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Supreme Court to hear Pledge of Allegiance case, minus Scalia

WASHINGTON (BP)–The U.S. Supreme Court has agreed to decide whether including the words “under God” in the Pledge of Allegiance is constitutional.

The high court announced Oct. 14 it would review a decision by the Ninth Circuit Court of Appeals that recitation of the pledge by public school students violates the establishment clause of the First Amendment.

The court also disclosed it would review a Third Circuit Court ruling invalidating the Child Online Protection Act, a 1998 law that bans commercial World Wide Web sites from making sexually explicit material available to minors.

Oral arguments in the cases are expected during the first months of 2004 with decisions by early summer.

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

Hopes for a reversal of the Ninth Circuit received a blow when the high court announced Associate Justice Antonin Scalia would not participate in the case. Scalia, often considered the court’s most conservative member, recused himself without explanation. He had spoken critically of the lower court’s ruling, however. Scalia’s absence increases the chances the court could deadlock 4-4, which would result in the survival of the Ninth Circuit opinion.

The Southern Baptist Ethics & Religious Liberty Commission and the American Center for Law and Justice were among the organizations that welcomed the Supreme Court’s decision to accept the case.

“The Ninth Circuit Court of Appeals’ ruling that the pledge is unconstitutional is outrageous even for the looniest of all the federal appeals courts in the land,” ERLC President Richard Land said. “The current Supreme Court has at least five sitting justices, counting Scalia, who have ruled in similar cases that the language of the Pledge of Allegiance is constitutional.

“It’s unthinkable that the Supreme Court would not reverse the Ninth Circuit,” he said. “If the Supreme Court were to uphold the Ninth Circuit’s ruling that the pledge is unconstitutional, it will have a full-scale revolt on its hands, which will in short order result in either a constitutional amendment or a removing of this area from the court’s jurisdiction by Congress.”

ACLJ Chief Counsel Jay Sekulow said the case “represents an important opportunity to put a halt to a national effort aimed at removing any religious phrase or reference from our culture.”

Phrases such as “one nation under God” are “expressions that are patriotic in nature, not affirmations of a particular religious faith,” Sekulow said. “We’re hopeful the court will bring some clarity to this murky legal issue and protect the freedom of our nation’s students who wish to voluntarily recite the complete and uncensored Pledge of Allegiance in school.”

Barry Lynn, executive director of Americans United for Separation of Church and State, said the case gives the high court “an opportunity to remind all Americans of the importance of freedom of conscience.”

Lynn, whose organization opposes government acknowledgments of God, said, “Requiring a daily religious loyalty test for school children is simply wrong.”

In its order granting review in the case, the Supreme Court said it would limit its consideration to two issues: 1) Whether a school district can require teachers to lead “willing students” in reciting the pledge, including the words “under God,” and 2) whether Michael Newdow has standing to test such a policy.

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 of this year, 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.

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 Ninth Circuit includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The appeals court is based in San Francisco.

The case is Elk Grove Unified School District v. Newdow. The school district is near Sacramento.

A panel of the Third Circuit, which is based in Philadelphia, has twice struck down the Child Online Protection Act. Its most recent decision against the law came in March, 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.”

The high court had ruled the Third Circuit erred in its original decision by relying solely on “contemporary community standards” for deciding what material is harmful to underage children. The Third Circuit had ruled this provision made the law too broad, because material on the Internet “deemed harmful by the most puritan of communities” would require the restriction of “vast amounts of material” for all users and likely violate the First Amendment.

The high court determined, however, the community standards measure does not “by itself” make the law overbroad in regard to the First Amendment. Associate Justice Clarence Thomas, delivering the court’s judgment, said the justices were not by their decision expressing “any view as to whether COPA suffers from substantial overbreadth for other reasons” or “whether the statute is unconstitutionally vague.”

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.