Court Upholds Ruling Against 'Under God'

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Posted by Jeff from ( on Saturday, March 01, 2003 at 9:52AM :

Court Upholds Ruling Against 'Under God'
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By JUSTIN PRITCHARD, Associated Press Writer

SAN FRANCISCO A federal appeals court stood by its ruling that reciting the Pledge of Allegiance in public schools is unconstitutional because of the words "under God," perhaps setting the stage for a U.S. Supreme Court (news - web sites) fight over a decision that prompted a nationwide outcry.

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Bush administration officials strongly condemned Friday's ruling by the 9th U.S. Circuit Court of Appeals (news - web sites), though they stopped short of saying they would appeal to the Supreme Court.

"We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge," Attorney General Ashcroft said.

Ruling on a lawsuit brought by Sacramento atheist Michael Newdow, a 9th Circuit panel decided 2-1 last June that Newdow's daughter should not be subjected to the words "under God" at her public school.

Friday's ruling reaffirmed that part of the original decision. Though the ban does not go into effect immediately, officials at the Sacramento-area Elk Grove Unified School District, where Newdow's daughter has been enrolled, said students would not recite the pledge starting Monday morning.

"We don't want to take a chance on anyone feeling we're violating the law," said superintendent Dave Gordon, who promised to appeal the case.

In a telephone interview Friday with The Associated Press, Newdow praised the court.

"This makes our country stronger when everyone's views are given equality, especially when it comes to religion," said Newdow, who received death threats last summer after the initial ruling.

Told that Elk Grove's 53,000 students would no longer be asked to recite the pledge, he added, "It's good to know they're following the Constitution."

Judges Alfred Goodwin and Stephen Reinhardt wrote last year that the phrase was an endorsement of God, and that the Constitution forbids public schools or other governmental entities from endorsing religion. They amended their opinion Friday to say it does not restrict the use of the pledge in all public settings, but applies only to public schools where children might feel coerced to recite the words "under God."

It was not immediately clear when the ban might be enforced for all of the 9.6 million students who live in the nine states covered by the 9th Circuit. As with all appellate rulings, it won't take effect for several weeks to allow time for an appeal.

Only nine of the 24 active judges wanted the full circuit to reconsider. Writing for the dissenters, Judge Diarmuid F. O'Scannlain noted that last year's decision provoked a public outcry across the nation. The judge said it defies common sense, and "contradicts our 200-year history and tradition of patriotic references to God."

Judge Ferdinand F. Fernandez, the lone vote against the initial 9th Circuit ruling, said the words "under God" have caused no real harm over the years, "except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life."

Reinhardt lashed out at the "disturbingly wrong-headed" dissent that public outcry over the pledge ruling should have persuaded the circuit to reconsider.

"The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties," Reinhardt wrote.

President Bush (news - web sites) and Congress immediately condemned last year's ruling, which would prevent public schoolchildren from reciting the pledge in the nine western states covered by the nation's largest and, critics charge, most liberal appeals court. Those states are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Newdow's lawsuit began as a challenge to a 1954 decision by Congress to add the words "under God" to the pledge. The lawsuit later sidestepped into a parental rights case over a custody dispute between Newdow and his 8-year-old child's mother, Sandra Banning of Elk Grove.

In response to the court's original ruling, Banning asserted that her daughter is not harmed by reciting the pledge. Banning, who now has legal custody of the girl, urged the court to consider whether Newdow had legal standing to bring the case on behalf of his daughter. The court said Newdow did have standing.


Associated Press Writer Jim Wasserman in Sacramento contributed to this report.

-- Jeff
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