Pledge case to be heard by High Court

Eight justices to rule on constitutionality of the phrase `under God'

Scalia recuses himself

Bush administration hails decision to weigh appeal by Calif. school district

October 15, 2003|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - The Supreme Court - minus Justice Antonin Scalia - agreed yesterday 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 a decision is expected by late June. Scalia, one of the court's most conservative justices, withdrew from the case, apparently because of his public comments in January about God and the pledge.

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

In 1942, at a time of national unity during World War II, Congress enacted the pledge to the flag and "to the Republic for which it stands, one Nation indivisible." In 1954, at the height of the Cold War with the Soviet Union, Congress 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 the United States differed from the godless communism of the Soviet Union.

Last year, a panel of the 9th U.S. Circuit Court of Appeals, based in San Francisco, set off a national uproar when it ruled that the reference to God violated the First Amendment's ban on laws "respecting an establishment of religion." The panel 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 judges said.

The ruling arose from a suit filed by Dr. Michael Newdow, a California atheist who challenged the pledge on behalf of his 9-year-old daughter. Despite the outrage that followed the initial ruling, 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. Yesterday, the justices announced that they would hear only the Sacramento-area school district's appeal, but they invited the administration to file a brief in the case.

The administration 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 White House 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 contended 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.

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

Yesterday'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. Newdow cited news accounts reporting that Scalia was the featured speaker at Religious Freedom Day in Fredericksburg, Va., on Jan. 12. The event was sponsored by the Knights of Columbus.

According to an Associated Press report, 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 states, "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 yesterday disclosed that Scalia "took no part" in the consideration of Newdow's case.

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

Scalia is a staunch conservative who has never voted against the government when it was challenged for promoting religion. Like Chief Justice William H. Rehnquist, he has suggested in the past that the First Amendment forbids only the official establishment of a single state church.

Rehnquist will need the vote of at least one of the four liberal justices to reverse the 9th Circuit's decision.

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