Lost Cause
It's a wrap!
- Joined
- Oct 7, 2001
- Posts
- 30,949
One more step toward a "Balkanized" America I guess. Whatta you think?
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals, based in San Francisco, said the reference to God violated the First Amendment's Establishment Clause, which requires a separation of church and state.
"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," Judge Alfred T. Goodwin wrote for the three-judge panel.
The effect of the court's decision is not immediate. The government will have several months to ask the court to reconsider its decision, or appeal to the U.S. Supreme Court.
The decision stunned lawmakers. Within hours, the Senate approved 99-0 a resolution in support of the Pledge of Allegiance. Lawmakers also instructed their legal counsel to intervene and defend the constitutionality of the pledge.
The Pledge of Allegiance was codified by Congress in 1942 as: "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation indivisible, with liberty and justice for all."
In 1954, it was changed to read: "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all."
An ‘Unacceptable Choice’ Between Participating and Protesting
In its ruling, the court said the U.S. Supreme Court has said students cannot hold religious invocations at graduations and cannot be compelled to recite the pledge. But being forced to listen to others make the pledge creates an "unacceptable choice between participating and protesting," the appeals court said.
"Although students cannot be forced to participate in recitation of the pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the pledge," the court said.
The case was brought by Michael A. Newdow, an atheist whose daughter attends a public school in California.
Newdow acknowledged that his daughter was not required to say the pledge in school. But he claimed in court documents her rights were violated when she was compelled to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our's [sic] is 'one nation under God.'"
After the decision, Newdow defended his decision to sue, saying: "There's a lot of theists who agree with me, as well."
"I think I'm a patriotic American," he said. "I'm upholding the Constitution. … Children shouldn't have the government telling them what the proper religious philosophy is."
In dissent, Judge Ferdinand F. Fernandez chided Goodwin's decision, which was joined by Judge Stephen Reinhardt.
"My reading … suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings," Fernandez wrote. "'God Bless America' and 'America the Beautiful' will be gone for sure, and while use of the first and second stanzas of the Star Spangled Banner [sic] will still be permissible, we will be precluded from straying into the third."
The government had argued that the religious content of "one nation under God" is minimal.
The 9th Circuit Court of Appeals has jurisdiction over California, Oregon, Washington state, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii.
Not Over Yet
Today's ruling was met with a mixture of shock and anger. In a statement to reporters, White House spokesman Ari Fleischer said President Bush had called the decision "ridiculous."
In a statement, Attorney General John Ashcroft called the decision "contrary to two centuries of American tradition." An appeal was certain.
"We are certainly considering seeking further review in the matter," Justice Department lawyer Robert Loeb said. Sen. Joseph Lieberman, D-Conn., predicted the decision would eventually be heard by the U.S. Supreme Court.
The National Republican Congressional Committee fired off a directive to GOP House members — including those in the 9th District — to call school boards to ignore this decision.
In a statement released this afternoon, the conservative Family Research Council called the 9th Circuit "clearly out of step with the people of this country and the history of its founding."
"The ruling represents another attempt to secularize a country born out of religious liberty," said the group's president, Ken Connor.
Experts say the ruling will present a challenge to the Supreme Court, since the justices have strongly supported separation of church and state.
"It presents a conundrum," said David Cole, professor at the Georgetown University Law Center. "On one hand, the Pledge of Allegiance under traditional Supreme Court tests is probably unconstitutional. On the other hand, it has been with us for so long, and so much a part of our culture that it is very unlikely that the Supreme Court is going to declare it unconstitutional."
Donald Downs, a political science and law professor at the University of Wisconsin in Madison, says he expects the ruling to be overturned.
"My guess is that, is that this is gonna get reversed," he said. "But then again, law is always a bit of a crapshoot."
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals, based in San Francisco, said the reference to God violated the First Amendment's Establishment Clause, which requires a separation of church and state.
"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," Judge Alfred T. Goodwin wrote for the three-judge panel.
The effect of the court's decision is not immediate. The government will have several months to ask the court to reconsider its decision, or appeal to the U.S. Supreme Court.
The decision stunned lawmakers. Within hours, the Senate approved 99-0 a resolution in support of the Pledge of Allegiance. Lawmakers also instructed their legal counsel to intervene and defend the constitutionality of the pledge.
The Pledge of Allegiance was codified by Congress in 1942 as: "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation indivisible, with liberty and justice for all."
In 1954, it was changed to read: "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all."
An ‘Unacceptable Choice’ Between Participating and Protesting
In its ruling, the court said the U.S. Supreme Court has said students cannot hold religious invocations at graduations and cannot be compelled to recite the pledge. But being forced to listen to others make the pledge creates an "unacceptable choice between participating and protesting," the appeals court said.
"Although students cannot be forced to participate in recitation of the pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the pledge," the court said.
The case was brought by Michael A. Newdow, an atheist whose daughter attends a public school in California.
Newdow acknowledged that his daughter was not required to say the pledge in school. But he claimed in court documents her rights were violated when she was compelled to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our's [sic] is 'one nation under God.'"
After the decision, Newdow defended his decision to sue, saying: "There's a lot of theists who agree with me, as well."
"I think I'm a patriotic American," he said. "I'm upholding the Constitution. … Children shouldn't have the government telling them what the proper religious philosophy is."
In dissent, Judge Ferdinand F. Fernandez chided Goodwin's decision, which was joined by Judge Stephen Reinhardt.
"My reading … suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings," Fernandez wrote. "'God Bless America' and 'America the Beautiful' will be gone for sure, and while use of the first and second stanzas of the Star Spangled Banner [sic] will still be permissible, we will be precluded from straying into the third."
The government had argued that the religious content of "one nation under God" is minimal.
The 9th Circuit Court of Appeals has jurisdiction over California, Oregon, Washington state, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii.
Not Over Yet
Today's ruling was met with a mixture of shock and anger. In a statement to reporters, White House spokesman Ari Fleischer said President Bush had called the decision "ridiculous."
In a statement, Attorney General John Ashcroft called the decision "contrary to two centuries of American tradition." An appeal was certain.
"We are certainly considering seeking further review in the matter," Justice Department lawyer Robert Loeb said. Sen. Joseph Lieberman, D-Conn., predicted the decision would eventually be heard by the U.S. Supreme Court.
The National Republican Congressional Committee fired off a directive to GOP House members — including those in the 9th District — to call school boards to ignore this decision.
In a statement released this afternoon, the conservative Family Research Council called the 9th Circuit "clearly out of step with the people of this country and the history of its founding."
"The ruling represents another attempt to secularize a country born out of religious liberty," said the group's president, Ken Connor.
Experts say the ruling will present a challenge to the Supreme Court, since the justices have strongly supported separation of church and state.
"It presents a conundrum," said David Cole, professor at the Georgetown University Law Center. "On one hand, the Pledge of Allegiance under traditional Supreme Court tests is probably unconstitutional. On the other hand, it has been with us for so long, and so much a part of our culture that it is very unlikely that the Supreme Court is going to declare it unconstitutional."
Donald Downs, a political science and law professor at the University of Wisconsin in Madison, says he expects the ruling to be overturned.
"My guess is that, is that this is gonna get reversed," he said. "But then again, law is always a bit of a crapshoot."
