Enforcement of pledge ruling on hold

By David Kravets
Associated Press

SAN FRANCISCO — A federal appeals court yesterday stayed enforcement of its ruling that the Pledge of Allegiance is unconstitutional when recited in public classrooms, pending an appeal to the U.S. Supreme Court.

Xavier Roberts, left, and fellow third-graders recited the Pledge of Allegiance at Barbara Comstock Morse Elementary School in Sacramento, Calif., yesterday. Associated Press

Had Goodwin not issued the order, public schools in Hawai'i and eight western states would have been banned — beginning next Monday — from reciting the Pledge of Allegiance, with its phrase "under God." The other states are Alaska, Arizona, California, Idaho, Nevada, Montana, Oregon and Washington.

The stay issued yesterday gives the school district 90 days to ask the Supreme Court to review the ruling.

A Justice Department spokesman said the federal government had no comment on the latest developments, and said the Bush administration was still considering whether it would also appeal the case.

In June and again last Friday, the San Francisco-based appeals court ruled that the pledge is an unconstitutional endorsement of religion when recited in public schools.

The Elk Grove district was the target of a lawsuit that transformed the pledge into a federal court case. Michael Newdow, an atheist, sued the schools, alleging that his daughter shouldn't be subjected to collective recitations of the pledge.

In a case that bitterly divided the nation and the federal judiciary, the appeals court, in an opinion written by Goodwin, a President Nixon appointee, ruled in Newdow's favor.

Attorney General John Ashcroft has said the Justice Department would "spare no effort to preserve the rights of all our citizens to pledge their allegiance to the American flag."

Newdow did not object when the 9th Circuit asked him his position on the stay.

"I'll let it play itself out," Newdow said yesterday. "There's no question I am going to win."

Dave Gordon, superintendent of the Elk Grove Unified School District, said, "It's very good news, because we want to see the matter heard before the Supreme Court, and we want our children to keep saying the pledge as written until such time as the Supreme Court rules."

Gordon said the district intends to file a request with the Supreme Court to hear its case by the end of April.

The high court is almost certain to take the case to resolve the conflict among the circuit courts of appeal, experts said. The Chicago-based 7th U.S. Circuit Court of Appeals, in a similar challenge, ruled in 1992 that reciting the pledge in public schools was not an unconstitutional endorsement of religion.

"You've got a split in the circuits, and it's a high-profile case," said Vikram Amar, a Hastings College of the Law scholar.