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Sometimes even when you’re right, you’re wrong. And that’s likely to be the fate of the 9th U.S. Circuit Court of Appeals when the U.S. Supreme Court finishes its review of the constitutionality of the Pledge of Allegiance. Despite the outrage following the 9th Circuit’s decision, an overwhelming majority of constitutional scholars say the court got the law right — but will still be reversed. Elk Grove Unified School District v. Newdow asks whether a public school district’s policy requiring teachers to lead students in reciting the Pledge of Allegiance with the phrase “under God” violates the First Amendment’s Establishment Clause. The 9th Circuit answered yes. Newdow is a case, said 11 of 13 scholars surveyed, in which the 9th Circuit, often criticized for “radical” decisions and often reversed by the Supreme Court, straightforwardly applied precedents to reach an entirely plausible result. “This is one time where the 9th Circuit did a good job of being consistent with the case law and precedents and they’re still going to get spanked,” if the justices get to the merits, said a former high court clerk, Thomas E. Baker of Florida International University College of Law. Probably, agreed almost all of the scholars, regardless of their feelings about “under God,” added to the pledge in 1954 by Congress to acknowledge America’s dependence on the “moral direction of the Creator” and to distinguish this nation from communist ones. But Establishment Clause cases are notoriously “unpredictable” because the court has been unable to settle on one approach to weighing possible violations, said another former high court clerk, Stephen McAllister, dean of the University of Kansas School of Law. The Supreme Court has taken four, and perhaps five, different approaches in its Establishment Clause cases, creating a jurisprudence that is “now in a shambles and nobody can really understand it and put it all together,” said Randall Bezanson of the University of Iowa College of Law. The court has the three-prong test from Lemon v. Kurtzman. Justice Sandra Day O’Connor articulated the endorsement test in Lynch v. Donnelly. Justice Anthony M. Kennedy developed the coercion test in Lee v. Weisman. And most recently, in Zelman v. Simmons-Harris, the school-voucher decision, Chief Justice William H. Rehnquist invoked the principle of neutrality: Government acts neutrally by giving money directly to parents, not to private or religious schools, who then decide how to use that money. The high court also has ignored those tests to uphold practices — for example, legislative prayer based on a long history or tradition. The 9th Circuit examined all of those approaches and found the school district’s pledge policy failed those tests. All but two of the scholars surveyed found a constitutional problem with the “under God” words, particularly where a school district requires teachers to lead the pledge. Mark Rahdert of Temple University James E. Beasley School of Law and Michael Gerhardt of the College of William and Mary Marshall-Wythe School of Law see a free expression problem. “I actually think there is a constitutional objection to requiring children to recite the pledge,” said Rahdert. “The Supreme Court held a long time ago that the government doesn’t have power to compel political or religious orthodoxy in a case involving saluting the flag. It applies with the same force to recitation of pledge.” Gerhardt added, “The state requiring students to say this inhibits the freedom of those students who don’t wish to say it. Even if students are free not to say it, it’s uncomfortable and peer pressure is enormous.” But Ronald Rotunda of George Mason University School of Law and Douglas Kmiec of Pepperdine University School of Law believe the 9th Circuit should be reversed. “As I look at the case, the question is whether it’s a prayer or a pledge,” said Rotunda. “The Supreme Court has told us in the past that pledges are constitutional and if you don’t like them, you don’t have to say them. I guess I don’t see it as a prayer.” Kmiec said, “It is quite simply not a prayer; it is a pledge of loyalty and a statement of patriotic unity for a republic founded on certain principles.” The phrase goes further back in the nation’s history than 1954, having been used by Abraham Lincoln and others, said Edward Gaffney of Valparaiso University School of Law. “I wouldn’t make anybody say those words against their conscience,” he said. “On the other hand, I think those two words embody a historical acknowledgment of humility about the American experiment, that we’re not finished yet.” Erwin Chemerinsky of the University of Southern California Law School, who has filed a brief supporting Michael Newdow’s challenge, said, “The words ‘under God’ are inherently religious and the Supreme Court has said for decades that government-sponsored religion violates the Establishment Clause.” Baker and Richard Fallon of Harvard Law School both see a distinction between Congress’ purpose in 1954 and the school district’s purpose today — a distinction that could support a reversal. “It’s perfectly plausible,” said Fallon, that California wanted to begin the school day by emphasizing “our unitary nationhood,” and any endorsement of religion was incidental. The Rehnquist court has two distinct lines of Establishment Clause decisions, said A.E. Dick Howard of the University of Virginia School of Law. One involves government funding, and the other concerns ceremony and symbolism. The court, he said, surprisingly has been more likely to strike down symbolic practices — graduation prayers, invocations before school football games — and more likely to be permissive about the use of money-school vouchers, computers and other supplies for religious schools. This article originally appeared in The National Law Journal , a publication of American Lawyer Media.

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