Dissenting judicial voice in under God' decision

By By Suzanne Monk / managing editor
June 28, 2002
By now, you have probably heard all CNN has to say about a ruling earlier this week by the 9th Circuit Court of Appeals that said it is unconstitutional for school children to recite the Pledge of Allegiance. Most people in this part of the country are outraged.
What you may not have heard is that Judge Ferdinand Fernandez, a member of the panel that issued the ruling, while not necessarily "outraged," felt strongly enough to write a strong dissenting opinion.
The lawsuit that started the ball rolling was originally filed by Michael A. Newdow in U.S. District Court for the Eastern District of California and later appealed to the 9th Circuit.
Newdow is an atheist and he has a young daughter. He does not claim that she was forced to recite the pledge. He claims that she was harmed merely by being in the same public school classroom with others who were participating in a "ritual proclaiming that there is a God."
His objection is based on the First Amendment, which states, in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech …"
In a country founded largely by people who had to move to a different continent to practice their religions as they wished, the intent of the First Amendment was clearly to protect the rights of citizens to continue to do so.
The idea of the "separation of church and state" has since been used to ban prayer in classrooms, and at public events like graduation ceremonies and football games.
The 9th Circuit Court
The 9th Circuit Court of Appeals, in California, is made up of 45 judges. But cases are rarely heard by the entire panel. The usual number is three, just as it is in our 5th Circuit Court of Appeals in New Orleans.
Here's a look at the judges who heard Newdow's appeal:
Judge Alfred Goodwin was appointed by President Richard Nixon in 1971; he is 79 years old, and has been a judge since 1955.
Judge Stephen Reinhardt was appointed by President Jimmy Carter in 1980; he is 71 years old and the 9th Circuit was his first judicial appointment.
Judge Ferdinand Fernandez was appointed by President George W. Bush in 1989; he is 65 years old and has been a judge since 1980.
Fernandez dissents
I don't think anyone seriously doubts that the purpose of inserting the phrase "under God" into the Pledge of Allegiance in 1954 was to identify the United States as a monotheistic, largely Judeo-Christian, nation.
President Dwight D. Eisenhower said during the signing ceremony for the new act: "From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and and our people to the Almighty."
Fernandez does not dispute that an atheist might conceivably be "harmed" by exposure to the pledge but his criticism is based on common sense. How much harm, he asks, could it possibly do?
Ramifications
The decision will be appealed to the U.S. Supreme Court, which has ruled in general that there is nothing inherently unconstitutional about the Pledge of Allegiance but the high court has never been directly challenged on the question. It has been a sleeping dog that most everyone hoped would never be roused.
What happens if the U.S. Supreme Court fails to reverse the decision? Fernandez warns that it could affect many areas not addressed in Newdow's original complaint.