Pledge Judge: Opinion in Line With Supreme Court Precedent

SAN FRANCISCO – The appeals court judge who declared the Pledge of Allegiance an unconstitutional endorsement of religion says he was following Supreme Court precedents.

Judge Alfred Goodwin said he and concurring Judge Stephen Reinhardt believe the 2-1 decision last week by the 9th U.S. Circuit Court of Appeals was consistent with a long line of church-school rulings from the nation's highest court.

Legal scholars disagree on whether that's true. But most say the Supreme Court will overturn the ruling if it gets that far.

The ruling, which came in the case of a Sacramento atheist who doesn't want his daughter subjected to the pledge, has been sharply criticized by President Bush, members of Congress and religious organizations.

Goodwin said the Constitution's Establishment Clause, which calls for the separation of church and state, has been used by the Supreme Court to bar a host of religious activity in schools — including clergy-led prayers at graduations and student-led prayers at school sporting events.

"The strongest cases were what the Supreme Court has been saying about school prayers, including at athletic events," Goodwin said in a telephone interview Monday from his home in Sisters, Ore. "This indicated that the Supreme Court was reading the Establishment Clause rather broadly. We felt we were consistent with those opinions."

Goodwin, appointed to the 9th Circuit by President Nixon in 1971, said Congress added the phrase "under God" to the pledge in 1954 for religious reasons, knowing that many states require school children to recite the pledge.

Reinhardt, appointed by President Carter in 1980, is perhaps the circuit's most liberal judge. In an interview, he defended a decision that has been criticized and noted that "legal experts have been very careful not to say the decision was incorrect."

Some legal scholars, historians and political scientists said they believe the ruling was in line with Supreme Court precedent — though the suspect the high court will overturn the ruling if the full 9th Circuit doesn't.

Laurence Tribe, a Harvard constitutional law scholar, said Goodwin didn't take into account other cases that say religious aspects of public life aren't always unconstitutional, including the Supreme Court decision upholding religious invocations before statehouse legislative sessions.

Tribe said the insertion of God into the pledge may have been for religious reasons, but five decades later the phrase "under God" no longer evokes a religious experience. He said the Supreme Court has upheld so-called "blue laws" that prohibit businesses from operating in some states on Sunday, even though the laws originally were designed on the premise that "God rested on Sunday."

"A religious origin for something doesn't always doom it," Tribe said.

Under Goodwin's thinking, he added, the Constitution could not be posted in public classrooms because it refers to 1787, "the year of our Lord."

"The Constitution would be unconstitutional," Tribe said.

Erwin Chemerinsky, a University of Southern California legal scholar, was among the few voices suggesting the Supreme Court would leave the 9th Circuit's ruling intact.

"I don't think it's a sure thing that it's going to be reversed," Chemerinsky said. "I think the case was clearly right under the Establishment Clause."

Goodwin wasn't about to speculate.

"I don't want to handicap the situation," he said. "You can go to Santa Anita [race track] to do that."