A federal judge in Sacramento recently ruled that the recitation of the Pledge of Allegiance in the nation’s public schools is unconstitutional. The decision by U.S. District Court Judge Lawrence Karlton stemmed from a revised lawsuit filed by California atheist Michael Newdow, who for years has challenged the legality of the phrase, “under God” in the pledge.
Karlton said the pledge’s reference to God violates the rights of children to be “free from a coercive requirement to affirm God.” In addition, Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals in San Francisco, which in 2002 ruled in favor of Newdow.
That decision was dismissed by the U.S. Supreme Court last year on a technicality. The high court, in its ruling, said Newdow did not have the legal standing to file the challenge, because he did not have custody of his daughter, a public school student in the Elk Grove Unified District. The Supreme Court also lifted the appellate court’s temporary injunction that kept public school students in nine Western states from reciting the full text of the pledge.
Newdow filed his revised lawsuit on behalf of three unnamed parents with a similar stance whose children attend public schools in the Elk Grove, Rio Linda and Elverta Joint Elementary school districts in Sacramento County.
Karlton’s ruling will not extend beyond those districts unless it is affirmed by the 9th Circuit Court of Appeals, where it could again apply to the nine western states, or the Supreme Court, where it would apply to all states.
Congress added the words “under God” to the pledge in 1954.
Newdow hopes the Supreme Court will eventually rule on the matter conclusively.
“All it has to do is put the pledge as it was before and say that we are one nation, indivisible, instead of dividing us on religious basis. Imagine every morning if the teachers had the children stand up, place their hands over their hearts and say, ‘We are one nation that denies God exists.’ I think that everybody would not be sitting here saying, ‘Oh, what harm is that?’ They’d be furious. And that’s exactly what goes on against atheists. And it shouldn’t,” Newdow said.
Likewise, the California School Boards Association, in statement issued by Executive Director Scott Plotkin, expressed a desire for finality on the issue.
“The association continues to believe very strongly that the Pledge of Allegiance–as it stands–is an important exercise in patriotism and civic duty. Karlton’s decision certainly does not signal the end of the discussion surrounding the pledge in California public schools. The fact of the matter remains that we are frustrated by the lack of resolution to the matter.” House Speaker Dennis Hastert called Karlton’s ruling “yet another assault” on American principles.
“The Founding Fathers believed that our Creator gave us certain inalienable rights. The Pledge of Allegiance simply reinforces the beliefs that led to the birth of our great nation. It is an oath of our fidelity to our country, and I am disappointed that the court chose to rule against this American treasure,” Hastert said.
The Senate quickly approved a resolution condemning Karlton’s decision.
Measure sponsor, Sen. Jim Talent, (R-Mo.), said, “For more than 50 yeas, the pledge has been an affirmation that our country was established as a union, ‘under God.’ No person should ever be forced to say ‘under God’ when reciting the pledge, but the Senate believes the Pledge of Allegiance is a fully constitutional expression of patriotism.”
Talent is also a co-sponsor in the Senate of the Protect the Pledge Act of 2005, which would make clear that the federal courts cannot rule that the pledge is unconstitutional.
Attorney General Alberto Gonzalez said the Justice Department will fight the ruling.
“For more than 200 years, many of our expressions of national identity and patriotism have referenced God. The Supreme Court, which opens each session by saying, ‘God save the United States and this honorable Court,’ has affirmed time and again that such official acknowledgments of our nation’s religious heritage, foundation and character are constitutional. The Department of Justice will continue vigorously to defend the ability of American schoolchildren to pledge allegiance to the flag,” Gonzalez stated.
The head of the American Legion, which was instrumental in persuading Congress to insert the phrase “under God” in the pledge, said he was “appalled” by Karlton’s ruling.
American Legion National Commander, Thomas Bock, said, “I am disgusted by this ludicrous attack on the traditional values on the citizens of this country. I’m sure the vast majority of Americans feel exactly the same way. The words ‘under God’ are a tribute to America’s constitutionally protected religious freedom. There is nothing wrong with schoolchildren acknowledging the fact that the founders of our republic openly stated in their writings, before we even had the pledge, that the United States is indeed ‘one nation under God.’
