WASHINGTON (ABP) — A House committee has approved a bill that would strip from the federal courts — including the Supreme Court — the power to decide cases related to the Pledge of Allegiance.
On a 17-10 party-line vote, the House Judiciary Committee agreed Sept. 15 to send the Pledge Protection Act to the full chamber for approval. The bill would ban all 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 violated the Constitution's ban on government establishment of religion.
The Supreme Court overturned that decision in June, but did so on technical grounds, leaving the question of the pledge's constitutionality open.
“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,” Rep. James Sensenbrenner (R-Wis.), the committee's chairman, said.
Representative Todd Akin (R-Mo.) introduced the bill “[i]n order to protect the pledge from federal court decisions that would have the effect of invalidating the pledge across several states,” Sensenbrenner said.
The move came less than two months after the House approved a similar court-stripping bill that would remove from federal judicial review those cases involving a federal law that bans same-sex marriage. In addition, a broader court-stripping bill that would remove from the federal courts the authority to decide a much wider array of cases involving governmental endorsement of religion is in the works — and would be considered by the same committee.
Democrats on the Judiciary Committee said the onslaught of court-stripping proposals was vindicating their earlier warnings when the committee considered the Marriage Protection Act.
“I really hate to be an 'I-told-you-so,' but when this committee started on its first effort to strip the federal courts of jurisdiction [to hear cases about the same-sex marriage ban], I warned there would be no end to it,” said Rep. Jerrold Nadler (D-N.Y.), the committee's ranking minority member.
He warned the committee that passing the pledge bill would “set a dangerous precedent for future Congresses” in which majorities might want to prevent unpopular judicial decisions on constitutional issues regarding minority rights.
For example, Nadler said, a 1943 Supreme Court decision striking down a West Virginia law that required schoolchildren to recite the Pledge of Allegiance 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.
“This legislation would, of course, strip the parents of those children of the right to go to court and defend their children's religious liberty,” Nadler said. “Schools could expel children for acting according to the dictates of their faith, and Congress will have slammed the courthouse door in their faces.”
Nadler and other opponents of the bill also said it undermined the concept of an independent judiciary. Supporters, meanwhile, said Congress has the authority, under Article III of the Constitution, to except many areas of federal law from judicial review.
“If you read Article III, you'll find that the notion of an independent judiciary is a flawed notion at best,” said Rep. John Hostettler (R-Ind.). “… It just doesn't bear out actually in the Constitution.”
But Rep. Steve Chabot (R-Ohio) said the measure — like the gay-marriage ban — was necessary to protect traditional values from “rogue federal judges.”
To counter the objections that people whose rights were violated in cases involving the pledge would have no legal recourse under the bill, Sensenbrenner said they could still use the state courts to prosecute their claims.
“Far from violating the separation of powers, legislation that leaves state courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very 'checks and balances' provided for in the Constitution,” he said. “State courts are not second-class courts, and they are perfectly competent to decide federal constitutional cases.”
The bill is H.R. 2028. Sources on the Judiciary Committee said it would come to the full House for a vote the week of Sept. 20. It has 224 co-sponsors, thus virtually assuring that it will pass that chamber.
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