Eight months after Madison’s school board flip-flopped on a decision to ban the Pledge of Allegiance in local schools, a federal appeals court in California ruled the Pledge unconstitutional for containing the phrase “one nation under God.”
The decision, handed down Wednesday by the 9th U.S. Circuit Court, said the Pledge “places students in the untenable position of choosing between participating in an exercise with religious content or protesting.” Madison Board of Education members said that reasoning was consistent with why they initially restricted the Pledge last October.
“I support separation of church and state, I don’t think a public school system can promote one religion over another,” said Shwaw Vang, who supported banning the Pledge in the first of two votes.
Like the school board did then, the three-judge panel in San Francisco received a flood of criticism after announcing its 2-1 ruling.
Experts said the decision was constitutionally sound, depending on the reading of previous Supreme Court interpretations. The panel drew heavily on a 1992 case, Lee v. Weisman, in which the Supreme Court ruled prayers illegal at school graduations.
The Court has held the combination of government endorsement and coercion of religious exercise violates the First Amendment’s “establishment clause,” which separates church and state. In Lee, Justice Sandra Day O’Connor wrote that endorsement in any form is unconstitutional.
Wednesday’s appeals court decision stands somewhere between those two opinions, according to Howard Schweber, a constitutional law professor at University of Wisconsin.
The 9th Circuit covers nine states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The ruling will not affect local schools unless the U.S. Supreme Court upholds it. Despite its previous attention to the Pledge, members of Madison?s school board said they would wait until a higher ruling before stirring action again.
“We’d have to see how this played out and how it affects Wisconsin but it hasn’t got to that,” said Bill Clingan, who was not on the board last October. “We?re not going to turn the clock back to last fall unless there?s a higher federal decision.”
Vang said he is not sure the matter would be up to the school board to decide even then. Both he and Clingan said the most important focus for the members now is negotiating budget problems.
Another hearing of the case seems imminent.
Michael Newdow, a Sacramento practitioner and self-described atheist, filed the suit claiming his daughter was constitutionally injured by her second-grade class’s practice of reciting the Pledge of Allegiance, even though she was allowed to abstain from the Pledge. At first the case was thrown out, but this 9th Circuit panel upheld his standing on appeal.
Now, the Justice Department said, the matter could return to the full 9th Circuit Court where it might be overturned, or it could go before the Supreme Court.
“I can’t imagine the Supreme Court will stay away from this one,” said Schweber, the political science professor boldly predicting a 6-3 split upholding the ruling.
Only conservative Justices William H. Rehnquist, Antonin Scalia and Clarence Thomas would dissent, he said. Others are not so sure.
Legal analyst Jeffrey Toobin described this panel as the country?s “most liberal” court, on cable’s “CNN Access” Wednesday. The decision, he said, would be “dead on arrival” in another court or even the full 9th Circuit.
Politicians, from President Bush to congressional party leaders, vehemently opposed the decision and many ridiculed it. The Senate quickly and unanimously passed a resolution condemning the court and calling for a nullification of the ruling. So did many patriotic groups, like Madison?s Veterans of Foreign Wars post.
The dissenting panelist, Judge Ferdinand Fernandez, said the establishment clause is for preventing discrimination, not eliminating public religious language.
?Currency, beware!? he warned, referring to the phrase “In God We Trust” on U.S. coins.
Judge Alfred Goodwin, who wrote the majority opinion, said recitation of the Pledge in public schools is discriminatory.
“The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers that they are outsiders,” he wrote.
“I think they got it right,” Schweber agreed. “Justice O’Connor is right that anything that points in the direction of endorsement violates the establishment clause. I think Bill Keys had it right.”
Keys is the Madison school board member who spearheaded the drive to eliminate the pledge last year.
The board’s vote, which came on October 10 — less than a month after terrorist attacks in Washington, D.C., and New York stirred patriotic fervor across the country — drew a torrent of criticism, nationally as well as locally.
A week later the board overturned its decision, with Keys casting the sole vote against. He was later nearly recalled from the board, though he now sits as its president.