ttorney General John Aschcroft told reporters yesterday that the government will likely appeal a decision by a federal court to not hear arguments in a case declaring the words "under God" in the Pledge of Allegiance to violate the First Amendment.

   The Ninth U.S. Circuit Court of Appeals voted 15-14 to take no further action regarding its June, 2002 ruling in NEWDOW v. U.S. California Atheist Michael Newdow sued the Elk Grove, California school district charging that his daughter's rights were violated by the daily pledge recitation which included the controversial religious phrase. The original Pledge of Allegiance did not have "under God," however; those words were added thanks to a 1954 federal law passed by Congress and signed by then-President Dwight D. Eisenhower.

   Praising the new legislation and groups like the Roman Catholic Knights of Columbus which has pushed for its enactment, the President declared:

"From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty."

   News of the decision was carried last night by major media outlets. The ensuing outcry was similar to that heard last summer when a panel of the Ninth Circuit Court made its original ruling.

   "The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag," blustered Ashcroft 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."

   The Attorney General also cited the presence of religious mottoes and themes in the country's history. "For centuries, our nation has referenced God as we have expressed out patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address," declared Ashcroft. "The Supreme Court of the United States opens each session by saying, 'God save this honorable Court.'"

   Ellen Johnson, President of American Atheists, said that Ashcroft was distorting the issues and misleading the public.

   "This case has nothing to do with the right of people to recite the Pledge of Allegiance," said Johnson. "The decision by the Ninth Circuit panel focused on the inclusion of two words, 'under God,' that were not part of the original pledge."

   "This is about government promoting religion, and demanding religious fealty as a litmus test for patriotism and loyalty. That's wrong, and it should be declared unconstitutional."

CONSTITUTIONAL ISSUES BLURRED    Aschroft mentioned other constitutionally suspect practices such as the use of religious slogans on coins as an historical and legal rationale supporting the "under God" oath in the Pledge. So did California Gov. Gray Davis, who 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."

   Those arguments seemed to typify the confusion that has arisen over a number of church-state separation issues, everything from prayer in school to the display of religious icons on public property and even the use of tax money to support religion-based social services. Courts and attorneys arguing various sides in legal cases have increasingly realized that First Amendment law is fluid, blurred, even contradictory. Some defenders of the current Pledge argue that those practices, such as the "In God We Trust" national motto, lose any sectarian or religious character and become examples of what the late Justice William J. Brennan referred to as "ceremonial deism."

   That term was first employed in the legal vernacular by Dean Eugene Rostow of Yale University Law School who used it during the 1962 Meikeljohn Lecture at Brown University. He suggested that certain phrases, practices or symbols might surrender their religious and sectarian character by sheer repetition. Brennan then amalgamated the theory in a written dissent in LYNCH v. DONNELLY (1984), a case which examined the constitutionality of a Christian nativity cr che on public property. He opined that the religionized national motto, or the reference to God in the Pledge of Allegiance was a form of "ceremonial deism" and thus "protected from Establishment Clause scrutiny because (these practices) ... have lost through rote repetition any significant religious content..."

   But courts have never seemed able to codify appropriate standards for determining when a practice is "ceremonial deism" or a clear violation of the First Amendment separation of church and state.

   There appears to be a conflict between the NEWDOW decision and a 7th U.S. Circuit Court of Appeals ruling in SHERMAN v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT (1992). Justices in the latter case concluded that the ceremonial invocations of God were not an establishment of religion. They also pointed to the 1983 U.S. Supreme Court case, MARSH v. CHAMBERS which permitted the practice of legislative chaplains and prayer.

   Others disagree. One Circuit Court jurist, Judge Fortunato Benavides, says that Establishment Clause law is "rife with confusion."

   Dr.Marci Hamilton, Professor of Law at the Benjamin Cardozo School of Law, warns that the "under God' version of the Pledge promotes majoritarian religion.

   "Those who denounce the Ninth Circuit's well-reasoned opinion in the Pledge case simply offer us more of the same campaign to enshrine majority religious belief as universal truth imposed upon all," she wrote in the wake of the original NEWDOW case decision.

   The claptrap about "ceremonial deism" and other excrescences of public religion, though, are rarely used by the extreme religious critics of the Ninth Circuit ruling. It is, for them, all about religion, and the significance of religion in the public square.

   Jay Sekulow of the American Center for Law and Justice, a religious advocacy group founded by televangelist Pat Robertson, told the Washington Times that the Circuit Court's decision "must not stand."

   "The hostility of this appeals court (to religious faith) is absurd and underscores faulty conclusions," Sekulow added.

   ACLJ had filed an amicus brief in NEWDOW pleading for reconsideration of the original finding. Sekulow says that the group, which currently represents 15 members of Congress in the appeals process, is seeking additional support.

   Meanwhile, yesterday's decision reflects division even within the Ninth Circuit.

   ¶       Senior Circuit Judge Alfred T. Goodwin proposed that the court rehear the case in response to the public outcry over the original ruling. He then voted against his own request, as did the other judges in the original ruling of June 26, 2003.

   ¶       Six justices voting in favor of another hearing opined that the original decision was "wrong, very wrong," and even said that the court's reasoning would consign the Gettysburg Address, Constitution, Declaration of Independence and the singing of the National Anthem "to the chopping block." Judge Diarmuid F. O'Scannlain declared "The Pledge of Allegiance is simply not a 'religious act' as the two-judge majority asserts. Reciting the Pledge of Allegiance cannot possibly be an 'establishment of religion' under any reasonable interpretation of the Constitution."

   ¶       Friday's published decision technically stopped short of specifically declaring that the 1954 law was unconstitutional. It did reaffirm earlier wording, though, and declared:

"The statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism."

   ¶       Judge Stephen Reinhardt, appointed by President Carter to the judiciary in 1979, authored the majority opinion in yesterday's announcement. Reinhardt tasked a dissent authored by fellow Judge O'Scannlain who suggested that the court should reverse itself, in part, "by observing the public and political reaction to the decision."

   "We may not -- we must not -- allow public sentiment or outcry to guide our decisions," Reinhardt wrote. "The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority."

[text only]