Ninth Circuit: Pledge of Allegiance Constitutional

In a stunning reversal of its 2002 rejection of the Pledge of Allegiance, the Ninth Circuit Court of Appeals in San Francisco today ruled, in a 60-page opinion, that the words “one nation under God” in the Pledge of Allegiance do not violate the Establishment Clause of the United States Constitution. The challenge to the Pledge was brought by atheist activist Dr. Michael Newdow. The Becket Fund for Religious Liberty, a non-profit civil rights law firm, argued the case to the Court two years ago, along with the Department of Justice and attorneys representing a Sacramento-area school district.

In its ruling, the Court adopted the Becket Fund’s argument for the Pledge’s constitutionality, in particular the idea that Congress’s purpose in enacting the Pledge was “to underscore the political philosophy of the Founding Fathers that God granted certain inalienable rights to the people which the government cannot take away.” This is in contrast to the “ceremonial deism” argument—namely, the idea that the words “under God,” through years of rote repetition, have lost any meaning—made by the federal and local governments in the case.

The Court also focused on the fact that because saying the Pledge is voluntary—something affirmed by the Supreme Court in 1943—the Plaintiffs are attempting to suppress the speech of others: “What is at issue is not saying the Pledge or affirming a belief in God. What is at issue is whether Roechild [Dr. Newdow’s anonymous client] can prevent other students, who have no such objection, from saying the Pledge.”

“The Ninth Circuit finally stood up for the Pledge,” said Kevin J. “Seamus” Hasson, who argued the case to the Ninth Circuit for the Becket Fund. “The Court has just said what was self-evident to Thomas Jefferson and the signers of our Declaration of Independence in 1776 – our rights are unalienable precisely because they come not from the State, but from the Creator.”

The Becket Fund intervened in the case on behalf of the Knights of Columbus, a fraternal organization that spearheaded the effort to add “under God” to the Pledge 55 years ago; children enrolled in Sacramento-area public schools and who want to keep saying the Pledge of Allegiance complete with the words “under God”; and their parents. The Becket Fund also intervened in a similar case brought by Dr. Newdow in Hanover, New Hampshire, that is now pending before the First Circuit Court of Appeals in Boston.

Judge Stephen Reinhardt dissented from the three-judge ruling. As part of his dissent, Judge Reinhardt took pains to describe the history of the Knights of Columbus’ involvement with ensuring the place of “one nation under God” in the Pledge.

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