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High Court to Decide School's Pledge Case

October 15, 2003|David G. Savage | Times Staff Writer

WASHINGTON — The Supreme Court -- minus Justice Antonin Scalia -- agreed Tuesday to decide whether a public school's daily recitation of the Pledge of Allegiance to "one nation under God" is an exercise in patriotism or an official endorsement of religion.

The eight justices will hear arguments on the issue early next year and rule by late June, at the midpoint of the presidential election year. Scalia, one of the court's most conservative justices, withdrew from the case, apparently because of his public comments earlier this year about God and the pledge.

The case calls upon the court to reconsider the meaning of words that are familiar to generations of American schoolchildren.

At a time of national unity during World War II, Congress in 1942 enacted the pledge to the flag and "to the Republic for which it stands, one Nation indivisible." At the height of the Cold War with the Soviet Union, Congress in 1954 amended it to add a reference to God. The phrase, "one Nation indivisible" was changed to "one Nation under God, indivisible." Sponsors of the change said they wanted to proclaim how America differed from the godless communism of the Soviet Union.

California law requires the public schools to begin the day with "appropriate patriotic exercises" and adds that saying the Pledge of Allegiance will satisfy this requirement.

Last year, however, the 9th Circuit Court of Appeals based in San Francisco set off a national uproar when it ruled that the reference to God violated the 1st Amendment's ban on laws "respecting an establishment of religion." Its judges cited earlier Supreme Court rulings saying the government must "pursue a course of complete neutrality toward religion." The pledge, by contrast, amounts to a "profession of a religious belief," the 9th Circuit judges said.

The ruling arose from a suit filed by Dr. Michael Newdow, an atheist and the father of a Sacramento-area schoolgirl. Despite the outrage that followed the initial ruling of a three-judge panel, the full appeals court stood by the decision.

Bush administration lawyers appealed to the Supreme Court to defend the 1954 law. Separately, the Elk Grove Unified School District, which was the target of Newdow's suit, also appealed. On Tuesday, the justices announced that they would hear only the school district's appeal, but they invited the administration to file a brief in the case.

The White House hailed the court's decision to review the case. "We have said that we felt it was a wrong decision in the first place, and we're pleased that the Supreme Court has taken that matter up," said Press Secretary Scott McClellan.

The court also left itself a way to avoid a direct ruling on the religion issue. Lawyers for the school district contend that since Newdow is a "noncustodial parent," he does not have a legal right to challenge what is said or done in the schools. The justices said they would consider that contention. The mother of Newdow's daughter has primary custody of the girl.

If the high court concludes that Newdow does not have legal standing to sue, it could throw out his lawsuit and not rule on the pledge itself. However, that might only defer a decision, because another parent who shared Newdow's view would be free to sue -- and presumably win a similar ruling from the 9th Circuit.

Tuesday's order also included a surprise -- and a victory of sorts for Newdow.

Last month, Newdow sent a motion to the court suggesting that Scalia remove himself from the case. He cited news accounts reporting Scalia was the featured speaker at the Religious Freedom Day in Fredericksburg, Va., on Jan. 12. The event was sponsored by the Knights of Columbus.

According to an Associated Press story, Scalia criticized the 9th Circuit's decision in the pledge case and said it is "contrary to our whole tradition" to remove all official references to God. As Newdow noted, the code of conduct for judges says, "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might be questioned." The court's order Tuesday disclosed that Scalia "took no part" in the consideration of Newdow's case.

"I'm in shock. It's amazing, but it was the correct thing to do, and I have the highest respect for Justice Scalia," Newdow said in a phone interview. Though an emergency room physician by profession, Newdow has a law degree and said he intended to argue his case in the high court.

Without Scalia, it will be harder for the court's conservative wing to muster a majority to reverse the 9th Circuit. If the remaining eight justices divide evenly, the 9th Circuit's decision would be affirmed. That in turn would mean that in California and eight other Western states, schools would be obliged to drop the words "under God" from the pledge.

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