What is really at stake here is the moral direction of our nation–the right of a free people to recognize that there is a Creator referenced in the Declaration of Independence. The American Legion will never back down. The right of our children to recite the Pledge of Allegiance deserves full protection. We will do everything in our power to see that right is restored permanently,” Bock said.
The Becket Fund for Religious Liberty filed a friend-of-the-court brief on behalf of the American Legion when Newdow’s lawsuit was upheld by the appellate court three years ago.
Becket Fund Director of Litigation, Derek Gaubatz, noted, “For generations, public school students have enjoyed the constitutional right to opt out of the pledge if conscience dictates, and that’s as it should be. But Newdow’s suit goes a step farther–he’s seeking a court order that would prohibit students who want to say the complete pledge from doing so. If you don’t want to say the pledge, then don’t, but don’t try to force others to say it.”
Liberty Counsel filed a brief in the Newdow case when it went to the Supreme Court last year.
Liberty Counsel President and General Counsel, Mathew Staver, said Karlton’s ruling is “not surprising but it is dismaying.”
Staver continued, “If the pledge established or tended to establish a religion, then that would have happened during the past 50 years of its existence. Day after day we have recited the pledge from the classroom to the stateroom, from private meetings to public events, and not once has it tended to establish a religion. Karlton’s ruling illustrates why we need judges who are umpires applying settled law rather than activists intent on imposing their own ideology.”
“Disturbing” is how Family Research Council President Tony Perkins characterized Karlton’s ruling.
“The decision is yet another example of runaway judicial activism which is trampling our freedoms and stripping America of any recognition of her religious heritage. The decision highlights the importance of confirming Supreme Court justices who respect our nation’s history and tradition because militant secularists will not stop until they have eradicated any mention of God in the public square.
If the recitation of the Pledge of Allegiance is unconstitutional, then so is the recitation or study of the Declaration of Independence and every other historic document or inscription that recognizes the fact that this country was founded upon religious principles,” Perkins said.
Rev. Jerry Falwell, founder of the Moral Majority Coalition, said America is experiencing a “hostile takeover, an advancing conquest by abject secularists who believe–and demand–that our nation should be a religious-free zone that stifles all public religious expression.”
Falwell added, “No matter the outcome of this case, the fact remains that our nation is being stripped of its prominent religious heritage–a heritage embraced by our founders and by many generations.”
Catholic League President, William Donohue, issued a call to action to California public school teachers.
“The time has come for patriotic teachers in those schools to practice civil disobedience. They need to lead their students in the pledge, bellowing the dreaded words ‘under God.’ But nothing should be done until the television cameras are in place–the sight of teachers being handcuffed by the police would be an invaluable teaching moment.
Settling this issue in court is fine, but it is inadequate: it’s time to shock the conscience of the nation by bringing this matter directly into their living rooms,” Donohue said.
Groups which applauded Karlton’s ruling included the Council for Secular Humanism.
“Of course, the religious right is already spinning this as a victory for ‘secular humanists and the ACLU.’ In fact, it is a victory for the Constitution, which guarantees that the government shall not support any religion over another. We are heartened that this wise principle, enshrined in our secular, federal republic, is alive and well and guiding some of our judiciary,” it stated.
Also, Americans United for Separation of Church and State said Karlton’s decision “shows respect for religious diversity.”
Americans United Legal Director, Ayesha Khan, said, “The court’s decision was correct as a matter of Establishment Clause jurisprudence. The Constitution forbids government to intervene in religious matters.
America is a very diverse nation. We have some 2,000 different denominations and faith groups, as well as many Americans who choose no religious path at all. It is wrong for public schools to ask students to affirm a religious belief in order to express their patriotism.
America faces many challenges today. We can best meet those challenges if we are united as a people. Americans should never be made to feel excluded from our national life because they have the ‘wrong’ views about religion,” Khan said.
Karlton’s ruling increases the likelyhood that the case could return to the Supreme Court because the 9th Circuit’s ruling on Newdow’s suit clashes with an opinion issued in August by the 4th U.S. Circuit Court of Appeals in Richmond. That court upheld a Virginia law requiring public schools to hold daily recitations of the pledge, on grounds that it is a patriotic exercise, not a religious affirmation similar to a prayer.
If the case does reach the Supreme Court, it comes at a time of change for the nation’s highest court, with the recent death of Chief Justice William Rehnquist and impending retirement of Justice Sandra Day O’Connor.
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