Supreme Court accepts Pledge of Allegiance case
From Bill Mears, CNN, October 15, 2003
WASHINGTON (CNN) -- The U.S. Supreme Court agreed Tuesday to hear a case involving whether schoolchildren can be allowed to recite the Pledge of Allegiance voluntarily, putting a family's custody dispute at the forefront of a constitutional legal battle.
At issue is whether the Pledge of Allegiance should be banned from public schools for its use of the words "under God." Constitutional scholars have debated for years whether the pledge serves as both a patriotic oath and a form of public prayer.
Court arguments in the case will be heard next year, with a ruling expected by June.
In other action by the Supreme Court Tuesday:
o Justices rejected the Bush administration's request to consider whether the federal government can punish doctors for recommending or even discussing the use of marijuana for their patients. (Full story)
o The court announced it will hear a case regarding police searches of cars entering the United States across the Mexican and Canadian borders. (Full story)
In the Pledge of Allegiance case, Michael Newdow, an atheist, sued the Sacramento County, California, school district where his daughter attended, saying that teacher-led recitation by students violates his 9-year-old child's religious liberty.
Legal precedent makes reciting the pledge a voluntary act, but Newdow argues it is unconstitutional for students to be forced to hear it, saying the teacher-led recitations carry the stamp of government approval.
"I believe in the Constitution," Newdow told CNN last year. "The Constitution says that government isn't supposed to be infusing religion into our society, and so I asked to have that upheld." (Full story)
In June 2002, a three-member panel the 9th U.S. Circuit Court of Appeals drew sharply divided public opinion when it banned the teacher-led pledge for nearly 10 million schoolchildren in the nine Western states under its jurisdiction.
In striking down the pledge, the judges ruled that "the coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren." (Full story)
The ban was put on hold until the high court issues a final ruling. The First Amendment bans government "establishment of religion," but the Supreme Court twice previously has declared the pledge constitutional.
The federal government, local school officials and Newdow all asked the Supreme Court to hear the case, but only the separate appeal by the school district was accepted.
The Bush administration opposes the ban, and the court allowed the government to argue its position separately. U.S. Attorney General John Ashcroft pointed to religious references in the national anthem and the national motto, "In God We Trust," saying they are mostly ceremonial, and added, "Our religious heritage has been recognized and celebrated for hundreds of years."
Complicating matters is Newdow's legal standing to bring the case because of a custody dispute between him and the child's mother. The two never married. The mother, Sandra Banning, said she believes the pledge is a "patriotic expression" and said her daughter does not object to reciting it. (Full story)
The court also agreed to hear that aspect of the case.
Newdow was stripped of custody in February 2002, but a judge two weeks ago restored partial custody, boosting the chances the court would accept the case for review.
Banning and U.S. Solicitor General Theodore Olson, the government's chief lawyer before the court, have filed briefs arguing Newdow's lack of custody should disqualify him from bringing the suit.
"If, as the non-custodial parent," wrote Olson in a petition, "Newdow believes the mother's educational decisions are causing harm to the child, the proper remedy is for him to resort to family court and seek a modification of the custody agreement."
The court also announced Justice Antonin Scalia took no part in consideration of the pledge case.
Newdow had asked Scalia to recuse himself from hearing the appeal. At a Religious Freedom Day rally in January, Scalia reportedly said any changes to the pledge should be done "democratically," through the legislatures and not the courts.
He also reportedly said removing references to God from public forums would be "contrary to our whole tradition." Cameras were not allowed at the event at which Scalia spoke.
The court offered no reason for Scalia's decision not to take part in the case. That leaves the potential for a contentious 4-4 split among the remaining justices when it comes time to issue a ruling.
A tie vote would mean the pledge would be banned in schools in the 9th Circuit and potentially could apply to all public schools in the United States.
The case is Elk Grove Unified School District v. Newdow.

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