Fri, Sep 16, 2005 - Page 7 News List

US judge rules pledge unconstitutional

NATION UNDER GOD A federal judge ruled that the pledge of allegiance violated schoolchildrens' right to be free from a coercive affirmation of God

AP , SAN FRANCISCO

Third-graders Kaelyn Muhammud, right, and Sarah Kelly, center, reciting the pledge of allegiance at Barksdale Elementary School in Conyers, Georgia, last month.

PHOTO: NY TIMES

A federal judge declared the reciting of the pledge of allegiance in public schools unconstitutional, a decision that could put the divisive issue on track for another round of Supreme Court arguments.

The case was brought by the same atheist whose previous battle against the words "under God" was rejected last year by the Supreme Court on procedural grounds.

US District Judge Lawrence Karlton ruled on Wednesday 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 US 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. Newdow hopes that will make it more likely the merits of his case will be addressed by the high court.

"All it has to do is put the pledge as it was before, and say that we are one nation, indivisible, instead of dividing us on religious basis," Newdow told reporters.

"Imagine every morning if the teachers had the children stand up, place their hands over their hearts, and say, `We are one nation that denies God exists,'" Newdow said.

"I think that everybody would not be sitting here saying, `Oh, what harm is that.' They'd be furious. And that's exactly what goes on against atheists. And it shouldn't," he said.

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 the 9th Circuit, in which case it could apply to nine western states, or the Supreme Court, which would apply to all 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 faced day three of his confirmation hearings before the Senate Judiciary Committee.

He would succeed the late William 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 US Circuit Court of Appeals. If the court does not change its precedent, the group would go to the Supreme Court.

The decisions by Karlton and the 9th Circuit conflict with an August opinion by the 4th US Circuit Court of Appeals in Richmond, Virginia.

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.

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