God's place in oath goes to high court

Wednesday, October 15, 2003

WASHINGTON -- The Supreme Court agreed Tuesday to decide whether it's unconstitutional for children in public schools to pledge their allegiance to "one nation under God."

The Pledge of Allegiance case pushes the court into an emotional argument over religion, patriotism and schools. Activists on both sides of the church-state divide immediately predicted one of the most significant, and wrenching, rulings in the court's modern history.

Generations of schoolchildren have begun each day by standing, hand on heart, to recite the oath that begins, "I pledge allegiance to the flag of the United States of America."

Sometime next year, the high court will hear the case of a California atheist who objects to the pledge his 9-year-old daughter's teacher leads daily. The 9th U.S. Circuit Court of Appeals in San Francisco agreed with Michael Newdow last year, and the ruling set off a national uproar.

Democrats and Republicans in Congress criticized the decision and quickly passed a law affirming references to God in the pledge and the national motto, "In God We Trust." President Bush, who signed the measure, called the appeals court decision ridiculous.

The ruling is on hold pending the court challenge.

Newdow, a doctor and lawyer representing himself in the case, was pleased the court agreed to hear the appeal.

"As a father, it's important that my child should be able to choose which religious beliefs are most appropriate without the government weighing in," he said.

The Constitution guarantees there will be no government "establishment of religion," wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.

The line between God and government can be fuzzy, however, as attested by recent public furor and legal debate over display of the biblical Ten Commandments in courthouses and on public squares.

The Supreme Court already has said that schoolchildren cannot be required to recite the Pledge of Allegiance. The court also has repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.

"This case represents an important opportunity to put a halt to a national effort aimed at removing any religious phrase or reference from our culture," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a law firm founded by the Rev. Pat Robertson.

Most lawyers who watch the court had predicted the justices would not take on the highly divisive pledge case. The court could have resolved the matter without hearing the case on its merits.

The court still could do that, if it should find that Newdow lacks proper legal footing to bring the case. Newdow does not have physical custody of the girl, whose name is not part of the Supreme Court record. The girl lives with her mother, Sandra Banning, who has told the court she has no objection to the pledge.

In another surprise, Justice Antonin Scalia said he will not take part in the case. He did not explain why, but Newdow had challenged Scalia's impartiality based of remarks Scalia made at a "Religious Freedom Day" observance this year. Scalia said the issue would be better decided by lawmakers than judges.

Scalia's absence sets up the possibility that the remaining eight justices could deadlock 4-4. That would affirm the 9th Circuit's ban on the religious reference, which would apply to 9.6 million schoolchildren in the nine states the court oversees: California, Oregon, Nevada, Montana, Washington, Idaho, Arizona, Hawaii and Alaska, plus Guam.

Public schoolchildren elsewhere in the country could still recite the "under God" version.

God was not part of the original pledge written in 1892 and adopted by Congress 50 years later as a wartime patriotic tribute. Congress inserted the "under God" phrase in 1954, when the world had moved from hot war to cold and U.S. religious leaders sermonized against "godless communists."

Many people misunderstood the 9th Circuit ruling to be an attack on patriotism, and assumed the ruling meant that the pledge would be banned wholesale, said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. He thinks the lower court got the ruling right, even though the result was unpopular.

"What this is about is a tremendous test of our respect as a nation for freedom of conscience," Lynn said.

Newdow, his daughter's school district and the Bush administration all asked the Supreme Court to get involved. The court agreed only to hear the school's appeal, but invited the White House to weigh in.

The administration has argued that the reference to God in the pledge is more about ceremony and history than about religion.

The reference is an "official acknowledgment of our nation's religious heritage," similar to the "In God We Trust" stamped on coins and bills, Solicitor General Theodore Olson told the court. It is far-fetched to say such references pose a real danger of imposing state-sponsored religion, Olson wrote.

The case is Elk Grove Unified School District v. Newdow, 02-1624.

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