WASHINGTON – The American Civil Liberties Union expressed its strong disapproval as the House passed a controversial measure to deny judicial review on certain First Amendment issues. H.R. 2389, or the “Pledge Protection Act of 2005,” would strip jurisdiction from all federal courts, including the Supreme Court, in any First Amendment case involving the Pledge of Allegiance.  It is the latest of several similar politically motivated measures that would interfere with America’s independent judiciary and would jeopardize access to fair and impartial courts.  It passed the House on a vote of 260 to 167.

“Today the House said that the courthouse doors should be closed on certain First Amendment issues,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office.  “The recent string of politically motivated efforts to interfere with our independent judiciary flies in the face of our nation’s long-established system of checks and balances.  Our federal judiciary must remain an equal branch of government.  It must not be forced into subservience to our legislative and executive branches.”

The bill, H.R. 2389, would bar all federal courts, including the Supreme Court, from reviewing cases involving the Pledge of Allegiance. While supporters argue the proposal is an appropriate response to potential court decisions  concerning the words "under God" in the Pledge, the ACLU warned that the impact of the bill would be far-reaching.  All federal courts would be barred from considering all constitutional claims related to the Pledge.  In 2004, the 3rd U.S. Circuit Court of Appeals held that a Pennsylvania law mandating recitation of the Pledge violated the Constitution because it violated the free speech rights of the students.  Such cases could not be heard if H.R. 2389 becomes law.

Passage of any such bill, the ACLU said, would establish a dangerous precedent in which Congress responds to court decisions it disagrees with by attempting to restrict the courts’ jurisdiction.   Furthermore, denying access to federal courts would force plaintiffs to raise federal claims in state courts, which may lack expertise and independent safeguards provided to federal judges under Article III of the Constitution.

“This bill would effectively deny access to all federal courts to religious minorities, parents, schoolchildren and others who seek to have their religious and free speech claims heard,” said Terri Ann Schroeder, an ACLU Senior Lobbyist.  “The purpose of an independent judiciary is to have it remain free from intimidation and outside influence.  It is very unlikely that our founding fathers ever envisioned a system of checks and balances that could be so easily upset any time the Congress disagrees with the courts or finds it politically expedient to limit their independent authority.”  

The ACLU’s letter on H.R. 2389, the “Pledge Protection Act of 2005,” can be found at:
www.aclu.org/religion/gen/25803leg20060606.html