Federal judge rules pledge unconstitutional in schools

SAN FRANCISCO -- A federal judge declared the reciting of the Pledge of Allegiance in public schools unconstitutional yesterday, a decision that could potentially put the divisive issue back before the US Supreme Court.

The case was brought by the atheist whose previous battle against the words ''under God" the Supreme Court rejected last year on procedural grounds.

US District Judge Lawrence Karlton ruled that the pledge's reference to one nation ''under God" violates schoolchildren's right to be ''free from a coercive requirement to affirm God."

Karlton said he was bound by the precedent of the US Court of Appeals for the Ninth Circuit, which in 2002 ruled in favor of Michael Newdow of Sacramento that the pledge is unconstitutional when recited in public schools.

The Supreme Court dismissed the case last year, saying Newdow lacked standing because he did not have custody of his elementary school-age daughter on whose behalf he had sued.

Newdow, a lawyer and a physician, filed an identical case on behalf of three unnamed parents and their children. Karlton said those families have the right to sue.

''Imagine every morning if the teachers had the children stand up, place their hands over their hearts, and say, 'We are one nation that denies God exists,' " Newdow said in a radio interview after the ruling. ''I think that everybody would not be sitting here saying, 'Oh, what harm is that?' They'd be furious. And that's exactly what goes on against atheists. And it shouldn't."

Karlton, ruling in Sacramento, said he would sign a restraining order preventing the recitation of the pledge at the Elk Grove Unified, Rio Linda, and Elverta Joint Elementary school districts in Sacramento County, where the plaintiffs' children attend classes.

The order would not extend beyond those districts unless it is affirmed by the Ninth Circuit, in which case it could apply to nine Western states. If upheld by the Supreme Court, the ruling would apply to all states. The decision sets up another showdown over the pledge in schools, at a time when the makeup of the Supreme Court is in flux.

The ruling was made yesterday as Supreme Court nominee John G. Roberts Jr. faced his third day of confirmation hearings before the Senate Judiciary Committee. He would succeed the late William H. Rehnquist. In July, Sandra Day O'Connor announced her plans to retire when a successor is confirmed.

The Becket Fund, a religious rights group that is a party to the case, said it would immediately appeal the case to the Ninth Circuit, which is based in San Francisco. If the court does not change its precedent, the group would go to the Supreme Court.

''It's a way to get this issue to the Supreme Court for a final decision to be made," said fund lawyer Jared Leland.

The decisions by Karlton and the Ninth Circuit conflict with an August opinion by the US Court of Appeals for the Fourth Circuit in Richmond. That court upheld a Virginia law requiring public schools to lead daily Pledge of Allegiance recitation, which is similar to the requirement in California.

A three-judge panel of that circuit ruled that the pledge is a patriotic exercise, not a religious affirmation.

''Undoubtedly, the pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words 'under God' contain no religious significance," Judge Karen Williams wrote for the Fourth Circuit. ''The inclusion of those two words, however, does not alter the nature of the pledge as a patriotic activity."

Karlton, appointed to the Sacramento bench in 1979 by Jimmy Carter, wrote that the case concerned ''the ongoing struggle as to the role of religion in the civil life of this nation" and added that his opinion ''will satisfy no one involved in that debate."

He dismissed contentions that the 1954 congressional legislation that inserted the words ''under God" was unconstitutional. If his ruling stands, he reasoned, the schoolchildren in the case would not be harmed by the phrase, because they would no longer have to recite it at school.

Terence Cassidy, a lawyer representing the school districts, said he was reviewing the opinion and was not immediately prepared to comment.