Public pressure mounts against Pledge ruling

The United States Justice Foundation will file a friend-of-the-court brief today on behalf of potentially 1 million Americans, urging a rehearing of the controversial Pledge of Allegiance case and arguing in favor of overturning the 9th Circuit Court of Appeals' much-maligned decision.

"We wanted to let that court know they've upset a lot of people with this ruling and a lot of people who represent a lot of people," USJF Litigation Counsel Richard Ackerman told WorldNetDaily. Ackerman estimates the nearly two dozen elected officials, public interest groups and others who signed on to the brief being filed with the court represent a million citizens.

The 23 parties named on the USJF brief include Rep. Ron Paul, R-Texas, California state Senators Ray Haynes and Tom McClintock, the Long Beach California Republican Assembly, Knights of Columbus No. 2475, Focus on the Family, Traditional Values Coalition, Massachusetts Family Institute and the Boy Scouts of America Order of the Arrow Chapter 17.

"When 100 U.S. senators condemn [the ruling] it's the hottest potato served on America since Sept. 11 in terms of national crises," Rev. Lou Sheldon, chairman of Traditional Values Coalition, told WND. "This nation was built on nothing but moral and biblical principles at its foundations. ... If we turn our backs on God, God will turn his back on us."

The brief serves to educate the court and the parties in the case as to arguments not yet raised, according to Ackerman, who questions why legal organizations that specialize in First Amendment issues weren't consulted by the government attorneys in the case.

The nonprofit, public-interest, legal-action organization started working on the brief the day after the three-judge circuit panel ruled the phrase "under God" in the pledge amounts to an unconstitutional endorsement of religion. Amid thunderous reaction from President Bush on down, the court swiftly stayed its opinion, allowing time for government appeals before enforcement of the ruling in the nine Western states covered by the court begins.

As WorldNetDaily reported, Sacramento atheist activist Michael Newdow mounted the now-infamous legal challenge against Congress for inserting the phrase "under God" in the Pledge in 1954, and against the Elk Grove Unified School District for its policy of having teachers lead students in reciting the Pledge in class.

The school district and the Justice Department are working on petitions for a rehearing by the full court. The government has until Aug. 5 to file. Once it does, a majority of the 24 active appellate judges will decide whether a panel of 11 judges will rehear the case. The justices read friend-of-the-court briefs as part of that decision-making process.

WorldNetDaily has learned the American Legion also intends to file a friend-of-the-court brief on behalf of its 2.8 million members, once the government files its petition.

"The American Legion has long encouraged recitation of the Pledge of Allegiance in schools," spokesman Steve Thomas told WND. "It has no corrosive effect on young people. The reference to God is not a prayer. It is an affirmation of America's freedom, and it's absolutely appropriate, therefore, for those words to be there," he added.

Ackerman calls friend-of-the-court briefs effective tools.

"We know that 26-30 percent of the time they get direct mention in opinions, and in a greater percentage you'll see the arguments of the amicus (brief) reflected in the ultimate opinion," he explained.

The brief urges a rehearing of the case by the full appellate panel to "stabilize the law on the Pledge of Allegiance" and argues the Pledge "represents a high form of political speech" that is "given the maximum level of protection by the Free Speech Clause because it lies at the core of the First Amendment."

In the 2-1 circuit court opinion, Judge Alfred Goodwin wrote that Newdow claimed his daughter is injured when she is compelled to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is 'one nation under God.'"

"I consider it injury to have government force dogma down the throats of little children," Newdow told WND.

In his complaint, Newdow argued the government's use of the words "under God" infringes upon his right to "inculcate in his daughter ... the atheistic beliefs he finds persuasive."

"[The Pledge] is a profession of a religious belief, namely, a belief in monotheism," concurred Goodwin in the opinion. "To recite the Pledge ... is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and – since 1954 – monotheism," Goodwin wrote.

"The Pledge of Allegiance is simply a tolerable acknowledgment of beliefs widely held among the people of this country," the USJF brief argues. "The clause, 'under God,' does not remotely put the imprimatur of the state on any particular theological thread. In fact, the generic reference to God in the Pledge of Allegiance is completely appropriate in a nation whose institutions presuppose a Supreme Being."

Making use of Newdow's reference to the term "dogma," the parties to the USJF brief argue banning the Pledge "fosters" his "two dogmas (atheism and secularism)."

"The decision of this court gives his view a prevailing priority over the views of others, even though atheism or secularism can be characterized as being 'religions,'" the brief states. "Thus, if Newdow prevails, the absence of the Pledge of Allegiance becomes unequivocally orthodox and violates the freedom of all those who wish to affirm its principles. Nothing could be more insulting to the promise and spirit of the First Amendment."

The brief further argues the circuit panel relied on an incorrect notion of "separation of church and state," which derives from a statement by Thomas Jefferson in reply to an address by a committee of the Danbury Baptist Association, and was first used in Everson v. Board of Education in 1946. In that case, according to the brief, the majority of the Supreme Court justices upheld a program that allowed parents to be repaid from state funds for the costs of transportation to private religious schools.

"As can be seen from the plain language of the Establishment Clause, the State is only prohibited from making law 'respecting the establishment of religion,'" the parties to the brief argue. "The Pledge of Allegiance neither supports nor inhibits any particular exercise or belief in a religion. It certainly does not rise to the call of establishing any identifiable religion, including atheism."

The parties also maintain students and school staff involved in reciting the Pledge have a right of academic freedom to do so and dispute Newdow's argument that the Pledge creates a coercive effect, pointing out that students can opt out of reciting it.

As WorldNetDaily reported, Newdow's daughter voluntarily recites the Pledge and told her mother upon hearing of the court ruling that she would "whisper 'one nation under God' and no one will hear her and know she is breaking the law."

Sandra Banning, the girl's mother and sole legal custodian, has hired attorneys to ensure the reputation of her daughter is protected throughout the Pledge battle and has set up a defense fund to cover the cost.

"I was concerned that the American public would be led to believe that my daughter is an atheist or that she has been harmed by reciting the Pledge of Allegiance, including the words, 'one nation under God,'" Banning said in a statement released to members of Congress and obtained by WND. "In our home, we are practicing Christians and are active in our church," she said.

Newdow is undeterred by this revelation and the prospect of appeals. In an interview with WorldNetDaily, he likened himself to Goliath – as opposed to David – in the biblical showdown.

"When I have discussions and debates, I always feel like I'm cheating," he said. "First of all, because I know the stuff because I've been doing it for four years. And second of all, the law is all on my side. Every single test that the Supreme Court has ever enunciated determining Establishment Clause issues, the Pledge of Allegiance fails miserably as the 9th Circuit ruled."

While he awaits the next skirmish over the Pledge, Newdow is appealing the dismissal of another First Amendment lawsuit he filed that seeks to bar references to God at presidential inaugurations.

"With Mr. Newdow now challenging prayer at presidential inaugurations," said Ackerman, "I think it's all the more important that we knock this out now. Mr. Newdow is a serious threat to our liberties."

"The American people know this is wrong," said American Legion National Commander Richard Santos in a statement. "This decision cannot stand. We believe the American people will not allow it to stand."

The Pledge ruling has galvanized millions across the nation. Whether it remains "one nation under God" is still to be answered in the courts.

Earlier stories:

Pledge mom fights to keep 'under God'

Pledge case to be reheard?

Pledge judge protested

Pledge battle all about dad?

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