High Court to Decide School’s Pledge Case

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.

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 1st Amendment forbids only the official establishment of a single state church.

Rehnquist once referred to Thomas Jefferson’s notion of a “wall of separation between church and state” as a “misleading metaphor based on bad history.” Rehnquist, Scalia and Justice Clarence Thomas have voted -- in dissent -- to uphold a city’s Christmas season display of the birth of Jesus in the courthouse, a cleric’s invocation at a school graduation and the display of the Ten Commandments outside a city hall. They also voted with the majority to allow some tax money to flow to religious schools.

Now, the chief justice will need the vote of at least one of the liberal justices to reverse the 9th Circuit’s decision.

Unlike Rehnquist, Scalia and Thomas, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer have adhered to the separation of church and state doctrine. They say the government may not spend any tax money to teach religion or support religious schools. They have also voted to strike down school-sponsored religious activities, such as a Texas school’s policy of choosing a student to deliver a prayer over a public address system.

In the middle are Justices Sandra Day O’Connor and Anthony M. Kennedy.

They have voted to allow limited public aid to parochial schools. They joined a 5-4 decision last year to uphold the use of school vouchers in Cleveland.

At the same time, they have voted to forbid school-sponsored religious activities. In 1992, for example, Kennedy wrote an opinion for a 5-4 majority that barred public schools from using a cleric to deliver an invocation at a graduation ceremony.

While this would seem inoffensive to most, the “nonbeliever or dissenter” should not be required to sit through a message of “religious orthodoxy” in a public school ceremony, Kennedy wrote. The 9th Circuit’s judges quoted that passage in striking down the reference to God in the pledge.

The pledge case does not concern whether students may say the words “under God,” but only whether they must listen as teachers and fellow students recite the words. Sixty years ago, the Supreme Court ruled that students have a free-speech right not to salute the flag or say the pledge.

Newdow’s suit urged the courts rule that the reference to God should be excluded because it was an official promotion of a religious belief.

Religious advocacy groups agreed that the pledge case set the stage for a historic ruling on the role of religion in public life.

“This case has touched a nerve across America,” said Jay Alan Sekulow, general counsel for the American Center for Law and Justice based in Virginia Beach, Va. “We will ask the Supreme Court to uphold the constitutionality of phrases like ‘one nation, under God’ -- expressions that are patriotic in nature, not affirmations of a particular faith.” He and others said if the pledge cannot make reference to God, phrases such as “In God We Trust” on coins would be vulnerable as well.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, said the pledge case figured to be the most controversial religion-in-schools case since the ban on state-sponsored school prayers in 1962.

“No one should feel coerced to take part in a religious exercise to express patriotism,” Lynn said. “A country founded on religious freedom should not be afraid to recognize that love of God and love of country are not the same for some people. Requiring a daily religious loyalty test for school children is simply wrong.”