WASHINGTON The Bush administration appealed to the Supreme Court yesterday to preserve the phrase "under God" in the Pledge of Allegiance recited by school children.
The reference does not amount to unconstitutional government promotion of religion, the administration's top Supreme Court lawyer wrote in a court filing that sides with a Sacramento-area school district.
"Whatever else the (Constitution's) 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," Solicitor General Theodore Olson wrote in the filing.
"That is what the Pledge of Allegiance does. The pledge is therefore constitutional."
The Justice Department and the Elk Grove Unified School District asked the high court to reverse a federal appeals court ruling last year that banned the teacher-led pledge in public schools.
The First Amendment to the Constitution says the government may not establish religion. In practice that has meant the government cannot endorse or promote religion in general, or favor one religion over another.
The Supreme Court has twice declared the pledge constitutional, and numerous justices have assumed as much in other writings, Olson argued. He suggested that the 9th U.S. Circuit Court of Appeals was so far out of bounds in its Elk Grove ruling that the Supreme Court could simply strike down the decision without hearing arguments on the case.
The administration asked the Court to hear its appeal in this year's fall term. The Court could decide before summer whether to take the case.
In March, the sharply divided San Francisco-based appeals court voted not to reconsider its earlier ruling on the pledge. In the initial ruling last June, two judges on a three-judge panel ruled that the regular morning classroom salute to the American flag is unconstitutional because of the phrase "one nation, under God."
The ban is on hold while the school district appeals. The Bush administration joined the case and filed its own appeal. If allowed to take effect in the nine states covered by the 9th Circuit, the pledge ban would affect 9.6 million children in public schools.
The appeals-court ruling was widely denounced in Congress, on opinion pages and at the White House.
"Our religious heritage has been recognized and celebrated for hundreds of years," in the national motto "In God We Trust," the national anthem and elsewhere, Attorney General John Ashcroft said after the appeal was filed yesterday. "Our government and people can acknowledge the important role religion has played in America's foundation, history and character," he said.
The case began when Michael A. Newdow, a California man who describes himself as an atheist, sued the school district where his daughter was a second-grader.
The Supreme Court has already ruled that children cannot be forced to recite the pledge (in West Virginia State Board of Education v. Barnette, 1943). If they object to it, they may stand by in silence, the Court has said.
But Newdow argued that that wasn't good enough. He contended that his daughter's constitutional right to religious liberty was violated by hearing the pledge recited in school, where it obviously carried the stamp of government approval.
The 9th Circuit agreed.
"The coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren, and their understanding that they are required to adhere to the norms set by their school, their teacher and their fellow students," the appeals court panel wrote.