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In the absence of precedent, the 9th U.S. Circuit Court of Appeals shouldn’t have made any of it itself in deciding that the Pledge of Allegiance is unconstitutional, state lawyers argued in court papers filed Thursday. In the first official request for a rehearing of last month’s controversial ruling that use of the phrase “under God” is an impermissible establishment of religion, the California attorney general’s office argued that the phrase is merely a ceremonial expression of the country’s religious heritage — something the Supreme Court has suggested, but never held. “The panel here, of course, chose to ignore the Allegheny majority assurances,” wrote Deputy Attorney General Theodore Garelis, referring to Allegheny v. ACLU, 492 U.S. 573, which noted in dicta that the Pledge of Allegiance did not violate the Establishment Clause. “More troublesome, though — considering the magnitude of the issue, the impact on the American public (especially following the events of Sept. 11) and the absence of a clear, controlling precedent — was the rejection of the Seventh Circuit’s prudent approach: affording the Supreme Court the fist opportunity to disavow its prior endorsement of the pledge, should the court find it appropriate to do so.” Furthermore, the state argued that the case should be remanded for an evidentiary hearing into what it calls a question of first impression: whether a parent who doesn’t have custody of a child has standing to challenge school district policies. Recently, the mother of plaintiff Michael Newdow’s daughter, a student at an Elk Grove, Calif., elementary school near Sacramento, said that neither she nor her 8-year-old daughter is opposed to the Pledge of Allegiance. Newdow, an atheist, argued that the morning recitation of the Pledge at school interferes with his right to direct his child’s religious education. “Appellee respectfully suggests that the news accounts alone raise sufficient questions about Newdow’s standing to justify consideration of the panel decision,” Garelis wrote. It is the state’s first brief in the case. Although California is named in the complaint, state officials have defended themselves against charges that they did not bother to defend the Pledge by saying they were never properly served. In response, Newdow has filed a copy of a July 1999 U.S. Post Office receipt and wrote that several filings were sent to the state. In addition to the state, the U.S. Senate recently moved to intervene in the case. Although the Senate was originally sued by Newdow, the three-judge panel ruled that Newdow did not have standing to sue that body. Senate Legal Counsel Patricia Mack Bryan conceded that was the proper ruling, but wrote that the Senate has standing to intervene in any question of a statute’s constitutionality. “The Senate retains standing, on its own initiative and as a voluntary matter, to intervene as a defendant to participate in the constitutional defense of its enactments,” Bryan wrote. With a 2-1 vote, a 9th Circuit panel held that Congress’ 1954 addition of the words “under God” to the Pledge constituted an establishment of religion. The decision conflicts with a case in the 7th Circuit.

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