Following are excerpts from the ruling yesterday by a three-judge federal appeals court panel in San Francisco that reciting the Pledge of Allegiance in public schools is unconstitutional because it includes the phrase "one nation under God." The vote was 2 to 1. Judge Alfred T. Goodwin wrote the majority opinion, in which Judge Stephen Reinhardt joined. Judge Ferdinand F. Fernandez wrote a dissent.
FROM THE OPINION By Judge Goodwin
In the context of the pledge, the statement that the United States is a nation, "under God" is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation "under God" is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the republic. Rather, the phrase "one nation under God" in the context of the pledge is normative. To recite the pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and — since 1954 — monotheism. The text of the official pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession 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. "The government must pursue a course of complete neutrality toward religion." Furthermore, the school district's practice of teacher-led recitation of the pledge aims to inculcate in students a respect for the ideals set forth in the pledge, and thus amounts to state endorsements of these ideals. Although students cannot be forced to participate in recitation of the pledge, the school district is nonetheless 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. . . .
The pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."
FROM THE DISSENT By Judge Fernandez
We are asked to hold that inclusion of the phrase "under God" in this nation's Pledge of Allegiance violates the religion clauses of the Constitution of the United States. We should do no such thing. We should, instead, recognize that those clauses were not designed to drive religious expression out of public thought; they were written to avoid discrimination. We can run through the litany of tests and concepts which have floated to the surface from time to time. Were we to do so, the one that appeals most to me, the one I think to be correct, is the concept that what the religion clauses of the First Amendment require is neutrality; that those clauses are, in effect, an early kind of equal protection provision and assure that government will neither discriminate for nor discriminate against religion or religions. But, legal world abstractions and ruminations aside, when all is said and done, the danger that "under God" in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody's beliefs is so minuscule as to be de minimis. The danger that phrase presents to our First Amendment freedoms is picayune at most.
