High Court to Review Pledge Decision

By Caroline Hendrie — October 15, 2003 5 min read
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The U.S. Supreme Court has agreed to review one of the most controversial legal rulings of recent years: the federal appeals court decision declaring that it is unconstitutional for public schools to lead students in reciting the Pledge of Allegiance.

In accepting an appeal by California’s 55,000-student Elk Grove school district on Oct. 14, the high court stepped into a political maelstrom surrounding last year’s appellate decision siding with a California father who regards the pledge’s reference to “one nation under God” as an affront to his atheistic beliefs.

That ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that teacher-led recitations of the pledge—which Congress amended in 1954 to include the words “under God"—violate the U.S. Constitution’s prohibition on a government establishment of religion.

The Supreme Court’s Oct. 14 decision to enter the fray, with a ruling likely to come during a presidential-election year, is likely to overshadow other cases on its docket and even the high- profile decisions from recent terms on private school vouchers, affirmative action, and gay rights, legal analysts said.

“It will dwarf—because of its political significance—everything else the Supreme Court will do this term,” Steven R. Shapiro, the legal director of the American Civil Liberties Union, predicted before the high court’s decision to take the case. “It will put the court right back smack in the middle of the culture wars.”

Although they accepted Elk Grove Unified School District v. Newdow (Case No. 02- 1624), the justices simultaneously turned aside separate appeals by the Bush administration and Michael A. Newdow, the father who sued the district.

Both of those other filings had squarely raised the question of whether the pledge itself is constitutional. Instead of weighing that broader issue, the justices decided to limit their deliberations to the questions raised by the district: whether Dr. Newdow had the proper legal standing to challenge the district’s policy of requiring teachers to lead the pledge, and whether that policy itself passes constitutional muster.

“We look forward to the Supreme Court settling this issue once and for all, not just [for] Elk Grove but for the entire nation,” district Superintendent David W. Gordon said following the high court’s decision to hear the appeal.

In announcing their decision to take up the case, the justices made clear that Associate Justice Antonin Scalia had not taken part in their deliberations. Dr. Newdow had asked Justice Scalia to recuse himself because of comments critical of the 9th Circuit’s decision that the justice made in January. Justice Scalia’s remarks came in a speech in Fredericksburg, Va., during a “Religious Freedom Day” ceremony hosted by the Knights of Columbus, a national organization of Roman Catholic laymen.

‘Shadow of Uncertainty’

Despite its political import, the 9th Circuit court ruling so far has had scant practical impact because that court delayed the effect of its ruling pending further appeals. The 9th Circuit covers nine Western states that include some 9.6 million public school students.

Still, school boards’ associations in 10 states filed a friend-of-the-court brief last June urging the high court to take the case to provide guidance to the nation’s public schools on the constitutionality of reciting the pledge.

A majority of states have laws that either require or encourage schools to offer regular recitations of the patriotic oath, and in many of them, federal courts have not ruled on that practice’s constitutionality, according to the brief by the school boards’ associations.

In those places, “the Newdow case has cast a long shadow of uncertainty” and presented schools with the dilemma of either ignoring their legislatures’ instructions or running the risk of costly lawsuits by those who object to the pledge, the associations argue.

The case has taken twists and turns since Dr. Newdow, a Sacramento physician with a law degree, filed his lawsuit in 2000 against then-President Clinton and Congress as well as the Elk Grove Unified district, where his daughter is currently in the 4th grade.

The case had drawn little attention until a 9th Circuit court panel handed down a 2-1 ruling in June 2002 agreeing with Dr. Newdow that the pledge was an unconstitutional government establishment of religion.

In February, the full 9th Circuit court declined to reconsider the decision, but the two-judge majority on the original panel took a step back from declaring the pledge itself unconstitutional and instead limited their ruling to public school-led recitations of the pledge. (“Supreme Court Is Next Stop for Pledge Ban,” March 12, 2003.)

Is the Oath Religious?

In its appeal to the high court, the Elk Grove district argued that the 9th Circuit panel was off- base in seeing the pledge as a profession of religious belief.

The district noted that in the Supreme Court’s landmark 1943 ruling in West Virginia State Board of Education v. Barnette, students’ rights were not found to be violated by simply hearing others recite the pledge. The Barnette decision established that schools may not compel students to say the pledge, however.

“Our community, as well as numerous people from across the country, have expressed their support to us for defending the pledge,” Jeanette Billingsly, the president of the Elk Grove Unified school board, said in a statement after the high court accepted the case. “They understand it is important for our students to learn and recite the pledge every day as a patriotic exercise.”

Dr. Newdow’s own Supreme Court appeal, which the justices declined to hear, had sought reinstatement of the appellate court’s original finding that the pledge itself is unconstitutional.

“Those who deny the existence of a supreme being have been turned into second- class citizens by a government that continuously sends messages that ‘real Americans’ believe in God,” Dr. Newdow’s appeal stated. He could not immediately be reached for comment following the high court’s action.

The Bush administration rejected Dr. Newdow’s view in its own appeal, which the high court also decided not to accept.

The pledge’s reference to God merely recognizes the nation’s religious heritage in a manner that falls far short of the kind of government action barred by the First Amendment, the administration’s brief argued.

The justices have asked the Bush administration to weigh in again on the case in the wake of their decision to focus on the school district’s appeal.

Among the factors complicating the case has been Dr. Newdow’s shifting child- custody arrangements, and opposition by his daughter’s mother to his complaints about the pledge.

The school district argues that Dr. Newdow lacks standing to bring the case on behalf of his daughter, who resides with her mother. The 9th Circuit court rejected that view, and Dr. Newdow argues that his standing has been strengthened by recent developments in his custody case.

Arguments in Elk Grove Unified School District v. Newdow are not expected until early next year, with a decision likely by late June.


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