CBS News, Feb. 28, 2003
A federal appeals court Friday rejected the Bush administration’s request to reconsider its decision that the Pledge of Allegiance is unconstitutional because of the phrase “under God.”
This now means the case almost certainly will go to the U.S. Supreme Court, says CBSNews.com legal analyst Andrew Cohen, where at least one justice, Antonin Scalia, said in January that judges who declared the pledge unconstitutional had some “plausible support” to reach their conclusion. Most legal experts, however, think the high court will overturn that conclusion and uphold the pledge as is.
The 9th U.S. Circuit Court of Appeals said it would not accept any other petitions to reconsider last June’s ruling by a three-judge panel that the pledge is unconstitutional when recited in public classrooms.
Ruling on a lawsuit brought by Sacramento atheist Michael Newdow, the court panel decided 2-1 that Newdow’s daughter should not be subjected to the words “under God” at her public school.
The court said the phrase was an endorsement of God, and the Constitution forbids public schools or other governmental entities from endorsing religion.
President Bush and Congress immediately condemned the decision, which would prevent public schoolchildren from reciting the pledge in the nine western states covered by the nation’s largest — and, critics charge, most liberal — appeals court.
Those states are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Newdow’s lawsuit began as a challenge to a 1954 decision by Congress to add the words “under God” to the pledge. The lawsuit later sidestepped into a parental rights case over a custody dispute between Newdow and his 8-year-old child’s mother, Sandra Banning of Elk Grove.
In response to the court’s original ruling, Banning asserted that her daughter is not harmed by reciting the pledge and is not opposed to God. Banning, who now has legal custody of the child, urged the court to consider whether Newdow even had legal standing to bring the case on behalf of his daughter. The court said Newdow did have such legal standing.
The effect of the ruling still is on hold, says Cohen, and will be unless and until the Supreme Court either takes the case or refuses to take it. So the pledge still can be recited within the confines of the 9th Circuit or anywhere else at least through the rest of this school year, depending again upon what the high court wants to do.