What happened with the pledge ruling? (2/28/03)

I’m led to believe that the 9th U.S. Circuit Court of Appeals refused to re-hear the Newdow case (Newdow v. Congress, 00-16423). But this AP story says that “the court backed away Friday from a major element of its controversial June ruling.” Specifically, the article says,

Huh? Before the Pledge was okay as long as the '54 “under god” insertion was not included and now the whole Pledge is verboten? Can anybody fill me in on what happened?

No, the original decision said two things:

  1. The '54 federal law establishing the pledge, which added the “under god” language, is unconstitutional.

  2. The California law saying that elementary school teachers shall, at the beginning of the day, lead their students in patriotic exercises, with the specific mention of the pledge as an appropriate patriotic exercise, is unconstituitional.

The appeals court got rid of the first part of the decision but not the second, so now the law establishing the pledge is constitutional, but it’s unconstitutional for teachers to lead their students in it.

Is this unconstitutional because of the religious content, or because teachers aren’t allowed to force political speech (or something else)? In a way, it sounds like the whole point of Newdow’s case has been tossed out with the stroke of a pen.

It’s unconstitutional (according to the Court of Appeals) because of the religious content. The pledge stays worded as it is, but the the teacher can’t lead the class in the recitation of the pledge with the “under God” added, because that would violate the establishment clause.

Here is the opinion of the United States Court of Appeals for the Ninth Circuit, sitting en banc, in Newdow v. U.S. Congress, No. 00-16423 (9th Cir. Feb. 28, 2003) (en banc). Here is the opinion of the three-judge panel that decided the case in June 2002.