Attorney General Lockyer and Governor Davis Ask 9th Circuit to Reverse Pledge of Allegiance Ruling

(SACRAMENTO) - Attorney General Bill Lockyer and Governor Gray Davis today formally requested that the Ninth Circuit Court of Appeals reconsider and reverse its decision finding that the Pledge of Allegiance is unconstitutional.

"The panel's decision was not only troubling, but clearly wrong, based on the facts and law," Lockyer said in filing the petition. "The 9th Circuit would do well to reconsider and reverse this erroneous decision as quickly as possible."

On June 26, 2002, a three-judge panel of the Ninth Circuit Court of Appeals ruled the Pledge of Allegiance unconstitutional in Newdow v. Congress of the United States, et al. Davis and Lockyer immediately appeared in the case and promised to seek an appeal of the court's decision.

Among other arguments, the state's appeal contends that the court misapplied well-settled United States Supreme Court precedent to determine that the recitation of the Pledge is an unconstitutional violation of the U.S. Constitution's religious establishment clause. The state contends that the Pledge is not a prayer or other form of religious exercise, and that the Pledge is significant to the public as a "vocal expression of patriotism and duty." Making reference to an opinion written by Justice Sandra Day O'Connor, Lockyer further states in his appeal that, "The inclusion of the words ‘under God' in the context of the Pledge is a constitutionally acceptable expression of this country's religious heritage. Those words, and the entire Pledge, 'serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.'" (Lynch v. Donnelly, 1984)

The appeal also asks the court to consider whether the case should be thrown out of court entirely because the plaintiff, Michael Newdow, may not have the required legal standing to properly pursue a case on behalf of his daughter. In his appeal, Lockyer cites recent press accounts which indicate that Mr. Newdow does not have legal custody of his daughter, that his daughter has no objection to the Pledge and that the two parents "significantly differ as to the direction of the child's religious education."

The state's appeal is technically referred to as a petition for rehearing and rehearing en banc - a special rehearing conducted by 11 members of the appellate court.