The Pledge Ruled Unconstitutional (Again)

A federal court in the Ninth Circuit, specifically San Francisco, has ruled that the phrase "under God" in the Pledge of Allegiance is unconstitutional on the basis of the precedent set (and subsequently abandoned by the United States Supreme Court) in the Michael Newdow case. According to the USA Today story entitled "Federal judge declares Pledge of Allegiance unconstitutional":

Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court.

U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation "under God" violates school children's right to be "free from a coercive requirement to affirm God."

Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.

The "atheist who lost his previous battle before the U.S. Supreme Court" is our old friend, Michael Newdow. In his quest to see his warped vision for America enshrined in law, Mr. Newdow is actively searching out people to carry the torch against the Pledge where he was legally disqualified. Apparently, he has found a friendly judge to help him in his quest.

What is interesting is that when Reverend (!?!) Newdow lost his case of Elk Grove Unified School District, et al. v. Newdow, et al. before the Supreme Court, the decision of the lower court, i.e., the court of appeals for the Ninth Circuit -- the very decision relied upon by Judge Karlton -- was "reversed." Note, it wasn't remanded to the Court of Appeals for further proceedings -- it was simply reversed.

It is my recollection (and it has been a long time since I looked this up) that when an opinion is reversed, it is no longer precedent. The reversal vacates all prior decisions and they cannot be relied upon as binding upon other lower courts. Now, I could be wrong in my recollection, and I will certainly want to read the discussion on this point. But it cetainly seems to me that this is a mighty big problem for Judge Karlton to overcome.

What is even more interesting is the timing of this decision. In the Newdow case, three justices made it clear that if the matter were to be decided on the merits, they would have found the phrase "under God" constitutional. These justices were Justice Clarence Thomas, Justice Sandra Day O'Connor, and Chief Justice William Rehnquist. Justice Scalia had earlier made remarks in a speech that he thought the words "under God" were Constitutional, and amid argument that he had stated his position in advance, did not participate in the case. (Reason for Nominee Judge Roberts to decline to answer any questions about how he might rule on cases that might come before the court.) Obviously, Justice O'Connor is retiring and Chief Justice Rehnquist recently died. This means that if the matter is heard on its merits, the only known vote for upholding the pledge (among the justices still on the court and assuming that Justice Scalia continues to not participate) is Justice Thomas. Could it be that the judge in the San Francisco case made his decision at this time because it offers the greatest hope that the decision would not be overturned by the Supreme Court? Maybe. . . .

Addendum: The court's decision in the new pledge case is now available on-line here. In the case, Judge Karlton draws a distinction between "prudential jurisdiction" and "Article III" Jurisdiction, arguing that in the former type of jurisdiction, a reversal of the prior decision on other grounds does not render the entire case as non-precedent. I will leave it to the legal scholars who are sufficiently interested to combat over the correctness of this point.


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