The federal appeals court that outraged much of the country last summer when it declared the Pledge of Allegiance unconstitutional because of the words "under God" refused Friday to reconsider that ruling.
At least until the U.S. Supreme Court takes up the case, which legal experts consider highly likely, children in public schools in the nine Western states that the appeals court covers will be barred from reciting the full pledge.
Over the vehement objections of nine of its 24 judges, the appeals court, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, let stand a slightly modified version of the 2-1 decision that a three-judge panel of that court handed down in June. The panel said the phrase "under God" in the pledge violated the separation of church and state mandated by the Constitution.
The ruling was almost immediately stayed, pending a review and decision by the full court. The decision on Friday surprised legal experts, some of whom speculated that some of the judges voted against rehearing the case simply to hasten a Supreme Court review.
Attorney General John Ashcroft indicated that the government would ask the Supreme Court to take up the case.
"The Justice Department," Ashcroft said in a statement, "will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the pledge."
Lawyers for the states and the federal government did not respond to questions about whether they would ask the Supreme Court to stay the decision, which formally takes effect next Friday.
Sen. Orrin G. Hatch, R-Utah, chairman of the Senate Committee on the Judiciary, was disappointed by the refusal by the federal appeals court to reconsider the ruling.
"I find the opinion an outrageous example of judicial activism and overreaching," Hatch responded in a statement Friday. "The purpose of the Establishment Clause of the First Amendment was to proscribe the establishment of a particular religion and to prohibit government from discriminating against one religion by favoring another. But it was certainly never intended to mandate that government ban religious sentiment and culture from all aspects of public and civic life.
"Mentioning 'God' in the Pledge of Allegiance is no different in kind than allowing government salaried chaplains for the military or for the Congress, or including the official motto, 'In God We Trust,' on our currency," Hatch said.
He also said this case further places the 9th Circuit out of the mainstream of both American law and culture. Hatch believes the Constitution of the United States is not hostile to God and religion and expects the Supreme Court to hear the matter.
The states covered by the appeals court are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
Gov. Gray Davis of California said: "At the start of every court session, the Supreme Court invokes God's blessing. So does the Senate and the House of Representatives. Surely the Supreme Court will permit school children to invoke God's name while reciting the Pledge of Allegiance."
Eugene Volokh, a law professor at the University of California in Los Angeles, said, "The Supreme Court will almost certainly agree to hear the case." He said the reason was partly because "this is a hot button issue in which a majority of the justices probably disagree with the panel" and partly because of a disagreement between two federal appeals courts. The 9th Circuit's decision is at odds with a 1992 decision of the U.S. Court of Appeals for the 7th Circuit, in Chicago.
The same panel of the 9th Circuit that issued the pledge ruling last summer issued an amended version of that decision on Friday. Like the earlier decision, the vote was 2-1. The decision now stops short of declaring the 1954 law passed by Congress adding the words "under God" to the pledge unconstitutional. It focuses instead on decisions by public schools allowing the voluntary recitation of those words.
The distinction makes the decision less sweeping. It may now not apply by implication to the recitation of the pledge in other official settings or to similar phrases in other laws and governmental statements.
The majority of the panel sided with the plaintiff in the case, Michael Newdow, who had complained that his daughter was injured when forced to listen to public school teachers lead students in a pledge that includes the assertion that there is a God.
Denials of petitions for full-court rehearings are generally dry, one or two sentence affairs. But that was not so on Friday.
Judge Diarmuid F. O'Scannlain, writing for six judges, called the panel's decision "wrong, very wrong wrong because reciting the Pledge of Allegiance is simply not a 'religious act' as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense."
"If reciting the pledge is truly 'a religious act' in violation of the Establishment Clause," he continued, "then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto or the singing of the National anthem."
The Constitution refers to the "year of our Lord"; the national motto is "In God We Trust."
Judge Stephen Reinhardt, who was, along with Alfred T. Goodwin, one of the two judges in the original majority, was the only judge who explained his vote against rehearing. Such explanations are uncommon, and Reinhardt said he wrote because he felt "compelled to discuss a disturbingly wrongheaded approach to constitutional law manifested in the dissent authored by Judge O'Scannlain," which had noted the exceptional "public and political reaction" to the original decision.
"We may not we must not allow public sentiment or outcry to guide our decisions," Reinhardt wrote. "Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected."
O'Scannlain responded that his opinion "has nothing to do with bending to the will of an outraged populace, and everything to do with the fact that Judge Goodwin and Judge Reinhardt misinterpret the Constitution and 40 years of Supreme Court precedent. That most people understand this makes the decision no less wrong."
O'Scannlain conceded, however, that Supreme Court precedent in this area can be "fractured and incoherent," and legal experts on both sides have said that the original decision was careful and coherent work of judicial craftsmanship.
Supreme Court decisions have prohibited many forms of religious observance in public schools, including prayer, readings from the Bible and minutes of silence.
O'Scannlain said the pledge is at bottom not about religion.
"Most assuredly," he wrote, "to pledge allegiance to flag and country is a patriotic act. After the public and political reaction last summer, it is difficult to believe that anyone can continue to think otherwise."
A number of Supreme Court decisions have indicated that the pledge is constitutional. The panel decision said that those statements were observations made in passing, which lawyers call dicta, and that they did not bind lower courts.
The plaintiff in the case, Michael A. Newdow, of Sacramento, did not respond to requests for comment. He filed the suit on behalf of his daughter, saying that compelling her to listen to the Pledge amounted to unconstitutional religious indoctrination. Newdow has said that he is an atheist.
Legal experts said that the 13 judges who voted not to rehear the case may have done so for any number of reasons.
They may have agreed with the original decision.
"There is a good argument that the 9th Circuit's ruling is correct under United States Supreme Court case law, which is unclear," said Howard J. Bashman, a specialist in appellate litigation in Philadelphia.
They may have believed that case was not of exceptional importance, which is the showing required by the relevant rules, which seek to discourage petitions for full-court rehearing.
Four judges, including one also who also joined O'Scainlann's decision, would have granted the rehearing not on the ground that it was necessarily wrong but because, as Judge M. Margaret McKeown put is, "the recitation of the Pledge of Allegiance by school children presents a constitutional question of exceptional importance."
They may have been wary of the composition of the 11-judge panel that would rehear the case. (The 9th Circuit is alone among the federal appeals courts in not having every active judge participate in so-called en banc, or full court, rehearings.)
"You may have been afraid your side would lose," said Vikram Amar, a law professor at Hastings College of Law in San Francisco, "or you may have thought the panel decision was correct but didn't want to be one of the unlucky ones, like Judge Goodwin, called upon to say so."
And they may have simply wanted to hasten the Supreme Court review they may have viewed as inevitable.
Contributing: Deseret News Washington correspondent Lee Davidson