AN FRANCISCO, June 26 - A federal appeals court here declared today that the Pledge of Allegiance is unconstitutional because the phrase ``one nation under God'' violates the separation of church and state.
In a decision that drew howls of protest across the political spectrum, a three-member panel of the United States Court of Appeals for the Ninth Circuit, ruled that the pledge could not be recited in schools because it violated the First Amendment's prohibition against a state endorsement of religion.
In addition, the ruling, which will certainly be appealed, struck down a 1954 federal law in which Congress added the phrase ``under God'' to one of the most hallowed patriotic traditions in the nation.
From a constitutional standpoint, those two words, wrote Judge Alfred T. Goodwin in the 2-to-1 decision, were just as objectionable as a statement that ``we are a nation `under Jesus', a nation `under Vishnu,' a nation `under Zeus,' or a nation `under no god.' because none of these professions can be neutral with respect to religion.'' [Excerpts, Page A21.]
If it stands, the decision by the nation's largest and most liberal appellate court would take effect in several months, banning the pledge from being recited in schools in the nine Western states under the court's jurisdiction: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
The panel's decision prompted an immediate reaction in Washington, where senators unanimously passed a resolution condemning the ruling and where dozens of House members gathered on the steps of the Capitol to recite the pledge and sing ``God Bless America.'' [Page A21.
The White House spokesman, Ari Fleischer, said President Bush called the decision ``ridiculous,'' and many legal experts said they expected it to be reversed on appeal.
The ruling came in a lawsuit filed in Federal District Court in Sacramento by an atheist, Michael A. Newdow, whose daughter attended elementary school in the Elk Grove Unified School District near the state capital.
Although under a 1943 ruling by the United States Supreme Court, children cannot be forced to recite the pledge, Dr. Newdow, an emergency room doctor with a law degree acting as his own lawyer, had argued that his daughter's First Amendment rights were harmed because she was forced to ``watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is `one nation under God.'''
According to the National Conference of State Legislatures, half the states require the pledge to be included as part of the school day and half a dozen more recommend it. In the burst of patriotism that followed the Sept. 11 terrorism attacks, bills to make the oath mandatory have been introduced in Connecticut, Illinois, Missouri, Minnesota, Colorado, Mississippi and Indiana.
The Ninth Circuit panel majority consisted of Judge Goodwin, a 79-year-old jurist appointed in 1971 by President Richard M. Nixon, and Stephen Reinhardt, a 71-year-old member of the court since 1980, when President Jimmy Carter appointed him. Writing for the majority, Judge Goodwin said that the school district is ``conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of the current form of the Pledge.''
``Given the age and impressionability of schoolchildren,'' he added, ``particularly within the confined environment of the classroom, the policy is highly likely to convey an impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God.''
The ``under God'' clause of the pledge, the panel argued, was added by Congress solely to advance religion in order to differentiate the United States from nations under atheistic Communist rule. ``Such a purpose,'' Judge Goodwin wrote, runs counter to the Establishment Clause of the First Amendment, ``which prohibits the government's endorsement or advancement not only of one particular religion at the expense of other religions, but also of religion at the expense of atheism.''
The two judges issuing the decision acknowledged that the Supreme Court, had occasionally commented in nonbinding decisions that the presence of ``one nation under God'' in the Pledge of Allegiance is constitutional. But, the judges said, ``the Court has never been presented with the question directly.''
The panel also noted that the Supreme Court had ruled that students could not hold religious invocations at graduations.
In 1984, several liberal members of the Supreme Court, including Thurgood Marshall, Harry Blackmun, John Paul Stevens and William Brennan, said references like ``In God We Trust,'' which appears on United States currency and coins, were protected from the Establishment Clause because their religious significance had been lost through rote repetition.
The dissenting judge in today's ruling, Ferdinand F. Fernandez, 63, who was appointed to the bench in 1989 by President Bush's father, expressed concerns that ruling could also be applied to other expressions of patriotism. ``We will soon find ourselves prohibited from using our album of patriotic songs in many public settings,'' he wrote. ```God Bless America' and `America the Beautiful' will be gone for sure, and while the first and second stanzas of `The Star-Spangled Banner' will still be permissible, we will be precluded from straying into the third.''
Praise for the panel's decision was muted. Joe Conn, a spokesman for Americans United for Separation of Church and State, said that while he fully supported the court's decision, it should not be seen as a finding against the entire pledge. ``They didn't strike down the Pledge of Allegiance,'' he said.
``All they said is Congress made a mistake when they added God to the Pledge,'' Mr. Conn said.
Arthur Hayes, a law professor at Quinnipiac University, called the decision a ``well-reasoned opinion that is certain to enrage the Christian right.''
But criticism of the decision was swift, and, mostly, harsh. The Senate halted debate on a defense bill to work on a resolution criticizing the decision. Politicians of all political stripes, from Gov. George E. Pataki of New York, who called the decision ``junk justice,'' to Senator Tom Daschle, the Democratic leader who called it ``nuts,'' quickly reeled off faxes to reporters condemning the decision.
Steve Duprey, the retired chairman of the New Hampshire Republican Party, who is still active in national Republican politics, said that the decision was ``so out of tune with what Americans believe, I don't think it will be a hot political issue in this campaign. Because I don't think Republicans or Democrats will agree with it.''
The most vehement reactions came from conservative religious groups.
``I think the opinion is absurd,'' said Jay Sekulow, chief counsel, American Center for Law and Justice, which is aligned with the Christian Coalition. ``This is the first court to hold the pledge with the phrase `with one nation under God' is unconstitutional. They've created a constitutional crisis for no reason.''
The Rev. Jerry Falwell said the ruling was ``appalling.''
``This is probably the worst ruling of any Federal appellate court in history,'' Mr. Falwell said, adding that he had started a petition drive this afternoon to gather a million signatures by Friday to urge the Supreme Court to immediately reverse the panel's ruling.
