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Saturday, March 01, 2003

By Charles Lane, The Washington Post

A sharply divided federal appeals court yesterday voted to let stand its much-criticized ruling banning teacher-led recitation of the Pledge of Allegiance in public schools, a decision that sets the stage for a possible battle in the Supreme Court over patriotism and religion.

Over the dissent of nine members, the 24-judge 9th U.S. Circuit Court of Appeals, based in San Francisco, rebuffed requests from the Bush administration and a California school district to have the court reconsider last June's decision, in which a three-judge panel ruled 2 to 1 that a classroom flag salute including the phrase "one nation, under God" violates the Constitution's prohibition against official religion.

The court did take one step back, however. Its original ruling not only barred schools from sponsoring the pledge but also struck down the 1954 federal law that officially added the words "under God" to the pledge, thus making the pledge itself unconstitutional. That was omitted from an "amended" version of the court's opinion issued yesterday.

The altered ruling will take effect March 10 in the nine Western states of the 9th Circuit unless opponents win a court order blocking it. It would ban recitation of the pledge by 9.6 million schoolchildren in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

The court's adjustment seemed unlikely to win it much support, however. With the country engaged in a war against terrorism and facing another war in Iraq, politicians of both parties have shown themselves eager to embrace traditional patriotic symbols and rituals. The 9th Circuit's ruling in June was denounced in Senate and House resolutions that passed with a total of three dissenting votes.

And yesterday, in words almost identical to those he used at that time, U.S. Attorney General John Ashcroft left little doubt that he would soon ask the U.S. Supreme Court to intervene.

"The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag," Ashcroft said in a prepared statement. "We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge."

California's Democratic Gov. Gray Davis noted in a statement that "at the start of every court session, the Supreme Court invokes God's blessing. So does the Senate and House of Representatives. Surely the Supreme Court will permit schoolchildren to invoke God's name while reciting the Pledge of Allegiance."

And dissenting 9th Circuit members yesterday continued to attack the majority's decision as, in the words of Judge Diarmuid O'Scannlain, "every bit as bold as its predecessor." In addition to banning recitation of the pledge in Western schools, O'Scannlain wrote, the ruling would cast doubt both on the 1954 law and the California law mandating patriotic exercises in school.

"We should have reheard [the case] ... 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,' wrong as a matter of Supreme Court precedent properly understood ... and wrong as a matter of common sense," O'Scannlain wrote.

As if to demonstrate that revising its opinion was indeed no concession to critics, Judge Stephen Reinhardt, a member of the original three-judge panel who voted in favor of banning the pledge, defended both the ruling and the decision not to revisit it. He accused O'Scannlain yesterday of having the "disturbingly wrongheaded" view that the court should heed public opinion.

"We may not -- we must not -- allow public sentiment or outcry to guide our decisions," he wrote.