c. 2005 Religion News Service

(UNDATED) A federal judge in California ruled Wednesday (Sept. 14) that the Pledge of Allegiance is unconstitutional, deciding a case that had been refiled by an atheist whose previous challenge to the term “under God” reached the Supreme Court.

Judge Lawrence K. Karlton of the U.S. District Court in Sacramento came to much the same conclusion as the higher 9th U.S. Circuit Court of Appeals did in 2002 in a decision that was widely criticized.

Observers are already predicting that the pledge case could soon land back at the nation’s highest court, which never issued a definitive ruling on its merits when it heard the case last year.

“The court concludes that it is bound by the 9th Circuit’s previous determination that the school district’s policy with regard to the pledge is an unconstitutional violation of the children’s right to be free from a coercive requirement to affirm God,” Karlton ruled.

The case was brought by Michael Newdow, an atheist whose daughter attends school in the Elk Grove (Calif.) Unified School District, and two other sets of atheist parents with minor children in the same district. Karlton ruled that Newdow “lacks prudential standing” in the case but found that the other parents did have standing.

The standing issue is what led Newdow to refile the case. In June 2004, the U.S. Supreme Court dismissed Newdow’s earlier case, saying that he did not have proper parental standing.

Newdow could not immediately be reached for comment. Newdow has joint legal custody with the child’s mother, but the mother has said her daughter is a Christian who has no objection to the pledge.

Wednesday’s court ruling prompted a swift response from defenders of the pledge, including the Washington-based Becket Fund for Religious Liberty, which had sought a dismissal of the new case.

“To protect the right for every child to say the pledge, we will immediately appeal this decision to the 9th Circuit,” said Derek Gaubatz, director of litigation for the Becket Fund, in a statement.

The 2002 ruling by the 9th Circuit prompted an outcry from the general public, and the Bush administration asked the nation’s highest court to keep the pledge constitutional.

In the last footnote in his 30-page decision, Karlton continued the line of reasoning that had been used by the 9th Circuit.

“As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting `under Christ’ for `under God’ in the pledge,” he said, “thus marginalizing not only atheists and agnostics, as the present form of the pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus and other religious adherents who not only are citizens of this nation, but in fact reside in this judicial district.”

Other groups long concerned about keeping the pledge constitutional issued statements criticizing the decision.

Mathew Staver, president and general counsel of the Florida-based Liberty Counsel, called the ruling “dismaying” and Jay Sekulow, chief counsel of the Washington-based American Center for Law and Justice, called it “legally flawed.”

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Editors: Check the RNS photo Web site at https://religionnews.com for a file photo of Newdow to accompany this story. Search by slug. Mathew in the last graph is CQ.