Reciting Pledge in Schools Ruled Unconstitutional

This is a partial transcript of "Special Report With Brit Hume," September 14, 2005, that has been edited for clarity.

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BRIT HUME, HOST: As the confirmation hearing continued Wednesday for chief justice nominee John Roberts, a federal judge in California issued a ruling almost certain to come before the Supreme Court. District Judge Lawrence Karlton (search ) ruled the Pledge of Allegiance unconstitutional in public schools because it contains the words "under God."

Joining me in the studio is FOX News Correspondent Megyn Kendall with more on this. Megyn, what did Judge Karlton say?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: He referred to that earlier ruling by the Ninth Circuit, that went up to the Supreme Court the first time. And he said "Because this court", meaning his court, "is bound by the Ninth Circuit holding in Newdow", that was the name of the case, "it follows that the school district’s policy violate the Establishment Clause [of the Constitution]. According upon a properly supported motion, the court must enter a restraining order to that effect."

Meaning, when Michael Newdow (search) moves for it, this judge is ready to enter a restraining order barring the children in the California school district from saying the Pledge of Allegiance.

HUME: Now, Newdow is the atheist who brought the earlier case. He is involved in this case. The Supreme Court dismissed the earlier case saying Newdow lacked standing to bring it. Why is it different this time?

KENDALL: Here’s what happened. He brought this claim the first time around, challenging the Pledge. Won in the trial, then it went up to the Ninth Circuit Court of Appeals (search) and they reversed saying — I’m sorry, he lost in the trial court and the Ninth Circuit Court of Appeals reversed. So he had a victory there.

Well, it went up to the Supreme Court and the Supreme Court said we’re just not going to decide this case about whether the Pledge is constitutional or not.

HUME: Why not?

KENDALL: Because you, Mr. Newdow, don’t even have custody of the child about whom you’re complaining.

HUME: On whose behalf are you bringing the suit?

KENDALL: Yes, so you don’t have what we call in the law, standing to file this action.

HUME: He lacked standing then. He has, apparently, this judge thinks he has standing now. Why?

KENDALL: Because now he’s found parents of kids who do have custody of their children, who are saying, well, we object, too.

HUME: So he’s not acting on behalf of himself so much, or his own children, he’s acting on behalf, as a lawyer, on behalf of these other plaintiffs, correct?

KENDALL: He tried to act on his own behalf again, but they struck him down. But they upheld the other parents.

HUME: But they allowed him to represent these other parents.

KENDALL: Yes.

HUME: Now, knowing what we know about the Supreme Court’s jurisprudence, if any in this area, what is the Supreme Court when it finally has to rule on the merits of this case, rather than simply dealing with the procedural issues, do we have any sense of what it is likely to find?

KENDALL: In my opinion this does not look like a court that is ready to strike down the Pledge of Allegiance. When they punted the first time, several of the justices, including Rehnquist, O’Connor and Thomas all wrote concurring opinions saying we should kick this thing out on the merits, too. We shouldn’t just punt on the procedural ground, we should throw it out on the merit.

HUME: So, they wrote, they concurred it ought to be thrown out, but they wanted to do it on the merits. Including O’Connor?

KENDALL: Yes, everybody concurred that it ought to be thrown out.

HUME: O’Connor is gone now, and Rehnquist is gone now. Presumably there will be a Roberts in his place. We don’t know what he would rule, right?

KENDALL: Right.

HUME: So what about other justices? Any sense about them?

KENDALL: Yes, I can tell you even some of the more liberal members of the court seem to be ready to draw the line here.

HUME: Like who?

KENDALL: Like Justice Briar (search), for example. On the Ten Commandments (search) cases that went up last term, he seemed a little bit more willing to consider religious displays like that, where they weren’t necessarily religious. Like he pointed out that one Texas monument had been on the Texas state capitol grounds for decades without challenge. That’s also true of the Pledge.

HUME: In other words, the Pledge has been around, been in use for decades —

KENDALL: Without challenge.

HUME: It wasn’t challenged until Mr. Newdow came along.

KENDALL: Yes, and there’s a real question about the reference to the words "under God", in the Pledge, are religious.

HUME: What about some of the other justices? Stevens, for example.

KENDALL: Well, Stevens wrote the opinion, throwing this case out on standing.

HUME: Yes, but what about his own views on the Pledge of Allegiance?

KENDALL: We don’t know. I mean the court hasn’t ruled on upholding the Pledge.

HUME: I know, but has he spoken about it in any other forum?

KENDALL: No, I mean, the court decades and decades ago said that you couldn’t compel a student to stand up and say the Pledge, but that was in the 1940s. In any event, I think sort of watching the Supreme Court’s arguments and so on it doesn’t strike me that the liberal members of the court, which would be needed to overturn the Pledge, are ready to do it.

HUME: All right, Megyn Kendall, always good to have you. Thank you, Megyn.

KENDALL: You’re welcome.

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