WASHINGTON Legislation to bar federal courts from ruling on constitutional issues arising from the Pledge of Allegiance, including the "one nation, under God" reference, passed the House yesterday after lawmakers argued that the pledge is linked to the nation's spiritual history.
Opponents countered that such a law, a priority of social conservatives, would undercut judicial independence and deny access to federal courts to religious minorities seeking to defend their rights.
The measure faced an uncertain future in the Senate after the House voted 260-167 yesterday.
"We should not and cannot rewrite history to ignore our spiritual heritage," said Rep. Zach Wamp, R-Tenn. "It surrounds us. It cries out for our country to honor God."
The pledge bill would deny jurisdiction to federal courts, and appellate jurisdiction to the Supreme Court, to decide questions pertaining to the interpretation or constitutionality of the pledge. State courts could still decide whether the pledge is valid within the state.
House Minority Whip Steny Hoyer, D-Md., said that while he supported the pledge, the bill would "intrude on the principle of separation of powers, degrade our independent federal judiciary and set a dangerous precedent."
The legislation grew out of a 2002 ruling by the 9th U.S. Circuit Court of Appeals that the pledge is unconstitutional when recited in public schools. The Supreme Court in its 2004 ruling in Elk Grove Unified School District v. Newdow reversed that 9th Circuit decision on a technicality, but the case has been revived.
House supporters of the bill, H.R. 2389, argued that the "under God" phrase, added to the pledge in 1954, must be protected from unelected judges.
Rep. Todd Akin, R-Mo., who sponsored the measure, said that denying a child the right to recite the pledge was a form of censorship. "We believe that there is a God who gives basic rights to all people and it is the job of the government to protect those rights," he said.
Davison Douglas, a professor at the William and Mary School of Law, says constitutional scholars are divided over whether such congressional restrictions on judicial review would pass constitutional muster.
"If this bill is enacted, it would be a highly significant landmark in terms of congressional efforts to control the actions of federal courts," Douglas said.
It is unclear whether the Senate will take up a companion bill during the current session.