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White House Takes Pledge Fight to Top Court

May 01, 2003|David G. Savage | Times Staff Writer

WASHINGTON — Bush administration lawyers urged the Supreme Court on Wednesday to preserve the words "one nation under God" in the Pledge of Allegiance, arguing that school authorities can make "ceremonial references to God" without promoting an official religion.

Their appeal sets the stage for another epic legal battle over the place of religion in American life.

In 1942, during World War II, Congress adopted the Pledge of Allegiance as a daily ritual in which teachers and schoolchildren saluted the flag and "the republic for which it stands, one nation indivisible."

In 1954, during the Cold War, Congress amended the pledge to add the words "under God."

In June, however, the U.S. 9th Circuit Court of Appeals set off a storm of controversy by ruling, in a 2-1 vote, that this official invocation of God in the public schools violates the Constitution. The full appeals court, which is based in San Francisco, declined to reconsider the issue in February.

The 1st Amendment begins by saying, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

According to Judge Alfred Goodwin of the 9th Circuit, the daily ritual of reciting the pledge "impermissibly coerces a religious act" and is therefore unconstitutional.

In urging the justices to reverse that decision, Atty. Gen. John Ashcroft said Wednesday that nothing in the Constitution bars schools from recognizing "our religious heritage."

"Our government and people can acknowledge the important role religion has played in America's foundation," Ashcroft said in a written statement.

The pledge's "ceremonial reference to God acknowledges the undeniable historical facts that the nation was founded by individuals who believed in God," U.S. Solicitor General Theodore B. Olson wrote in his appeal to the court.

For now, enforcement of the appeals court's ruling -- which would ban recitation of the pledge in public schools in the nine states of the 9th Circuit -- has been suspended while the government and the Elk Grove School District in Northern California appeal to the Supreme Court. Administration lawyers joined the case because the lawsuit seeks to invalidate a federal law.

On Wednesday, the justices heard their last set of oral arguments for the current term, which will end with a final round of rulings by the end of June. The justices may have time to act on the appeals in the pledge case then and, in all likelihood, they will vote to hear the case in the fall.

Under California law, public schools are required to "conduct ... appropriate patriotic exercises" at the beginning of each day. Having teachers lead their classes in reciting the Pledge of Allegiance complies with this requirement. However, children are not compelled to join in the recitation.

The case arose when Michael Newdow, an atheist, sued the Elk Grove district near Sacramento, contending that his daughter should not be forced to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God and that ours is 'one nation under God.' "

As one option, Olson suggested that the high court could throw out the 9th Circuit's decision by ruling that Newdow, who does not have legal custody of his child, had no standing to sue on his daughter's behalf.

Newdow "has no legal right ... to vindicate his child's legal interests," Olson argued.

If the court adopted this view, it would dispose of U.S. vs. Newdow. But the victory might be short-lived; another plaintiff and his child could sue on the same grounds in California and ask the 9th Circuit to restate its ruling.

Despite the uproar that greeted the 9th Circuit's decision, the Supreme Court itself repeatedly has refused to allow official promotions of religion in the public schools.

In the 1960s, the court struck down state-sponsored prayers and Bible readings in public schools. In 1980, the court barred schools from posting the Ten Commandments in classrooms.

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