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September 14, 2005

Federal Judge Rules Pledge Unconstitutional

The Pledge of Allegiance was ruled unconstitutional by a federal judge today.

Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court.

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

I'm wondering what federal law enumerates that particular right. Google can't seem to find anything. I'm not saying unequivocally that children ought to be required to do that. I just would like to know the law this judge is citing.

Hold not thy breath.

Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.

You mean the most overturned court in the country has suddenly become unassailable? Here's what one web page notes:
It is often called "the most overturned appeals court in the United States", but the court has a higher caseload than most other circuit courts. From 1992 to 2003, the lowest percentage of overturned appeals by the ninth circuit was 68 percent. The highest was 95 percent. The average percentage of Ninth Circuit Court decisions overturned by the Supreme Court during this time was 73.5 percent as compared to an average of 61 percent by the all the other circuit courts of appeal combined.

(By the way, a higher caseload, with a larger number of decisions, should tend to lower this percentage. The more samples, the more those samples tend to congregate around the average. Thus the higher percentage speaks more to their out-of-mainstream judicial views rather than to their workload. I'm no stats expert (Rick?), but I'm pretty sure I'm right.)

This is a judicial cop-out. "Golly gee, I can't overturn anything by the 9th Circuit!" Hogwash. Overturning the 9th Circuit has become the rule rather than the exception. And if he simply can never break their precedent, Judge Karlton needs to be removed. He's just a walking, talking rubber stamp.

I've talked about the "under God" thing on my personal blog here, and the Supreme Court's view on it here, and I don't think this is going to get ultimately set in stone. For now, this is a case of a judge unwilling to take on a hot-button topic, and instead saying (doing my best Flip Wilson impersonation), "The 9th Circuit made me do it!"

UPDATE: My bad, and I apologize. Judge Karlton is not above the 9th Circuit in the appeals process; he's below it, and thus needs to abide by the precedent set by the 9th Circuit until such time as it's overruled by the Supreme Court. According to this updated news item, the 9th Circuit Court is the next stop for this case:

The Becket Fund, a religious rights group that is a party to the case, said it would immediately appeal the case to the San Francisco-based 9th U.S. Circuit Court of Appeals. If the court does not change its precedent, the group would go to the Supreme Court.

I do believe, however, that the 9th Circuit will continue it's stellar performance of being overturned on appeal in this decision as well. Again, my apologies to the readers and to Judge Karlton.

UPDATE PART DEUX: Rick noted (see the comments) that, according to "The Smart Guys" (a couple of regular lawyer guests to the Hugh Hewitt show, Judge Karlton wasn't bound by the 9th Circuit's precedent because the Supreme Court annulled it (they ruled that Newdow had no standing in the case). Thus the precedent cited by Karlton, legally, doesn't exist. Well, now I'm inclined to take back my apology, but I won't. Obviously, my own knowledge of the situation isn't good enough to pass an informed judgement on it. The "Smart Guys", however, are another story.

Posted by Doug at September 14, 2005 03:03 PM

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This just makes me sick. Next they'll tell us we can't have the 10 Commandments in the court room.

Posted by: Gary Gray at September 14, 2005 03:35 PM

Doug, I'd agree and disagree. First, I disagree because I think all District judges *are* bound by precedent. The last thing we want is District judges bucking precedent. So, this ruling was widely anticipated.

That leads into the second part, where I agree. I agree that there is a reason why the 9th is the most overturned circuit in the land. They have the highest volume, which means that they also have the highest volume of appeals. The SCOTUS can't possibly hear every appeal and therefore unless the decisions appealed were well outside the mainstream, one would expect the 9th to have one of the lowest turnover rates by default. Also, I believe that the Court reserves the right to tunrover a decision without hearing the case or giving explanation, so I wonder how many fall into this category (Mark?).

Posted by: Rick at September 14, 2005 03:57 PM

Then I guess why bother having federal appeals courts if they should never overrule circuit courts. I'll admit not knowing much about the appeals process, but if Court B can never overrule Court A, why bother having Court B? I'm genuinely asking here.

Posted by: Doug Payton at September 14, 2005 04:09 PM

Doug, I think you have it backwards. The District Court decision today will be appealed to the 9th Circuit. So, the District judge is absolutely bound by precedent established by the higher court.

If the 9th Circuit upholds the District's decision, it can then be appealed to the SCOTUS. The 9th Circtuit will likely uphold its own decision and the only body appropriate for overturning a Circuit descision is the SCOTUS.

Do I have that right Mark?

