A federal appeals court yesterday ruled that the Pledge of Allegiance is unconstitutional and must not be recited in schools.
"In the context of the Pledge, the statement that the United States is a nation 'under God' is an endorsement of religion," a panel of the 9th U.S. Circuit Court of Appeals said in a 2-1 decision. "To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and—since 1954—monotheism. … 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."
The ban (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) elicited immediate responses from politicians and advocacy organizations.
"The President's reaction was that this ruling is ridiculous," White House spokesman Ari Fleischer said. "The view of the White House is that this was a wrong decision, and the Department of Justice is now evaluating how to seek redress."
The Associated Press quotes President Bush this morning saying that the decision is "out of step" with the country's history. "America is a nation ... that values our relationship with the Almighty," Bush said. "We need commonsense judges who understand that our rights were derived from God."
Atheist Michael A. Newdow first filed the suit in 1998 on behalf of his then-four-year-old daughter, when the two lived in Broward County, Florida. Courts dismissed the trial there because his daughter wasn't yet in school, so he moved to California and tried again.
His complaint wasn't that his daughter would be forced to recite the Pledge—courts have upheld the right not to say it since even before "under God" was added in 1954—but that his daughter was injured simply by being forced to watch and listen.
"There are lots of cases like this that are filed that you never hear anything about because they die a quiet death, but this one didn't," says Greg Baylor, director of the Christian Legal Society's Center for Law and Religious Freedom. "The other thing that made this fly under the radar was that he was not represented by anybody, particularly some group that has a PR machine that gets the word out about it."
Newdow, a physician with a law degree, represented himself in the case.
Though not parties to the case, both the American Civil Liberties Union (which turned it down) and Americans United for the Separation of Church and State defended the court's decision. "Schools can and should teach tolerance and good citizenship, but must not favor one religion over another or belief over nonbelief," said an ACLU press release.
Religious advocacy organizations also responded quickly to the decision. "We believe the 9th Circuit is clearly out of step with the people of this country and the history of its founding," said Family Research Council president Ken Connor in a press release. "The ruling represents another attempt to secularize a country born out of religious liberty."
"While [the court] may be under the foolish notion that we have surpassed the need to honor or acknowledge him, they must not be allowed to force their damnable arrogance on the rest of us," said Concerned Women for America president Sandy Rios.
American Family Association president Tim Wildmon also criticized the ruling. "The 9th Circuit seems to be on a search and destroy mission to remove any and all vestiges of our religious heritage from the public square," he said.
The 9th Circuit Court is often the target of criticism from religious conservatives—it upheld a school's right to deny a valedictorian's religious speech in 2000, for example, and recently considered whether the parsonage tax exemption is unconstitutional.
In 1970, however, the court defended the inscription "In God We Trust" on currency. In yesterday's decision, the appeals court took note of this decision, but argued the cases are too different: "School children are not coerced into reciting or otherwise actively led to participating in an endorsement of the markings on the money in circulation."
"The 9th Circuit Court of Appeals is the most reversed court in the country by the United States Supreme Court," notes Mat Staver, president of Liberty Counsel, a nonprofit legal organization specializing in religious-freedom cases. "In one recent survey, the U.S. Supreme Court reversed the Ninth Circuit 80 to 90 percent of the time in one term."
Likewise, Staver tells Christianity Today, this decision will be overturned by the Supreme Court if not by the full 9th Circuit Court of Appeals. In the meantime, he says, the decision will likely make the pledge more popular than ever. "I think it will galvanize Americans and actually wake Americans up to the judicial activism that's in the courts," he said.
But it may also make school administrators across the country wary about any mention of God in the classroom, says John Whitehead, president of The Rutherford Institute, which also specializes in religious-liberty cases. However, he warns against caricaturing the ruling. "This was a decision carefully based on precedent. It's not a flim-flam decision, and it's not a flim-flam case."
Whitehead agrees that the Supreme Court will likely overturn the decision if the full 9th Circuit doesn't do so first, but he predicts it would be a 5-4 decision. "There's a lot of ambiguity right now about the use of the word God," he says. "Our country has been undergoing an identity crisis since the 1940s. This is not an illegitimate issue based on today's society."
However, says Whitehead, by striking "Under God" as unconstitutional, the court has called into question even more important religious references. "According to the Declaration of Independence," he says, "the very right this father used to sue comes from God."
With additional reporting by Todd Hertz. Ted Olsen is online managing editor of Christianity Today.
Copyright © 2002 Christianity Today. Click for reprint information.
More coverage of the decision is available from The New York Times, The Chicago Tribune, The Washington Post, The Los Angeles Times, The Dallas Morning News, The Boston Globe, The San Francisco Chronicle, Law.com, USA Today, and the Associated Press.
"The sort of rigid overreaction that characterized [yesterday's decision] will not make genuine defense of the First Amendment any easier," The New York Times editorializes today.
"We believe in strict separation between church and state, but the pledge is hardly a particular danger spot crying out for judicial policing," says The Washington Post. The ruling "can also invite a reversal, and that could mean establishing a precedent that sanctions a broader range of official religious expression than the pledge itself."
"For all the overheated and dire predictions … the 'under God' phrase has in no way led to establishment of an official state religion," argues the Los Angeles Times. "Thus the 9th Circuit decision is a cure without an ailment."
"Does this country really want to reach the point where every mention of religion needs to be eliminated in the name of constitutional purity?" asked the San Francisco Chronicle.