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One Nation, Under Law

Attorney Andrew Cohen analyzes legal decisions for CBS News and

After you finish having the riot act read to you by talk-radio hosts and the chattering classes on cable television news, go ahead and take half an hour or so to read Newdow v. California, the case that's put the Pledge of Allegiance on the ropes in at least nine states.

Once you've actually read the decision, you're likely to have a much different view of the issues and the rationale two federal appellate judges used to declare unconstitutional the federal statute that in 1954 added the words "under God" to the Pledge.

The majority decision, a 2-1 split among the panel of judges on the 9th U.S. Circuit Court of Appeals, is not nearly as goofy or as legally unsupportable as you might think from listening to the blistering comments made about it Wednesday evening by Administration officials and members of Congress.

That doesn't mean Newdow won't or shouldn't be overturned by the full Ninth Circuit panel or the Supreme Court. But it does mean that there ought to be a legitimate debate about it, free from all the name-calling that spontaneously combusted across the airwaves in the immediate aftermath of the announcement of the decision.

That legal and political debate could start with these questions: What's worse? Is it more shocking and violative of the First Amendment's Establishment Clause that Congress would expressly endorse monotheistic religion during the Cold War by putting "under God" into the Pledge as a response to godless communism?

Or is it more shocking and violative of everyone else's constitutional rights that two judges would take the Pledge out of our public schools in 2002 because a parent in California felt that his child was unduly pressured by having to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God" and that America is "one nation under God"?

You see? It isn't as easy as talk radio makes it out to be. The majority judges knew that, too. They knew that their decision likely would create a tsunami of political and moral indignation. They also apparently feel that this hot-button issue will make its way to the United States Supreme Court.

That's why Judges Alfred T. Goodwin and Stephen Reinhardt went out of their way to support their conclusion with recent Supreme Court precedent. What's the message from the San Francisco judges to their High Court counterparts? It's this: if you are going to overturn us you are going to have to overturn your own recent decisions.

Decisions such as the one in 1992 when the Supreme Court struck down prayers at public school graduation ceremonies or the one in 2000 when the Supreme Court struck down student-led prayers at high school football games. To support its 1992 decision in Lee v. Weisman, the Supreme Court majority had found that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so."

To support its 2000 decision in Santa Fe Independent School District v. Doe, the Supreme Court majority had found that the school's permissive prayer policy did not have a secular purpose and that it had "the improper effect of coercing those present to participate in an act of religious worship.'

In order to overturn what Judges Goodwin and Reinhardt have wrought, the full Ninth Circuit panel or the Supreme Court are going to have to get around that precedent. It could happen but it won't be nearly as easy as everyone seems to assume.

Was the little Newdow girl really forced to "participate" in the Pledge simply by having to attend class where it was recited? Is the phrase "under God" in the Pledge mere "ceremonial deism"- a religious symbol that isn't supposed to have any religious symbolism - and thus constitutional?

Can the whole mess be resolved simply by telling public schools everywhere to leave out the phrase while permitting its recitation in other public places like hockey rinks and baseball parks? And is there any way to legitimize, under present first amendment principles, what Congress and President Eisenhower did in 1954 when they tinkered with the Pledge in the first place?

In his dissent in Newdow, Judge Ferdinand F. Fernandez pooh-poohed the whole thing. "The danger that phrase presents to our First Amendment freedoms is picayune at most…. [the decision] … will cool the febrile nerves of a few at the cost of removing the healthy glow conferred upon many citizens when the forbidden verses, or phrases, are uttered, read, or seen."

Judge Fernandez doesn't think that the inclusion of the phrase in the Pledge represents a constitutional violation in the first place, never mind it passing the Supreme Court's recent Establishment tests. He should tell that to Michael Newdow's daughter, the one that had to sit in class while her teacher led a pledge her family found abhorrent.

By Andrew Cohen

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