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Read Actual Fed'l Appeals Court Ruling That Pledge of Allegiance "Under God" Is Unconstitutional

LBUSD says it expects Supreme Court will overturn decision and LB schools won't respond precipitously to it.

(June 26, 2002) -- posts on a link below the verbatim opinion of the three judge panel of the 9th Circuit federal Court of Appeals ruling that the Pledge of Allegiance recitation "under God" is unconstitutional.

"[W]e hold that (1) the 1954 Act adding the words "under God" to the Pledge, and (2) EGUSD’s [Elk Grove Unified School District, near Sacramento] policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause [of the U.S. Constitution]," the Court ruled (2-1) (per Judges Alfred T. Goodwin and Stephen Reinhardt).

The Establishment clause, part of the First Amendment, states that "Congress shall make no law respecting an establishment of religion..."

LBUSD spokesman Dick Van Der Laan told, "We expect the decision will be overturned by the Supreme Court and LB schools won't respond precipitously to it."

[The decision can be appealed to a larger panel of 9th circuit Court of Appeals Judges sitting en banc or to the U.S. Supreme Court.]

Concerning the Pledge of Allegiance phase "under God," the Appeals Court stated:

[T]he purpose of the 1954 Act was to take a position on the question of theism, namely, to support the existence and moral authority of God, while "deny[ing] . . . atheistic and materialistic concepts. [citation omitted] Such a purpose runs counter to the Establishment Clause, 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.

[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of a free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects -- or even intolerance among "religions" to encompass intolerance of the disbeliever and the uncertain.[citation to previous U.S. Supreme Court case omitted]

As to the phrase "under God" in government schools, the Court stated:

Given the age and impressionability of schoolchildren, as discussed above, 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. Therefore the policy fails...

One member of the three judge panel, Judge Ferdinand F. Fernandez, concurred with much of the majority's reasoning but dissented in part:

Upon [plaintiff's] theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings. "God Bless America" and "America The Beautiful" will be gone for sure, and while use of the first and second stanzas of the Star Spangled Banner will still be permissible, we will be precluded from straying into the third.

And currency beware! Judges can accept those results if they limit themselves to elements and tests, while failing to look at the good sense and principles that animated those tests in the first place. But they do so at the price of removing a vestige of the awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel at the good fortune of our country. That will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses, or phrases, are uttered, read, or seen.

In short, I cannot accept the eliding of the simple phrase "under God" from our Pledge of Allegiance, when it is obvious that its tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimis.

Thus, I respectfully concur in part and dissent in part.

To view the Court of Appeal's opinion in pdf form, click on: Court of Appeals opinion ruling Pledge of Allegiance "under God" unconstitutional in gov't schools.

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