'Under God' in Pledge ruled unconstitutional

SAN FRANCISCO, California (CNN) --A federal appeals court ruled Wednesday that reciting the Pledge of Allegiance in public schools is an unconstitutional "endorsement of religion" because of the addition of the phrase "under God" in 1954 by Congress.

A three-member panel of the 9th Circuit Court of Appeals remanded the case to a lower court. If allowed to stand, the ruling would apply to schools in the nine states covered by the 9th Circuit.

The defendants -- the federal and state governments and the local school board -- also have the option of appealing the ruling to the full appeals court or directly to the U.S. Supreme Court.

U.S. Attorney John K. Vincent said his office was "reviewing the 9th Circuit's decision."

"We will consult with the Department of Justice in Washington concerning our options in overturning this decision," he said.

The U.S. Senate was so outraged by the decision that it passed a resolution 99-0 "expressing support for the Pledge of Allegiance" and asking Senate counsel to "seek to intervene in the case."

At one point late Wednesday about 100-150 House members, mostly Republicans, gathered on the steps outside the Capitol and recited the Pledge of Allegiance in a show of support.

White House press secretary Ari Fleischer said President Bush believes the ruling is "ridiculous."

"The view of the White House is that this was a wrong decision, and the Department of Justice is now evaluating how to seek redress," Fleischer said.

"I think this decision will not sit well with the American people. Certainly, it does not sit well with the president of the United States."

Legal reasoning cited
Citing a concurring opinion in a Supreme Court decision, the 9th Circuit said, "The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'"

The court said the 1954 insertion of "under God" was made "to recognize a Supreme Being" and advance religion at a time "when the government was publicly inveighing against atheistic communism" -- a fact, the court said, the federal government did not dispute.

The appeals court noted that when President Dwight D. Eisenhower signed the act adding "under God," he said, "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."

The court cited recent U.S. Supreme Court decisions that said students cannot hold religious invocations because it violates the Constitution.

In this case, the appeals court said, the lower court's decision to throw out the case found that "the ceremonial reference to God in the pledge does not convey endorsement of particular religious beliefs" -- a precedent the appeals court said is not supported by the recent Supreme Court decisions.

"The recitation that ours is a nation 'under God' is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase 'one nation under God' in the context of the Pledge is normative," the court said in its decision.

"To recite the Pledge is not to describe the United States; instead it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice and -- since 1954 -- monotheism."

The case had been filed against the United States, Congress, California, two school districts and its officials by Andrew Newdow, an atheist whose daughter attends public school in Elk Grove, California, just outside Sacramento.

Dissenting opinion
The government said the phrase "under God" had minimal religious content.

But the appeals court said that teachers having classrooms reciting the pledge did not pass the coercion test. The court also said that an atheist or a holder of certain non-Judeo-Christian beliefs could see it as an attempt to "enforce a 'religious orthodoxy' of monotheism."

Newdow said he was pleased with the decision. "I'll keep fighting to uphold the Constitution," he told CNN.

The three-judge panel was not unanimous in the ruling.

Circuit Judge Ferdinand Fernandez, who agreed with some elements of the decision but disagreed with the overall opinion, said phrases such as "under God" or "In God We Trust" have "no tendency to establish religion in this country," except in the eyes of those who "most fervently would like to drive all tincture of religion out of the public life of our polity."

"My reading of the stelliscript [majority ruling] suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings," Fernandez wrote.

"'God Bless America' and 'America the Beautiful' will be gone for sure, and while use of the first and second stanzas of the Star Spangled Banner will still be permissible, we will be precluded from straying into the third. And currency beware!"

The 9th Circuit is the most overturned appeals court in the country and is considered by legal scholars to be the most liberal. States under its jurisdiction are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Outrage on Capitol Hill
In Washington, Sen. Charles Grassley, R-Iowa, called the court's decision "crazy" and "outrageous." If the case makes it to the Supreme Court, he predicted the appeal would not stand.

"This decision is so much out of the mainstream of thinking of Americans and the culture and values that we hold in America, that any Congressman that voted to take it out would be putting his tenure in Congress in jeopardy at the next election," Grassley said.

Republican House Speaker Dennis Hastert of Illinois said, "Obviously, the liberal court in San Francisco has gotten this one wrong."

Rep. Richard Gephardt, D-Missouri, also blasted the court, saying the decision "doesn't make good sense to me."

"I think the decision is poorly thought out. That's why we have other courts to look at decisions like that. I hope it gets changed."

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