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Still One Nation ... 9th Cir Upholds the Pledge of Allegiance

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By Tanya Roth, Esq. on March 12, 2010 11:55 AM

After a leaving a legal trail long enough to circle the globe, the case over recitation of the pledge of allegiance in public schools has come to rest, for the moment at least, with the 9th Circuit Court of Appeals in San Francisco, CA. According to the opinion of a three judge panel, the pledge can be recited in the state's public schools without violating the Establishment Clause of the First Amendment to the Constitution.

The famous (or infamous) atheist Dr. Michael Newdow brought his first suit challenging the constitutionality of the recitation of the pledge of allegiance in 2000. This initial case (Newdow I), challenged the Elk Grove School District's policy of requiring the recitation of the pledge. The 9th Circuit found Newdow had standing to sue because the pledge policy interfered with his right to direct the religious upbringing of this daughter, a student in the school district. Then mother of Newdow's daughter and the sole custodial parent intervened, challenging Newdow's right to sue (Newdow II). This question over Newdow's right to sue is the one that reached the U.S. Supreme Court (Newdow III).

Please note: at this time, the question of the whether or not the recitation of the pledge itself was constitutional had not yet been discussed.

The Supreme Court found that as the non-custodial parent, Newdow did not have standing to sue and the lower court should not have even addressed the issue of whether the Elk Grove School District's pledge requirment was or was not unconstitutional. The Court sent the case all the way back to the district court (federal trial court level) to start all over again. In this case, including additional plaintiffs who do have standing to sue (Newdow IV), the court found the school district requirement of the pledge was unconstitutional. 

In this opinion (appeal to Newdow IV), the 9th Circuit reversed the lower court. The 2-1 decision, written by (former San Francisco Superior Court) Judge Carlos Bea summed up the court's decision like this:

"We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge--its wording as a whole, the preamble to the statute, and this nation's history--demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activity."

Thus, the court found that the California statute requiring schools to start the day by reciting the pledge of allegiance did not violate the constitutional requirement the prohibiting government from establishing a religion.

For the weary, it is not over until the High Court sings. Expect an appeal.

And on a closing note from a Bloomberg report, the statement on the cash on your wallet, "in God we trust?" Also found to be constitutional.

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