The 9th Circuit Court of Appeals held oral arguments (http://ap NULL.google NULL.com/article/ALeqM5i-OFG98VprcXzcMCPVSB1QNjlCBAD8TAUVJO0) recently in the appeals to cases brought by the infamous atheist Michael Newdow challenging the constitutionality of the recitation of the Pledge of Allegiance with the words “under God” in public school classrooms and the constitutionality of placing the national motto, “In God We Trust,” on the nation’s coins and currency. He bases both challenges on the Establishment Clause of the First Amendment. In the Pledge case, a Sacramento federal district judge concluded in 2005 (http://fl1 NULL.findlaw NULL.com/news NULL.findlaw NULL.com/hdocs/docs/religion/newdowus91405opn NULL.pdf) that he was bound by the 9th Circuit’s 2002 ruling which declared that the phrase “under God” rendered recitation of the Pledge unconstitutional, and so he declared the Pledge unconstitutional as well. In the motto case, another California federal district judge concluded in 2006 that he was bound by a 1970 9th Circuit decision (http://en NULL.wikipedia NULL.org/wiki/Aronow_v NULL._United_States) which concluded that the motto is ceremonial and patriotic, not religious, and therefore it does not violate the Establishment Clause. The Foundation filed amicus briefs in both the Pledge case (http://morallaw NULL.org/PDF/Newdow_National_Motto_FML_brief NULL.pdf) and the national motto case (http://morallaw NULL.org/PDF/Jan%20Roe%20and%20RoeChild-2%20v NULL.%20Rio%20Linda%20Union%20School%20District NULL.pdf).
As an aside, it is impossible not to note the fact that both district judges purported to be bound by previous rulings of 9th Circuit. They obviously did so to push most of the public scrutiny that their decisions would receive onto the 9th Circuit rather than face the brunt of it themselves. In the Pledge decision, the judge was so desperate to pawn off the responsibility for his decision on the Court of Appeals that he came up with the novel idea that he was bound by a decision that was actually reversed by the U.S. Supreme Court. As one veteran appellate attorney explains (http://www NULL.law NULL.com/jsp/article NULL.jsp?id=1149843923843), the reasoning makes no sense because the Supreme Court’s decision was based on Newdow’s lack of standing to sue, which means the case never should have been allowed to be litigated. For all intents and purposes then, the law considers the 2002 Court of Appeals decision not to exist, so the district court could not rely upon it.
Yet, aside from the scapegoating, the reliance upon the 9th Circuit’s 2002 Pledge case opinion and its 1970 opinion concerning the national motto naturally makes one wonder how the 9th Circuit could arrive at such diametrically opposed conclusions in two cases that involve essentially the same issue: the propriety of official government references to God? The simple answer is time. The judicial mind set is different now than it was 1970, and things that were laughed at back then—such as the Pledge being called unconstitutional—are considered with all seriousness today. That in itself is a commentary on today’s federal judiciary.
But I digress. Returning to the oral arguments, the school district involved in the Pledge decision appealed it while Newdow appealed his unfavorable decision in the motto case. The arguments were long at 2 hours, but followed relatively expected form. Newdow contended that both “under God” in the Pledge and “In God We Trust” on the nation’s money are religious statements that violate atheist sensibilities. He said it is unconstitutional for the federal government to espouse religious views because the Establishment Clause requires government to remain neutral between religion and non-religion. Lawyers for the school district in the Pledge case and for the U.S. Justice Department in the motto case contended that these references to God are historic, patriotic, and ceremonial, not religious.
If one only considers recent U.S. Supreme Court jurisprudence, Newdow has a fairly strong argument where the Pledge is concerned (as Justice Thomas pointed out (http://www NULL.law NULL.cornell NULL.edu/supct/html/02-1624 NULL.ZC2 NULL.html) in his opinion in the Supreme Court’s ruling in the first Newdow Pledge case) because the Court’s “coercion test” sharply curtails even the slightest mention of religion in the public school setting. On the other hand, the distinction between a patriotic exercise and a religious one also makes sense regarding the Pledge because “under God” is two words in a much longer statement, the purpose of which obviously is inculcating patriotism in the citizenry. Indeed, the 4th Circuit Court of Appeals followed this exact reasoning in a 2005 decision (http://pacer NULL.ca4 NULL.uscourts NULL.gov/opinion NULL.pdf/031364 NULL.P NULL.pdf) which concluded that recitation of the Pledge is a patriotic exercise, not a religious one, and thus it does not violate the Establishment Clause.
Arguing that “In God We Trust” is simply patriotic or ceremonial rather than religious is more problematic given that it is designated as the national motto. It is difficult to deny that it is a religious statement. However, Newdow has a tougher hill to climb in the motto case as well because of the aforementioned 1970 case in the 9th Circuit which has never been overturned, and because religious references are given more deference when they are not in the public school context.
These cases would be easy if the judges followed the words of the Establishment Clause because it is plain that neither “under God” nor “In God We Trust” concern or relate to “an establishment of religion,” and not even Newdow attempts to claim that they do. Unfortunately but not unexpectedly, the judges in the oral argument ignored the language of the First Amendment. Judge Stephen Reinhardt, who is probably the single most activist liberal judge on the federal bench, sided with Newdow at every turn in the argument. He practically fell all over himself helping Newdow make his arguments. Judge Carlos Bea, a George W. Bush appointee, seemed to side with the governmemt and against Newdow in each case. That left the swing vote to Judge Dorothy Nelson, a Carter appointee. Preliminary indications (http://www NULL.law NULL.com/jsp/article NULL.jsp?id=1196762679367) from the argument seem to be that she is sympathetic to Newdow in the Pledge case, but is more reticent to find the motto unconstitutional.
As fascinating as all of this may be, it pales in comparison to an argument that was offered to the judges by Kevin Hasson (http://www NULL.becketfund NULL.org/index NULL.php/person/3 NULL.html), the founder and president of the Becket Fund for Religious Liberty (http://www NULL.becketfund NULL.org/), who opposed Newdow by representing some of the school children that want to be able to recite the Pledge as it is. To keep these posts at a manageable length, however, you will have to read about that in the next post.