Supreme Court takes on church-state fight over Pledge of Allegiance

Tuesday, October 14th 2003, 12:00 am
By: News On 6

WASHINGTON (AP) _ The Supreme Court said Tuesday it will decide 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. It will 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 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.''

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 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 White House hinted that an administration-written brief in the case could be in the offing, with Scott McClellan, President Bush's spokesman, calling the Pledge of Allegiance ``an important right that ought to be upheld.''

McClellan would not say definitely whether the White House would press its position before the court but previewed what it would argue if it did. ``Keep in mind,'' he said, ``that you have a Declaration of Independence that refers to God or the creator four different times. You have sessions of Congress each day that begin with prayer and, of course, if you look on our own currency, it says ``In God We Trust.'''

Activists on both sides of the church-state divide said the case is a watershed for the court and for public opinion.

``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.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called the pledge case the most controversial issue before the high court in a decade.

``Everyone's got an opinion, informed or otherwise,'' Lynn said. ``The bottom line is, will we require a daily religious loyalty oath for school children?''

The 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 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.

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 pledge 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 pose a real danger of imposing state-sponsored religion, Olson wrote.

The administration also claimed that Newdow cannot sue on behalf of his daughter because his custody of the girl is in question. 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 told the court that he now has 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 is representing himself in the case.

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.

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

In other cases Tuesday, the court:

_Turned aside an appeal of a lower court decision that upheld laws in nine states permitting doctors to give marijuana to sick patients.

_Agreed to decide whether border officers can randomly search gas tanks of vehicles coming into the country as part of stepped-up security measures that the Bush administration said are indispensable to the war on drugs and terrorism.

_Said it will take a fresh look at the complex question of how to protect children from online smut without resorting to unconstitutional censorship.