Remarks in speech leave Scalia out of high court religion case

Monday, October 20, 2003

WASHINGTON -- Justice Antonin Scalia has taken himself out of the Supreme Court's review of whether "under God" should be in the Pledge of Allegiance. With a Ten Commandments dispute awaiting the court, some people would like to see Scalia sidelined from that and other church-state cases, too.

Scalia had been asked not to participate in the marquee case of the court's new term -- the constitutionality of the regular morning classroom salute to the American flag in public schools -- because he mentioned the case in a speech in which he complained about courts stripping God from public life.

Those remarks were specific enough to keep him out the pledge case, but probably not other church-state issues, ethics experts said.

Before justices resolve the pledge case next year, they will hear arguments in December in another significant case that will determine whether states can be forced to spend tax money on college students' religious education.

Also, justices are scheduled to consider this month whether to review appeals involving the former display of a Ten Commandments monument in Alabama's judicial building.

Scalia has not bowed out of those cases and he probably should not have to, say legal experts who reviewed an Associated Press transcript of Scalia's remarks in January at a Knights of Columbus event in Fredericksburg, Va.

Scalia said, in the speech, that the pledge fight should be handled democratically, not by courts.

"But the new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat," he told a rally celebrating religious freedom.

Following a long-standing tradition at the Supreme Court, Scalia has given no reason for his recusal. Scalia, 67, is a Roman Catholic and father of nine children, including a priest. He was named to the high court by President Reagan in 1986 and is considered its most conservative and outspoken member.

Stephen Gillers, law professor and ethics expert at New York University, said Scalia got into trouble by specifically mentioning a California ruling in the pledge case and then following it up with commentary about his beliefs on the subject.

"But the speech provides no basis for a blanket exclusion from all church-state cases," Gillers said.

"He is being blunt, but I don't think this requires him to disqualify himself generally from church-state cases," said another ethics expert, Steven Lubet of Northwestern University. "If it stands for anything, this recusal stands for the proposal that sitting judges should not comment on pending cases, period."

After news reports of the event, the group Americans United for Separation of Church and State called on Scalia to step aside from the pledge case and future church-state cases.

"Scalia sounds like a TV preacher, not a Supreme Court justice," the group's leader, the Rev. Barry Lynn, said at the time.

In the pledge case, the court will review a decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that struck down as unconstitutional classroom salutes. The California father and atheist in the case, Michael Newdow, had urged Scalia to withdraw because of the rally comments.

Scalia's absence leaves open the possibility of a 4-4 split among the remaining eight justices. That would affirm the appeals court decision.

Justices also must deal with a second issue of whether Newdow had the legal right to sue on behalf of his 9-year-old daughter because he did not have legal custody at the time.

If justices decide that he did not, that will delay until later consideration of the issue.

Scalia will have to decide then if he should withdraw from the case.

That would be a closer call, but Gillers said he should take himself out again.

"If next year Jones or Smith is the litigant rather than Newdow, but the issue is the same, I don't think it would make a difference," said Gillers. "He has given his opinion on the issue in the case. It was the specificity. Specificity matters."

Scalia's remarks focused on church-state cases over the past 40 years that he said were wrongly decided, and gave judges in California "some plausible support," to find the pledge unconstitutional. He mentioned a California district court, but it was actually the appeals court that made the finding.

Jonathan Macey, a Cornell Law School professor, said Scalia's recusal in the one case may encourage groups to seek to take him out of others.

"He's obviously sensitive to the recusal issue, so why not push the point?" Macey asked.

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