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Over the objection of nine of its judges, the 9th U.S. Circuit Court of Appeals has decided to let stand its controversial ruling that the schoolhouse ritual of reciting the Pledge of Allegiance is unconstitutional. The surprising outcome inflamed Friday’s order in a way that few decisions have. The amended opinion, concurrence and two dissents from the denial of en banc review sparked enough rhetorical electricity to reanimate a graveyard of Clarence Darrows and Felix Frankfurters. “We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very wrong –wrong because reciting the Pledge of Allegiance is simply not ‘a religious act’ as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense,” Judge Diarmuid O’Scannlain wrote in dissent. He was joined by Judges Andrew Kleinfeld, Ronald Gould, Richard Tallman, Johnnie Rawlinson and Richard Clifton. Rawlinson also joined three other appointees of President Clinton to say that the case should be reheard for no other reason than its overarching importance. Judge Stephen Reinhardt, who had signed on to the original opinion, wrote separately about the responsibilities of judges when faced with awesome public pressures. “We may not — we must not — allow public sentiment or outcry to guide our decisions,” he wrote. “It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril.” Referring to a reference in O’Scannlain’s dissent to the public outcry over the case, Reinhardt lectured him on the need for “strict adherence to established constitutional principles.” The move speeds the delivery of the case to the steps of the U.S. Supreme Court, giving the justices a chance to clarify what many consider to be the court’s muddy Establishment Clause jurisprudence. “Why waste time if it’s the Supreme Court’s mess,” said Vikram Amar, a University of California’s Hastings College of the Law professor. A number of judges chose to stay out of Friday’s fight. The original dissenting judge, Ferdinand Fernandez, did not vote to rehear the case. The influential and outspoken Judge Alex Kozisnki did not join in any dissent. Nor did Chief Judge Mary Schroeder, who was summoned to Congress for a hearing on whether the 9th Circuit should be split in two in the wake of June’s decision. Senior Judge Alfred Goodwin amended his original opinion to make clear that it applies only to students and teachers at public schools, leaving the phrase “under God” in place for others, leading the dissenters to refer to the June decision as Newdow I and Friday’s as Newdow II. Sacramento, Calif., physician Michael Newdow, an avowed atheist, had filed the case on behalf of his elementary school-aged daughter. Newdow has argued in this case and several unrelated cases that public invocations of God are unconstitutional. The original decision was met with immediate outcry, with the court all but tied to the public whipping post. The president and most of Congress condemned the decision, which came less than a year after the attacks of Sept. 11. Most legal observers had predicted the decision would be overturned, if not by the 9th Circuit then eventually by the Supreme Court. Reaction to Friday’s decision was critical, but less heated, than in June. “At the start of every court session, the Supreme Court invokes God’s blessing. So does the Senate and the House of Representatives. Surely the Supreme Court will permit school children to invoke God’s name while reciting the Pledge of Allegiance,” California Gov. Gray Davis said in a statement. The Justice Department indicated that it will appeal. “The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the Pledge,” Attorney General John Ashcroft said in a statement. The Pledge can still be recited at school without the words “under God.” But to make schoolchildren recite those words every morning would amount to coercing them into monotheism, Goodwin wrote. “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,” Goodwin wrote. That formed the crux of O’Scannlain’s dissent. “The Newdow II majority’s expansive application of the coercion test is ill-suited to a society as diverse as ours, since almost every cultural practice is bound to offend someone’s sensibilities. In affording Michael Newdow the right to impose his views on others, Newdow II affords him a right to be fastidiously intolerant and self-indulgent,” O’Scannlain wrote. “ Newdow II‘s psychological ipse dixit is also delivered without reference or regard to our collective experience in the half-century since the passage of the offending statute. In that time, generations of Americans have grown up reciting the Pledge, religious tolerance and diversity has flourished in this country, and we have become a beacon for other nations in this regard.”

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