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Gov't to ask rehearing of Pledge ruling

Judge stays Pledge decision pending appeals

Senior Judge Alfred Goodwin  

SAN FRANCISCO, California (CNN) -- Attorney General John Ashcroft said Thursday the Justice Department will ask the 9th U.S. Circuit Court of Appeals to reconsider a three-judge panel's ruling declaring the recitation of the Pledge of Allegiance in public schools unconstitutional.

According to court rules, the rehearing would go to a panel of 11 judges on the 9th Circuit, which is composed of 45 active and senior judges.

"The Justice Department will defend the ability of our nation's children to pledge allegiance to the American flag by requesting a rehearing en banc [full bench] by the full 9th Circuit," Ashcroft said in a statement.

The three-member panel of the appeals court ruled Wednesday in a 2-1 decision that reciting the Pledge of Allegiance is unconstitutional because of the addition of the phrase "under God" in 1954 by Congress.

Just before Ashcroft's announcement, Alfred Goodwin, the Nixon-appointed senior judge who wrote Wednesday's opinion, issued a stay on the ruling pending appeals.

The ruling created a firestorm across most of the nation and especially on Capitol Hill, with "ridiculous" and "nuts" being used as the buzzwords to describe the court's opinion.

Pledge of Allegiance
I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

 CNN NewsPass Video 
  •  Man behind landmark pledge ruling
  •  Pledge back in court
  •  Mom: Girl not harmed by pledging 'under God'
  •  Justice Department's filing (PDF)
  •  On the Scene: Toobin: Pledge ruling likely 'dead on arrival'
  •  CNN Access: Litigant explains why he brought Pledge suit
  •  History of the Pledge
  •  Read the court decision: Newdow v. U.S. Congress, et al.
(FindLaw) (PDF)
  •  Judges in Pledge of Allegiance decision
  •  Gallery: A look at the three-judge panel that made the ruling

CNN Access: Falwell, Lynn: Ministers debate pledge ruling 

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The Senate was so outraged Wednesday that it passed a resolution 99-0 expressing full support for the Pledge of Allegiance and on Thursday voted 99-0 to recodify the "under God" language in the pledge. The only one not voting was Sen. Jesse Helms, R-North Carolina, who is recovering from heart surgery.

California Gov. Gray Davis said his state was "going to take decisive action to overturn this decision." He said the state was in touch throughout the day with the Justice Department and local school boards named in the suit.

"This decision was wrongheaded and it should not be allowed to stand," Davis said. "With troops overseas, this is the wrong decision at the worst possible time."

Next to the governor, there was a placard with the text of the Pledge of Allegiance on it.

Dr. Michael Newdow, a Sacramento, California, physician with a law degree who represented himself and whose daughter attends public school in Elk Grove, said he brought the lawsuit that led to the ruling "because I am an atheist and this offends me."

Newdow said that since the ruling he has received death threats, including one left on his answering machine that said, "You're a dead man walking." (CNN Access: Michael Newdow on why he brought the suit)

He defended his actions, saying he is fighting for the Constitution. "The issue is whether or not government should be placing religion in the public schools or anywhere else," he said.

Citing a concurring opinion in a Supreme Court decision, the 9th Circuit panel said, "The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers 'that they are outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders, favored members of the political community.'"

The 1954 insertion of the "under God" phrase, the panel said, was made "to recognize a Supreme Being" and advance religion at a time "when the government was publicly inveighing against atheistic communism." (More on pledge's history)

Ashcroft announced his decision after Justice Department appellate lawyers and congressional leaders and their attorneys spent a full day discussing the merits of taking the case back to the entire body of the San Francisco-based 9th Circuit.

"One factor is: Why give this case Supreme Court status when you can very likely get this overturned by the circuit sitting en banc?" one source familiar with the internal discussions said.

This legal source, who requested anonymity, said one lawyer involved in the discussions between the Justice Department and Capitol Hill privately predicted a 9-2 ruling with only the two who wrote Wednesday's ruling supporting it.

Students Pledge
Students at a school in Los Angeles' San Fernando Valley recite the Pledge of Allegiance in this October 2001 file photo.  

"It's a liberal circuit, but these were the two most liberal judges in the circuit," the source said.

The 9th Circuit covers California, Oregon, Washington, Hawaii, Alaska, Arizona, Nevada, Montana and Idaho.

-- CNN Correspondent John King and Producer Dana Bash contributed to this report.


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