Posted by: Rick at September 14, 2005 04:28 PM

Also, I've heard of District judges, in their opinion, explain that while they are bound by the law to rule the way they did, they think their own decision should be overturned by the Circuit Court of Appeals. It's not their job to overturn precedent. Heck, I argue that the Circuit Court is also bound by precedent, but that doesn't stop the 9th Circuit (Gets back to your other point).

Posted by: Rick at September 14, 2005 04:32 PM

You are correct sir. My mistake. Corrected in an update.

Posted by: Doug Payton at September 14, 2005 04:33 PM

Two things:

(1) as other commenters have noted, a CA district court *is* bound by the 9th Cir. Ct. of Appeals. It is the court immediately superior. And the 9th Cir. ruling is still good persuasive authority (even if technically thrown out by SCOTUS for a lack of standing). It would have taken an extremely *activist* district judge to do anything else.

(2) "I'm wondering what federal law enumerates that particular right [to be 'free from a coercive requirement to affirm God']."

Ummm... check the 1st Amendment of the Constitution. Freedom of Religion. "Congress shall make no law..." I'm not saying I agree with this ruling (I'm Christian, but this is not as easy a case as it appears), but it's 100% all about the 1st amendment -- which I'm sure even you would agree grants a right to be" free from a coercive requirement to affirm God," right?

Posted by: Rudolph at September 14, 2005 04:45 PM

Rudolph, as you may well know, the 1st Amendment did not prohibit States from having established churches. In fact, each State at the signing of the Constitution had their own established churches. Also, none of these churches were struck down by a Court. They were given up by the people of the states in time.

There is no establishment of any church by having a pledge that affirms "God" as the Declaration of Independence and the Constitution itself affirms a higher being. And, there is no coercian if children are given the right to not participate - as they are and as they should be.

This is purely an agenda from an anti-God group who can't convince the people of this land that their ideas are correct. Unfortunately, they have a great many "robed ones" who rule like the Supreme Council in Iran and reject the will of the people.

Posted by: Rick at September 14, 2005 05:13 PM

In regards to the free expression of religion, I don't think this part applies to this case.

In regards to the Establishment Clause, the guys who wrote this amendment had seen how poorly an established church served both church and state in England. An established church is one that anyone holding public office had to swear allegience to, or that the government officially supported . Saying the words "under God" without even mentioning which God you're talking about isn't an establishment of religion. The President is not the head of said religion, nor is Christianity or any other religion officially supported by the state, by the mere reciting of these words.

Further, with the guarantee of free exercise of religion, there is no possible way that the First Amendment can also be reasonably read to ensure freedom from religion. I know there are those that say one follows from the other, but the concept of "free exercise" butts up against the concept of removal of religion entire from public life. They are opposites.

Posted by: Doug Payton at September 14, 2005 05:16 PM

I can't believe I'm catching static for this. I want to be clear: are you saying you *don't* think the 1st Amendment gives citizens the right to be free from a coercive requirement to affirm God? As in the government should be allowed to coercively force citizens to affirm God???

Because that's all I said. You said you weren't sure where such a right comes from (which federal statute?), I said it comes from the 1st Amendment.

Whether or not the pledge of allegience in schools violates this right is an entirely different question. (And that is what this case is about). You were questioning whether such a right even *exists* -- the answer to that is crystal clear.

ps - I'm on your side guys. Not trying to push your buttons.

Posted by: Rudolph at September 14, 2005 05:40 PM

Just to add another spin to the coffee cup, consider us poor anabaptists for whom it's against our religion to say any such pledge.

Actually, you need feel no sympathy for me. I've never been compelled to say the pledge, I always opt out (I'll admit to being a bit concerned about it for the brief time I was a teacher, but nothing bad came of it).

I would say that I'm surprised at the number of Christians who are intent on pledging their allegiance to ANY flag or any republic, for which it stands.

Posted by: Dan Trabue at September 14, 2005 06:09 PM

"are you saying you *don't* think the 1st Amendment gives citizens the right to be free from a coercive requirement to affirm God?"

No - I'm saying that a Pledge of Allegiance is not a coercive requirement from the government to affirm God. You have the right to keep silent. That's for sure! If you Congress passed a law requiring that all students Pledge Allegiance, then I'd have a problem. But that is not the law. So there is not coercive requirement.

Posted by: Rick at September 14, 2005 06:27 PM

Actually, doug, you were right, but for the wrong reasons it seems. The Smart Guys agreed with Hugh Hewitt that this District judge wasn't bound by precedent because technically there is no precedent.

