SAN FRANCISCO — A federal judge declared the reciting of the Pledge of Allegiance in public schools unconstitutional today in a case brought by the same atheist whose previous battle against the words “under God” was rejected by the U.S. Supreme Court on procedural grounds.
U.S. District Judge Lawrence Karlton ruled in Newdow v. Congress that the pledge’s reference to one nation “under God” violates schoolchildren’s right to be “free from a coercive requirement to affirm God.”
Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.
The latest decision could set up another church-state showdown at a time when the Supreme Court is in flux. John Roberts, who would succeed the late William H. Rehnquist as chief justice, is undergoing confirmation hearings, and Justice Sandra Day O’Connor is retiring when a successor is confirmed.
The Supreme Court dismissed the case, Elk Grove Unified School District v. Newdow, last year, saying Newdow lacked standing because he did not have custody of his elementary school daughter, on whose behalf he sued.
Newdow, an attorney and a medical doctor, filed an identical case on behalf of himself and three unnamed parents and their children. Karlton said those families had the right to sue.
Newdow is hoping to get the high court to remove the pledge’s reference to God and restore its pre-1954 wording, “one nation, indivisible, with liberty and justice for all.”
“All it has to do is put the pledge as it was before, and say that we are ‘one nation, indivisible,’ instead of dividing us on religious basis,” Newdow told the Associated Press.
Karlton, ruling in Sacramento, said he would sign a restraining order preventing the recitation of the pledge at the Elk Grove Unified, Rio Linda and Elverta Joint Elementary school districts, where the plaintiffs’ children attend.
The order would not extend beyond those districts unless it is affirmed by a higher court, in which case it would apply to nine western states, or the Supreme Court, which would apply to all states.
Superintendent Steven Ladd of Elk Grove Unified School District said the pledge would be recited until the school received the judge’s restraining order, which could happen any day.
“Our board has long supported the Pledge of Allegiance as an appropriate patriotic exercise for willing students,” he said.
Karlton, appointed to the Sacramento bench in 1979 by President Carter, wrote that the case concerned “the ongoing struggle as to the role of religion in the civil life of this nation” and added that his opinion “will satisfy no one involved in that debate.”
Karlton dismissed claims that the 1954 congressional legislation inserting the words “under God” was unconstitutional. If his ruling stands, he reasoned that the schoolchildren and their parents in the case would not be harmed by the phrase because they would no longer have to recite it at school.
In the Supreme Court’s 5-3 ruling dismissing Newdow’s previous case, justices Rehnquist, O’Connor and Clarence Thomas accused the majority of using Newdow’s standing to dodge the harder constitutional issue. In their dissent, they said they would have upheld “under God” as constitutional.
The Becket Fund, a religious rights group that is a party to the case, said it would immediately appeal the case to the San Francisco-based 9th Circuit. If the court does not change its precedent, the group says it will go to the Supreme Court.
“It’s a way to get this issue to the Supreme Court for a final decision to be made,” said fund attorney Jared Leland.
The decisions by Karlton and the 9th Circuit conflict with an August opinion by the 4th U.S. Circuit Court of Appeals in Richmond, Va. That court upheld a Virginia law requiring public schools to lead daily Pledge of Allegiance recitation, which is similar to the requirement in California.
A three-judge panel of that circuit ruled that the pledge is a patriotic exercise, not a religious affirmation similar to a prayer.
“Undoubtedly, the pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words ‘under God’ contain no religious significance,” Judge Karen Williams wrote for the 4th Circuit. “The inclusion of those two words, however, does not alter the nature of the pledge as a patriotic activity.”
Professors, politicians, pundits, religious groups and others immediately weighed in on the latest decision. Richard Ellis, a Willamette University politics professor who wrote To the Flag: The Unlikely History of the Pledge of Allegiance, said the stakes were high.
”For some people, the pledge is a statement that the United States is a chosen nation, that the United States is a nation under God, that it is God’s chosen nation,” Ellis said. “For others,” he said, “it reflects their belief in God.”
For Newdow, that’s precisely the problem.
“Imagine every morning if the teachers had the children stand up, place their hands over their hearts, and say, ‘We are one nation that denies God exists,’” he said.
“I think that everybody would not be sitting here saying, ‘Oh, what harm is that?’ They’d be furious. And that’s exactly what goes on against atheists. And it shouldn’t.”