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The 9th U.S. Circuit Court of Appeals on Wednesday struck down a morning ritual for schoolchildren across the country — the recitation of the pledge of allegiance. A divided three-judge panel held that the words “one nation under God” violate the Establishment Clause separating church and state, making the court the first to sustain a constitutional challenge to public invocations of God that had, until now, been ruled merely ceremonial. “A profession that we are a nation ‘under God’ is identical, for Establishment Clause purposes, to a profession that we are a nation ‘under Jesus,’ a nation ‘under Vishnu,’ a nation ‘under Zeus,’ or a nation ‘under no god,’ because none of these professions can be neutral with respect to religion,” wrote Senior Judge Alfred Goodwin. “Although the defendants argue that the religious content of ‘one nation under God’ is minimal, to an atheist or believer in certain non-Judeo-Christian religions or philosophies, it may reasonably appear to be an attempt to impose a ‘religious orthodoxy’ of monotheism, and is therefore impermissible.” Goodwin was joined by Judge Stephen Reinhardt. Judge Ferdinand Fernandez dissented on the critical point. “My reading of the stelliscript suggests that upon [plaintiff'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. ‘God Bless America’ and ‘America the Beautiful’ will be gone for sure, and while the first and second stanzas of the ‘Star-Spangled Banner’ will still be permissible, we will be precluded from straying into the third,” Fernandez wrote. “And currency beware!” Reaction to the decision was swift. Speaking for President Bush, a White House spokesman called it “ridiculous.” California Gov. Gray Davis issued a statement saying, “I fear that the only effect that this decision will have is to divide us.” Senate Majority Leader Tom Daschle, D-S.D., called the decision “just nuts,” and members of the House of Representatives gathered en masse to recite the pledge. The Senate unanimously passed a resolution condemning the decision. Sen. Robert Byrd, D-W.Va., called Goodwin, an appointee of President Nixon, “an atheist lawyer” and a “stupid judge.” Goodwin, who will turn 79 Saturday, is a former chief judge of the circuit and is active in the Presbyterian Church, where he currently serves as an elder. Although it wasn’t involved in the case, the American Civil Liberties Union praised the decision in a statement. “We believe the court’s decision was correct and is consistent with recent Supreme Court rulings invalidating prayer at school events.” Most predicted the case was headed to the U.S. Supreme Court. “I think it’s pretty likely to lead to a cert grant,” said UCLA School of Law Professor Eugene Volokh, calling the decision “interesting.” “It is taking the endorsement or the coercion test to its logical end,” he said. “I think it’s important that people see this as not striking down the pledge of allegiance per se.” In his decision, Goodwin acknowledged that the Supreme Court has said — in what he characterized as dicta — that the phrase “one nation under God” is constitutional. “However, the court has never been presented with the question directly, and has clearly refrained from deciding it,” Goodwin wrote in a footnote. He also quoted a Justice Anthony Kennedy dissent that specifically questions the phrase’s constitutionality. In 1943, the Supreme Court held that compelling students to recite the Pledge of Allegiance was unconstitutional. At that time, the pledge did not contain the words “under God.” In 1954, President Eisenhower signed legislation inserting “under God” into the pledge, declaring that “From this day forward, millions of our schoolchildren will daily proclaim in every city and town, in every village and rural schoolhouse, the dedication of our nation and our people to the Almighty.” Wednesday’s ruling resulted from a challenge to the 1954 law brought by a Sacramento, Calif., resident and atheist named Michael Newdow, who has a daughter enrolled in California’s Elk Grove Unified School District. Although his daughter isn’t required to recite the pledge, Newdow argued that others should be prevented from doing so because his daughter is compelled to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God.” Newdow, who is not a lawyer but argued the case himself, did not return a phone call seeking comment. His phone remained busy throughout the latter part of the day. “I hope Mike’s safe. I hope Mike Newdow’s safe,” said Robert Tiernan, a Denver solo who helped Newdow with his 9th Circuit briefs and said Newdow was being pilloried on talk shows. Tiernan has argued similar cases in a variety of courts, usually unsuccessfully, he said. “[Newdow] said he thought the panel was friendly to him, and God he was right,” Tiernan said, who added that he doesn’t debate the existence of God but worries about a blurring of the church-state line. Tiernan said the origins of national invocations of God trace to the Cold War. “It all happened in 1954, to put God on our side in the fight against communism,” he said. Some cases have challenged the use of the phrase “In God We Trust,” the national motto used on U.S. currency. In 1970, the 9th Circuit turned aside a challenge to the imprint of those words on the nation’s money. But Goodwin distinguished that case because “schoolchildren are not coerced or otherwise actively led into participating in an endorsement of the markings on the money in circulation.” It will likely be some time, perhaps years, before the ruling becomes final. A spokeswoman for California Superintendent of Public Instruction Delaine Eastin said the department of education was still assessing the ruling, but that it would have no impact on children coming to school this morning since the Elk Grove Unified School District could file an appeal. “What we do know from our legal staff is that this has no effect on schools tomorrow,” spokeswoman Nicole Winger said. “It is business as usual.” Annie Laurie Gaylor, co-founder of the Madison, Wisc.-based Freedom From Religion Foundation and the mother of a seventh grader, praised the ruling. “Even if they don’t have to recite it or stand for the pledge, it’s uncomfortable,” she said. “Some children don’t want to be singled out.” Gaylor noted that the conservative American Family Association has started a campaign to place the words “In God We Trust” in every schoolroom in America. The effort found new momentum, she added, “just by fluke,” after Sept. 11. Wednesday’s ruling could call into question the 9th Circuit’s own religious invocations, including the traditional bailiff’s call opening court hearings: “God save the United States of America and this honorable court.” The same call is heard in the U.S. Supreme Court. Ninth Circuit spokesman David Madden said there were no immediate plans to change the call.

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