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Pledge case at Supreme Court: arguments slated March 24

WASHINGTON (BP)–The constitutionality of the acknowledgment of God in the Pledge of Allegiance will be argued March 24 before the U.S. Supreme Court.

The high court announced the date for oral arguments in the high-profile case Jan. 12. The justices are reviewing a decision by the U.S. Ninth Circuit Court of Appeals that inclusion of the words “under God” in the recitation of the pledge by public school students violates the establishment clause of the First Amendment.

A widespread backlash greeted the Ninth Circuit’s decision against the pledge when it was first announced in 2002. Many Americans, as well as the Bush administration, called for the high court to review the ruling and reverse it.

When arguments are heard in Elk Grove Unified School District v. Newdow, Associate Justice Antonin Scalia will not participate. Scalia, widely considered the court’s most conservative member, has recused himself without explanation. He had spoken critically of the lower court’s ruling, however. Scalia’s absence makes possible a 4-4 deadlock among the justices, which would result in the survival of the Ninth Circuit opinion.

The ruling would remain in force in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The appeals court is based in San Francisco, Calif. The school district is near Sacramento.

Michael Newdow, a self-described atheist, initiated the case on behalf of his daughter. After a three-judge panel of the Ninth Circuit ruled for Newdow in June 2002, it was revealed his 8-year-old daughter did not oppose the pledge. Sandra Banning, the girl’s mother, said her daughter enjoyed reciting the pledge. Banning, who has sole custody of the girl, also said her daughter and she are members of Calvary Chapel of Laguna Creek, an evangelical church in Elk Grove, Calif.

The Ninth Circuit, however, ruled Newdow maintained standing in the case as a parent.

After its 2002 opinion, the Ninth Circuit considered requests it review the decision with an 11-member panel. In February 2003, the court announced it would not rehear the case. At the same time, the panel issued an amended opinion that basically maintained the central holding in the case but tightened its scope. The revised decision did not strike down a 1954 federal law adding “under God” to the pledge, as its June ruling had. Instead, the amended opinion banned classroom recitations of the pledge.

In another case, the Supreme Court will hear oral arguments March 2 in a case involving the Child Online Protection Act, a 1998 law that bans commercial World Wide Web sites from making sexually explicit material available to minors.

A panel of the Third Circuit, which is based in Philadelphia, twice has struck down COPA. Its most recent decision against the law came in March 2003 after the Supreme Court had returned the case to the appeals court when the justices decided the lower court’s sole basis for its ruling was inadequate.
Upon its review, however, the appeals court reaffirmed its decision. A three-judge panel unanimously agreed a federal court acted appropriately in granting a preliminary injunction against COPA. The law “is not narrowly tailored” and “does not use the least restrictive means” to accomplish its goals, the panel said. “COPA is clearly a content-based restriction on speech.”

Congress passed COPA in 1998 after the Supreme Court struck down a more expansive 1996 measure, the Communications Decency Act.

The case is Ashcroft v. ACLU.

The Third Circuit includes the states of Delaware, New Jersey and Pennsylvania.

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