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Federal Appeals Court Says Pledge of Allegiance Unconstitutional

Aired June 26, 2002 - 14:44   ET


KYRA PHILLIPS, CNN ANCHOR: Now to another story we've been talking about that's breaking right now just into CNN. Federal appeals court in San Francisco says the Pledge of Allegiance is unconstitutional.

We're going to bring in our Jeffrey Toobin, legal analyst by phone here to talk a little bit about this. We have a number of people working on this story.

Jeffrey, first of all, does this surprise you?

JEFFREY TOOBIN, CNN LEGAL ANALYST: It does. Because this -- this is a certainly an extreme version of belief in the separation of church and state. Which is, of course, a bedrock principle in the Constitution.

But this kind of generic religiosity has been really allowed by the courts for many years. It's like in courtrooms, sometimes we say, "in God we trust." Under God, is sufficiently generic, not an endorsement of any specific religion. It has tended to be allowed by courts in the past.

PHILLIPS: And now the court is saying: students cannot hold religious invocations at graduations and can't be compelled to recite this pledge. It's just -- it's hard to understand when you have a president of the United States that always says, "God bless America," or calls you to say the pledge. Even asks Americans to come together in prayer on national television.

TOOBIN: Right. I think you need to be a little bit precise here. In 1943 the Supreme Court held, in a decision that I think is wildly supported everywhere, that no student anywhere can ever be compelled to say this Pledge of Allegiance.

There was a case that came out of Jehovah's Witness' belief that they should not be compelled to support the flag. What this decision did is it said it's something different. That even though this student could leave the room during the pledge, which she clearly had a right to do, the mere saying of the pledge by other students was found to be unconstitutional, that's why this opinion is so unusual and sort of outside the mainstream.

It's completely accepted constitutional law that you can't force someone to say the pledge on pain of expulsion or any sort of discipline. But the mere saying of the pledge by other students is held by this court to be unconstitutional, and that seems to be a pretty extreme interpretation.

PHILLIPS: So, Jeffrey, this still could be recited at schools, am I right? Students do not have to put their hand over their heart and recite it?

TOOBIN: Well, actually, I think, as I read the opinion, it does seem to say that the pledge with the words, "under God" in it, cannot be recited...


TOOBIN: ... as I read the opinion. The rest of the pledge can be recited, it's the two words "under God" that are at issue.


TOOBIN: But I think that's -- again, what makes the opinion so extreme is that it -- it seems to prohibit the saying of the words, "under God" in the classroom, as it said in thousands of classrooms every day.

I should add that this opinion comes out of the United States Court of Appeals for the 9th Circuit, which has tended to be a more liberal appeals court than virtually any other. Many of its decisions have been reversed by the United States Supreme Court. This decision came with a very strong descending opinion saying that the pledge was constitutional, so it was a two to one opinion by the three judge panel.

So I think it is virtually certain this will be appealed, either to the full 9th circuit or to the United States Supreme Court. So I think this is far from the last word on this subject. But it is the law of the 9th Circuit, which includes the western states of the United States.

PHILLIPS: All right, CNN legal analyst, Jeffrey Toobin. Jeffrey, thank you.

We're going to bring in our Bob Franken now, national correspondent. He's got more on this also.

Bob, pretty interesting decision. Maybe you can hammer out. It's just these two words that we're talking about? Not the entire pledge.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Right. The two words that were put in the Pledge of Allegiance in 1954. The court applies what it calls a coercion standard, a coercion test, which is to say that nobody is alleging that the daughter of Michael Nubo (ph) Nudo (ph) who is described in the court briefings as an atheist. Nobody is saying that his daughter was obligated to state the Pledge of Allegiance. But they are saying and what he was claiming is that the very fact that she did not, caused her to be ostracized, caused her to be outside the realm of the social groups in her school, and as a result, in effect, she was being coerced.

Now the two judges who did rule in favor of this appeal said that they cited the establishment clause of the Constitution. It's the very first words in the First Amendment. Congress shall make no law respecting the establishment of a religion. But it goes on to say, and this is the part that's not cited, nor prohibit the practice thereof. And that is where there always been a fight over this.

As we know we have on the coins of the United States: in God we trust. Over buildings, all over -- official building all over the United States, there are references to God.

As Jeffrey pointed out, we're talking about a court that is generally regarded as the most liberal of the appeals courts in the federal system.

Let me just read from the majority opinion, the two-to-one decision. In the context of the pledge, the statement that the United States is a nation under God, is an endorsement of religion. It's a profession of religious belief, namely a belief in monotheism. The recitation that ours is a nation under God, is not a mere acknowledgment that many Americans believe in such a deity.

The mention that we are a nation under God -- they went on, is identical for establishment cause purposes to a profession that we are a nation under Jesus, a nation under visnu (ph) a nation under zios (ph) or a nation under no God.

Now there was a decent, one of the -- one judge who, in fact, was against this said that there is a tradition in the United States that the profession of God is not a coercion, merely a statement that there is a belief in God. So that is the fight. I would have to say, Kyra, that this one has the possibility of Supreme Court written all over it.

PHILLIPS: That was my next question. Obviously, we're going to see an appeal here. This is going to create a lot of talk, no doubt.

FRANKEN: Oh, I think that this is going to be one that the talk shows are going to have a field day with. It's probably already starting. I can just see the banners now.

But this is, again, a ruling that comes out of 9th Circuit Court of Appeals. This is the most overturned court of appeals in the country. It's located in San Francisco. And when the first bulletins came out about this, it was almost a sure thing that it would come out of the 9th Circuit.

PHILLIPS: Bob is this the nation's first ruling of its kind?

FRANKEN: There are constant tests about the establishments clauses. As a matter of fact, you raise an interesting point, tomorrow the Supreme Court is going to be ruling on another issue having to do with that same thing: separation of church and state. That one is one that is quite a practical matter.

It also has to do with schools, it has to do with school vouchers, that is the fundamental issue, whether the city of Cleveland can issue school vouchers when there are substandard schools, which can be used in parochial schools, which are allowed to teach religion.

It is the same First Amendment issue having to do with separation of church and state, which has fueled this ruling about the Pledge of Allegiance.

PHILLIPS: Well, Bob, you mentioned that talk shows are going to have a field day. Guess what, "TALK BACK LIVE" with Arthel Neville is going to be talking about this.

FRANKEN: There's a surprise.

PHILLIPS: Hey, there you go. We already dictated the coverage, didn't we. 3:00 Eastern time, won't want to miss it. Bob Franken, thanks for hammering out the details for us.





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