Supreme Court will hear ‘under God’ pledge case_102003
Posted: 10/17/03
Supreme Court will hear 'under God' pledge case
By Robert Marus
ABP Washington Bureau
WASHINGTON (ABP)–In a move that surprised some observers, the U.S. Supreme Court agreed Oct. 14 to hear a case involving the words “under God” in the Pledge of Allegiance.
The justices decided to review the “under God” ruling by the 9th U.S. Circuit Court of Appeals, but will do so without the participation of one of the court's most conservative justices.
Last year, a three-judge panel of the 9th Circuit declared a California school district's policy of teacher-led recitation of the pledge a violation of the Constitution's ban on government establishment of religion. A majority of the 9th Circuit's full 24-member panel later reaffirmed the decision.
In announcing their intention to hear the case, the Supreme Court noted it will be considered and decided without the participation of Justice Antonin Scalia. Scalia recused himself, presumably because of questions about his impartiality, stemming from public comments the justice made in January. At a speech in Fredericksburg, Va., commemorating Religious Freedom Day, Scalia criticized the 9th Circuit's ruling on the pledge case.
In the original 2-1 decision, father Michael Newdow, an atheist, argued–and the panel agreed–that his rights to raise his then-8-year-old daughter were violated by her suburban Sacramento school district's policy of teacher-led pledge recitation.
Although the pledge has been around in forms similar to its present one since the late 1800s, Congress added the phrase “under God” to the oath in 1954. Federal records show congressmen made the move partially in reaction to the perceived atheistic threat of communism.
The 9th Circuit judges said both Congress' action to add the phrase and the Elk Grove Unified School District's policy of teachers leading recitation of the pledge were unconstitutional.
The decision caused a national firestorm of controversy when it was announced in June 2002. A large majority in Congress, as well as President George W. Bush and California Gov. Gray Davis, condemned the ruling and reaffirmed the addition of “under God” to the pledge.
After the public outcry, the same panel later amended their ruling, rescinding the portion declaring the addition of the words themselves unconstitutional but reiterating that the recitation of the pledge in public schools is illegal. That ruling also delayed implementation of the earlier ban, pending the Supreme Court's action in the case.
In accepting the case Oct. 14, the high court declined to review Newdow's argument that the words themselves were unconstitutional and should be removed from the pledge. However, they did agree to hear arguments on two other aspects of the case–whether teacher-led recitation of the pledge is constitutional and whether Newdow had standing to file the case.
The standing issue arose last year after the child's mother, Sandra Banning, told the media she and her daughter were practicing Christians and not offended by the pledge. She also said the fact Newdow–to whom she never was married–did not have custody of the child at the time he filed the suit meant that he lacked standing to file the lawsuit.
A California court recently granted Newdow partial custody of the girl, whose name has not been included in court papers to protect her privacy.
In their Dec. 4 ruling, the same three-judge panel that made the original ruling said Banning's argument didn't hold up regardless of the child's custody situation. In an accompanying opinion written by Judge Alfred Goodwin, the court reaffirmed its original decision in strong language.
“The pledge to a nation 'under God,' with its imprimatur of governmental sanction, provides the message to Newdow's young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father's beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom,” Goodwin wrote.
The Supreme Court previously ruled that children may not be forced to recite the Pledge of Allegiance but has not ruled on whether teachers should be required to lead it.
Many court observers believe the justices will reverse the 9th Circuit's decision. Previous court opinions have suggested that a category of generalized government religious endorsements, often called “ceremonial deism,” does not violate the First Amendment because they have little actual religious meaning.
Such endorsements include phrases like the national motto, “In God We Trust,” or the announcement that the Supreme Court itself uses when opening its sessions: “God save the United States and this honorable court.”
The Supreme Court invited the Bush administration to file a brief in the case. Although White House Press Secretary Scott McClellan declined to say what Bush's intentions were in his Oct. 14 daily press briefing, he did say the White House believed the original decision was wrong.
“You have a Declaration of Independence that refers to God or the Creator four different times. You have sessions of Congress each day that begin with prayer. And, of course, if you look on our own currency, it says, 'In God We Trust.' So we believe the Pledge of Allegiance is an important right that ought to be upheld by the Supreme Court.”
However, the head of a Baptist church-state agency in Washington said that, while ceremonial deism may be legal, it isn't necessarily advisable for Christians to advocate on behalf of it.
“What is constitutional is not always helpful or conducive to a spirit of robust religious liberty,” said Brent Walker, executive director of the Baptist Joint Committee on Public Affairs. “The vitality of religion in America is diminished by blurring the allegiance to government with our ultimate allegiance to God. Are we any more religious today than we were before 'under God' was put into the pledge in 1954?”
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, called the 9th Circuit Court's decision “outrageous even for the looniest of all the federal appeals courts in the land.”
“If the Supreme Court were to uphold the 9th Circuit's ruling that the pledge is unconstitutional, it will have a full-scale revolt on its hands, which will in short order result in either a constitutional amendment or a removing of this area from the court's jurisdiction by Congress,” Land said.
The case is Elk Grove Unified School District vs. Newdow. The court will hear oral arguments in the case in early 2004 and likely will render a decision by the time it ends its 2003-2004 term in July.
Randy Easterday sets up the last section of a billboard ad in Phillipsburg, N.J. The ad was paid for by donations gathered by Marguerite Hansen in response to a federal court ruling that the phrase “under God'” in the Pledge of Allegiance is unconstitutional.



