Conflicts between two court rulings
in Virginia and California
2005-AUG & SEP: California and Virginia
According to the Family Research Council, the 4th U.S. Circuit Court
of Appeals upheld a state law in Virginia during 2005-AUG. The law requires
public schools to lead their students each school day in the recitation of the
Pledge of Allegiance, including the "under God" phrase. 1 They suggested that the Pledge
was a "patriotic exercise" and not a religious affirmation like public
Individual students are guaranteed by an earlier decision of the U.S. Supreme
Court to have the right to opt out of reciting the Pledge. So if they don't mind
risking the potential of verbal and/or physical abuse from their fellow students, they can refuse to take part.
Michael Newdow failed in his original attempt to
have the "under God" phrase declared unconstitutional. He re-introduced his case before a federal court on behalf of an
unidentified group of California parents and their children, who presumably have
proper standing. According to the Family Research Council, on
2005-SEP-15, "...District Judge Lawrence Karlton...said he is bound by precedent
set by the 9th Circuit Court of Appeals, which ruled in 2001 that it was
unconstitutional for the [current wording of the] Pledge to be recited in public
schools." 1 He declared that reciting the current version of the Pledge is
unconstitutional in California. The judge ruled that students had a right to be
"free from a coercive requirement to affirm God." He also ruled
that Newdow did not have the right to initiate the lawsuit. However, the other
The Knights of Columbus and the Becket Fund for Religious Liberty appealed the
decision to the 9th Circuit Court of Appeals
American Atheists commented:
The District Court and the Ninth Circuit used the "coercion test" from
the historic LEE v. WISMAN case, "and concluded that the district's pledge
policy 'impermissibly coerces a religious act.' The court determined that
the school district's policy, like the school action in LEE of including
prayer at graduation ceremonies, 'places students in the untenable position
of choosing between participating in an exercise with religious content or
"The court observed that the 'coercive effect the policy here is
particularly pronounced in the school setting given the age and
impressionability of schoolchildren...' "
"Finally, the court noted that non-compulsory participation is no basis
for distinguishing it from WEST VIRGINIA STATE BOARD OF EDUCATION v.
BARNETTE (1943), where the Court held unconstitutional a school district's
wartime policy of punishing students who refused to recite the Pledge of
Allegiance and/or salute the flag." 2
Jay Sekulow of the American Center for Law and Justice, a
religious legal advocacy group founded by televangelist Pat Robertson,
described the NEWDOW case ruling as a "flawed decision" that would be
overturned. Sekulow said: "This is another example of a federal district
court exhibiting hostility toward a time-honored tradition that has been
defended by numerous Justices including Justice O'Connor who said
eliminating such references (to God) 'would sever ties to a history that
sustains this nation even today' ... The Pledge clearly acknowledges the
fact that our freedoms in this country come from God, not government."
Attorney Eddie Tabash...predicted that the NEWDOW case will...impact
future hearings on Supreme Court nominees, including the choice to replace
Justice Sandra Day O'Connor. "The proper way to view the Pledge case is that
it is a vindication of the viewpoints of everyone on matters of religion,"
said Tabash. "By removing 'under god' from the Pledge, it would be extended
toward a universal coverage of all Americans, believers and nonbelievers
because it will now be fully neutral."
Gregory Stanford, editorial writer for the
Milwaukee Journal Sentinel wrote:
"The ruling is not wise public policy, in our
opinion. The phrase 'under God' in the pledge is not a big enough
transgression against the church-state wall to warrant outlawing. It belongs
in the same category as the oaths that public officials sometimes take on
Bibles, the prayer that opens deliberations in the Senate, the motto 'In God
We Trust' that has graced coins since 1864 mild, tolerable exceptions to the
rule of separation between government and religion."
"At the same time, some criticism of the ruling is way overblown. For
instance, Randy Thomasson, president of the California-based Campaign for
Children and Families, was quoted by the San Francisco Chronicle
as saying: 'This is another bad ruling that warps the U.S. Constitution and
dashes parents' hopes of patriotism in the next generation.' This nation
depends on the inclusion of 'under God' in the pledge to keep patriotism
alive in the next generation? That's ridiculous. He sells parents, the
nation and kids short."
"The histrionics among foes of the ruling risks undermining our own
rationale for opposing it. Our argument is that the phrase is no big thing.
The apocalyptic language of some criticism suggests the phrase is a huge
thing, however. The alarmists should take a deep breath and note that the
country did well before 1954, when the phrase was added." 3
There was an obvious conflict. A Court of Appeals in one area of the U.S. has
declared the Pledge unconstitutional. Another Court of Appeals has ruled that
reciting the Pledge is not only unconstitutional but compulsory. This conflict
normally could only
have been settled by an appeal to the U.S. Supreme Court. However, the Congress
According to Wikipedia:
"After the 9th circuit decision, Newdow received numerous
death threats and other abusive messages on his phone answering machine. His
daughter, then eight years old, was living elsewhere for her own safety."
"In a 2006 interview on the day that the United States House of
Representatives passed the Pledge Protection
Act, Newdow told WERS-FM's David Goodman, 'A few hours ago, the House
of Representatives of the Congress of the United States of America voted 260 to
167 to completely gut the Constitution of its separation of powers and violate
numerous other clauses because they thought it was important enough to keep
'under God' in the Pledge of Allegiance. I don't think people would've done that
for our political heritage or anything else. They did it because they want God
in their government because it stands for a religious view that they adhere to,
and they want to see that religious view espoused by government, which is
exactly what the Establishment Clause forbids'."
"Pledge Decision Highlights Importance of Roberts Nomination," Family Research Council special Email edition, 2005-SEP-14.
"A Newdow victory for a secular pledge...," AANews, 2005-SEP-18.
Gregory Stanford, "Editorial: 'Under God' does not breach church/state
wall," Journal Sentinel, 2005-SEP-17, at: