Federal judge rules Pledge of Allegiance unconstitutional
Howard Mintz, San Jose Mercury News
September 15, 2005

A federal judge in Sacramento has once again aroused the nation's patriotic passions by finding it unconstitutional to recite the Pledge of Allegiance in public schools.

In a ruling Wednesday that reverberated all the way to U.S. Supreme Court nominee John Roberts' Senate confirmation hearings, U.S. District Judge Lawrence Karlton breathed fresh life into an atheist's campaign to ban the pledge from schools because it contains the phrase "under God.''

For now, the ruling only applies to a handful of Sacramento area school districts, but it rekindled the kind of response that took place three years ago, when the 9th U.S. Circuit Court of Appeals surprised the country by declaring the pledge unconstitutional because it amounted to government-endorsed religion. The Supreme Court eventually scrapped that ruling on procedural grounds, but Michael Newdow, the atheist and lawyer behind the previous and current pledge challenges who now lives in El Paso, Texas, is hoping Karlton's decision is the first step toward a return to the high court.

"It's premature to hope for that, but that's the ultimate goal,'' Newdow said in an interview after the ruling.

Despite stirring up the pledge debate, it is far from clear whether Karlton's decision will eventually force the Supreme Court to resolve the decades-old legal conflict over reciting the pledge in public schools. Karlton decided the case on narrow grounds, saying he was bound by the controversial 9th Circuit ruling several years ago in Newdow's first case.

Legal experts immediately questioned whether Karlton's ruling would hold up because the 9th Circuit decision he relied upon is no longer valid. If true, Newdow's new case could wind up back on the judge's desk instead of making its way forward to the Supreme Court.

"I like Judge Karlton, but I think this is a really tough sell,'' said Vikram Amar, a Hastings College of the Law professor.

Plaintiffs are atheists

Newdow brought the latest lawsuit earlier this year on behalf of three unnamed parents and their children, atheists who say their rights are being violated by the morning custom of reciting the pledge. Newdow's previous case was filed on behalf of his daughter, but the Supreme Court determined his uncertain custody status at the time didn't give him the right to sue.

Officials with the school districts involved said they were reviewing Karlton's decision, but appeared inclined to appeal it to the 9th Circuit, particularly because the judge indicated he's ready to sign an order putting an immediate halt to the pledge in those schools.

California schools chief Jack O'Connell vowed to assist the districts in defending the pledge in court. Gov. Arnold Schwarzenegger also weighed in, urging an appeal.

Even though Karlton simply relied on the 9th Circuit precedent and did not independently conclude the pledge is unconstitutional, that did not stop a host of critics from blasting the ruling. Karlton, a 1979 appointee of former President Carter's, opened his decision by conceding it would "satisfy no one'' in the pledge debate.

Randy Thomasson, president of the conservative California Campaign for Children and Families, said, "This is another bad ruling that warps the U.S. Constitution and dashes parents' hopes of patriotism in the next generation.''

Republican senators, such as Lindsay Graham of South Carolina, invoked the ruling at Roberts' Senate confirmation hearing, calling it an example of judges who "declare war on all things religious.''

First Amendment debate

The possibility of a church-state battle over the fate of the pledge in public schools would come at a crucial time, with two vacancies on the Supreme Court. The court has consistently sidestepped the First Amendment conflict over the pledge's "under God'' language, which was inserted by Congress 50 years ago at the height of the Cold War. Defenders of the pledge have long argued that it is a patriotic exercise, not a religious ritual.

In Newdow's original case, four Supreme Court justices voted to reject his arguments and the 9th Circuit's ruling, but the majority chose to leave the question unresolved. Two of those justices were then-Chief Justice William Rehnquist, whose seat Roberts would fill, and Sandra Day O'Connor, whose retirement leaves another vacancy for President Bush.

The issue could reach the high court again in a variety of ways. A federal appeals court in Virginia earlier this year reached the opposite conclusion of the 9th Circuit, ruling that the pledge was constitutional in schools.

In the meantime, school districts everywhere continue to recite the pledge, particularly at the elementary and middle school level. As a result of prior court rulings, students are not required to recite the pledge -- and many don't see what all the fuss is about.

"I don't see the point of doing it,'' said Inci Atrek, a student at Homestead High School in Cupertino. "The only use for the Pledge of Allegiance for me in elementary school was to tell which was my right hand.''