Pledge of Allegiance Resources
On June 26, 2002, a divided three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit ruled in Newdow vs. U.S. Congress that the phrase “under God” in the Pledge of Allegiance violates the Establishment Clause of the First Amendment to the Constitution.
The 2-1 ruling sparked immediate reaction from many corners. President Bush, then-Senate Majority Leader Tom Daschle and other leading politicians criticized the court’s ruling. The Senate voted 99-0 and the House of Representatives voted 416-3 to reaffirm the words “under God” in the Pledge. The American Center for Law and Justice criticized the Ninth Circuit’s ruling as flawed while the American Civil Liberties Union praised the decision as “consistent with recent Supreme Court rulings invalidating prayer at school events.”
The Elk Grove School District and the United States petitioned for rehearing of the case by the three-judge panel and by the full Ninth Circuit. On February 28, 2003, the court amended its earlier ruling and announced that neither the panel nor the full Ninth Circuit would rehear the case. The amended opinion affirmed the earlier ruling that the school district’s policy of teacher-led recitation of the Pledge with the inclusion of the words “under God” was unconstitutional, but it pulled back from its earlier conclusion that the 1954 Act adding the words “under God” to the Pledge was unconstitutional. The ruling was subsequently stayed, allowing schools in Western states to continue public recitations of the Pledge. Petitions for writ of certiorari were filed with the U.S. Supreme Court, and the Court agreed to hear arguments on the constitutionality of the school district’s Pledge policy.
In October 2003, Justice Antonin Scalia said that he would not take part in the case. Mr. Newdow, the California atheist who brought suit on behalf of his daughter, had earlier filed papers with the Supreme Court asking Scalia to recuse himself because the justice had spoken critically of the Ninth Circuit’s ruling at a Religious Freedom Day observance in Fredericksburg, Virginia, in January 2003.
On March 24, 2004, the U.S. Supreme Court heard oral argument in the Pledge case. In what commentators agreed was a surprisingly eloquent performance for a plaintiff representing himself, Michael Newdow attacked the Pledge as an unconstitutional “[slap] in the face” that suggests to those who do not believe in God that their “religious belief system is wrong.” U.S. Solicitor General Theodore Olsen and Elk Grove School District Attorney Terence J. Cassidy defended the teacher-led recitation of the current Pledge of Allegiance on behalf of the Elk Grove school district. Mr. Olsen characterized the phrase “under God” as “descriptive” and “ceremonial” rather than a prayer or “religious invocation.”
The Court ruled on June 14, 2004 that Michael Newdow lacked standing to sue and left the Pledge intact, arguing that the child’s mother, Sandra Banning, has “what amounts to a tie-breaking vote” on issues related to the child’s education. The ruling did not directly address the issue of referencing God in the Pledge.
On September 14, 2005, a federal judge in Sacramento ruled that it was unconstitutional to require public school children to recite the words “under God” in the Pledge. Gov. Arnold Schwarzenegger issued a statement urging the school districts to appeal the ruling. U.S. Attorney General Alberto Gonzales has said that the Justice Department will fight to overturn the ruling, stating that the Pledge is one of several expressions of national identity and patriotism that mentions God but doesn’t violate the Constitution’s ban on state-sponsored religion.
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