A federal judge declared the reciting of the Pledge of Allegiance in
public schools unconstitutional Wednesday in a case brought by the same atheist whose previous battle against the words "under
God" was rejected by the U.S. Supreme Court on procedural grounds.
U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation
"under God" violates school children's right to be "free from a coercive requirement to affirm God."
Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which
in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.
The Supreme Court dismissed the case last year, saying Newdow lacked standing because
he did not have custody of his elementary school daughter he sued on behalf of.
Newdow, an attorney and a medical doctor, filed an identical case on behalf of three
unnamed parents and their children. Karlton said those families have the right to sue.
Karlton, ruling in Sacramento, said he would sign a restraining order preventing the
recitation of the pledge at the Elk Grove Unified, Rio Linda and Elverta Joint Elementary school districts in Sacramento County,
where the plaintiffs' children attend.
The order would not extend beyond those districts unless it is affirmed by a higher court,
in which case it would apply to nine western states.
The decision sets up another showdown over the pledge in schools, at a time when the
makeup of the Supreme Court is in flux.
Wednesday's ruling comes as Supreme Court nominee John Roberts faces day three of his
confirmation hearings before the Senate Judiciary Committee. He would succeed the late William H. Rehnquist as chief justice.
In July, Sandra Day O'Connor announced her plans to retire when a successor is confirmed.
The Becket Fund, a religious rights group that is a party to the case, said it would
immediately appeal the case to the San Francisco-based 9th U.S. Circuit Court of Appeals. If the court does not change its
precedent, the group would go to the Supreme Court.
"It's a way to get this issue to the Supreme Court for a final decision to be made,"
said fund attorney Jared Leland.
The decisions by Karlton and the 9th Circuit conflict with an August opinion by the 4th
U.S. Circuit Court of Appeals in Richmond, Va. That court upheld a Virginia law requiring public schools lead daily Pledge
of Allegiance recitation, which is similar to the requirement in California.
A three-judge panel of that circuit ruled that the pledge is a patriotic exercise, not
a religious affirmation similar to a prayer.
"Undoubtedly, the pledge contains a religious phrase, and it is demeaning to persons
of any faith to assert that the words `under God' contain no religious significance," Judge Karen Williams wrote for the 4th
Circuit. "The inclusion of those two words, however, does not alter the nature of the pledge as a patriotic activity."
Newdow, reached at his home, was not immediately prepared to comment.
Karlton, appointed to the Sacramento bench in 1979 by President Carter, wrote that the
case concerned "the ongoing struggle as to the role of religion in the civil life of this nation" and added that his opinion
"will satisfy no one involved in that debate."
Karlton dismissed claims that the 1954 Congressional legislation inserting the words
"under God" was unconstitutional. If his ruling stands, he reasoned that the school children and their parents in the case
would not be harmed by the phrase because they would no longer have to recite it at school.
Terence Cassidy, a lawyer representing the school districts, said he was reviewing the
opinion and was not immediately prepared to comment.
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