California court says pledge not mandatory

Controversy has been reignited about the constitutionality of reciting the pledge of allegiance in public schools, and the case could once again be headed for the U.S. Supreme Court.

U.S. District Court Judge Lawrence Karlton ruled Wednesday in favor of Michael Newdow, of Sacramento, an atheist who claimed that the pledge is unconstitutional.

Newdow, who filed on behalf of three parents and their children, lost a similar case before the Supreme Court last year. The Court dismissed the case because Newdow did not have legal custody of his elementary school daughter.

But Karlton simply was following the 2002 precedent set by the 9th U.S. Circuit Court of Appeals, which ruled in favor of Newdow, said William Marshall, a professor at UNC's School of Law.

"The judge was just doing what he's supposed to do given that his court is within the jurisdiction of the ninth circuit," he said.

"I suppose the judge could have tried to be more creative and find a way to disregard the ninth circuit precedent."

Ignoring precedent would have been preferable to the Becket Fund for Religious Liberty, a party in the case.

"(The judge) wanted to use the ninth circuit prior opinion to do the dirty work for him," said Derek Gaubatz, director of litigation for the Becket Fund.

He said the organization planned to appeal the decision immediately.

"It's outside of mainstream America, and it's outside of mainstream legal jurisprudence," he said. "If you can't voluntarily recite the pledge then you can't voluntarily recite the Declaration of Independence.

"The pledge reflects political philosophy that has driven our country from the beginning - that our rights come not just from the government but from a higher source."

Gaubatz said that the Becket Fund hopes the circuit court reverses its precedent and that the organization will pursue the case to the Supreme Court if necessary.

But Arnold Loewy, a professor at UNC's School of Law, said the result of the case was the right one, though he hadn't yet read the opinion.

"What's important is not the fact of the pledge, or even that the government has the pledge, but that the individual must recite the pledge or, alternatively, single himself out as someone who does not want to recite the pledge," he said.

Loewy said reciting the pledge of allegiance poses more than just the problem of endorsing religion.

"It has the problem of the patriotic atheists appearing nonpatriotic by refusing to participate," he said. "It has all of the problems of school prayer plus."

But Gaubatz, who called the decision "extreme," said the right to recite the pledge has been denied by the ruling.

"The Becket Fund is representing 10 California school children, who have been able to recite the pledge," he said. "And we want their ability to do that preserved."

 

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