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Divided 9th Circuit Upholds Pledge Against Establishment Clause Challenge

By Howard M. Friedman

In a 2-1 decision in Newdow v. Rio Linda Union School District, (9th Cir., March 11, 2010), the U.S. 9th Circuit Court of Appeals yesterday upheld against an Establishment Clause challenge the Pledge of Allegiance, including its reference to God, and the statutorily authorized practice in the Rio Linda (CA) School District of teachers leading students in the pledge each day. Students are permitted to refrain from participating in the recitation. The majority, in a 60 -page opinion by Judge Bea (joined by Judge Nelson), said:

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

Accordingly, we hold that California?s statute requiring school districts to begin the school day with an "appropriate patriotic exercise" does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.

In 2002, the 9th Circuit in another case invalidated on Establishment Clause grounds a different school's pledge-recitation policy. Ultimately that holding was reversed by the U.S. Supreme Court on standing grounds. In reaction to the 9th Circuit's opinion, Congress reenacted the Pledge with findings detailing secular reasons for it. (P.L. 107-293). The majority pointed to this history to distinguish its earlier holding.

Judge Reinhardt filed a strongly-worded 133-page dissent. He said in part:

[N]o judge familiar with the history of the Pledge could in good conscience believe, as today?s majority purports to do, that the words "under God" were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one.... Nor could any judge ... seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.

It is equally clear that no judge ... could legitimately rely on a 2002 "reaffirmation" to justify the incorporation of the words "under God" into the Pledge ... as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred.... In doing so [in 1954], we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.

Today?s majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts.... [T]o the joy or relief ... of the two members of the majority, this court?s willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.

If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular.... I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all.

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

Full post as published by Religion Clause on March 12, 2010 (boomark / email).