Ninth Circuit Pledge Ruling 'Blew Up the Emotional Dam'

By Jeff Johnson | July 7, 2008 | 8:20 PM EDT

Capitol Hill ( - Less than two days after ruling the phrase "under God" violated the so-called "establishment clause" of the First Amendment, a three-judge panel of the Ninth U.S. Circuit Court of Appeals issued a stay of its own ruling. Analysts now say the intensity of the public response to the ruling is the result of unresolved emotions stemming from the Sept. 11th terrorist attacks.

"Pre 9-11, they would have opened a floodgate on American emotional sentiment," Joseph Grieboski, president of the Institute on Religion and Public Policy told "Post 9-11, they blew up the emotional dam."

The fear and anger Americans felt following the attacks, Grieboski adds, have never really been adequately addressed.

"This kind of action by the judges thumbs their noses at a majority of the population who are religious believers [and] the First Amendment, not just on religious freedom, but also in freedom of speech," he added. "The very things that were attacked on 9-11, were now also being attacked by courts in the United States."

In the majority opinion for the court's two to one decision, Judge Alfred T. Goodwin wrote that the phrase "under God" is an unconstitutional endorsement of religion.

"A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that 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," Goodwin opined.

Response from Congress was swift, with both houses passing resolutions condemning the ruling and affirming the 1954 act of Congress that inserted the phrase into the pledge. Senate Majority Leader Tom Daschle (D-S.D.) called the court's decision "nuts." Sen. Robert Byrd (D-W.V.) said that the two judges who ruled against the pledge were "stupid."

Late Thursday afternoon Goodwin issued a stay in the case, which means that the court's decision will stand but will not be enforced. The stay will presumably extend beyond the court's 45-day "grace period" for the filing of appeals.

Valle Dutcher, general counsel for the Southeastern Legal Foundation, was surprised that the court would delay enforcement of the ruling.

"More frequently what happens is you have a motion from one of the parties for a re-hearing en banc [by the full body]," she explained. "I would characterize it as relatively uncommon for a panel to render a decision and then, in essence, get cold feet."

The overwhelming political and public opposition to the ruling may, Dutcher believes, have contributed to the decision to stay the ruling.

"Don't think that just because they wear black robes that they don't watch TV and read the newspapers," she said. "[The public outcry] certainly may have led these three judges to get their heads together in chambers and say, 'Perhaps we should give this thing another shot.'"

Grieboski agrees.

"They had to know that there would be some kind of public outcry," he said, adding that it the issuance of a stay by the same judge who wrote the controversial opinion doesn't make sense.

"If this really was an issue of 'courage of their convictions,' then they would have stuck with it," he assumed. "But this is an issue of judicial activism on the one hand, and then the courts giving in to public pressure on the other, which - no matter how we look at it - is a bad thing."

Grieboski argues that basing judicial decisions on public opinion is an indication of trouble within the judiciary.

"What they did was wrong and then the way they fixed it was wrong, too," he continued. "Part of the problem is that now, when a court decision such as this has raised such great public furor, no matter what any court does, even the Supreme Court, it will be seen as a political issue and a political move."

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