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Years before he won his fight against the Pledge of Allegiance in the 9th Circuit, Michael A. Newdow lost a similar bid in Florida and the 11th U.S. Circuit Court of Appeals. A split three-judge panel from the 9th U.S. Circuit Court of Appeals ruled Wednesday that the words “under God” in the pledge violate the First Amendment’s establishment clause prohibiting government endorsement of religion. In his decision, Senior Judge Alfred T. Goodwin wrote that under the establishment clause, reciting “under God” is equivalent to reciting “under Jesus,” “under Vishnu,” or “Under no God.” Newdow v. U.S. Congress, No 00-16423 (9th Cir. June 26, 2002). “[T]he school district’s practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, and thus amounts to state endorsement of those ideals,” he wrote. The decision sparked denunciations of the 9th Circuit nationwide and sent elected officials of both major parties scrambling for cameras and microphones to recite the pledge and sing patriotic songs with lyrics mentioning a deity. The 11th Circuit escaped what might have been a similar fate by affirming the decision by a U.S. District judge in Florida to dismiss Newdow’s suit challenging the pledge in Broward County, Fla. In 1998, Newdow, styling himself “Rev. Dr.,” sued President Bill Clinton, Congress, the Broward County School District, and Florida’s Congressional delegation to have “under God” removed from the pledge, and to bar the Broward County schools from reciting the pledge until the language was removed. The pledge’s language, Newdow claimed, violated both the Free Exercise Clause and the establishment clause of the First Amendment. At the time, Newdow was an ordained minister in the Universal Life Church, which claims that “the true and eternal bonds of righteousness and virtue stem from the reason rather than mythology.” That mythology includes “trust in any God.” Newdow said that were he to teach in Broward public schools or enroll his daughter there, they would be subjected to a daily government endorsement of theism. Broward’s school board policy specifies that schools should conduct the pledge each morning, though the schools could substitute some other “thought-provoking program planned with discretion.” Marylin Batista, attorney for the Broward School Board, said the Florida case was the first time the system had heard of Newdow. He was “not the gadfly type,” she said. However, his case did have some weaknesses, Batista said. “He was not working here [with the Broward School District], and his daughter was not enrolled in the district,” she said. At the time, Batista said, Newdow was in the process of moving. “To California, I guess,” she said, laughing. DISMISSED IN FLORIDA U.S. District Judge Ursula Ungaro-Benages of the Southern District of Florida dismissed Newdow’s case on two grounds. First, Newdow had no standing because no one had forced him or his daughter to recite the pledge, nor was anyone likely to do so in the future. Second, he had failed to state a cause of action, because the words “under God” in the pledge do not endorse religion. “The plaintiff has not alleged that his child was forced to recite the pledge of allegiance, nor is there any allegation that his child is enrolled in the Broward County school system,” Ungaro-Benages wrote in her Sept. 10, 1998, order. Newdow appealed, claiming he had standing because the 1954 law inserting “under God” into the pledge caused him the injury of making him an outsider to American society. He also claimed standing to protect his daughter’s interest in avoiding exposure to government-sponsored religion, and that should he run for office or work in the Broward County school system he would have to perform a ritual that offends his beliefs. “Surely no one is anxious to incur the wrath of the majority of Americans, which will undoubtedly happen to the judges who remove ‘under God’ from the Pledge of Allegiance to the Flag,” Newdow wrote in his 11th Circuit appeal brief. But he urged the judges to ensure that the language of the pledge doesn’t exclude atheists from expressing their patriotism. The 11th Circuit didn’t reach Newdow’s arguments on the merits. In an unpublished decision comprising Judges J.L. Edmondson, Frank M. Hull and Edward E. Carnes, the 11th Circuit upheld the lower court. Newdow v. U.S., No. 99-4136 (11th Circ. Jan. 4, 2002). “[W]e find no reversible error,” the order reads. “For the reasons concisely stated by the district court, Newdow lacked standing to raise the claims he is attempting to litigate.” The 9th Circuit decision doesn’t cause a split among the circuits, however, because the 11th Circuit never reached the merits of Newdow’s First Amendment claim. But Newdow might have had chances in at least three circuits. His appeals brief lists three addresses: one in Teaneck, N.J., one in Fort Lauderdale, Fla., and one in Sylmar, Calif. “It certainly seems that he was seeking out the more liberal circuits — except for the 11th,” Batista said. “But of course everything has to come through Florida.”

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