Appeals court will not revisit pledge ruling


Published: Saturday, March 1, 2003 at 6:01 a.m.
Last Modified: Friday, February 28, 2003 at 9:45 p.m.
SAN FRANCISCO - Rebuffing the Bush administration, a federal appeals court Friday refused to reconsider its ruling that reciting the Pledge of Allegiance in public schools is unconstitutional because of the words "under God."
The case could go next to the U.S. Supreme Court.
Attorney General John Ashcroft condemned the decision and said the Justice Department will "spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag." But he stopped short of saying the administration will appeal to the high court.
In June, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that the words "under God" amount to a government endorsement of religion and violate the separation of church and state. The ruling was attacked by President Bush, Congress and many others, and the Bush administration asked the full 9th Circuit to reconsider.
Only seven of the 24 active judges on the 9th Circuit wanted the full court to reconsider.
The June ruling, which applies to the nine Western states the court covers, had been put on hold until the full court reviewed it.
It was not immediately clear when the ban might take effect for the millions of public school students in those states. Appellate rulings take several weeks to take effect, to give each side an opportunity to appeal.
The challenge was brought by Sacramento atheist Michael Newdow, who objected to his 8-year-old daughter's listening to the words "under God" in school.
The words were added by Congress in 1954 during the Cold War to distinguish democracy from "godless Communism."
Newdow did not immediately return a call for comment Friday.
The three judges who took part in the original ruling - Circuit Judges Alfred Goodwin and Stephen Reinhardt on one side, Ferdinand F. Fernandez on the other - did not change their positions during the appeal.
Circuit Judge Diarmuid F. O'Scannlain called the original ruling "wrong, very wrong" and noted that it provoked a nationwide public outcry. He said the decision defies common sense and "contradicts our 200-year history and tradition of patriotic references to God."
"The absolute prohibition on any mention of God in our schools creates a bias against religion," he wrote.
Fernandez said the words "under God" have caused no real harm over the years, "except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life."
But Reinhardt lashed out at the "disturbingly wrong-headed" suggestion that the public outcry should have persuaded the court to reconsider.
"The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties," Reinhardt wrote.
The lawsuit later became a parental rights case that pitted Newdow against the girl's mother, Sandra Banning.
In response to the court's original ruling, Banning asserted that her daughter is not harmed by reciting the pledge and is not opposed to God. But the court said Newdow had legal standing to bring the case on behalf of his daughter.

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