The SCOTUS ruling anulled the 9th Circuit decision in the Newdow case due to lack of standing - it didn't overrule or confirm it. Simply wiped it off the books. Therefore, the 9th Circtuit never technically established a precedent for the District judge to follow.

The coming appeal will be randomly assigned to 9th circuit judges and odds suggest these judges will be different than the original deciders of the case. So, the 9th could reach an entirely different conclusion this time! (Anyone holding their breath?)

Posted by: Rick at September 14, 2005 09:19 PM

Now that I have some food in me, my brain is tingling. I believe the term they used was "vacated." But "annulled" seems to work just as well for the non-lawyer.

Posted by: Rick at September 14, 2005 10:56 PM

Regarding the second update, the "Smart Guys" are obviously stupid (or just don't know what they are talking about). Because while technically the opinion was "vacated" and therefore legally "doesn't exist," it did exist and therefore gives good insight into the "legal mind" of the 9th Circuit. A trial judge is supposed to do his best to make his rulings based on the law in his Circuit. In the 9th Cir., is the pledge constituiontal? Well, there is no "legally existing" case saying so, but then again the 9th Cir. court just gave an answer to this exact question last year, so there is little doubt as to what their answer is. And "their answer" determines the law in the Circuit. It would be pretty disingenuous for the trial judge to say "well, I think it's constitutional, and the appellate court has never ruled on this..." just because their opinion was vacated. They have ruled on it! Unless and until they give a different ruling, their opinion last year is the best guide the trial judge has as to what their opinion will be this year.

[This is why I called is "persuasive authority" in my first post, rather than "binding authority" (a distinction any lawyer would recognize). It is still authority to which the trial judge should properly defer.]

Posted by: Rudolph at September 15, 2005 12:15 PM

Look, I'm no lawyer, but when three Constitutional Law professors (Erwin Chemerinsky of Duke, John Eastman of Chapman, and Hugh Hewitt also of Chapman, agree on something, I tend to defer to the experts.

According to the smart guys (Erwin and John have argued numerous cases before the SCOTUS), the 9th Circuit cannot establish precedent for something outside its jurisdiction. The decision was vacated because they never had jurisdiction in the first place.

It would be like the 10th Circuit issuing a ruling on a case filed in the 9th Circuit (not perfect, but it works). Would it have then established a precedent for its District judges to follow? No way!

BTW - it doesn't give insight into the "legal mind" of the 9th Circuit. It gives insight into some judges of the 9th Circuit randomly assigned to that case who should have known that they didn't have jurisdiction to hear the case in the first place.

Posted by: Rick at September 15, 2005 01:03 PM

"I'm wondering what federal law enumerates that particular right."

Ah yes... it would be so much better in America if we only enjoyed the rights explicitly enumerated by federal law, wouldn't it?

Posted by: s9 at September 15, 2005 01:12 PM

And no, the "smart guys" aren't so smart. The Supreme Court did not "annul" the 9th Circuit decision. They just dismissed the case on the [specious, if you ask me] grounds that Newdow didn't have standing to bring the case. They did not overturn the precedent set by the 9th Circuit— that would have required they hear the case and issue a ruling.

Posted by: s9 at September 15, 2005 01:15 PM

Judge Karlton said he was "bound by precedent" where there was none. Now, I'm quoting the article, not him directly (though both articles on the subject say he said that), but if that's his reasoning, then what exactly is "precedent"? If a ruling can be vacated yet still be used as precedent (as a cop-out in this case, I believe), vacating it seems to be a exercise in futility.

Yes, I understand that a judge should give deference to rulings of courts above him, and indeed the 9th Circuit did rule on a similar case. But if this judge actually appealed to legal precedent where none existed, that's just being too timid for the Judicial branch.

Frankly, I feel sorry for judges of federal courts in the 9th Circuit. To be beneath the most overturned Circuit Court in the land means you have to continually judge outside the mainstream in order that your rulings aren't overturned on appeal, which, as I understand it, is not something judges like to have done to them.

Posted by: Doug Payton at September 15, 2005 01:17 PM

s9, if I decide to make up a right that isn't specifically enumerated, it is the requirement of the states and the feds to back me up? That's a door that I don't think you want to go through.

And are you really for the idea that people who don't have custody of children should still be allowed to sue on that child's behalf? Another door to keep shut. (And especially in Newdow's case, where he made up her dissent out of whole cloth.)

Posted by: Doug Payton at September 15, 2005 01:26 PM

s9 and anyone else who thinks the Smart Guys aren't so smart, I strongly suggest that you check into their bios.


