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Bush administration asks Supreme Court to back Pledge

By The Associated Press
12.22.03

WASHINGTON — The Bush administration defended two words in the Pledge of Allegiance — "under God" — in asking the Supreme Court to declare the daily recitation constitutional. "Reciting the Pledge of Allegiance is a patriotic exercise, not a religious testimonial," the administration said.

In a Dec. 19 brief, Justice Department lawyers urged the Supreme Court to overturn a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that a pledge which included references to God should not be recited in the public schools.

"The reference to a 'nation under God' in the Pledge of Allegiance is an official and patriotic acknowledgment of what all students — Jewish, Christian, Muslim or atheist — may properly be taught in the public schools," the administration argued in its 63-page filing.

The Supreme Court said in October that it would hear the appeal. The appeals court has put its decision in Elk Grove Unified School Dist. v. Newdow on hold until the Supreme Court rules in the case.

The pledge was challenged by a Sacramento, Calif., atheist, Michael Newdow, whose 9-year-old daughter heard it recited daily in her school. Newdow will argue the case himself before the high court.

The government also questioned Newdow's right to bring the suit. The brief said that Newdow, who does not have custody of his daughter, does not have the authority to solely decide his child's religious upbringing, especially because her mother supports her reciting the pledge.

"While state law affords him the right to expose his daughter to his own atheistic views, he does not have a corresponding right to exclude other influences — especially those the mother has chosen for the child," the government said.

In declaring the pledge's reference to God unconstitutional, the 9th Circuit said it violated the First Amendment as well as Supreme Court precedents. The Supreme Court has already ruled that school children cannot be required to recite the pledge.

The appeals court decision was roundly criticized by federal officials at the time. Attorney General John Ashcroft pledged to "spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag" and the House of Representatives voted, 400-7 with 15 members voting present, to condemn the decision.

Justice Antonin Scalia recused himself from the Supreme Court's consideration of the issue after he told a religious group that courts went too far to keep religion out of public schools and other forums, and that lawmakers rather than judges were better suited to decide the pledge question.


Update
Pledge of Allegiance case to be argued March 24
In Newdow case, Supreme Court will hear arguments for and against inclusion of reference to God. 01.13.04

Previous
Supreme Court takes up Pledge of Allegiance fight
Justices agree to consider whether 'one nation under God' should remain part of patriotic oath as it is recited in most classrooms. 10.14.03

Related

Ethicists don't see Scalia sitting out most church-state cases

But remarks about pledge dispute were specific enough to keep him out of that case, experts say. 10.20.03

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

Pledge of Allegiance in public schools

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