Federal appeals court upholds 'under God' in pledge

SAN FRANCISCO — The federal court that touched off a furor in 2002 by declaring the words "under God" in the pledge of allegiance to be an unconstitutional endorsement of religion took another look at the issue Thursday and said the phrase invokes patriotism, not religious faith.

The daily schoolroom ritual is not a prayer, but instead "a recognition of our founders' political philosophy that a power greater than the government gives the people their inalienable rights," said the 9th U.S. Circuit Court of Appeals in San Francisco in a 2-1 ruling.

"Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect," Judge Carlos Bea wrote for the majority in Thursday's ruling.

The dissenting judge, Stephen Reinhardt, said statements by members of Congress who added "under God" to the pledge in 1954 show conclusively that it was intended to "indoctrinate our nation's children with a state-held religious belief."

In a separate ruling, the same panel upheld the use of the national motto, "In God We Trust," on coins and currency, citing an earlier 9th Circuit panel that ruled the phrase is ceremonial and patriotic and "has nothing whatsover to do with the establishment of religion."

Reinhardt reluctantly joined the 3-0 decision, saying he was bound by the court's newly established precedent in the pledge case.

Greg Katsas, who argued the case on behalf of the U.S. government when the appellate court heard the case in December 2007, said the panel made the right decision Thursday.

"I think these two phrases encapsulate the philosophy on which the nation was founded," said Katsas, who now works in private practice.

"There is a religious aspect to saying 'One nation under God,' but it isn't like a prayer. When someone says the pledge, they're not praying to God, they're pledging allegiance to the country, the flag and the ideals of the country."

Both lawsuits were filed by Sacramento resident Michael Newdow, an atheist who has brought numerous challenges to government-sponsored religious invocations.

Newdow, a doctor and attorney who founded a group called the First Atheist Church of True Science, said he learned about the ruling when reporters contacted him Thursday afternoon.

"I'm bummed," Newdow said. "I think the arguments are deeply flawed and it's a shame to see judges buying into them."

He called the 193-page ruling "a blow to equal protection that the first 10 words of the Bill of Rights are supposed to be upholding."

"The whole argument that 'under God' wasn't placed into the pledge for religious purposes is bogus," Newdow said. "I hope people recognize this is not against God or people who believe in God. It's about the government not treating people equally on the basis of their lawful religious views."

Newdow said he will continue his efforts to have the phrase removed from the pledge of allegiance. He said he would appeal the rulings to the full appellate court and the U.S. Supreme Court.

Newdow said he isn't optimistic the Supreme Court will agree to hear the case because the justices will likely be reluctant to hear a case that could invalidate the pledge. "They don't want to do what's politically unpopular," he said. "The Supreme Court will not hear a case that upholds the pledge of allegiance. It's very unlikely at least."

Challenges began in 2000

Newdow first challenged the pledge of allegiance in 2000 on behalf of his daughter, a student in a Elk Grove elementary school.

The appeals court ruled in June 2002 that the addition of "under God" was religiously motivated and sent "a message to nonbelievers that they are outsiders," in violation of the constitutional separation of church and state.

President George W. Bush labeled the decision "ridiculous" and Congress reacted furiously, passing a resolution with virtually no dissenting votes that also denounced the decision. The court put its ruling on hold until the case reached the Supreme Court, which sidestepped the constitutional issue and ruled that Newdow could not represent his daughter's interests because her mother had legal custody.

Newdow then refiled the lawsuit on behalf of the parent of a kindergartner in Rio Linda. He won the first round before a federal judge in 2005, but a new appeals court panel issued a ruling Thursday upholding the pledge.

Bea, who was appointed to the court by Bush in 2003, acknowledged that "the words 'under God' have religious significance," but said they do not "convert the pledge into a prayer."

The 1954 law that added those words at the height of the Cold War was meant to convey the idea of a limited government, "in stark contrast to the unlimited power exercised by communist forms of government," said Bea, joined by Judge Dorothy Nelson. "Congress' ostensible and predominant purpose was to inspire patriotism."

Reinhardt, a member of the 2002 panel that found the language unconstitutional, said Thursday's majority ignored overwhelming evidence of religious motivation by the 1954 Congress.

He cited statements by numerous lawmakers denouncing atheistic communism and declaring a belief in God to be part of the American way of life.

During the same period, Reinhardt said, Congress adopted "In God We Trust" as the national motto, ordered it inscribed on paper money and established an annual National Prayer Breakfast.

By inserting religious language into the pledge, Reinhardt said, "we abandoned our historic principle that secular matters were for the state and matters of faith were for the church."

The Associated Press and Sacramento Bee staff writer Jennifer Garza contributed to this report.