The 9th Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of the pledge of allegiance in Michael Newdow’s second challenge. See the full ruling here. Interestingly, the ruling relied primarily on the question of legislative intent. The majority opinion said:
We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge–its wording as a whole, the preamble to the statute, and this nation’s history–demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase “one Nation under God” does not turn this patriotic exercise into a religious activity
Accordingly, we hold that California’s statute requiring school districts to begin the school day with an “appropriate patriotic exercise” does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.
Now here’s where it gets interesting. In 2002, the 9th Circuit had rejected a California law requiring teachers to say the pledge of allegiance and lead their students in it and they did so largely on the grounds that when Congress inserted “under God” into the pledge in 1954, they were clearly acting with the intent of proselytizing and convincing kids to believe in God. Of this there is simply no doubt.
In response to that ruling, however, Congress reenacted legislation for the pledge of allegiance that contained a list of supposedly non-religious, patriotic reasons for the pledge. And the majority in this case pointed to that document as evidence that the pledge of allegiance had a patriotic rather than religious purpose. Judge Reinhardt, the chief judge of the 9th circuit, dissented in the case and pretty much shredded the ridiculous pretense of the majority opinion:
[N]o judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one…. Nor could any judge … seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young children either to profess a religious belief antithetical to their personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby subjecting themselves to hostility and ridicule.
It is equally clear that no judge … could legitimately rely on a 2002 “reaffirmation” to justify the incorporation of the words “under God” into the Pledge … as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote religion, and to indoctrinate public schoolchildren with a belief in God, had never occurred…. In doing so [in 1954], we abandoned our historic principle that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us.
Today’s majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional principles it violates and without regard for the judicial precedents it defies and distorts…. [T]o the joy or relief … of the two members of the majority, this court’s willingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court’s reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights.
If a majority of the populace comes to believe in a patriotism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignoring its basic values, if it comes to embrace a practice of bringing together the many by forfeiting the rights of the few, then we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular…. I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitution itself that must bind us all.