Appeals may challenge pledge case

by Elise Dunphe | 7/2/02 5:00am

The Pledge of Allegiance was declared unconstitutional in violation of the Establishment Clause by the largest Federal Appeals Court in the nation last week, yet there is doubt the decision will stand up to further appeals.

Due to the 1954 addition of the wording "under God" to the patriotic statement recited daily by millions of schoolchildren, the 9th Circuit Court of Appeals ruled that the Pledge of Allegiance broke the separation between church and state written into the First Amendment.

The decision was debated between three judges, with two in the majority. Because the full 9th Circuit did not hear the case, they will convene to review it, said Professor Howard Ball, a visiting professor of government from the University of Vermont.

Ball holds the opinion that higher courts will reverse the decision, joining in concordance with many politicians, both Republican and Democrat. Senate Majority Leader Tom Daschle and White House Press Secretary Ari Fleischer have made statements proclaiming the ruling to be a wrong decision.

"Academic and legal scholars have been critical," Ball said of the decision, "because it trivializes the Establishment Clause." The Establishment Clause refers to the portion of the First Amendment that requires the separation of church and state.

"It's the kind of case that the founding fathers who wrote the amendment would not have thought substantive."

Because the 9th Circuit is the largest in the federal judicial system, Ball acknowledged, "They have many cases that come to them, and judges have admitted that they don't have time to read all of the opinions" concerning the case.

The 9th Circuit Court of Appeals has a recent history of having decisions reversed by the Supreme Court. In 2001 17 cases heard by the Supreme Court came from the 9th Circuit, the most of any circuit court in the country. 82 percent of those cases were reversed.

Given the precedent of cases coming from the 9th Circuit, it is likely that the pledge will be upheld. "Even if the 9th Circuit concludes the three judge panel was correct, the Supreme Court will overturn it," said Ball.

The Supreme Court historically reverses 40 to 50 percent of its cases. The past decade has seen a reversal rate of around 35 percent.

Ball noted that with regards to the clause separating church and state, there is a greater need to question the issue of school vouchers that recently went to the Supreme Court.

The immense size of the 9th Circuit Court is an important factor in the types of cases that it hears. A high percentage of cases heard concern civil rights and liberties and criminal justice issues. It is often known for making more liberal opinions than the Supreme Court.

"I don't think the court should have bothered to hear it," said Ball. "But a court like the 9th Circuit will hear it because of its attitude of judicial roles."

The decision will not take effect immediately, granting time for further appeals to be made. When and if the decision is enacted into law, it will only hold in Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Nevada, Washington and the territory of Guam.