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Judicial Houdinis 10/27/2003 Ninth Circuit Refuses to Rehear Pledge Case When judges use "legerdemain," "slight-of-hand" and "obfuscation" to describe a ruling by their fellow judges, it's a clue that the "dissenting opinion" isn't boring.
Michael Newdow, a non-custodial father of an 8-year-old girl enrolled in a California school, filed suit in federal court against the U.S. Congress, the United States of America and the President. He challenged the constitutionality, under freedom-of-religion grounds, of the words "under God" in the Pledge of Allegiance to the Flag in 4 U.S.C. § 4, California Education Code § 52720, and the Pledge-recitation policy in the district where his daughter attended school.
Newdow claimed the school was violating his daughter's constitutional rights by forcing her to listen to other kids say the Pledge. We later learned that his daughter is a Christian who not only wants to say the Pledge, she sometimes leads it and doesn't want anybody to think she's an atheist. It's hard for father to know best when he doesn't know much.
The district court dismissed the case on the ground that Newdow didn't have standing to bring the case. The Supreme Court held in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., the "psychological consequence presumably produced by observation of conduct with which one disagrees ... is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms." Layman's translation: Not every gripe, beef, or slight gives you a right to make a federal case out of it.
On June 26, 2002, a three-judge panel of the Ninth Circuit reversed the district court and held that the phrase "under God" in the Pledge is unconstitutional. By a 2-1 vote, Judge Goodwin, a Nixon appointee, and Judge Reinhardt, a Carter appointee, held that both the federal statute and recitating the Pledge in a public school violate the Establishment Clause of the First Amendment. Judge Fernandez, a Reagan appointee, dissented.
On February 28, by a vote of 15-9, the full panel of the Ninth Circuit refused to rehear the case. In their opinion and order, the ruling on the federal statute was withdrawn but the ruling affecting 9.6 million students in the public schools in the Ninth Circuit remains. "In Newdow I, the Pledge was unconstitutional for everybody; in Newdow II the Pledge is only unconstitutional for public school children and teachers." Newdow II. In other words, there's no longer a ruling that says the federal statute is unconstitutional because the Pledge contains "under God." But magically, the Pledge becomes unconstitutional when public school kids say it voluntarily.
The Ninth Circus regularly emits opinions like this. And that's why it's been overturned more times than pancakes at IHOP. In this term, the Supreme Court flipped the Ninth three times in one day.
Judge O'Scannlain wrote an opinion that was joined by five other judges who dissented from the denial of rehearing. Four more judges (one who also joined O'Scannlain) joined in a second dissenting opinion. O'Scannlain put it this way:
We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very-wrong because reciting the Pledge of Allegiance is simply not "a religious act" as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense. We should have given 11 judges a chance to determine whether the two-judge majority opinion truly reflects the law of the Ninth Circuit. Reciting the Pledge of Allegiance cannot possibly be an "establishment of religion" under any reasonable interpretation of the Constitution.
"Under God" is a statement of historical fact about the United States, not a religious exercise. It's a pledge to a nation, not a prayer to God. Judge O'Scannlain cites numerous Supreme Court school cases in which former Chief Justice Burger, Justices Douglas, Brennan, Blackmun, O'Connor and Kennedy made "explicit references to the constitutionality of the Pledge." Then there's a 1992 decision by the Seventh Circuit Court of Appeals that upheld an Illinois statute requiring school teachers to lead in the Pledge each school day.
The First Amendment protects both freedom of speech and the freedom not to speak. Newdow likes to remind us that the Bill of Rights is a shield to protect the individual from the tyranny of the majority. That's true. But Newdow isn't satisfied that neither his daughter nor any other child has to say the Pledge-he doesn't want others to say it even if they want to. Tyranny by the individual is still tyranny.
Here's where the "sleight-of-hand" comes in. Goodwin and Reinhardt (Houdini I and II) transformed "under God" in the Pledge into a profession of religious belief. They pulled the Establishment Clause rabbit out of a hat and allowed Newdow to use the Bill of Rights as a sword to deny the free speech rights of kids who want to say the Pledge. In order to buy into that, you have to conclude that the First Amendment violates itself.
This is the essence of the "Heckler's Veto," which the Supreme Court has always rejected. But, when a court wants to silence what it perceives to be "religious" speech in public school settings, it permits the "Heckler's Veto."
O'Scannlain concluded:
In affording Michael Newdow the right to impose his views on others, Newdow II affords him a right to be fastidiously intolerant and self-indulgent. In granting him this supposed right, moreover, the two-judge panel majority has not eliminated feelings of discomfort and isolation, it has simply shifted them from one group to another.
Note to kids and teachers in the Ninth Circuit: Alexander Hamilton said that the judiciary has no "sword" to enforce its rulings. Abraham Lincoln told Chief Justice Taney that if he wanted the abominable Dred Scott ruling enforced to do it himself. I wouldn't worry about President Bush sending in federal troops to stop you from pledging allegiance to this nation "under God" if you want to.
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