House votes to protect Pledge from Supreme Court, federal court rulings
September 24, 2004
WASHINGTON (AP) – In a vote with election-year consequences, the House sought to assure that God’s 50-year place in the Pledge of Allegiance will be safe from federal court challenges.
The bill, approved on a 247-173 vote Thursday, would prevent federal courts, including the Supreme Court, from ruling on whether the words “under God” should be stricken from the pledge.
The legislation drew strong protests from Democrats who said they want “under God” to remain but viewed the measure as an unconstitutional attack on the judicial branch. They said it was meant mainly to force them into a controversial vote just six weeks before the election.
The bill has virtually no chance of clearing the Senate this year, but the issue was important to conservatives intent on getting lawmakers on the record on topical social issues such as gay marriage and flag burning.
In a similar vote in July, the House voted to prevent federal courts from ordering states to recognize same-sex unions sanctioned in other states.
Supporters said state judges, and not unelected federal judges, should have jurisdiction over whether children should use the words “under God” when they recite the pledge.
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“Many federal judges have made no secret of their hostility to traditional values and religion in the public square,” said House Majority Leader Tom DeLay, R-Texas.
In June, the Supreme Court dismissed, on a technicality, a 2002 federal court decision that the religious reference made the pledge unconstitutional.
But Rep. Todd Akin, R-Mo., who wrote the legislation before the House Thursday, predicted that if the issue returned to the high court, only three justices would support retention of the “under God” phrase. If the courts are allowed to strike the religious reference, “we will have emasculated the very heart of what America has always been about.”
But Democrats said the bill would damage a system of judicial review that has been fundamental to government for 200 years. “We’re playing with fire here, we are playing with the national unity of this country,” by letting each state make its own interpretation of constitutional law, said Rep. Jerrold Nadler, D-N.Y.
“This bill is a dramatic assault on the courts and individual rights, wrapped in phony patriotism,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State.
On the other side, House Judiciary Committee Chairman James Sensenbrenner, R-Wis., argued that “the Constitution clearly provides that the lower federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court.”
Democrats cited an 1803 Supreme Court decision in which the court asserted its role as the arbiter of what the Constitution says. But Sensenbrenner said the Constitution gives the high court original jurisdiction only in cases affecting foreign officials or when a state is involved. In other appellate cases, he contended, the court is subject to congressional regulations.
Many Democrats said the real objective of Thursday’s debate was to force them into an unpopular vote just weeks before the election.
“This bill has been brought to the floor to embarrass some members, so I respect whatever decisions they have to make in light of the motivations behind it,” said Minority Leader Nancy Pelosi, D-Calif. In the end, 34 Democrats voted for the bill and six Republicans opposed it.
Rep. Mel Watt, D-N.C., offered an amendment that would have returned the legislation to its original form, under which lower federal courts were barred from ruling on the pledge but the Supreme Court retained its authority. It was defeated, 217-202.
There is no direct precedent for making exceptions to the Supreme Court’s appellate jurisdiction, said Rep. Judy Biggert, R-Ill., who backed the original bill and the Watt amendment but voted against the final version.
“The issue today may be the pledge, but what if the issue tomorrow is Second Amendment (gun) rights, civil rights, environmental protection, or a host of other issues that members may hold dear?” she asked.
A slightly different version of the pledge first appeared in 1892, on the 400th anniversary of Columbus’ voyage to America. In 1942 Congress included it in the U.S. flag code.
“Under God” has been part of the pledge since 1954, when Congress passed and President Eisenhower signed a law amending the pledge to include the phrase.
The bill is H.R. 2028.
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