Appeals court won't reconsider pledge ban

SAN FRANCISCO -- A federal appeals court Friday rejected the Bush administration's request to reconsider its ruling the Pledge of Allegiance is unconstitutional when recited in public school classrooms because it includes the phrase "under God."

Attorney General John Ashcroft strongly condemned the ruling and said the Justice Department would "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," Ashcroft said.

Though Ashcroft didn't say an appeal to the U. S. Supreme Court was certain, the 9th U.S. Circuit Court of Appeals said it would not accept any other petitions in the case.

"(The decision) certainly ignores 225 years of American history," said the Rev. Jim Hukari, a member of the Carson City School Board. "It's probably a good display of the arrogance of some judges and probably to be expected. I hope the Supreme Court is a little more discriminating with its judicial power."

Ruling on a lawsuit brought by Sacramento atheist Michael Newdow, a the circuit court panel decided 2-1 in June Newdow's daughter should not be subjected to the words "under God" at her public school.

Friday's ruling effectively reaffirmed that part of the original decision. Though the ban does not go into effect immediately, officials at the Sacramento-area Elk Grove Unified School District where Newdow's daughter has been enrolled said students would not recite the pledge starting Monday morning.

Students instead will sing patriotic songs or read poems.

"We don't want to take a chance on anyone feeling we're violating the law," said superintendent Dave Gordon, who promised to appeal the case to the Supreme Court.

Reached in Houston as he was traveling back to California, Newdow praised the court for "upholding the Constitution. That's what they are supposed to do.

"This makes our country stronger when everyone's views are given equality, especially when it comes to religion," said Newdow, who received death threats last summer when the court ruled.

Told that Elk Grove's 53,000 students would no longer be asked to recite the pledge, he said, "It's good to know they're following the Constitution. I'm still confused as to what it is they're trying to accomplish by fighting this."

Judges Alfred Goodwin and Stephen Reinhardt wrote last year that the phrase was an endorsement of God, and the Constitution forbids public schools or other governmental entities from endorsing religion. They amended their opinion Friday to specify it applies only to public school settings where children might feel coerced to recite the words "under God."

"The Supreme Court may get this case. This probably won't end the controversy," Goodwin said in an interview Friday.

It was not immediately clear when the ban might be enforced for all of the 9.6 million students who live in the nine states covered by the 9th Circuit. As with all appellate rulings, the pledge ban won't take effect for several weeks to give each side time to appeal.

Only nine of the 24 active judges wanted the full circuit to reconsider. Writing for the dissenters, Judge Diarmuid F. O'Scannlain said the earlier decision provoked a public outcry across the nation, defies common sense, and "contradicts our 200-year history and tradition of patriotic references to God."

Judge Ferdinand F. Fernandez, the lone vote against the initial 9th Circuit ruling, 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."

Reinhardt lashed out at dissenters' "disturbingly wrong-headed" suggestion that public outcry over the pledge ruling should have persuaded the circuit 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.

But O'Scannlain said they should have reheard the case "not because it was controversial, but because it was wrong, very wrong."

The pledge ruling "confers a favored status on atheism in our public life," since schools are where future generations get their ideas and values, he wrote.