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The Nation

High Court to Consider 'One Nation, Under God' Petition

Among many appeals before the justices comes a battle over the place of religion in America.

September 29, 2003|David G. Savage | Times Staff Writer

WASHINGTON — The Supreme Court meets behind closed doors today to consider more than 2,000 appeals that arrived during the summer, none messier or potentially more significant than the case of the Pledge of Allegiance and the Sacramento-area father who wants the words "under God" removed from it.

At one level, the pledge case asks the most basic questions about the role of religion in American public life: Is this indeed "one nation, under God?" And should schoolchildren be called upon by law to recite that belief each day?

But at another level, the case raises a quite different but also potentially far-reaching question: Does a parent -- and in this instance, a noncustodial father -- have a legal right to sue in federal court seeking to change what is said or taught in the public schools?

Last year, Michael A. Newdow, an unemployed emergency room physician who also earned a law degree from the University of Michigan, won on both issues before the U.S. 9th Circuit Court of Appeals.

In a 2-1 decision, the court ruled in 2002 that the reference to God in the Pledge of Allegiance violates the 1st Amendment, which says, "Congress shall make no law respecting an establishment of religion...."

In 1954, at the height of the Cold War, Congress amended the pledge, changing its wording from "one nation indivisible" to "one nation, under God, indivisible." Sponsors of the change said they sought to distinguish the American system from the godless Communism of the Soviet Union. "The spiritual bankruptcy of the Communists is one of our strongest weapons in the struggle for men's minds," said the Senate sponsors of the revised pledge.

A decade earlier, in the midst of World War II, the Supreme Court had ruled that schoolchildren could not be compelled to salute the flag -- or by extension, say the Pledge of Allegiance.

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein," wrote Justice Robert H. Jackson in the 1943 decision. His opinion drew a contrast between the American tradition of individual freedom and the ritual salutes of Nazi Germany. Ever since, Jackson's opinion has stood for the principle that individuals have a free-speech right not to say the Pledge of Allegiance.

But the case now before the high court goes a step further. Agreeing with Newdow, the 9th Circuit ruled that students have a right not to hear the daily reference to God, as well as not say it.

"When school teachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized 'under God,' " wrote Judge Alfred T. Goodwin in the 9th Circuit opinion. Goodwin added that Newdow, as a father, has a right not to have the public school "indoctrinating his impressionable young daughter on a daily basis in that official view

After its initial ruling striking down the reference to God in the pledge, the 9th Circuit was informed that the mother of Newdow's daughter, Sandra Banning, said she had "sole custody" of the girl and that both mother and daughter support the pledge as it is. Unperturbed, the 9th Circuit handed down a second ruling affirming that Newdow had standing in court to sue because the father "retains rights with respect to his daughter's education and general welfare."

In his appeal on behalf of the Bush administration, U.S. Solicitor General Theodore B. Olson contends both rulings are wrong. The reference to God in the pledge is an "official acknowledgment of our nation's religious heritage," akin to the phrase "In God We Trust" that appears on U.S. currency, Olson says. It is "far-fetched" to say these references "pose a real danger of establishment of a state church," he argues.

Moreover, the court should void the 9th Circuit's ruling on the grounds that Newdow had no right to bring the complaint in the first place, Olson said.

"Public schools routinely instruct students about evolution, war and other matters with which some parent may disagree on religious, political or moral grounds," he said in his appeal. A "noncustodial" parent does not have a right "to close off all other views" in the schools that conflict with his view, Olson said in U.S. vs. Newdow.

The large issues and the uncertain posture of the case have left lawyers perplexed about what the court will do.

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It appears the justices cannot simply reject the appeal, as they do in most cases.

On Monday, they will sit down to go through 1,913 appeal petitions. In essence, these are pleas from the losing party asking the court to review the case. Most of them come from prison inmates, and they are rejected without a moment's attention by the justices.

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