2010 Newdow ruling: Dissent by 9th Circuit Judge Stephen Reinhardt

-- excerpt from Dissent by 9th Circuit Judge Stephen Reinhardt (p. 62 of 163 pp) --

Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily recitation of the 'under God' version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, 'under God' -- words added in 1954 for the specific religious purpose, among others, of indoctrinating public school children with a religious belief. The recitations of the amended version as conducted by the Rio Linda Union and other school districts fail all three of the Court's Establishment Clause tests: The recitation of the Pledge in its historic secular version would not fail any of them. Only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do.

To put it bluntly, no 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: 'to recognize the power and the universality of God in our pledge of allegiance;' to 'acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,' 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919. Nor could any judge familiar with controlling Supreme Court precedent 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.

The full decision is at http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010350


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