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Pledge case: Supreme Courts weighs whether ‘under God’ violates Constitution

WASHINGTON (BP)–The Pledge of Allegiance to the United States flag is a “ceremonial rendition” that does not violate the Constitution’s ban on government establishment of religion, the Bush administration’s top lawyer told the Supreme Court March 24.

The high court has indicated the pledge, which includes the words “one nation under God,” is not a prayer, “not supplication, not an invocation,” Solicitor General Ted Olson told the justices. “The Pledge of Allegiance is not what this court has said the establishment clause [of the First Amendment] protects against. The establishment clause does not prohibit” ceremonial acts of religion, he said.

Olson and a lawyer for a California school district argued the Supreme Court should reverse a federal appeals court ruling that the district’s policy requiring recitation of the pledge is unconstitutional. Michael Newdow, an atheist who sued the Elk Grove (Calif.) Unified School District and argued in his own behalf, urged the justices to uphold the lower court’s opinion, contending the pledge “definitely is” a religious exercise.

The high court is expected to issue an opinion in the high-profile case before it adjourns this summer.

The case broke into national significance in June 2002 when a three-judge panel of the Ninth Circuit Court of Appeals overruled a lower court by deciding the words “under God” violate the establishment clause. After a national outcry against the opinion and a request for a rehearing, the panel refused to rehear the case as a larger group but revised its decision in February 2003. The panel’s amended opinion 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 targeted the school district’s requirement that its teachers lead “willing students” in the pledge daily.

Out-of-the-ordinary events marked the arguments at the high court. Associate Justice Antonin Scalia did not participate, having recused himself without explanation. Scalia, considered the court’s most conservative member, had criticized the Ninth Circuit’s opinion, however, before it arrived at the Supreme Court. Newdow, a physician with a law degree, argued his own case. Scores of demonstrators on both sides rallied side by side in front of the court building, with the American Atheists leading one group and two Christian organizations leading a larger one.

The high court is considering more than one issue in the case. In addition to weighing whether a public school district can require teachers to lead students in reciting the pledge, it also is considering whether Newdow has standing to test such a policy.

Newdow initiated the case on behalf of his daughter. After the Ninth Circuit panel ruled for Newdow in 2002, it was revealed his daughter, now a fourth-grade student, 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.

The high court questioned both sides about Newdow’s standing. Associate Justice Anthony Kennedy especially challenged Newdow to defend his contention he should have standing in the case.

Terence Cassidy, representing the Elk Grove school district, told the justices the district could look only to a single decision maker, in this case Banning, who favors her daughter reciting the pledge.

The court should “not interfere with the mother’s rights in the upbringing” of her daughter, Cassidy said. Newdow does not “have a legally protected interest,” he said. The “ultimate decision-making authority” rests with the mother, he said.

Newdow told the justices, “I have an absolute right to raise my child.”

“[B]ut you don’t,” since there is another custodian of his daughter, Associate Justice Ruth Bader Ginsburg responded.

In arguing that the high court should find “under God” in the pledge constitutional, Olson said since the words were added 50 years ago, 14 Supreme Court justices have indicated the “pledge is not a religious exercise” but a “ceremonial reference.”

California requires patriotic exercises in its public schools, and Elk Grove has placed the pledge in the category of a patriotic exercise, Olson said.

Cassidy said the pledge expresses a “political philosophy,” one that includes limited government.

Under the high court’s 1984 ruling in Lynch v. Donnelly, an acknowledgment of religion is neither a religious exercise nor an endorsement of religion, Cassidy told the justices.

Newdow told the high court he does not “believe in God.” Yet every day his daughter is forced to stand up and say “her father is wrong,” Newdow said. “I want my religious system to be given the same weight as everyone else’s.”

She is not required to recite the pledge, under the school district’s policy, Kennedy told Newdow.

“She is not required, but she is coerced,” he responded.

“One view is being enunciated, and that is ‘there is a God,’” Newdow said. “Government needs to stay out of this business altogether.”

Some justices questioned Newdow on other government acknowledgements of religion, such as the phrase “In God We Trust” on coins. He does not object to the phrase as long as a pledge of allegiance that includes it is not required, Newdow said.

Scalia’s absence increases the possibility the court could deadlock 4-4, which would result in the survival of the opinion in the Ninth Circuit. The ruling would then 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, Calif.

A recent Associated Press poll revealed 87 percent of Americans believe “under God” should remain in the pledge.

After the panel announced its initial decision in 2002, the Senate promptly approved a resolution affirming the pledge by a 99-0 vote. The House of Representatives passed a similar measure later by a 401-5 vote.

The case is Elk Grove Unified School District v. Newdow.
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