Full 9th will hear the Pledge case:
msnbc.com
Judge stays own ruling on pledge
Action will allow full appeals
court to review decision
June 27 -- Attorney General John Ashcroft said
Thursday that a new hearing will be requested
on the constitutionality of the word ``God’’ in
the nation’s pledge. NBC's George Lewis
reports.
NBC, MSNBC AND NEWS SERVICES
June 27 — A day after he shocked the nation by
declaring the Pledge of Allegiance
unconstitutional, a federal appeals court judge put
his ruling on hold Thursday.
• Yellow Pages
• Auctions at uBid
• Personals Channel
• Professional Tips
• Newsletters
• Shopping
June 27 — Atheist Michael
Newdow of Sacramento,
Calif., tells “Today” show
host Katie Couric that he
believes he is
strengthening the
Constitution by opposing
the Pledge of Allegiance’s
reference to God.
CIRCUIT JUDGE ALFRED T. GOODWIN, who
wrote the 2-1 opinion that said the phrase “under God”
violates the separation of church and state, stayed his ruling
until other members of the 9th U.S. Circuit Court of Appeals
decide whether to change course.
The appeals court can rehear the case with the same
three judges or with the full 11 judges on the court. Later
Thursday, the U.S. Justice Department announced it would
request a hearing by the full court.
Goodwin’s action Thursday has no immediate impact,
since the ruling already was on hold by court rules for 45
days to allow for any challenges.
Vikram Amar, a Hastings College of the Law scholar
who closely follows the appeals court, said the latest ruling
means that, for now, Wednesday’s opinion finding the pledge
unconstitutional “has no legal force or effect.”
“They’re acknowledging the likelihood that the whole 9th
Circuit may take a look at this,” Amar said.
In Washington, U.S. Attorney General John Ashcroft
said in a statement, “The Justice Department will defend the
ability of our nation’s children to pledge allegiance to the
American flag, by requesting a rehearing en banc by the full
Ninth Circuit. At this time when citizens from all backgrounds
have come together to express their solidarity as Americans,
this Justice Department will spare no effort to preserve the
rights of all Americans. These efforts include ensuring that
the youngest among us can express their patriotism through
the time-honored tradition of voluntarily reciting the pledge.”
OUTRAGE CONTINUES
The panel’s ruling continued to draw outrage from
across the political spectrum on Thursday.
Officials of the Elk Grove School District in Sacramento,
Calif., on Thursday indicated they intend to appeal
Wednesday’s ruling by a three-judge panel of the 9th U.S.
Circuit Court of Appeals in San Francisco. But they said they
had not yet decided whether to file for review by the the full
appeals court or the Supreme Court.
Does the Pledge of
Allegiance violate the
constitutional
separation of church
and state?
Yes. The phrase
"under God" should
not have been
added.
No. The phrase does
not endorse a
specific religion or
abridge freedom of
worship.
Vote to see results
“We are proud to defend the Pledge of Allegiance, and
we will do whatever it takes to get this decision reversed,”
said Elk Grove Superintendent Dave Gordon, adding that the
state of California and the Justice Department have indicated
an interest in participating in the appeal.
Many legal experts are confident that the ruling, which
said that the words “under God” amounted to an
endorsement of religion, will be overturned by one of the
courts.
“I would bet an awful lot on that,” said Harvard
University scholar Laurence Tribe.
And Christopher Landau, an appellate lawyer in
Washington and a former clerk for Supreme Court Justices
Antonin Scalia and Clarence Thomas, told The New York
Times that he was certain the Supreme Court would reverse
the decision.
‘PRIMARILY CEREMONIAL’?
“In their heart of hearts, I don’t think the justices would
ever think that this kind of a practice is unconstitutional,”
Landau told the newspaper. “And I think that they’ll probably
say that this is a tradition and that it is primarily ceremonial.”
But others say that the appeals court decision squares
with the Constitution’s strict separation of church and state.
“I believe the government can’t act to advance religion,”
said University of Southern California School of Law
professor Erwin Chemerinsky. “That’s what Congress did by
putting ‘under God’ in the pledge.”
And Arthur Hayes, a
law professor at
Quinnipiac University, told
the Times that the decision
is a “well-reasoned opinion
that is certain to enrage
the Christian right.”
The 9th Circuit
covers Alaska, Arizona,
California, Hawaii, Idaho,
Montana, Nevada, Oregon
and Washington state, and
only those states are
directly affected by the
ruling.
The Supreme Court
has flip-flopped on the
pledge, first ruling in 1940 that public school students could be
forced to salute the American flag and say the pledge. Three
years later the court said an individual who doesn’t want to
salute the flag or say the pledge may refuse.
Read the court ruling, dissent
But the appeals court panel’s decision — by Goodwin, a
Nixon appointee, and Judge Stephen Reinhardt, appointed by
President Carter — went a step further. The Constitution, the
judges said, protects students who don’t believe in a
monotheistic deity from even having to make an
“unacceptable choice between participating and protesting.”
In a dissent, Judge Ferdinand Fernandez said the phrase
“under God” had no tendency to establish religion or suppress
anyone’s ability to exercise the religion of his or her choice,
“except in the fevered eye of persons who most fervently
would like to drive all tincture of religion out of public life.”
He said the ruling, if it stood, would preclude the singing
of “God Bless America” and “America the Beautiful” in
schools.
Advertisement
POLITICAL FALLOUT
While legal experts were divided on the constitutional
questions raised by the ruling, politicians were unanimous in
denouncing it.
President Bush on Thursday said the ruling was “out of
step with the traditions and history of America” and promised
to appoint judges who affirm God’s role in the public square.
“America is a nation ... that values our relationship with
an Almighty,” Bush told reporters as he began a meeting with
Russian President Vladimir Putin at a summit of world
industrial powers.
“The declaration of God in the Pledge of Allegiance
doesn’t violate rights. As a matter of fact, it’s a confirmation
of the fact that we received our rights from God, as
proclaimed in our Declaration of Independence.”
•
1892
•
1923 and 1924
•
1954 |
