House Judiciary Panel Seeks to Bar Federal Courts from Hearing Pledge Cases; ACLU Urges Lawmakers to Keep Doors of Justice Open to All

June 7, 2006 12:00 am

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WASHINGTON – As the House Judiciary Committee met to consider a controversial measure to deny access to the courts on certain first amendment issues, the American Civil Liberties Union today urged lawmakers to reject this deeply misguided and unconstitutional proposal. The bill, 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 our independent judiciary and that would jeopardize American’s access to fair and impartial courts.

“This bill says the federal judiciary should not be a co-equal branch of the government,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The role of an fair and impartial federal judiciary is crucial in our time-honored system of checks and balances. We urge the committee to reject this misguided proposal.”

The bill, H.R. 2389, the “Pledge Protection Act of 2005,” would bar all federal courts, including the Supreme Court, from reviewing cases involving the Pledge of Allegiance. If enacted, the measure would effectively close federal courthouse doors to religious minorities, parents, schoolchildren and others who seek to have their religious and free speech claims heard before the federal courts. The House adopted a similar version in 2004, but the Senate did not take action.

While politicians who support the bill argue the proposal is an appropriate response to potential court decisions that they might dislike 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 Third Circuit 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 were to become law.

The ACLU also pointed to a growing trend by some members of Congress to push similar measures. Similar proposals seek to restrict the ability of the courts to review cases considering the legal definition of marriage and public display of the Ten Commandments.

Passage of any of these measures, 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 the federal courts would force plaintiffs to raise federal claims and concerns in state courts, which may lack expertise and independent safeguards provided to federal judges under Article III of the Constitution.

“Closing the doors of federal courthouses on issues that some lawmakers disagree with strikes at the very purpose of the federal courts as envisioned by the Founding Fathers,” said Terri Ann Schroeder, an ACLU Senior Lobbyist. “They saw a need for neutral arbiter that would be the final authority in determining the constitutionality of the laws that Congress passed. We urge Congress to respect that authority. Our Federal Courts need to be accountable to the Constitution and the law not to the political whims of Congress.”

The ACLU’s letter on H.R. 2389, the “Pledge Protection Act of 2005,” can be found at:

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