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Last week, the U.S. House of Representatives again passed legislation that would prevent federal courts from hearing cases on the constitutionality of the Pledge of Allegiance -- such as whether the words "under God" violate the separation of church and state.
The bill has its origins in that very question. Federal courts ruled in 2002 and 2005 that those two words amount to a government endorsement of religion, although the Supreme Court didn't rule on that question when it took up the challenge -- justices instead said the person bringing the case didn't have legal standing to sue. The proposed legislation is one of several "jurisdiction stripping" bills pending in Congress. It brings up a number of thorny questions, such as whether it was proper for "under God" to be added to the Pledge in 1954, or whether it violates the constitutional separation of powers for Congress to tell federal courts which cases they can accept. No one expects the legislation to move forward in the Senate. Perhaps that's why other thorny questions have gone mostly unasked: If the bill passes and interpretation is left to state courts, would the result be a different Pledge of Allegiance for each state? And since the Pledge is meant to promote national unity, wouldn't that be silly? It could happen, agreed Marilyn Ireland, who teaches First Amendment law at the California Western School of Law in San Diego. But as a practical matter, the difference would probably come down to the "under God" debate. "If it did pass the Senate, the likelihood that there would be more than two versions of the Pledge would be small," Ireland said. "You could have one with 'under God,' and one without 'under God.' "That's the conundrum that has always been in this country -- 50 states of disunity. Maybe it would even be appropriate to have it that way." All three of Utah's congressmen voted for what's being called the "Pledge Protection Act," which is sponsored by U.S. Rep. Todd Akin, R-Mo. It passed the House 260 to 167. "This bill reserves the state courts' authority to decide whether the pledge is valid within each state's boundaries," said a statement from Alyson Heyrend, a spokeswoman for U.S. Rep. Jim Matheson, D-Utah. "If different states come to different decisions regarding the constitutionality of the Pledge, the effects of such decisions will be felt only within those states. "A few federal judges sitting hundreds of miles away will not be able to rewrite a state's Pledge policy." A news release from the office of U.S. Rep. Chris Cannon, R-Utah, said the same thing using almost identical language. "If different states come to different decisions regarding the constitutionality of the Pledge, then their decisions hold sway only within those states, and not on the whims of activist federal judges," Cannon was quoted as saying. Cannon spokesman Charles Isom said he hadn't considered the possibility of multiple versions of the Pledge of Allegiance. "I guess I had not thought of it in that sense. That would probably be a bridge that would have to be crossed at some point if this goes through the whole process," he said. "This is a state's rights issue, and as we've said, we stand behind this kind of action on this kind of case." U.S Rep. Rob Bishop, R-Utah, did not respond to a request for comment. "Jurisdiction stripping" bills are nothing new. Pending legislation in Congress includes proposals to keep federal courts from hearing cases about prayer in schools, Ten Commandment displays and gay marriage. Cannon recently introduced a bill that would remove a federal court's ability to review state anti-pornography laws. The constitutionality of such proposals is fiercely debated, however. Language in the Constitution appears to give Congress some authority over the reach of courts. However, there's a widely held view, as well as scholarship to back it up, that limiting a court's jurisdiction because of an unpopular decision amounts to a subversion of the Constitution. "That question is mired in weird constitutional cases going back to the Civil War," Ireland said. She said Congress probably could succeed at stripping jurisdiction from lower federal courts, but "whether they can take it away from the Supreme Court is another matter." The question is important because if state courts arrive at different versions of the Pledge, the Supreme Court would be expected to issue some kind of final interpretation. Akin's legislation would remove that option. Whether that removal would stand scrutiny is an open question. "You find 10 different constitutional law professors," Ireland said, "and you'll get 10 different answers."
This story appeared in The Daily Herald on page A1.
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