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Supreme Court takes up Pledge of Allegiance fight

By The Associated Press
10.14.03

WASHINGTON — The Supreme Court said today it will enter the debate over whether the Pledge of Allegiance recited by generations of American schoolchildren is an unconstitutional blending of church and state.

The case sets up an emotional showdown over God in the public schools and in public life, and could settle whether the phrase “one nation under God” will remain a part of the patriotic oath as it is recited in most classrooms.

The Court will hear the case, Elk Grove Unified School District v. Newdow, 02-1624, sometime next year.

The justices agreed to hear an appeal involving a California atheist whose 9-year-old daughter, like most elementary school children, hears the Pledge of Allegiance recited daily.

A national uproar followed a federal appeals court ruling last year that the reference to God made the pledge unconstitutional in public schools. That ruling, if allowed to stand, would strip the reference from the version of the pledge recited by about 9.6 million schoolchildren in California and other western states.

The First Amendment guarantees that government will not “establish” religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.

The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, “I pledge allegiance to the flag of the United States of America” (in West Virginia State Board of Education v. Barnette, 1943).

The Court has also repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.

The 9th U.S. Circuit Court of Appeals said the language of the First Amendment and the Supreme Court’s precedents make clear that tax-supported schools cannot lend their imprimatur to a declaration of fealty to “one nation under God.”

The Bush administration, the girl’s school and atheist Michael Newdow all asked the Supreme Court to get involved in the case.

The Court, however, agreed only to hear the appeal from the school district. The Bush administration will be able to weigh in separately. The Court also said it will consider whether Newdow had the proper legal footing to bring the case. If the Court decides that Newdow did not have standing to bring the case, then the Court would likely dismiss the case without considering the First Amendment question.

Justice Antonin Scalia will not take part in the case, apparently because of public remarks earlier this year critical of the lower court ruling in the case. His absence sets up the possibility that the other eight justices could deadlock 4-4, a result that would allow the lower court decision to stand.

In its legal filings so far, 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 post a real danger of imposing state-sponsored religion, Olson wrote.

Moreover, being a parent of a child in public school does not give a parent the power to dictate what the child will be exposed to, Olson said.

“Public schools routinely instruct students about evolution, war and other matters with which some parent may disagree on religious, political or moral grounds,” he said in his appeal.

The administration also claimed that Newdow cannot sue on behalf of his daughter because he does not have custody of her. Newdow and the child’s mother, Sandra Banning, have waged a long and bitter custody battle over the child, who lives with her mother. Newdow claims a judge recently gave him joint custody of the girl, whose name is not part of the legal papers filed with the Supreme Court.

To complicate matters, Banning has told the Court she has no objection to the pledge.

Newdow holds medical and legal degrees, and says he is an ordained minister. He is representing himself in filings at the high court and has said he will argue his case in person.

“Those who deny the existence of a supreme being have been turned into second class citizens by a government that continuously sends messages that ‘real Americans’ believe in God,” Newdow told the justices in his appeal.

Newdow sued the school, Congress, President Bush and others to eliminate the words “under God.” He asked for no damages.

The phrase “under God” was not part of the original pledge adopted by Congress as a patriotic tribute in 1942, at the height of World War II. Congress inserted the phrase more than a decade later, in 1954, when the world had moved from hot war to cold.

Supporters of the new wording said it would set the United States apart from godless communism.


Update
Bush administration asks Supreme Court to back Pledge
Justice Department says phrase 'under God' is constitutional, questions California atheist's right to bring the suit. 12.22.03

Previous
Bush asks Supreme Court to preserve 'under God' in pledge
'Whatever else the establishment clause may prohibit, this court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation and character of this nation,' administration court filing says. 05.01.03

Related

High court won't hear challenge to restricted accident reports

Meanwhile, justices rule that California atheist who wants 'under God' removed from Pledge can argue case himself even though he isn't member of Supreme Court Bar. 12.02.03

Court concludes 2003-04 First Amendment docket
First Amendment Center Web site offers 2003-04 docket sheet, extensive case data, analysis; experts available for interviews. 07.01.04

Campaign-finance, theology cases to be watched closely
By Tony Mauro McConnell v. FEC, Locke v. Davey most important cases on Court's short 2003-04 First Amendment docket. 10.06.03

The Pledge of Allegiance: one nation, truly divided
By Ken Paulson Will the Supreme Court take this opportunity to clarify the extent to which government can acknowledge God? 03.09.03

Pledge of Allegiance & religious liberty in public schools

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