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Court faces pledge case
It raises questions about `under God’ phrase, father’s right to sue
WASHINGTON – The Supreme Court meets behind closed doors today to consider nearly 2,000 appeals that arrived during the summer, none messier or potentially more significant than the case of the Pledge of Allegiance and the California father who wants the words “under God” removed from it.
At one level, the pledge case asks the most basic questions about the role of religion in American public life. Is this indeed “one nation under God”? And should schoolchildren be called upon by law to recite that belief each day?
But at another level, the case raises a quite different, but also potentially far-reaching question. Does a parent — and in this instance, a noncustodial father — have a legal right to sue in federal court seeking to change what is said or taught in the public schools?
Last year, Dr. Michael Newdow, an unemployed emergency room physician who earned a law degree from the University of Michigan, won on both issues before the 9th U.S. Circuit Court of Appeals.
In a 2-1 decision, the court ruled the reference to God in the Pledge of Allegiance violates the First Amendment, which says, “Congress shall make no law respecting an establishment of religion.”
Agreeing with Newdow, the 9th Circuit ruled that students have a right not to hear the daily reference to God, as well as not say it.
“When schoolteachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized `under God’,” wrote Judge Alfred Goodwin of the appeals court.
After its initial ruling striking down the reference to God in the pledge, the 9th Circuit was informed that the mother of Newdow’s daughter, Sandra Banning, said she had “sole custody” of the girl, and that both mother and daughter support the pledge as it is.
Unperturbed, the 9th Circuit handed down a second ruling affirming that Newdow had standing in court to sue because the father “retains rights with respect to his daughter’s education and general welfare.”
In his appeal, U.S. Solicitor Gen. Theodore Olson contends both rulings are wrong. The reference to God in the pledge is an “official acknowledgment of our nation’s religious heritage,” akin to the phrase “In God We Trust” that appears on U.S. currency, Olson says. It is “farfetched” to say these references “pose a real danger of establishment of a state church,” he argues.
Moreover, the court should void the 9th Circuit’s ruling on the grounds that Newdow had no right to bring the complaint in the first place, Olson said.
“Public schools routinely instruct students about evolution, war and other matters with which some parent may disagree on religious, political or moral grounds,” he told the court. A “noncustodial” parent does not have a right “to close off all other views” in the schools that conflict with his view, Olson said in U.S. v. Newdow.
The large issues and the uncertain posture of the case have left lawyers perplexed about what the court will do.
It appears the justices cannot simply reject the appeal, as they do in most cases, however. On Monday, they will sit down to begin going through 1,913 appeal petitions. In essence, these are pleas from the losing party in a case asking the court to review the matter. Most of them come from prison inmates, and they are rejected without a moment’s attention by the justices.
But the pledge case cannot be ignored. “Absent this court’s review, 9.6 million students in nine states (under the 9th Circuit’s jurisdiction) will recite an abridged version of the pledge, while nearly 37 million students in the rest of the country will recite the pledge that Congress enacted,” Olson said.
To complicate matters further, Newdow has recently sent the court a motion urging Justice Antonin Scalia to remove himself from the case. He also sent a letter asserting that he has joint custody of his daughter.
In his recusal motion, Newdow noted that Scalia spoke in January at a Religious Freedom Day in Fredericksburg, Va., and was quoted in an Associated Press story as questioning whether courts should seek to remove religious symbols and phrases from public life.
Newdow enclosed the code of judicial ethics, which says a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
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