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Elsewhere: Court: ‘Under God’ in Pledge is constitutional Chron

7:46 PM: A federal appeals court in San Francisco today upheld the reciting of the Pledge of Allegiance with the words “under God” in public schools.

A 9th U.S. Circuit Court of Appeals panel said by a 2-1 vote that having teachers lead children in reciting the pledge is not an unconstitutional government establishment of religion because the purpose of the pledge is patriotic, not religious.

Judge Carlos Bea wrote, “The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our republic was founded.”

Judge Stephen Reinhardt argued in a lengthy dissent that the words “under God” – inserted by Congress during the Cold War in 1954 – had an unconstitutional “undeniably religious purpose.”

Reinhrdt wrote, “The previously secular Pledge of Allegiance was amended with the express purpose of promoting a state-sponsored belief in God and of indoctrinating school children with that belief.”

Michael Newdow, an atheist father and emergency room doctor from Sacramento who sued to challenge the wording, said he will appeal to an expanded 11-judge panel of the court and then to the U.S. Supreme Court if necessary.

Newdow said, “I’m disappointed. I believe our government is supposed to treat all religious views with equal respect and I don’t think it’s doing that.”

In a second ruling, the same panel by a 3-0 vote rejected another lawsuit in which Newdow challenged the use of the words “In God We Trust” on coins and currency.

The Pledge of Allegiance case was the second time that Newdow’s challenge to the words “under God” came before the appeals court.

In a 2002 ruling on an earlier lawsuit filed by Newdow, a 9th Circuit panel said by a 2-1 vote that requiring children to hear the pledge with the reference to God was unconstitutional.

That decision created a national firestorm of controversy. The case eventually reached the U.S. Supreme Court, which dismissed it on a technical ground in 2004, saying Newdow didn’t have standing to sue because he didn’t have custody rights over his daughter’s education.

Newdow then refiled the case in federal court in Sacramento in 2005 on behalf of an atheist mother who did have custody of her kindergarten-age daughter in the Rio Linda Union School District.

The lawsuit challenged a California education law that mandates “daily appropriate patriotic exercises” in public schools and says that reciting the pledge fulfills the requirement.

Under a 1943 U.S. Supreme Court ruling, handed down before the pledge was revised to refer to “one nation under God,” children have the right to opt out of reciting the pledge.

But Newdow and the unidentified mother argued that it is coercive to require children to choose between participating in the pledge or drawing attention to themselves by remaining silent or leaving the room.

Bea and Judge Dorothy Nelson said in the majority opinion that they agreed that children are coerced to listen to the pledge, saying, “We recognize that elementary school children are unlikely to walk out of the classroom in protest.”

But Bea and Nelson noted that students are required to do many things in school, such as learning math, and said, “Here, students are being coerced to join in a patriotic exercise, not a religious exercise.”

Bea and Nelson said in a 57-page opinion that Congress added the words “under God” to illustrate the belief of the nation’s founders that government should be limited and that citizens have certain inalienable rights endowed by their creator.

Bea wrote, “Congress’s ostensible and predominant purpose when it enacted and amended the pledge over time was patriotic, not religious.”

Reinhardt charged in a 136-page dissent that the majority’s argument about limited government is “pure poppycock, fabricated by the members of the majority in order to obfuscate the issues before us.”

Reinhardt said the senators and representatives who unanimously amended the pledge in 1954 proudly proclaimed a religious purpose.

He accused the court majority of “twisting, distorting and misrepresenting the law” and U.S. Supreme Court doctrines.

Reinhardt wrote, “Today’s majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts.”

Reinhardt, who was in the majority in the court’s earlier ruling in 2002, was the only judge on that panel who was also on the panel in today’s decision.

Newdow’s planned appeal, if filed, would be referred to the full 26-member appeals court for a vote on whether to reconsider the case. If a majority agrees to grant review, the case would then be assigned to a randomly drawn panel of 11 judges of the court, known as an en banc panel.

The final possible step after that would be an appeal to the U.S. Supreme Court.

The pledge, written by Baptist minister Francis Bellamy in 1892, was recognized by Congress as the official national pledge in 1942.

The Knights of Columbus, a Catholic lay organization based in New Haven, Conn., was a leader of a campaign in the 1950s to add the words “under God.”

The group was allowed to become an official party in Newdow’s lawsuit, joining the U.S. Justice Department in defending the wording.

The organization’s chief executive officer, Supreme Knight Carl Anderson, said, “This decision is a victory for common sense. This is a very good day for America.”

Anderson praised a sentence in which the court majority said the words invoking God “add the note of importance which a pledge to our nation ought to have and which in our culture ceremonial references to God arouse.”

Anderson said, “Every reasonable person knows that, and today’s decision is a breath of fresh air from a court system that has too often seemed to be almost allergic to public references to God.”

12:02 PM: A federal appeals court in San Francisco today upheld the reciting of the Pledge of Allegiance with the words “under God” in public schools.

A panel of the 9th U.S. Circuit Court of Appeals said by a 2-1 vote that having teachers lead children in reciting the pledge is not an unconstitutional government establishment of religion because the purpose of the pledge is patriotic, not religious.

Judge Carlos Bea wrote, “The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our republic was founded.”

Judge Stephen Reinhardt said in a lengthy dissent that the words “under God” – inserted by Congress during the Cold War in 1954 – had an “undeniably religious purpose.”

The court ruled in a lawsuit filed in federal court in Sacramento by Michael Newdow, an atheist father and emergency room doctor, and three other parents.

It was the second time that Newdow’s challenge to the pledge came before the court.
In an earlier ruling in 2002, a 9th Circuit panel by a 2-1 vote said that requiring children to hear the pledge with the reference to God was unconstitutional.

That ruling created a national firestorm of controversy. It eventually reached the U.S. Supreme Court, which dismissed the case on a technical ground, saying that Newdow didn’t have standing to sue because he didn’t have legal custody rights over his daughter’s education.

Newdow then refiled the case with three other parents who did have custody of their children.

The lawsuit challenged a California education law that mandates “daily appropriate patriotic exercises” in public schools and says that reciting the pledge fulfills the requirement. Children are allowed to opt out of reciting the pledge.

Newdow was not immediately available for comment on the ruling, which could be appealed to an expanded panel of the circuit court and then to the Supreme Court.

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  • Greg Dewar

    3 ironies about the pledge of allegiance, in the era of hyper sensitive right wingers and the fact we call everything we don’t like “socialism” now:

    1. the pledge was written by an actual socialist. this is not made up, people can look it up.

    2. the original salute included the “Bellamy Salute” which looked a little too much like another salute, so they changed it:

    http://en.wikipedia.org/wiki/File:Pledge_salue.jpg

    3. “Under God” was not in the original pledge. It was not added until 1954. No, really.