John Eastman: John C. Eastman is Professor of Law and Director of The Claremont Institute Center for Constitutional Jurisprudence. Prior to joining the Chapman Law faculty in August 1999, Dr. Eastman served as a law clerk with Justice Clarence Thomas at the Supreme Court of the United States and with Judge J. Michael Luttig at the United States Court of Appeals for the Fourth Circuit. After his clerkships, Dr. Eastman practiced with the national law firm of Kirkland & Ellis, specializing in major civil and constitutional litigation at both the trial and appellate levels. Dr. Eastman earned his J.D. from the University of Chicago Law School, where he graduated with high honors in 1995. He was selected for membership in the Order of the Coif and was a member of the Law Review, a Bradley Fellow for Research in Constitutional History and an Olin Fellow in Law & Economics. Dr. Eastman also has a Ph.D. and M.A. in Government from the Claremont Graduate School, with fields of concentration in Political Philosophy, American Government, Constitutional Law, and International Relations. He has a B.A. in Politics and Economics from the University of Dallas. Prior to law school, he served as the Director of Congressional & Public Affairs at the United States Commission on Civil Rights during the Reagan administration and was the 1990 Republican Nominee for Congress in California's 34th District.

Erwin Chemerinsky: Erwin Chemerinsky joined the Duke Law faculty July 1, 2004. Between 1983 and 2004, he was a professor at the University of Southern California Law School, where he was the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science.

He graduated with honors from Northwestern University (B.S., 1975), and Harvard Law School (J.D., 1978). He was a trial attorney at the United States Department of Justice in Washington, D.C., and an attorney at Dobrovir, Oakes, and Gebhardt, in Washington, D.C. He has taught at DePaul, Duke, Loyola of Los Angeles, and UCLA Law Schools.

He is the author of four books: Federal Jurisdiction (Aspen Law & Business 4th ed. 2003) (a one volume treatise on federal courts); Constitutional Law: Principles and Policies (Aspen Law & Business 2d ed. 2002) (a one volume treatise on constitutional law); Constitutional Law (Aspen Law & Business 2001) (a casebook); Interpreting the Constitution (Praeger 1987). Also, he is the author of over 100 law review articles that have appeared in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. Recent articles include, "The Constitution and Punishment," forthcoming Stanford Law Review (2004); "Entrenchment of Ordinary Legislation: A Response to Professors Posner and Vermeule," 91 California Law Review 1773 (2003) (with John Roberts); "The Rhetoric of Constitutional Law," 100 Michigan Law Review 2008 (2002); and "Against Sovereign Immunity," 53 Stanford Law Review 1201 (2001). He also writes a regular column on the Supreme Court for California Lawyer, Los Angeles Daily Journal, and Trial Magazine, and is a frequent contributor to newspapers and other magazines.

He frequently argues appellate cases, including in the United States Supreme Court and the United States Courts of Appeals. For example, he recently argued Lockyer v Andrade in the United States Supreme Court, a challenge to the application of California's three strikes law on behalf of an individual who had been sentenced to 50 years to life in prison for stealing $153 worth of videotapes. He has testified many times before committees of the United States Congress, the California Legislature, and the Los Angeles City Council.

He was elected by the voters in April 1997 to serve a two year term as a member of the Elected Los Angeles Charter Reform Commission. He served as Chair of the Commission, which proposed a new Charter for the City which was adopted by the voters in June 1999. Also, he served as a member of the Governor's Task Force on Diversity in 1999-2000. In September 2000, he released a report on the Los Angeles Police Department and the Rampart Scandal, which was prepared at the request of the Los Angeles Police Protective League. In 2004, he was named by Los Angeles Mayor James Hahn to chair a blue ribbon commission on contracting by the city government.

He has been included in the Daily Journal's list of the 100 most influential lawyers in California every year from 1998-2003. He has received many awards for his community service and for his contributions to judicial education.

Posted by: Rick at September 15, 2005 01:48 PM

Doug Payton writes: s9, if I decide to make up a right that isn't specifically enumerated, it is the requirement of the states and the feds to back me up? That's a door that I don't think you want to go through.

What do you think the Ninth Amendment means?

Posted by: s9 at September 16, 2005 03:04 AM

C'mon dude. Do you really intend to say that the 9th Amendment does mean I can make up a right and have the feds back me up? Fine; I have a "right" to an all-expense-paid vacation to Hawaii. If I were to sue the feds for funding of that "right", it would be just as wrong as folks suing the feds over a perceived freedom from religion.

Posted by: Doug Payton at September 16, 2005 08:52 AM