No loss for words on Pledge ruling
Deepa Bharath
NEWPORT-MESA -- Community members reacted with shock and disbelief at
a federal appeals court decision Wednesday that, for the first time ever,
declared the Pledge of Allegiance unconstitutional because of the words
“under God” added by Congress in 1954.
The ruling, if upheld, means schoolchildren can no longer recite the
pledge, at least in the nine Western states covered by the court. In a
2-1 decision, the 9th U.S. Circuit Court of Appeal said the phrase
amounts to a government endorsement of religion in violation of the
Constitution’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 Establishment Clause refers to the beginning of the 1st Amendment
of the Constitution, which states, “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.”
Richard Menees, associate rector at St. James Episcopal Church on Via
Lido in Cannery Village, said he is disappointed at the court’s decision.
“If there is a God, trying to weed him out of existence in such public
matters is at best a poor joke,” he said.
Menees said it was Congress that added the words “under God” to the
pledge 48 years ago.
“The pledge was modified by our majority government then,” he said.
“That’s how decisions are made in a democracy. Now it looks like we’re
not being governed by the majority but by the courts.”
The decision is “hardly surprising” given several past rulings on
similar issues, said Mary Ellen Gale, professor of constitutional law at
Whittier Law School in Costa Mesa.
“It definitely seems like an emotional and controversial issue to
many,” she said. “But this ruling does fit comfortably with an existing
line of decisions.”
The court made the right decision on the case because the Constitution
does uphold all citizens’ right to freedom of religion, Gale said. The
decision will probably be upheld by the U.S. Supreme Court, she said.
“It could be a very close question, like the issue of prayer in
schools has been in the past,” Gale said. “But, I hope, if it does go to
the Supreme Court, that they take it seriously because it is an important
issue.”
The last change in the Pledge of Allegiance occurred on Flag Day, or
June 14, 1954, when President Dwight Eisenhower approved adding the words
“under God.” As he authorized the change he said: “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.”
The two words should continue to remain in the pledge given the
nation’s time of turmoil since the September terrorist attacks, said Marc
Rubenstein, rabbi at Temple Isaiah of Newport Beach.
“At times like this, God is our only hope,” he said. “I think this
ruling is a slap in the face to religious institutions everywhere. Where
does this stop? Do we stop singing ‘God Bless America?’ Do we take God
out of the dollar bill? I’m shocked, and I feel sorry for God.”
Newport-Mesa Unified School District trustee David Brooks, who
recalled the words “under God” were added to the pledge when he was in
school, said he is unhappy with the court’s decision.
“It’s a shame,” he said. “This country was founded on our faith in
God.”
The case that prompted Wednesday’s decision was brought by Michael A.
Newdow, a Sacramento atheist who objected because his second-grade
daughter was required to recite the pledge at the Elk Grove School
District. A federal judge had dismissed his lawsuit.
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon and Washington state. Those are the only states
affected by the ruling. It will not take effect for several months,
however, to allow further appeals. The government can ask the court to
reconsider, or take its case to the U.S. Supreme Court.
But such a ruling is sure to stand its ground if it goes to the high
court, said Terry Francke, attorney for the California First Amendment
Coalition in Sacramento.
“I believe it would be upheld,” he said. “It might be a narrow, split
decision. But I believe it will stand.”
That is because the Supreme Court has been particularly sensitive to
the “subtly coercive” atmosphere in schools, Francke said.
“As adults, we always have the choice not to recite the Pledge of
Allegiance,” he said. “But in school, even if you’re different, you try
to conform. Because children in schools are automatically under various
pressures to conform, the state has to be careful what it requires them
to conform to.”
* Deepa Bharath covers public safety and courts. She may be reached at
(949) 574-4226 or by e-mail at o7 deepa.bharath@latimes.comf7 .
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