Pledge of Allegiance 'Unconstitutional,' Court Says

By Jim Burns | July 7, 2008 | 8:28 PM EDT

(4th Add: Includes comments by the Family Research Council and the Catholic League.)

( - The Ninth U.S. Circuit Court of Appeals in San Francisco ruled Wednesday that the Pledge of Allegiance is unconstitutional and should not be recited in schools.

Judge Alfred T. Goodwin wrote that the phrase "under God" is an unconstitutional endorsement of religion, and violates the establishment clause of the First Amendment of the Constitution.

"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 wrote for the three-judge panel.

The ruling overturns a 1954 act of Congress that added the phrase "under God" after "one nation" in the pledge.

The case stems from Michael Newdow, a Sacramento, Calif., father and self-described atheist, who didn't approve of his second-grade daughter having to recite the Pledge of Allegiance.

In an interview with Fox News, when asked how he plans to protect his family from possible threats in the wake of the court ruling, Newdow ironically said "pray."

The American Legion was incensed at the court ruling.

"This is a terrible ruling. The pledge is good for our young people. It's a pledge to the nation and its undergirding values and in no way has a corruptive effect on young people," American Legion spokesman Steve Thomas told

The American Center for Law and Justice, a public interest law firm, said the decision is faulty and flawed legal reasoning and should be overturned.

"The appeals court missed the mark and is rewriting the law instead of interpreting it. The recitation of the Pledge of Allegiance, including the phrase 'One nation under God,' is part of who we are as Americans," said Jay Sekulow, chief counsel of the ACLJ.

"This is just another attempt to remove any mention of God from the public arena. We will work aggressively to make sure this ruling gets overturned," vowed Sekulow.

"Obviously, the liberal Court in San Francisco has gotten this one wrong," House Speaker Dennis Hastert said in a statement. "Of course, we are one nation, under God. The Pledge of Allegiance is a patriotic salute that brings people of all faiths together to share in the American spirit.

"I strongly believe that parents, teachers and local schools should encourage children to recite the Pledge to start the day, the same way those of us in Congress begin our daily business, not allow a liberal judge to take it away. It's time for the Senate to move forward and confirm some common-sense jurists," Hastert added.

"We believe the 9th Circuit is clearly out of step with the people of this country and the history of its founding," said Family Research Council President Kent Connor. "The ruling represents another attempt to secularize a country born out of religious liberty."

"If the Pledge of Allegiance is unconstitutional, so is the Declaration of Independence," he said.

Catholic League President William Donohue called the California appeals court decision "one of the most foolish statements in the annals of civil-libertarian fanaticism."

"According to this logic, we simply can't have such an expression of free speech in this country and remain free. Students can wear T-shirts with obscenities on them, and they can practice simulated sex on stage in a school play, but they can't say the Pledge," said Donohue in a statement. "That's pushing the envelope too far."

He said the establishment clause "was written to prohibit government from encroaching on religion. It was not written to obliterate every religious vestige of our cultural traditions simply because some are hostile to our heritage."

Donohue called on teachers across the country to practice "civil disobedience" by leading their students in the pledge, while respecting dissenters' right not to participate.

"But before doing so, the teachers need to contact both the police and the media: it is vitally important that everyone watch on television the teachers being taken away in handcuffs for saying the Pledge of Allegiance. This will expose who the real authorities are and thus set the stage for a reversal of this madness," he said.

Virginia Attorney General Jerry Kilgore urged the state's schools to continue reciting the pledge, despite the ruling.

"Today, my advice to the public schools of Virginia is to continue reciting the Pledge of Allegiance," he said. "The 9th Circuit Court of Appeals has no jurisdiction here, but this ruling is an affront to all Americans."

The Ninth Circuit Court of Appeals covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state. Those are the only states directly affected by the ruling.

Court ruling 'pretty broad'

Robert Boston, a spokesperson for Americans United for the Separation of Church and State, called the decision a "pretty broad ruling," and that his organization was "surprised to see [the decision] to come down."

Boston warned against jumping to conclusions about the ruling, though, because it does not rid schools of the pledge, only the phrase "under God."

"I think it's important to keep in mind that they have not struck down recitation of the Pledge of Allegiance in public schools," he said. "It does strike down 1954 law that inserted 'under God' into the pledge. The schools can still recite the pledge in the original form."

In fact, Boston added, a 1943 ruling by the U.S. Supreme Court created a conscience clause, freeing those who were against saying the Pledge of Allegiance for religious or other reasons, such as Jehovah's Witnesses, from having to recite it.

Boston said he worries that the recent revival of patriotism in the wake of Sept. 11 will cause an emotional uproar across the nation.

"I'm afraid that this will cause an emotional reaction because of Sept. 11 patriotism," he said. "We don't need politicians stepping up and introducing new constitutional amendments protecting the pledge and so forth.

"Everyone needs to just take a deep breath and really look at what [the ruling] means," he said. "And for those who are against the ruling, they need to remember there are always appeals."

Boston said that Americans United has been against the 1954 addition to the pledge, but never thought it was worth pursuing.

"We think it was an unnecessary mistake in 1954," he said. "But it's not something we were litigating because we thought it was a dead issue."

Calls to the American Civil Liberties Union, Sens. Barbara Boxer (D-Calif.) and Dianne Feinstein (D-Calif.) were unreturned at press time.

Decision to be appealed

After the ruling, the Southwestern Legal Foundation announced it will file a friend of the court brief to appeal the court's decision.

"In 1996, the U.S. Supreme Court turned back an appeal to declare unconstitutional the nation's motto, 'In God We Trust,' and we are confident that the high court will apply the same judicial mindset to the 9th Circuit appeal," said SLF President Phil Kent.

He said the appeals court "has taken an extreme position in defense" of the establishment clause.

"Our attorneys will seek to join in the appeal as friends of the court, and will take the position that the state does not endorse a particular religion by generically mentioning God in the Pledge of Allegiance," said Kent. "I suppose the Declaration of Independence is next, as we are 'endowed by our Creator with certain unalienable rights."

Origins of 'under God'

The last change in the Pledge of Allegiance occurred on June 14, 1954, also known as "Flag Day," when President Dwight D. Eisenhower approved adding the words "under God."

"In this way we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resource in peace and war," Eisenhower said.

The San Francisco Federal Court has made several controversial rulings recently: one allows people who are part of the Rastafarian movement to legally smoke marijuana on federal grounds, a ruling that forces cities to make all city sidewalks accessible to the handicapped, and one that outlaws random searches of gas tanks of vehicles crossing into the U.S. Evening Editor Jason Pierce contributed to this report.

See Related Stories:
Senate Passes Resolution Against Pledge Ruling (June 26, 2002)
White House Says Court Ruling On Pledge Is 'Wrong' (June 26, 2002)

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