California Judge Sides With Atheist On Pledge of Allegiance in Classroom
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SAN FRANCISCO – A California atheist’s legal crusade to end the recitation of the pledge of allegiance in public schools was revived yesterday as a federal judge in Sacramento ruled that the phrase “under God” in the pledge renders the practice unconstitutional.
Judge Lawrence Karlton issued the order in a new lawsuit brought by Michael Newdow, the attorney and physician whose challenge to the pledge was rejected by the Supreme Court last year on technical grounds.
Judge Karlton found that since the Supreme Court never dealt squarely with the constitutionality of the daily public school ritual, a widely criticized 2002 decision in which the 9th Circuit appeals court held the pledge unconstitutional remains the controlling law.
For his new lawsuit filed in January, Mr. Newdow enlisted three other Sacramento-area atheists and their children who attend public schools. Judge Karlton yesterday removed Dr. Newdow as a party to the case because of his limited custody over his own daughter, but the judge said the other parents and children involved had the required standing to proceed with Dr. Newdow as their lawyer.
The ruling was immediately seized upon by advocates for Supreme Court nominee Judge John Roberts Jr., who faced his third day of confirmation hearings yesterday before the Senate Judiciary Committee.
“This actually comes at a time where it underscores Judge Roberts’s statement earlier this week that we need judges to be umpires, applying settled law and not injecting their own personal ideology,” the president of a conservative legal group, Liberty Counsel, Mathew Staver, said.
A law professor who has filed briefs on behalf of opponents of the pledge, Douglas Laycock of the University of Texas, said he expects the ruling to alter the dynamics of the hearings for Judge Roberts. “It’ll be a talking point for the Republicans, you can guarantee it,” the professor said.
Legal experts were divided about whether Judge Karlton was correct about the validity of the 9th Circuit’s 2002 ruling. “The trial judge didn’t have a whole lot of choice,” Mr. Laycock said. However, Mr. Staver said the opinions of Supreme Court justices in their 2004 decision made clear that recitation of the pledge in public school was constitutional.
While advocates for church-state separation generally praised Judge Karlton’s ruling, some expressed concerns about a backlash. “It’s not going to be a popular decision with the American people, but I think the judge made the right call,” Robert Boston of Americans United said.
Mr. Laycock said that while he agrees with Mr. Newdow on the law, his position will never prevail. The professor said that even if the Supreme Court struck down school-based recitation of the pledge, a constitutional amendment could overturn the decision “within three months.”
An attorney for the school districts involved, Terence Cassidy, said it was not clear for procedural reasons whether the judge’s decision could be appealed immediately. In his ruling, Judge Karlton said he was prepared to enter a restraining order against the schools once the proper legal filings were made.
In a stinging closing footnote to his order, Judge Karlton savaged the Supreme Court’s perplexing decisions last term in which the justices upheld a Ten Commandments display on the grounds of the Texas State Capitol, but prohibited a display of the Decalogue in a Kentucky courthouse. Both decisions were by a 5-4 margin, with Justice Breyer casting the deciding vote. He found the Texas display was more historical in nature, while the Kentucky one appeared to have been erected for religious reasons.
“The distinction is utterly standardless, and ultimate resolution depends [on] the shifting, subjective sensibilities of any five members of the high court, leaving those of us who work in the vineyard without guidance,” Judge Karlton wrote. “Moreover, because the doctrine is inherently a boundary-less slippery slope, any conclusion might pass muster.”
In a passage that appeared to betray his agreement with the 9th Circuit’s much-pilloried ruling, Judge Karlton noted that in an 1892 decision the Supreme Court declared that America “is a Christian nation.”
“As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting ‘under Christ’ for ‘under God’ in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus, and other religious adherents,” the judge wrote.
Judge Karlton, 70, is a Brooklyn native and a graduate of Columbia Law School. He was appointed to the bench by President Carter.