As appeared in United Press International, Outside View, July 29, 2002

By Phil Kent and Lynn Hogue

The recent Pledge of Allegiance decision by the Ninth Circuit Court of Appeals - Newdow v. Elk Grove Unified School District - that the phrase "under God" violates the First Amendment perplexes many legal scholars who know and respect America's religious heritage. However, this decision is not a new one in the longstanding, whipsawed history of judicial opinions on this matter.

The richly confused tradition of court analysis regarding our nation's pledge begs for a logical, reasonable solution: Let the states pass a constitutional amendment to once and forever put the power over the pledge in the people's court - Congress.

Politicians in both parties are following public opinion in criticizing the Ninth Circuit's decision and calling for its overturn. Although appeal to the full Ninth Circuit, followed by an appeal to the U.S. Supreme Court, is the "legal" option, such action will not put to rest the question of "who controls the pledge." The only way to do that is to invest Congress with the power to determine the pledge.

The Ninth Circuit's heady mixture of conservative and liberal judges ensure that there is no certain outcome to an appeal of this questionable case. A decision by an "activist" panel of judges in California more intent on making up the law than applying the law led to this decision.

But, let's be clear, it is the Supreme Court itself that laid the legal foundation for the circuit court's misguided decision to exclude "under God."

Interpretation of the First Amendment's religion clauses - Establishment and Free Exercise - has developed considerable play in the joints over the last several decades. Repeated efforts to clarify the standards applicable to the First Amendment have met only with frustration by academic and legal scholars, the public, and the Justices themselves.

Even a "definitive" ruling from the Supreme Court hardly offers assurance. After all, the nation's highest court took up two cases involving the Pledge of Allegiance in the early 1940s and reached diametrically opposing results. In Minersville School District v. Gobitis, 1940, the court held that students could be required to salute the flag despite a claim that compulsion violated free exercise of religion and free speech. Three years later, the court took a 180-degree doctrinal turn in West Virginia State Board of Education v. Barnette, 1943, holding that Minersville was wrong and that the rights of free exercise and free speech precluded compulsory flag salute and pledge.

What is clear from this rapid reversal is that Supreme Court offers no security on this matter.

As an alternative to judicial appeal, Congress introduced legislation to deprive federal courts of jurisdiction in cases involving the pledge. As with the failed Flag Protection Act of 1989, the courts are loathe to allow the legislative branch to dictate what can and cannot be heard by the judicial branch - especially when constitutional rights are involved. Further, enactment of the pledge legislation would only limit lower federal courts, not the Supreme Court or state courts, which hear federal cases in the absence of a federal forum. Of note, the Flag Protection Act was struck down as unconstitutional by the Supreme Court in 1989 - United States v. Eichman, further underscoring the whim of judicial fancy on issue relating to national symbols.

So, what remains to be done? Congress should act promptly to propose to the states a constitutional amendment to resolve the question. An amendment assigning power over the pledge to Congress will ensure that the people's pledge remains just that - a pledge decided by a political branch of government, accountable to the people.

The amendment will forever end the inconsistent judicial analysis on exactly what constitutes "free exercise" and "establishment of religion" when it comes to the discreet issue of the pledge. Under the amendment, Congress - and not the courts - will have sole and exclusive authority to determine the language of the pledge, and will do so subject to no other provision of the Constitution.

Court appeals and federal statutes will simply not fix the dilemma. Public support - and the wiser heads in Congress and the required 38 states for ratification - should dictate the future security of our time-honored pledge.

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