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 [email protected] .