federal judge ruled last week that the recitation of the religionized Pledge of Allegiance in public schools violated the U.S. Constitution, and said that he was prepared to issue injunctions to three California school districts in order to halt the daily recitation of the pledge.       It was the latest round in a series of cases filed by California Atheist and physician Michael Newdow that have been winding through the court system.

   In 2002, the U.S. Ninth Circuit Court of Appeals ruled in favor of Newdow who had challenged the inclusion of the words "under God" in the Pledge. Judge Alfred T. Goodwin wrote in the decision:

"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 case reached the U.S. Supreme Court, where in June, 2004 the justices preserved the "God" portion of the Pledge of Allegiance by stating that Dr. Newdow lacked sufficient legal "standing" to challenge the controversial practice.

   Newdow's petition and victories have ignited controversy, along with a series of Congressional resolutions to preserve the current version of the Pledge of Allegiance, and even to remove review of the case and other practices like displaying the Ten Commandments on public property from the purview of federal courts.

   In Wednesday's ruling, U.S. District Judge District Judge Lawrence Karlton said that the reference to "one nation under God" violated the rights of students to be "free from a coercive requirement to affirm God."

   The suit was filed by Newdow pro se with himself and two other sets of parents against a battery of federal and state defendants including several California school districts. The case was referred to as "Newdow III," since he had filed an almost identical suit in March, 2000 when his daughter was enrolled in kindergarten in the Elk Grove School District. Complicating the case has been a custody dispute between Dr. Newdow and his estranged wife who has become a public figure for her support of the "under God" portion of the Pledge of Allegiance.

   Karlton ruled that in the current action (Newdow III), Newdow lacked standing but the parents had legitimate cause. Nearly half of the 31-page decision (REV. MICHAEL A. NEWDOW, et al., v. THE CONGRESS OF THE UNITED STATES OF AMERICA, et al.) consisted of a summation of earlier Newdow cases and issues pertinent to standing. Judge Karlton devoted approximately ten pages of the written decision to stating that he was bound by the previous determination from the Ninth Circuit, and that the school's policy of requiring youngsters to recite the Pledge of Allegiance violated their rights.

   "(T)he claims concerning the Pledge itself are rendered moot," wrote Karlson.

    ¶       The District Court and the Ninth Circuit used the "coercion test" from the historic LEE v. WISMAN case, "and concluded that the district's pledge policy 'impermissibly coerces a religious act.' The court determined that the school district's policy, like the school action in LEE of including prayer at graduation ceremonies, 'places students in the untenable position of choosing between participating in an exercise with religious content or protesting.' "

    ¶       "The court observed that the 'coercive effect the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren...' "

    ¶       "Finally, the court noted that non-compulsory participation is no basis for distinguishing it from WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE (1943), where the Court held unconstitutional a school district's wartime policy of punishing students who refused to recite the Pledge of Allegiance and salute the flag."

   Legal observers predict that because of Newdow's latest victory, the onus shifts back to the Supreme Court of the United States. The Ninth Circuit Court's decision stands, and is in conflict with an opinion issued last August by the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia that upheld a state statute requiring schools to lead students in a daily recitation of the Pledge of Allegiance complete with the "under God" phraseology. The oleaginous 4th Circuit decision, however, suggested that the Pledge was a "patriotic exercise" and not a religious affirmation like public prayer.

   In the wake of the latest ruling, several groups which had supported the coercive, religionized portion of the Pledge promised immediate appeal. They included the Knights of Columbus and the Beckett Fund, a religious advocacy group.

   Several GOP senators on the Senate Judiciary Committee which was holding hearings on SCOTUS nominee John Roberts had their criticisms of the Newdow ruling inserted into the Congressional Record. Many complained of "judicial activism" by the courts and judges. One blog/news site noted, "Some of the references were inaccurate, suggesting that the judge had struck down the Pledge itself, or that the ruling had come from the Ninth Circuit."

   The Supreme Court is under no obligation to take up the latest NEWDOW case, even though there is a conflict between lower Circuit Court decisions, in the case the District Courts of the Fourth and Ninth Circuits.

   The latest ruling in NEWDOW, however, may have a dramatic impact on forthcoming debates over Supreme Court and other federal court appointments, especially given the shrill complaints involving "judicial activism." The words have become a political buss-phrase, underscoring allegations from religious conservatives and other groups that the legal system is "legislating secularism" or "making law" from the bench that erodes the nation's religious traditions and underpinning.

   Cynics says that the complaint about alleged "judicial activism" simply refers to rulings that one side or another in an issue happens to dislike. Kay Daly of the Coalition for a Fair Judiciary, for instance, called the latest ruling "an extraordinary and blatant display of judicial activism ... Clearly this is a ruling by a judge who is obviously an activist who legislates from the bench to enact his own agenda." Others opine that the accusation could be applied to judicial findings that outlaw forced segregation, coercive prayer and other unconstitutional practices.

   The NEWDOW case could raise the stakes in an already-heated confrontation over potential nominees to the Supreme Court and the rest of the federal bench, and fan the debate over issues like the role of religion in the nation's discourse, and charges of judicial activism.

   Daly cited the latest Pledge reason as a reason why John Roberts needed to be placed in the position of Chief Justice.

   "He's made it clear that he puts the law and the Constitution first," Daly complained. "And he's made it clear that he won't substitute his own values for the clear commands of the law."

   Jay Sekulow of the American Center for Law and Justice, a religious legal advocacy group founded by televangelist Pat Robertson, described the NEWDOW case ruling as a "flawed decision" that would be overturned.

   "This is another example of a federal district court exhibiting hostility toward a time-honored tradition that has been defended by numerous Justices including Justice O'Connor who said eliminating such references (to God) 'would sever ties to a history that sustains this nation even today' ... The Pledge clearly acknowledges the fact that our freedoms in this country come from God, not government."

   While drawing the attention and wrath of the religious right, the NEWDOW case has also generated controversy within America's diverse and sometimes fractious community of nonbelievers.

   While most support his legal intiative, some dislike Newdow's use of the term "Reverend" -- part of his "First Amendment Church of True Science" -- and the strategy of fighting the use of the "under God" portion of the Pledge of Alliance within the rubric of "religious rights."

   Duane Buchholz, Legal Director for American Atheists fears that the Supreme Court can still avoid the substantive constitutional matters raised in the latest NEWDOW case.

   "I know he (Newdow) wants "under god" out of the pledge and we can certainly agree with that, but we can't get there from here. The court did not get to the issue of constitutionality of the present form of the pledge. That issue was rendered moot because of the finding that the school district policy requiring recitation of the pledge was unconstitutional."

   Buchholz added: "As the court noted, the issue of compelled recitation of the pledge was resolved by the Barnette case in 1943, and at that time "god" was even in it. It will be interesting to see how the Ninth Circuit deals with this one. My guess is it will point to the earlier decision and stop there."

   Attorney Eddie Tabash, First Amendment activist and once a political candidate for Congressional office predicted that the NEWDOW case will like impact future hearings on Supreme Court nominees, including the choice to replace Justice Sandra Day O'Connor.

   "The proper way to view the Pledge case is that it is a vindication of the viewpoints of everyone on matters of religion," said Tabash. "By removing 'under god' from the Pledge, it would be extended toward a universal coverage of all Americans, believers and nonbelievers because it will now be fully neutral."

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