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Toobin: Pledge ruling likely 'dead on arrival'

Jeffrey Toobin
Jeffrey Toobin  

(CNN) -- A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Wednesday that reciting the Pledge of Allegiance in public schools is an unconstitutional "endorsement of religion" because of the addition of the phrase "under God" in 1954 by Congress. If the ruling stands, it would prevent students in the nine states that make up the circuit from reciting the pledge in school.

CNN legal analyst Jeffrey Toobin discussed the ruling and the likely challenges to it with anchor Miles O'Brien.

CNN: What happens next, this is after all, one appeals court, one circuit, a nine-state region, where does it go from here?

TOOBIN: The Justice Department really has two options at this point. They can go to the full 9th Circuit -- which is a larger number than the three-judge panel that decided this decision -- they can go to the full 9th Circuit and ask them to reverse this decision, or they can bypass that procedure and go directly to the United States Supreme Court.

To be sure, they will do either one of those, because I think this is a decision that is highly vulnerable on further appeal.

CNN: It says here in this ruling that children are not forced to say the pledge. In other words, you can be silent during the pledge. Is that a significant legal point that will be debated?

TOOBIN: It is very significant. In fact, one of the most significant and indeed moving opinions that the United States Supreme Court has ever written comes from 1943, in the middle of World War II, when the Supreme Court ruled that any child could refuse to say the pledge of allegiance in school. It came out a case involving the Jehovah's Witnesses, who had a religious objection, and they could not be penalized for not saying the pledge of allegiance.

What the court did today is said that even though this student could refuse to say the Pledge of Allegiance, the pledge was still unconstitutional because it was said at all. I think that's an indication of how far-reaching this decision is.

CNN: This particular circuit is said to be the most liberal circuit in the country. I guess that does not bode well for those that do not think that "under God" should be a part of the pledge.

TOOBIN: You've got to put this decision in context. Our money says "In God we trust." Every single day that the United States Supreme Court is in session the marshal begins by saying, "God save this honorable court." God is not a forbidden word in the American government, and I think that this is an indication. If any of those nine justices, having heard "God save this honorable court" every single day, if something was wrong with it, someone might have said something.

I've been talking to law professors this afternoon and I think this decision is dead on arrival either in the full 9th Circuit or in the United States Supreme Court. It really seems to be outside the mainstream of American legal opinion.




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