'Pledge' bill could strip power from federal courts

Hollman Report
By K. Hollyn Hollman

Oct.-Nov. 2004

When the 9th U.S. Circuit Court of Appeals issued its infamous Newdow decision, finding a California public school policy requiring teacher-led pledge recitation unconstitutional, Congress jumped into action. Members of Congress not only pledged together (what a scene on the Capitol steps!), but they also voted together. The House overwhelmingly passed a resolution condemning the decision. The Senate echoed the emotion. The message from our legislative branch was clear, its disdain for nuance obvious. The pledge is sacred, if not in a religious sense, certainly in a political one.

Two years after the 9th Circuit decision was stayed, and months after the Supreme Court vacated the offending decision on the grounds that Mr. Newdow lacked standing to sue, some members of Congress are still fuming. Despite a backlog of unfinished business in the 108th Congress, the House took time during its last weeks in session to schedule a vote for the "Pledge Protection Act." This proposed legislation went beyond expressing outrage toward the 9th Circuit. It showed contempt for the Constitution.

The bill, which the House Judiciary Committee put on the fast-track to the floor, would deprive the federal courts, including the Supreme Court, of jurisdiction "to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance." In short, it means no pledge disputes are allowed in federal court. Government-coerced speech, and for some, coerced religious expression, would get a pass under the First Amendment.

The bill does not even leave room for enforcement of the 1943 case of West Virginia State Board of Education vs. Barnette. That case struck a requirement to salute the flag and recite the pledge as a violation of the right to free expression. The students were Jehovah's Witnesses whose religion regards such actions as a violation against biblical commands against graven images. The case is important, not only for its affirmation of the rights of religious minorities but also as a lesson on the judiciary. Barnette reversed an embarrassing decision of the Court just three years earlier that had failed to protect the rights of Jehovah's Witnesses.

The pledge bill passed the House by a vote of 247 to 143. By some accounts, it barely avoided a mark-up in the Senate. If passed, this measure would set a terrible precedent, violating the basic assumptions of our government's separation of powers. It would mark the first time since Reconstruction that Congress had deprived the federal courts of jurisdiction over a fundamental right. As far out as the tactic seems, there were several other "court-stripping" laws proposed this Congress.

Can they do this? Most people recall their elementary school civics lesson about the three branches of government. Congress makes the laws. The federal courts interpret the laws. The president enforces them. Though strong arguments support the conclusion that the "Pledge Protection Act" itself would ultimately be held unconstitutional, that outcome is not guaranteed.

In essence, this means it is up to us, acting through the democratic process. We have to urge the legislative branch to recognize the importance of an independent judiciary. I don't agree with everything the federal courts do, but the existence of an independent judiciary, free from political or public pressure, has been essential to our nation's success in protecting religious liberty for all Americans. We can no longer take the federal judiciary for granted.

As Justice Jackson stated in the Barnett case: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." 319 U.S. 624, 639 (1943).

It would be a shame to deny that.