SAN FRANCISCO — The United States Court of Appeals for the 9th Circuit has issued a surprising judgment upholding the reference to God in the Pledge of Allegiance and reversing an earlier decision.

Congress inserted the reference at the instigation of the Knights of Columbus some 56 years ago as an answer to communistic doctrine that laws and freedom derive from the will of the people, rather than God. The Catholic fraternal organization was one of the defendants-intervenors in this case.

Also arguing for the God clause was the U.S. Department of Justice and the Rio Linda, Calif., Union School District.

In a 2-1 decision, the court ruled that the public school district did not force a specific religion on several unnamed student plaintiffs by holding the pledge ceremony daily in their classrooms. Therefore, they did not violate the establishment clause in the Constitution’s First Amendment, which forbids the state from establishing a religion.

“The decision is a victory for common sense,” said Supreme Knight Carl Anderson. “It is a welcome reversal of the 9th Circuit’s 2002 decision in a similar case that was ultimately thrown out by the Supreme Court on technical grounds. Today the court got it absolutely right: Recitation of the pledge is a patriotic exercise, not a religious prayer.”

Annie Laurie Gaylor, co-founder of the Wisconsin-based Freedom From Religion Foundation, however, called the ruling “very disappointing, especially after this court sat on the case for 2 1/2 years.”

Gaylor sees a trend in recent decisions against her group’s efforts to separate church and state, which she attributed to “the effect of many [President George W.] Bush appointments” to the federal judiciary.
In this case, though, two of the three judges were appointed by Democratic President Jimmy Carter, including the lone dissenter, Judge Stephen Reinhardt.

“It’s a great decision, and they made it for the right reasons,” said Eric Rassbach of the Becket Fund for Religious Liberty, which argued the case for the Knights and several like-minded California students and parents.

In a separate 3-0 ruling, the appeals court upheld the inscription of the national motto “In God We Trust” on U.S. coins and currency, citing an earlier 9th Circuit panel that ruled the phrase is ceremonial and patriotic and “has nothing whatsoever to do with the establishment of religion,” reported AP.

When the 9th Circuit moved to strike out the pledge’s “under God” clause in 2002, its ruling was invalidated by the Supreme Court because the plaintiff of record, secular activist Michael Newdow, did not have legal standing to bring the case on behalf of his daughter, who was not in his custody and who opposed the suit along with her mother, the custodial parent.

This time, however, Newdow represented other parents who were also opposed to mandatory recitations of the pledge.

In 2006, the House of Representatives passed a bill to reinforce the pledge in its current form, but the bill was never taken up by the Senate.

The Pledge of Allegiance was drafted in 1892 and proclaimed by President Harrison that year. The “under God” phrase dates from after the Second World War and was immediately challenged in court, resulting in a Supreme Court decision that students could not be required to recite it.

During the early years of the Cold War, the Knights of Columbus began reciting it with the words “one nation under God” added, to make the distinction, said Rassbach, “between our system where rights come from God and are therefore unalienable and that in the Soviet Union, where rights came from ‘the people’ and could therefore be taken away by the government at any time.”
The Knights started the successful campaign to get their version passed into law.


Inalienable Rights

Reinhardt cited the Knights’ involvement to support his argument that the “under God” phrase was indeed religious and unconstitutional.

But the majority of the panel of judges, says Rassbach, accepted the Becket Fund’s argument that the phrase was about the inalienability of rights.

Gaylor disagreed.

“The government doesn’t have the right to give a religious test to students,” she said, “and they don’t have the right under the Constitution to align religion with patriotism. This is an imposition on our parental freedom of conscience.”

She conceded that most Americans, if polled, would support the pledge in its current form, but said this would be a case of the majority’s will being forced on the minority of Americans who are atheists.

Countered Rassbach: “In fact, the minority is trying to coerce the majority, by forcing them not to say the pledge when they want to.”

Rassbach predicts that Newdow will appeal the case: “Whether the Supreme Court will agree to hear it is another matter.”

Steve Weatherbe writes from Victoria, British Columbia.