At 9 a.m. sharp, they emerged from their chambers overlooking the snarled Seattle freeway. The ungodly, black-cloaked co-conspirators of the 9th Circuit, Judges Wallace Tashima and Johnnie Rawlinson, took to the shiny, arched bench. Judge Cynthia Hall, who'd missed her plane, was on the telephone from California. Her disembodied voice would occasionally boom down from the recessed ceiling—"I can't hear! Could the gentleman speak up?" A little like one courtroom under God.
They weren't the 9th U.S. Circuit Court of Appeals justices who decided June 26 that we aren't one nation under God, as the Pledge of Allegiance claims. But one of the judges sitting in Seattle for their monthly 9th Circuit regional hearings this week had a hand in another controversial June 26 ruling. Judge Rawlinson was among a majority that decided a 43-foot-high Latin cross towering over the city of San Diego violates the California constitution on the separation of church and state. Though three-quarters of San Diego voters approved selling the public cross site to a private entity, the court found that the sale violates the law.
What does this circuit have against God, the country seems to ask. The judges couldn't say. "They can't comment," said a bailiff, who asked Rawlinson and Tashima if they'd chat with me during a break in the brisk Monday appeals calendar on the 21st floor of the Park Place Building on Sixth Avenue. "They generally don't give interviews."
There was no telling if they bore any burden of their circuit's unholy pledge ruling, now three weeks old and, though far from becoming law, still raising hell in America. As two out of their three fellow judges concluded last month, the pledge mixes church with state, and that's unconstitutional. But Judge Alfred Goodwin, who wrote the 2-1 opinion, suddenly found himself bearing the cross of public damnation and almost immediately put the decision on indefinite hold.
Americans nonetheless have gone into jingoistic spasms over the perceived loss of their state-sponsored miniprayer. Some politicians vowed to disobey the ruling even if it became the law of the land. Missouri legislators proposed mandatory weekly recitation of the pledge at all public schools. Even our court-appointed president called the judges' ruling "ridiculous!"
Most, as usual, were reacting to the media synopsis of the decision. On talk radio, the nutshell version was: A few judges on the flaky 9th Circuit agreed with a sun-baked California athiest that God should be expelled from the school grounds. Ridiculous, indeed—unless there was more to it.
Plaintiff Michael Newdow, whose phone has since been madly ringing with un-Christian death threats, contends that "one nation under God" violates the First Amendment by forcing nonbelievers to recite religious dogma in public schools. To that point, Judges Goodwin and Stephen Reinhardt asked that, in fairness, would we allow schoolkids to pledge "we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god'?"
Their complicated 29-page ruling did not write new law. It evolved from case law and the question of whether Congress' 1954 addition of "under God" was constitutional. The 9th Circuit felt the insert flies in the face of a Supreme Court ruling that "government must pursue a course of complete neutrality toward religion." Also, in a recent school prayer case, the high court struck down a school district's policy of permitting a student-led invocation before high-school football games, noting it "has the improper effect of coercing those present to participate in an act of religious worship." That policy was unconstitutionally "implemented with the purpose of endorsing school prayer." And for what purpose was the pledge insert implemented? Similar unconstitutional reasons, suggested the 9th Circuit, judging by President Eisenhower's comments at the act's signing ceremony: "Millions of our schoolchildren [can now] daily proclaim . . . the dedication of our Nation and our people to the Almighty."
The ruling may be correct, but the case, as with the hue and cry, is far from over. The appeals court will likely end up reconsidering its decision. No one's taking bets on the outcome, while others wonder if we can move on to something actually important. And for the record, there was an American flag draped on a pole behind the judges in their Seattle courtroom Monday. No one paused to pledge anything to God or country. Or, for that matter, liberty and justice. Now there's something to come unglued about.