SAN FRANCISCO A federal appeals court judge has put his own controversial Pledge of Allegiance decision on hold while the court decides how to respond to calls for a rehearing.
Judge Alfred T. Goodwin, who authored the 2-1 opinion that the phrase "under God" is unconstitutional, stayed his decision yesterday preventing it from taking effect until the 9th U.S. Circuit Court of Appeals decides whether it wants to change course.
The appeals court can rehear the case with the same three judges, or an 11-judge panel. It has often overturned controversial three-judge opinions. Goodwin's latest action has no immediate impact, since the ruling already was on hold by court rules for 45 days to allow for any challenges.
Goodwin's latest ruling does not overturn the decision, but places it in a permanent state of suspended animation until the court decides otherwise.
Attorney General John Ashcroft said yesterday the Justice Department would request a hearing by an 11-judge panel. As of yesterday afternoon, court clerk Cathy Catterson said no petitions for rehearing had been submitted.
Gov. Gray Davis and school officials in the town of Elk Grove, where the plaintiff lives, both promised to appeal.
Vikram Amar, a Hastings College of the Law scholar who closely follows the appeals court, says the latest ruling means that, for now, the June 26 opinion finding the pledge unconstitutional "has no legal force or effect."
"They're acknowledging the likelihood that the whole 9th Circuit may take a look at this," Amar said.
Goodwin's original ruling sparked outrage across the political spectrum by ruling it is unconstitutional for schoolchildren to recite or even be forced to listen to the Pledge of Allegiance, because it refers to God and amounts to a government endorsement of religion.
The words "under God" were inserted into the pledge by Congress in 1954 after a campaign by the Knights of Columbus, a Roman Catholic organization.
The judge's move yesterday was more symbolic than substantive. Given the general public outrage about the initial ruling, Goodwin wanted to make clear that children, for now, are not barred from reciting the pledge in class, legal experts said.
"This is not your ordinary run-of-the-mill decision," said Douglas Mirell, a Los Angeles constitutional law attorney. "Extraordinary cases may require extraordinary measures in order to clarify for the public and the world exactly what the results of the case are."
Craig Johnson, a constitutional rights attorney in New York, agreed.
"I think there was a lot of back channel pressure on these judges to put a stay on this given the initial public reaction," Johnson said. "I think 24 hours after the ruling has been issued, something is going on over there."
University of Southern California political science professor Alison Renteln said, "Maybe they didn't expect so much of an outcry."
This week's ruling was in response to a California atheist's bid to keep his second-grade daughter from being exposed to religion in school. The decision was met with widespread criticism, including from Congress and from President Bush, who called it "ridiculous."
Sen. Harry Reid, D-Nev., called Goodwin's order yesterday blocking the ruling "good news" as he announced it to the Senate.
Virtually the entire Senate showed up for a morning prayer yesterday to affirm that the United States is "one nation, under God." A nearly full House gathered moments later to recite the pledge, followed by a sustained standing ovation. A few House members then joined hands to sing the first line of "God Bless America."
If Goodwin's initial opinion takes effect, the ruling from the nation's most-overturned court would bar schoolchildren from reciting the pledge in the nine Western states the 9th Circuit covers.
The court took the case, Newdow v. Congress, after a federal judge dismissed Sacramento physician Michael Newdow's lawsuit. The U.S. Supreme Court has never squarely addressed the issue of the “under God” reference in the pledge.
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.