We talked about this, as i recall:
Justices Take Case on Pledge of Allegiance's Reference to God
By DAVID STOUT
Published: October 14, 2003
ASHINGTON, Oct. 14 — The Supreme Court agreed today to take up one of the most emotional legal questions to arise in many years: whether the Pledge of Allegiance, as recited by children at the start of the school day for half a century, should be banned from the classroom because it violates the constitutional separation of church and state.
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To no one's surprise, the court said it would hear the case of Elk Grove Unified School District v. Newdow, 02-1624, which focuses on the all-important phrase "one nation under God." The words were inserted into the Pledge in 1954 as the United States was locked in a cold war with the Soviet Union and the phrase "Godless communism" was a staple of American political life. The original Pledge, minus the reference to God, was adopted in 1942.
The justices will hear the school district's appeal next year, probably in February or March. In the meantime, schoolchildren can continue to say the pledge with "under God" in it because the United States Court of Appeals for the Ninth Circuit, which declared the Pledge unconstitutional, stayed its own ruling pending action by the Supreme Court.
The justices had widely been expected to take the case. For one thing, the ruling by the Ninth Circuit, which covers nine Western states, is at odds with a 1992 decision by the Court of Appeals for the Seventh Circuit, which covers much of the Midwest. Conflicts between the circuits often prompt the Supreme Court to decide an issue.
Beyond the conflict between the circuits, the issue is so emotion-laden and affects so many children and their parents that some Supreme Court-watchers thought the justices simply had to look at it.
Indeed, the issue has already been felt inside the Supreme Court itself. Justice Antonin Scalia announced that he would not take part in the case, apparently because he spoke out against the Ninth Circuit ruling at a religious event last January.
Justice Scalia said at the time that issues like the Pledge should be decided by lawmakers, not judges. Should the remaining eight justices split evenly in their deliberations, the Ninth Circuit's ruling would stand and would apply to the Pledge recited by some 10 million children in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington State. But the 4-to-4 deadlock would not affect the other circuit courts, or the millions of children who live in their states.
However, if a majority of the justices say that the Ninth Circuit was right in its ruling, the Pledge would have to be amended in school settings from coast to coast, with the references to God deleted.
The current case began with a lawsuit filed in Federal District Court in Sacramento, Calif., by an atheist, Michael A. Newdow, whose daughter attended elementary school in the Elk Grove Unified School District, near the state capital.
Under a 1943 ruling by the United States Supreme Court, children cannot be forced to recite the pledge. But Dr. Newdow, an emergency-room physician who also holds a law degree and acted as his own lawyer, argued that his daughter's First Amendment rights were violated because she had been forced to "watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is `one nation under God.' "
On June 26, 2002, a three-judge panel of the Ninth Circuit sided with Dr. Newdow, ruling 2 to 1 that the Pledge, when it contains "under God," does cross the line between church and state.
From a constitutional standpoint, the words "under God" were just as objectionable as a statement that "we are a nation `under Jesus,' a nation `under Vishnu,' a nation `under Zeus,' or a nation `under no god,' because none of these professions can be neutral with respect to religion," the majority ruled in an opinion written by Judge Alfred T. Goodwin.
The dissenting judge in that ruling, Ferdinand F. Fernandez, expressed concern that it could be applied to other expressions of patriotism.
"We will soon find ourselves prohibited from using our album of patriotic songs in many public settings," Judge Fernandez wrote. " `God Bless America' and `America the Beautiful' will be gone for sure, and while the first and second stanzas of `The Star-Spangled Banner' will still be permissible, we will be precluded from straying into the third."
The full Ninth Circuit upheld the three-judge panel last Feb. 28, over the strenuous objections of 9 of its 24 judges. The majority on the San Francisco-based court held that "public sentiment or outcry" could not be allowed to warp the Constitution.
Six dissenters signed an opinion declaring the majority's holding "wrong, very wrong," not only as a matter of law and precedent but "as a matter of common sense."
Politicians across the spectrum, in Washington and across the country, also denounced the Ninth Circuit decision.
"Ridiculous," said President Bush, whose Justice Department asked the Supreme Court to review the case.
"Junk justice," said Gov. George E. Pataki of New York.
Senator Tom Daschle, Democrat of South Dakota, the minority leader, called the decision "nuts."
Lawyers and others who oppose the Ninth Circuit decision have noted that phrases like "In God We Trust," which appear on United States currency and coins, are regarded as exempt from the church-state separation principle because their religious significance has been lost through rote repetition.
In any event, one day next year, the case of Elk Grove Unified School District v. Newdow, 02-1624, will be heard by the justices. "God save the United States and this Honorable Court!" a marshall will call out just before the proceedings begin. |
