Newdow

concurring in the order.

My -views as to the merits of this issue are set forth in the amended majority opinion authored by Judge Goodwin, and I adhere to them fully. I write separately for two reasons unrelated to the contents of that opinion. I write first to comment on the separate dissent to the denial of rehearing en banc authored by Judge McKeown and joined in by Judges Hawkins, Thomas, and Rawlinson, in which my colleagues appear to express the view that a case should be reheard en banc whenever it involves “a question of exceptional importance.” FED. R. APP. P. 35(a)(2). 1 Second, I am compelled to register my strong disagreement with one particularly unfortunate aspect of Judge O’Scannlain’s principal dissent that reflects a serious misconception of fundamental constitutional principles and the proper role of the federal judiciary.

I

As to the first question, I disagree with the notion that the importance of an issue is a sufficient reason to take a case en banc, either under the Rule or as a matter of judicial policy. Rule 35(a) advises this court of its discretionary power to order that a case already decided by a three-judge panel be reheard by the full court.…

dissenting from the denial of rehearing en banc.

Last June, a two-judge majority of a three-judge panel of this court ruled that *472 the Pledge of Allegiance was unconstitutional simply because of the presence of two offending words: “under God.” It was an exercise in judicial legerdemain which, not surprisingly, produced a public outcry across the nation. Since that time we, as a court, have had the opportunity to order reconsideration of that decision en banc, yet a majority of the 24 active judges eligible to vote has decided not to do so. While there are, no doubt, varied and plausible reasons why this result occurred, I respectfully conclude that our court has made a serious mistake and thus must dissent from its order denying reconsideration.

I

While I cannot say that a randomly selected 11-judge panel would have ruled differently, I believe that neither the June 2002 version, Newdow v. United States Congress, 292 F.3d 597 (9th Cir.2002) (“Newdow I ”), nor today’s slightly revised version, 328 F.3d 466 (“Newdow IF) to essentially the same effect, is defensible. We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very wrong…

Opinion by Judge GOODWIN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

ORDER

The opinion filed June 26, 2002 [ 292 F.3d 597 ** ], is ordered amended. The Clerk is instructed to file the amended opinion with Judge Fernandez’s amended concurrence/dissent. Judge Reinhardt’s concurrence in the order denying rehearing en banc, along with Judge O’Scann-lain’s and Judge McKeown’s dissent from that order shall also be filed.

The Clerk is also instructed not to accept for filing any new petitions for rehearing and petitions for rehearing en banc in this case.

With the opinion thus amended, the panel has voted unanimously to deny the petitions for rehearing.

The full court has been advised of the petitions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. RApp. P. 35.

*469 The petitions for rehearing are DENIED and the petitions for rehearing en banc are DENIED.

See amended opinion by Judge Goodwin infra.

concurring and dissenting.

I concur in parts A, B and C of the majority opinion, but dissent as to part D.

We are asked to hold that inclusion of the phrase “under God” in this nation’s Pledge of Allegiance violates the religion clauses of the Constitution of the United States. We should do no such thing. We should, instead, recognize that those clauses were not designed to drive religious expression out of public thought; they were written to avoid discrimination.

*491 We can run through some or all of the tests and concepts which have floated to the surface from time to time. Were we to do so, the one that appeals most to me, the one I think to be correct, is the concept that what the religion clauses of the First Amendment require is neutrality; that those clauses are, in effect, an early kind of equal protection provision and assure that government will neither discriminate for nor discriminate against a religion or religions. See Gentala v. City of Tucson, 244 F.3d 1065, 1083-86 (9th Cir.) (en banc) (Fernandez, J., dissenting), cert, granted and judgment vacated by 534 U.S. 946 , 122 S.Ct. 340 , 151 L.Ed.2d 256 (2001); Goehring v. Brophy, 94 F.3d 1294, 1306-07 (9th…

dissenting from the denial of rehearing en banc.

The recitation of the Pledge of Allegiance by school children presents a constitutional question of exceptional importance that merits reconsideration by the en banc court. See Fed. R.App. P. 35(a)(2) (en banc hearing appropriate when “the proceeding involves a question of exceptional importance”). Although not every case of exceptional importance can or should be reheard en banc, this is a case that should be reheard. I respectfully dissent from the court’s decision to deny rehearing en banc.

OPINION

Michael Newdow appeals pro se a judgment dismissing his challenge to the constitutionality of the words “under God” in the Pledge of Allegiance to the Flag. Newdow argues that the addition of these words by a 1954 federal statute to the previous version of the Pledge of Allegiance (which made no reference to God) and the daily recitation in the classroom of the Pledge of Allegiance, with the added words included, by his daughter’s public school teacher are violations of the Establishment Clause of the First Amendment to the United States Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

Newdow is an atheist whose daughter attends…