowed behind their desks, to affirm that the United State is "one nation under God."
"We acknowledge the separation of sectarianism and state, but affirm the belief that there is no separation between God and state," Senate Chaplain Lloyd Ogilvie said in the morning prayer, an event usually attended by only a handful of senators.