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| Librado Romero/The New York Times |
| A federal appeals court declared the Pledge of Allegiance unconstitutional because the phrase "one nation under God" violates the separation of church and state. |
SAN FRANCISCO, June 26 — A federal appeals court here declared today that the Pledge of Allegiance is unconstitutional because the phrase "one nation under God" violates the separation of church and state.
In a decision that drew protest across the political spectrum, a three-member panel of the United States Court of Appeals for the Ninth Circuit ruled that the pledge, as it exists in federal law, could not be recited in schools because it violates the First Amendment's prohibition against a state endorsement of religion.
In addition, the ruling, which will certainly be appealed, turned on the phrase "under God" which Congress added in 1954 to one of the most hallowed patriotic traditions in the nation.
From a constitutional standpoint, those two words, Judge Alfred T. Goodwin wrote in the 2-to-1 decision, were just as objectionable as a statement that "we are a nation `under Jesus,' a nation `under Vishnu,' a nation `under Zeus,' or a nation `under no god,' because none of these professions can be neutral with respect to religion."
If it stands, the decision by the nation's most liberal appellate court would take effect in several months, banning the pledge from being recited in schools in the nine Western states under the court's jurisdiction: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The panel's decision prompted an immediate reaction in Washington, where senators unanimously passed a resolution condemning the ruling and where dozens of House members gathered on the Capitol steps to recite the pledge and sing "God Bless America."
The White House spokesman, Ari Fleischer, said President Bush called the decision "ridiculous," and many legal experts said they expected it to be reversed on appeal.
The ruling came in a lawsuit filed in Federal District Court in Sacramento by an atheist, Michael A. Newdow, whose daughter attended elementary school in the Elk Grove Unified School District near the state capital.
Although under a 1943 ruling by the United States Supreme Court, children cannot be forced to recite the pledge, Dr. Newdow, an emergency room doctor with a law degree acting as his own lawyer, argued that his daughter's First Amendment rights were harmed because she was forced to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is `one nation under God.' "
The National Conference of State Legislatures says half the states require the pledge as part of the school day and half a dozen more recommend it. In the burst of patriotism that followed the Sept. 11 terrorism attacks, bills to make the oath mandatory have been introduced in Colorado, Connecticut, Illinois, Indiana, Minnesota, Mississippi and Missouri.
The Ninth Circuit panel's majority consisted of Judge Goodwin, a 79-year-old jurist appointed in 1971 by President Richard M. Nixon, and Stephen Reinhardt, a 71-year-old member of the court since 1980, when President Jimmy Carter appointed him. Writing for the majority, Judge Goodwin said the school district is "conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of the current form of the pledge."
"Given the age and impressionability of schoolchildren," he added, "particularly within the confined environment of the classroom, the policy is highly likely to convey an impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God."
The "under God" clause of the pledge, the panel argued, was added by Congress solely to advance religion in order to differentiate the United States from nations under atheistic Communist rule.
"Such a purpose," Judge Goodwin wrote, runs counter to the Establishment Clause of the First Amendment, "which prohibits the government's endorsement or advancement not only of one particular religion at the expense of other religions, but also of religion at the expense of atheism."
The two judges issuing the decision acknowledged that the Supreme Court had occasionally commented in nonbinding decisions that the presence of "one nation under God" in the Pledge of Allegiance is constitutional. But, the judges said, "the court has never been presented with the question directly."
The panel also noted that the Supreme Court had ruled that students could not hold religious invocations at graduations.
In 1984, several liberal members of the Supreme Court, including Thurgood Marshall, Harry A. Blackmun, John Paul Stevens and William J. Brennan Jr., said references like "In God We Trust," which appears on United States currency and coins, were protected from the Establishment Clause because their religious significance had been lost through rote repetition.
The dissenting judge in today's ruling, Ferdinand F. Fernandez, expressed concern that the ruling could be applied to other expressions of patriotism.
"We will soon find ourselves prohibited from using our album of patriotic songs in many public settings," wrote Judge Fernandez, 63, who was appointed in 1980 by President Bush's father. " `God Bless America' and `America the Beautiful' will be gone for sure, and while the first and second stanzas of `The Star-Spangled Banner' will still be permissible, we will be precluded from straying into the third."
Praise for the panel's decision was muted. Joe Conn, a spokesman for Americans United for Separation of Church and State, said that while he supported the decision, it should not be seen as a finding against the entire pledge.
"They didn't strike down the Pledge of Allegiance," Mr. Conn said. "All they said is Congress made a mistake when they added God to the pledge."
Arthur Hayes, a law professor at Quinnipiac University, called the decision a "well-reasoned opinion that is certain to enrage the Christian right."
But criticism of the decision was swift and, mostly, harsh. The Senate halted debate on a military bill to work on a resolution criticizing the ruling. Politicians of all political stripes reeled off faxes to reporters condemning the decision. Gov. George E. Pataki of New York called the decision "junk justice." Senator Tom Daschle of South Dakota, the Democratic leader, called it "nuts."
Steve Duprey, the retired chairman of the New Hampshire Republican Party, who is still active in national Republican politics, said that the decision was "so out of tune with what Americans believe, I don't think it will be a hot political issue in this campaign, because I don't think Republicans or Democrats will agree with it."
The most vehement reactions came from conservative religious groups.
"I think the opinion is absurd," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which is aligned with the Christian Coalition. "This is the first court to hold the pledge with the phrase `with one nation under God' is unconstitutional. They've created a constitutional crisis for no reason."
The Rev. Jerry Falwell said the ruling was "appalling."
"This is probably the worst ruling of any federal appellate court in history," Mr. Falwell said, adding that he had started a petition drive this afternoon to gather a million signatures by Friday to urge the Supreme Court to reverse the panel's ruling immediately.
Legal experts said today's decision would most likely be reversed by the full appeals court, if not the Supreme Court.
Christopher Landau, an appellate lawyer with Kirkland & Ellis in Washington, and a former clerk for Justices Antonin Scalia and Clarence Thomas, said he was certain that the Supreme Court would reverse the decision.
"In their heart of hearts, I don't think the justices would ever think that this kind of a practice is unconstitutional," Mr. Landau said. "And I think that they'll probably say that this is a tradition and that it is primarily ceremonial."
Mr. Newdow told The Associated Press today that the decision validated his point that it was wrong to force his daughter to listen to the pledge.
He also said that he and his family had been threatened because of the lawsuit and that the threats were "personal and scary."
"I could be dead tomorrow," Mr. Newdow said.
