Fed. appeals court upholds 'under God' in pledge

The San Francisco-based 9th U.S. Circuit Court of Appeals panel rejected two legal challenges by Sacramento atheist Michael Newdow, who said the references to God are unconstitutional and infringe on his religious beliefs.

The same appeals court caused a national uproar and prompted accusations of judicial activism when it decided in Newdow’s favor in 2002, ruling that the pledge violated the First Amendment prohibition against government endorsement of religion.

The First Amendment guarantees that government will not "establish” religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.

President George W. Bush called the 2002 decision "ridiculous,” senators passed a resolution condemning the ruling and Newdow received death threats.

Judge Carlos Bea, who was appointed by Bush in 2003, wrote for the majority in Thursday’s 2-1 ruling.

"The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded,” he said.

Bea noted that schools do not require students to recite the pledge, which was amended to include the words "under God” by a 1954 federal law. Members of Congress at the time said they wanted to set the United States apart from "godless communists.”

Judge Stephen Reinhardt, who was part of the three-judge panel that ruled in Newdow’s favor eight years ago, wrote a 123-page dissent to the 60-page majority opinion.

"Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the ’under God’ version of the Pledge of Allegiance by children in public schools,” wrote Reinhardt, who was appointed by President Jimmy Carter in 1980.

Newdow, a doctor and attorney, told The Associated Press he would ask the appeals court to rehear the case. If it rejects that request, Newdow said he’ll appeal to the U.S. Supreme Court.

"The whole argument that ’under God’ wasn’t placed into the pledge for religious purposes is bogus,” Newdow said. "I hope people recognize this is not against God or people who believe in God. It’s about the government not treating people equally on the basis of their lawful religious views.”

Newdow said he isn’t optimistic the Supreme Court will agree to hear the case because the justices will likely be reluctant to hear a case that could invalidate the pledge.

"They don’t want to do what’s politically unpopular,” he said. "The Supreme Court will not hear a case that upholds the Pledge of Allegiance. It’s very unlikely at least.”

In a separate 3-0 ruling Thursday, the appeals court upheld the inscription of the national motto "In God We Trust” on U.S. coins and currency, saying that the phrase is ceremonial and patriotic, not religious.

Newdow’s first lawsuit to ban the recitation of the pledge in public schools reached the U.S. Supreme Court in 2004 after the 9th Circuit’s 2002 ruling. The high court said Newdow lacked the legal standing to file the suit because he didn’t have custody of his daughter, on whose behalf he brought the case.

So Newdow, who is a doctor and lawyer, filed an identical challenge on behalf of other parents who objected to the recitation of the pledge at school. In 2005, a federal judge in Sacramento decided in Newdow’s favor, prompting the appeals court to take up the case again.

Greg Katsas, who argued the case on behalf of the U.S. government when the appellate court heard the case in December 2007, said the panel made the right decision Thursday.

"I think these two phrases encapsulate the philosophy on which the nation was founded,” said Katsas, who now works in private practice. "There is a religious aspect to saying "One nation under God,” but it isn’t like a prayer. When someone says the pledge, they’re not praying to God, they’re pledging allegiance to the country, the flag and the ideals of the country.”