The atheist, the Pledge and the 9th U.S. Circuit Court of Appeals are back together again.
It’s been five years since a legal feud over the Pledge of Allegiance in public schools ignited a patriotic backlash around the country. Now, an identical constitutional challenge to the classroom ritual will return to a San Francisco courtroom Tuesday.
Michael Newdow, the Sacramento atheist who has led a legal crusade against the pledge because it contains the words “under God,” will square off in the 9th Circuit against the Bush administration and lawyers for a Sacramento-area school district. The school district and Justice Department are appealing a 2005 ruling by a Sacramento federal judge who declared the pledge unconstitutional. The judge ruled that the phrase “under God” effectively endorses religion in public schools.
In the meantime, schoolchildren still will be allowed to recite the pledge because the ruling has been put on hold while the 9th Circuit hears the case. But this new showdown promises to reinvigorate the legal and political debate and perhaps wind up for a second time in the U.S. Supreme Court.
Eventually, if the 9th Circuit and later the Supreme Court side with Newdow, schools across the country will have a choice of either abandoning the pledge in schools, or reciting it without the “under God” phrase, which was inserted by Congress in 1954 at the height of the war on communism.
The 9th Circuit is certainly no stranger to the emotionally charged conflict. The federal appeals court, which establishes law for California and eight other Western states, struck down the pledge in schools in 2002, but that ruling was wiped off the books on procedural grounds by the Supreme Court.
Newdow, a doctor turned lawyer who is representing himself, has refused to give up.
He’s also arguing a second case the same day that challenges the use of “In God We Trust” on U.S. currency. The use of the phrase also violates the separation of church and state, he argues.
That is likely to be a harder fight because the courts have rejected his past arguments. But he is confident he will win his argument that it is unconstitutional for the pledge to be said in public schools as long as it includes the word “God.”
“I feel strongly I can win this argument any time because I’m correct,” Newdow said in a recent interview.
Lawyers for the Bush administration and the Rio Linda Union School District, the latest target of Newdow’s pledge lawsuit, disagree. In court papers, the Bush administration said the pledge’s purpose is “promoting patriotism and national unity,” not religion.
Newdow originally sued on behalf of his daughter, but that created unusual procedural problems. He was in the midst of a custody feud with the child’s mother, who was estranged from Newdow and disagreed with his position on the pledge.
That procedural tangle caused the 9th Circuit’s controversial ruling, which struck down the pledge, to be erased by the Supreme Court. It did not resolve whether “under God” should keep the pledge out of public schools. But in this latest case, Newdow is now representing a separate, anonymous atheist family with a child enrolled in the Rio Linda schools.
However, there is still the possibility this pledge case may not resolve the central issue. U.S. District Judge Lawrence Karlton, who ruled in Newdow’s favor in 2005, relied on the 2002 9th Circuit decision to find the pledge unconstitutional in public schools. The Justice Department and school district lawyers insist that Karlton’s ruling should be overturned simply because he relied on precedent that was nullified by the Supreme Court.
Nevertheless, the school district’s chief lawyer would not be disappointed if the courts resolve the pledge issue for good, given that it has been a source of conflict in the legal world for decades.
“I think the country deserves a ruling on the merits to resolve this matter once and for all,” said Terence Cassidy, the lawyer for the Rio Linda schools.
The three-judge 9th Circuit panel hearing Newdow’s latest challenge Tuesday includes Judge Stephen Reinhardt, widely regarded as the court’s leading liberal and a member of the 2-1 majority that struck down the pledge in 2002. Judge Dorothy Nelson, a liberal appointee of former President Jimmy Carter, also is on the pledge panel.
The third judge is Carlos Bea, a San Francisco-based conservative appointee of President George W. Bush.
Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236.
