High Court to Consider ‘One Nation, Under God’ Petition

WASHINGTON — The Supreme Court meets behind closed doors today to consider more than 2,000 appeals that arrived during the summer, none messier or potentially more significant than the case of the Pledge of Allegiance and the Sacramento-area 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, Michael A. Newdow, an unemployed emergency room physician who also earned a law degree from the University of Michigan, won on both issues before the U.S. 9th Circuit Court of Appeals.

In a 2-1 decision, the court ruled in 2002 that the reference to God in the Pledge of Allegiance violates the 1st Amendment, which says, “Congress shall make no law respecting an establishment of religion....”

In 1954, at the height of the Cold War, Congress amended the pledge, changing its wording from “one nation indivisible” to “one nation, under God, indivisible.” Sponsors of the change said they sought to distinguish the American system from the godless Communism of the Soviet Union. “The spiritual bankruptcy of the Communists is one of our strongest weapons in the struggle for men’s minds,” said the Senate sponsors of the revised pledge.

A decade earlier, in the midst of World War II, the Supreme Court had ruled that schoolchildren could not be compelled to salute the flag -- or by extension, say the Pledge of Allegiance.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein,” wrote Justice Robert H. Jackson in the 1943 decision. His opinion drew a contrast between the American tradition of individual freedom and the ritual salutes of Nazi Germany. Ever since, Jackson’s opinion has stood for the principle that individuals have a free-speech right not to say the Pledge of Allegiance.

But the case now before the high court goes a step further. 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 school teachers 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 T. Goodwin in the 9th Circuit opinion. Goodwin added that Newdow, as a father, has a right not to have the public school “indoctrinating his impressionable young daughter on a daily basis in that official view

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 on behalf of the Bush administration, U.S. Solicitor General Theodore B. 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 “far-fetched” 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 said in his appeal. 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. vs. Newdow.

The large issues and the uncertain posture of the case have left lawyers perplexed about what the court will do.

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It appears the justices cannot simply reject the appeal, as they do in most cases.

On Monday, they will sit down to go through 1,913 appeal petitions. In essence, these are pleas from the losing party asking the court to review the case. Most of them come from prison inmates, and they are rejected without a moment’s attention by the justices.

A law clerk has read each petition and written a memo that digests the issue presented by the appeal. On the basis of memos alone, the justices reject about every nine of 10 appeals without discussing them.

Others, however, raise issues that have divided the lower courts, and the justices vote on whether they should hear the case to resolve the dispute. It takes the votes of at least four justices to grant review of an appeal.

It seems that the pledge case cannot be ignored. “Absent this court’s review, 9.6 million students in nine states [including California and the entire West Coast] 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.

But some lawyers think the court will seek to avoid a ruling on the pledge issue.

“This is a pretty rickety vehicle for deciding a very important constitutional issue,” said David H. Remes, a Washington lawyer who filed a friend-of-the-court brief on behalf of Americans United for Separation of Church and State. He urged the court to send Newdow’s case back to California to resolve the question of whether a noncustodial parent has a right to sue. “That is a state law question,” he said.

Meanwhile, a lawyer for the Knights of Columbus says he hopes the court takes up the case to reverse the 9th Circuit and to rule “our rights come from the Creator.” Kevin J. Hasson of the Becket Fund for Religious Liberty said the case “is not just about two words in the pledge. The huge issue is about where our rights come from. From the beginning, the Declaration of Independence affirmed that our rights come from the Creator. The state doesn’t give us our rights.”

To complicate matters further, Newdow has recently sent the high 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.

“I have no problem with that philosophy being adopted democratically.... We could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done,” Scalia said. But he added that it “is contrary to our whole tradition.”

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.”

“You are not supposed to comment on a case coming before you,” Newdow said in a phone interview. Scalia “knew this case had been decided by the 9th Circuit. So, I think he should recuse himself. But I will be astounded if he does it.”

The custody issue also remains in dispute. Newdow says a Superior Court judge in Sacramento has “restored” his joint custody of his daughter.

Banning, the girl’s mother, says this is not so.

The high court may decide whether to take the pledge case as soon as Tuesday, when it announces a list of new cases to be heard during the term.

The court’s term opens officially Monday, Oct. 6, but because of the Jewish holiday of Yom Kippur, the justices will hear their first arguments Oct. 7.

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Also among the pending appeals is the case of a South Carolina woman who was jailed for “homicide by child abuse” for having used cocaine while pregnant. Regina McKnight, 26, delivered a stillborn child, was charged with murder and was sentenced to 12 years in prison. In McKnight vs. South Carolina, she asks the court to review the constitutionality of a murder charge based on her use of drugs.

Bush administration lawyers have also appealed a medical marijuana case from California that tests whether doctors can be punished for recommending the drug to a patient.

Federal law forbids the use of marijuana, and the government warned doctors that they could lose their licenses to prescribe legal drugs if they endorse the use of marijuana. But a judge in San Francisco has blocked the government from acting on this threat, and the 9th Circuit ruled the 1st Amendment shields conversations between a doctor and patient.

The court is unlikely to decide before Oct. 14 whether or not to take the medical marijuana case, Walters vs. Conant.