A sharply divided federal appeals court yesterday voted to let stand its much-criticized ruling banning teacher-led recitation of the Pledge of Allegiance in public schools, a decision that sets the stage for a possible battle in the Supreme Court over patriotism and religion.
Over the public dissent of nine members, the 24-judge U.S. Court of Appeals for the 9th Circuit, based in San Francisco, rebuffed requests from the Bush administration and a California school district to have the court reconsider its decision last June. In that ruling, a three-judge panel voted 2 to 1 that a daily classroom flag salute including the phrase "One nation, under God" violates the Constitution's prohibition against official religion.
The court did take one step back, however. Its original ruling not only barred schools from sponsoring the pledge but also struck down the 1954 federal law that officially added the words "under God" to the pledge -- thus making the pledge itself unconstitutional. That was omitted from an "amended" version of the court's opinion issued yesterday.
The altered ruling will take effect in the nine western states of the 9th Circuit on March 10 unless opponents win a court order blocking it. It would ban teacher-led recitation of the pledge by 9.6 million schoolchildren in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The court's adjustment seemed unlikely to win it much support, however. With the country engaged in a war against terrorism and facing another war in Iraq, politicians of both parties have shown themselves eager to embrace traditional patriotic symbols and rituals. Last June's ruling by the 9th Circuit was denounced in Senate and House resolutions that passed with a total of three dissenting votes.
And yesterday, in words almost identical to those he used at that time, Attorney General John D. Ashcroft left little doubt that he would soon ask the Supreme Court to intervene.
"The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag," Ashcroft said in a prepared statement. "We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge."
California Gov. Gray Davis (D) released a statement noting that "at the start of every court session, the Supreme Court invokes God's blessing. So does the Senate and House of Representatives. Surely the Supreme Court will permit schoolchildren to invoke God's name while reciting the Pledge of Allegiance."
And dissenting members of the 9th Circuit yesterday continued to attack the majority's decision as, in the words of Judge Diarmuid O'Scannlain, "every bit as bold as its predecessor." In addition to banning recitation of the pledge in western schools, O'Scannlain wrote, the ruling would cast doubt both on the 1954 law and the California law mandating patriotic exercises in school.
"We should have reheard [the case] . . . 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,' wrong as a matter of Supreme Court precedent properly understood . . . and wrong as a matter of common sense," O'Scannlain wrote.
And as if to demonstrate that revising its opinion was indeed no concession to critics, Judge Stephen Reinhardt, a member of the original three-judge panel who voted in favor of banning the pledge, defended both the ruling and the decision not to revisit it. He accused O'Scannlain yesterday of having the "disturbingly wrongheaded" view that the court should heed public opinion.
"We may not -- we must not -- allow public sentiment or outcry to guide our decisions. It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril," Reinhardt wrote.
The 9th Circuit received a measure of support yesterday from the Rev. Barry W. Lynn, executive director of Americans United for Church and State.
"The phrase 'under God' may seem innocuous to many, but to those who object to it, nothing less than freedom of conscience is at stake," Lynn said.
The case began when Michael A. Newdow, an atheist, sued the Elk Grove Unified School District in federal district court, alleging that his daughter's rights were violated by the daily pledge recitations in her second-grade class at Elk Grove elementary school near Sacramento.
The Supreme Court has already decided that children who object for any reason to the pledge have the right to stand by silently while others recite it. But Newdow argued that just being forced to listen to the pledge in a setting where it clearly enjoyed government endorsement amounted to a violation of his daughter's religious liberty.
The district court dismissed his case, but, on appeal, the 9th Circuit agreed with Newdow. "The coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students," Goodwin wrote.
If the Supreme Court agrees to hear the case, it will probably hinge on a question justices have discussed frequently in past opinions, but never squarely addressed in a formal ruling: whether oft-repeated officially sanctioned religious statements, such as the pledge or "In God We Trust" on coins and paper money, lose their sectarian character and enter the generic language of patriotic ritual.
Justice William J. Brennan called such expressions "ceremonial deism."
But some legal scholars have noted that the 9th Circuit's view of the pledge is plausible, especially in view of a 1992 Supreme Court ruling that ruled a nonsectarian prayer at a public high school graduation ceremony unconstitutional because it could offend nonbelieving students even though they were not required to pray themselves.