Pledged to Go On and On and On
It would be easy to say that Michael Newdow is back. But the truth is that the famous atheist who put the Pledge of Allegiance on the constitutional ropes a few years ago never really left. The litigation, the one that made it to the United States Supreme Court in 2004, and generated a procedural ruling there that ended the national debate on the subject, is still alive and now back before the 9th U.S. Circuit Court of Appeals. Why? Because a federal trial court judge ruled that the original appellate court ruling still has prececential value over people within its jurisdiction despite the pronouncement by the Justices in Washington.
Apoplectic federal lawyers say the trial judge got it completely wrong; that the Supreme Court even with its limited ruling on standing grounds foreclosed in 2004 the possibility that lower courts could block the Pledge from being recited. And the feds are reminding the appeals court judges that no fewer than three Justices declared in 2004 that they would have upheld the Pledge with or without the standing issue. The problem for the government is that one of those Justices (O'Connor) has retired and the other (Rehnquist) is dead.
The trial judge in California ruled last September that ban against the Pledge was still valid, at least within the 9th Circuit's jurisdiction, because the Supreme Court never specifically ruled that the 9th Circuit's interpretation of first amendment law was wrong. My best guess? The 9th Circuit won't stick its collective head out again and will reject the lower court's view of the power of the initial ruling. But if it does, if we see Newdow II (actually, it might be called Newdow III or Newdow IV given how many iterations there have been in this case), then the newly-formed Roberts' Court will face an early and big test of its legal talents and political acumen.
Meanwhile, it is important to remember as you follow this dispute that the words "under God" were not part of the original Pledge . They were added during the height of the Cold War, in 1954, at the request of the Knights of Columbus and with the permission of President Dwight D. Eisenhower, who figured the inclusion of the words would send a strong message to godless communists. So while the words may have obtained a secular and patriotic and ceremonial meaning over the past half century they certainly weren't intended to do anything more than send a religious signal to the rest of the world.
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