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FRIDAY, FEBRUARY 28, 2003

The 9th Circuit Court of Appeals today refused to rehear the controversial ruling that said the "under God" portion of the Pledge of Allegiance was a violation of church-state separation.

The move means the case will probably go to the Supreme Court. The denial prompted a scathing dissent from six judges on the 9th Circuit. Parts are quoted below:

Last June, a two-judge majority of a three-judge panel of this court ruled that the Pledge of Allegiance was unconstitutional simply because of the presence of two offending words: “under God.” It was an exercise in judicial legerdemain which, not surprisingly, produced a public outcry across the nation. Since that time we, as a court, have had the opportu-nity to order reconsideration of that decision en banc, yet a majority of the 24 active judges eligible to vote has decided not to do so.

. . .

We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very wrong—wrong because reciting the Pledge of Allegiance is simply not “a religious act” as the two-judge majority asserts, wrong as a matter of Supreme Court prece-dent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense.

. . .

Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear. If reciting the Pledge is truly “a reli-gious act” in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Inde-pendence, the Gettysburg Address, the National Motto, or the singing of the National Anthem. Such an assertion would make hypocrites out of the Founders, and would have the effect of driving any and all references to our religious heri-tage out of our schools, and eventually out of our public life.

. . .

Our national celebration of Thanksgiving dates back to President Washington, which Congress stated was “to be observed by acknowledgment with grateful hearts, the many and signal favours of Almighty God.” Lynch, 465 U.S. at 675 n.2. Congress made Thanksgiving a permanent holiday in 1941, and Christmas has been a national holiday since 1894. Are pere Newdow’s constitutional rights violated when his daughter is told not to attend school on Thanksgiving? On Christmas day? Must school outings to federal courts be pro-hibited, lest the children be unduly influenced by the dreaded intonation “God save these United States and this honorable Court”? A theory of the Establishment Clause that would have the effect of driving out of our public life the multiple references to the Divine that run through our laws, our rituals, and our ceremonies is no theory at all.

Get the Decision:
NEWDOW V U.S. CONGRESS (February 28, 2003))