(03-11) 17:32 PST SAN FRANCISCO --
The federal court that touched off a furor in 2002 by declaring the words
"under God" in the Pledge of Allegiance to be an unconstitutional
endorsement of religion took another look at the issue Thursday and said the
phrase invokes patriotism, not religious faith.
The daily schoolroom ritual is not a prayer, but instead "a recognition
of our founders' political philosophy that a power greater than the government
gives the people their inalienable rights," said the Ninth U.S. Circuit
Court of Appeals in San Francisco in a 2-1 ruling.
"Thus, the pledge is an endorsement of our form of government, not of
religion or any particular sect."
The dissenting judge, Stephen Reinhardt, said statements by members of
Congress who added "under God" to the pledge in 1954 show conclusively
that it was intended to "indoctrinate our nation's children with a
state-held religious belief."
In a separate ruling, the same panel upheld the use of the national motto,
"In God We Trust," on coins and currency. The language is patriotic
and ceremonial, not religious, the court said. Reinhardt reluctantly joined the
3-0 decision, saying he was bound by the court's newly established precedent in
the pledge case.
Both suits were filed by Michael Newdow, a Sacramento atheist who has brought
numerous challenges to government-sponsored religious invocations. He said he
would appeal the rulings to the full appellate court and the U.S. Supreme Court,
but was not optimistic.
The rulings sent two messages, Newdow said: "To be a real American, you
believe in God, and the judiciary unfortunately sometimes can't be trusted to
uphold our constitutional rights when you're a disenfranchised minority."
Former Justice Department lawyer Gregory Katsas, who represented the Bush
administration in the pledge case when the court heard it in 2007, heard a
different message: that "one nation, under God" suggests a government
that "is limited and bound to respect individual rights."
Newdow first challenged the Pledge of Allegiance in 2000 on behalf of his
daughter, a student in a Sacramento-area elementary school. The appeals court
ruled in June 2002 that the addition of "under God" was religiously
motivated and sent "a message to nonbelievers that they are
outsiders," in violation of the constitutional separation of church and
Congress reacted furiously, passing a resolution with virtually no dissenting
votes that denounced the decision. The court put its ruling on hold until the
case reached the Supreme Court, which sidestepped the constitutional issue and
ruled that Newdow could not represent his daughter's interests because her
mother had legal custody.
Newdow then refiled the suit on behalf of the parent of a kindergartner in
the Sacramento suburb of Rio Linda. He won the first round before a federal
judge in 2005, but a new appeals court panel issued a 193-page ruling Thursday
upholding the pledge.
In the majority opinion, Judge Carlos Bea acknowledged that "the words
'under God' have religious significance," but said they do not
"convert the pledge into a prayer."
The 1954 law that added those words at the height of the Cold War was meant
to convey the idea of a limited government, "in stark contrast to the
unlimited power exercised by communist forms of government," said Bea,
joined by Judge Dorothy Nelson. "Congress' ostensible and predominant
purpose was to inspire patriotism."
Reinhardt, a member of the 2002 panel that found the language
unconstitutional, said Thursday's majority ignored overwhelming evidence of
religious motivation by the 1954 Congress.
He cited statements by numerous lawmakers denouncing atheistic communism and
declaring a belief in God to be part of the American way of life. Reinhardt also
pointed to President Dwight Eisenhower's signing statement that millions of
schoolchildren would now proclaim "the dedication of our nation and its
people to the Almighty."
During the same period, Reinhardt said, Congress adopted "In God We
Trust" as the national motto, ordered it inscribed on paper money and
established an annual National Prayer Breakfast.
By inserting religious language into the pledge, Reinhardt said, "we
abandoned our historic principle that secular matters were for the state and
matters of faith were for the church."