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The San Francisco Chronicle

Appeals Court says 'Under God' Not a Prayer

Bob Egelko

The dissenting judge, Stephen Reinhardt, said statements by members of Congress who added "under God" to the pledge in 1954 show conclusively that it was intended to "indoctrinate our nation's children with a state-held religious belief."

The federal court that touched off a furor in 2002 by declaring the
words "under God" in the Pledge of Allegiance to be an unconstitutional
endorsement of religion took another look at the issue Thursday and
said the phrase invokes patriotism, not religious faith.

The daily schoolroom ritual is not a prayer, but instead "a
recognition of our founders' political philosophy that a power greater
than the government gives the people their inalienable rights," said
the Ninth U.S. Circuit Court of Appeals in San Francisco in a 2-1

"Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect."

The dissenting judge, Stephen Reinhardt, said statements by members
of Congress who added "under God" to the pledge in 1954 show
conclusively that it was intended to "indoctrinate our nation's
children with a state-held religious belief."

In a separate ruling, the same panel upheld the use of the national
motto, "In God We Trust," on coins and currency. The language is
patriotic and ceremonial, not religious, the court said. Reinhardt
reluctantly joined the 3-0 decision, saying he was bound by the court's
newly established precedent in the pledge case.

Atheist sued

Both suits were filed by Michael Newdow, a Sacramento atheist who
has brought numerous challenges to government-sponsored religious
invocations. He said he would appeal the rulings to the full appellate
court and the U.S. Supreme Court, but was not optimistic.

The rulings sent two messages, Newdow said: "To be a real American,
you believe in God, and the judiciary unfortunately sometimes can't be
trusted to uphold our constitutional rights when you're a
disenfranchised minority."

Former Justice Department lawyer Gregory Katsas, who represented the
Bush administration in the pledge case when the court heard it in 2007,
heard a different message: that "one nation, under God" suggests a
government that "is limited and bound to respect individual rights."

Swift reaction

Newdow first challenged the Pledge of Allegiance in 2000 on behalf
of his daughter, a student in a Sacramento-area elementary school. The
appeals court ruled in June 2002 that the addition of "under God" was
religiously motivated and sent "a message to nonbelievers that they are
outsiders," in violation of the constitutional separation of church and

Congress reacted furiously, passing a resolution with virtually no
dissenting votes that denounced the decision. The court put its ruling
on hold until the case reached the Supreme Court, which sidestepped the
constitutional issue and ruled that Newdow could not represent his
daughter's interests because her mother had legal custody.

Newdow then refiled the suit on behalf of the parent of a
kindergartner in the Sacramento suburb of Rio Linda. He won the first
round before a federal judge in 2005, but a new appeals court panel
issued a 193-page ruling Thursday upholding the pledge.

Pledge isn't prayer

In the majority opinion, Judge Carlos Bea acknowledged that "the
words 'under God' have religious significance," but said they do not
"convert the pledge into a prayer."

The 1954 law that added those words at the height of the Cold War
was meant to convey the idea of a limited government, "in stark
contrast to the unlimited power exercised by communist forms of
government," said Bea, joined by Judge Dorothy Nelson. "Congress'
ostensible and predominant purpose was to inspire patriotism."

Reinhardt, a member of the 2002 panel that found the language
unconstitutional, said Thursday's majority ignored overwhelming
evidence of religious motivation by the 1954 Congress.

He cited statements by numerous lawmakers denouncing atheistic
communism and declaring a belief in God to be part of the American way
of life. Reinhardt also pointed to President Dwight Eisenhower's
signing statement that millions of schoolchildren would now proclaim
"the dedication of our nation and its people to the Almighty."

During the same period, Reinhardt said, Congress adopted "In God We
Trust" as the national motto, ordered it inscribed on paper money and
established an annual National Prayer Breakfast.

By inserting religious language into the pledge, Reinhardt said, "we
abandoned our historic principle that secular matters were for the
state and matters of faith were for the church."

The ruling can be viewed at

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