WASHINGTON (ABP) — The House of Representatives has passed a bill that would strip the Supreme Court and all other federal courts of the ability to decide cases involving the Pledge of Allegiance.
On Sept. 23, the House voted 247-173 to pass the “Pledge Protection Act.” Although the vote broke down largely along party lines, 35 Democrats joined most Republicans in supporting it. Six Republicans opposed it.
The bill would ban federal courts from hearing or deciding cases “pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance…or its recitation.”
Sponsors said the bill was a pre-emptive measure to prevent future challenges to the pledge's constitutionality under the First Amendment. In 2002, the California-based 9th U.S. Circuit Court of Appeals ruled that the teacher-led recitation of the pledge — including the words “under God” — in public schools violates the amendment's ban on government establishment of religion.
The case was Elk Grove Unified School District vs. Newdow. The U.S. Supreme Court overturned the 9th Circuit's decision earlier this year. However, they did so on technical grounds, leaving the question of the pledge's constitutionality open.
Nonetheless, the Newdow decision made the proposed bill a solution in search of a problem, argued House opponents of the bill. “You have won the lawsuit; Newdow has been reversed!” Rep. Mel Watt (D-N.C.) said to his colleagues during floor debate. “Get a grip!”
But bill supporters said the court's silence on the case's constitutional issues left the pledge vulnerable.
“The Supreme Court's decision not to reach the merits of the case is apparently an effort to forestall a decision averse to the pledge,” said Rep. James Sensenbrenner (R-Wis.), a bill supporter and chairman of the House Judiciary Committee. However, he said, if the bill becomes law, “a few federal judges sitting thousands of miles away will not be able to re-write your state's pledge policy,” he said.
The move came just a few weeks after the House approved a similar “court-stripping” bill that would remove from federal judicial review cases involving the Defense of Marriage Act. In addition, a broader court-stripping bill that would remove from the federal courts authority to decide a much wider array of cases involving governmental endorsement of religion remains in the House's legislative pipeline.
Democrats said that the onslaught of court-stripping proposals vindicated their earlier warnings about the danger of the so-called “Marriage Protection Act.”
“If this debate was really about whether 'under God' was going to be in the Pledge of Allegiance, I'd be right there” with the bill's supporters, Watt said. “But this debate is about much, much more than that. It's about whether there's going to be a constitutional framework under which we operate.”
Rep. Judy Biggert (R-Ill.), who had been one of the bill's original sponsors before Sensenbrenner's committee added the Supreme Court to the list of courts it would strip of jurisdiction in pledge cases, said such a move would make it unprecedented in American history.
“There is no direct constitutional precedent where the Supreme Court is cut off entirely from review of an issue,” Biggert said.
Watt offered an amendment to the bill that would have restored jurisdiction over pledge cases to the Supreme Court, but not other federal courts. It lost on a largely party-line vote.
Bill supporters said that Congress has the authority, under Article III of the Constitution, to except many areas of law from federal judicial review. The prospect of a future court again declaring the pledge to be unconstitutional is a sufficiently grave threat to exempt this area of the law, said Rep. Cliff Stearns (R-Fla.).
“At what point would you, as a member of Congress, get up and say, 'Enough is enough'” of judicial overreach, he asked his colleagues.
Several bill opponents pointed out a 1943 Supreme Court decision striking down a West Virginia law that forced all schoolchildren to recite the Pledge of Allegiance. The decision was highly unpopular at the time. However, it protected the rights of Jehovah's Witnesses and other groups whose theology prevents them from reciting oaths or swearing allegiance to any entity other than God.
Though opponents worried the bill would cut off religious minorities from legal recourse in such cases, supporters said state magistrates could protect minority rights in pledge cases. “Nothing in [the bill] would allow state courts to depart from Supreme Court precedents” in pledge cases, Sensenbrenner said.
But Watt and other bill opponents objected that leaving the issue to states could set up a patchwork of different state interpretations of the Constitution's protections. “Fifty different states — 50 different rules under your rule?” he asked bill supporters. “What happened to the word 'indivisible' — 'One nation, indivisible, under God?'”
The bill is H.R. 2028. Although it has passed the House and a similar bill has been proposed in the Senate, sources say it is unlikely to pass that chamber this year.
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