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Michael Newdow sued the Elk Grove school district because it required teachers to lead classes in reciting the Pledge of Allegiance.
By Tom Curry National affairs writer
msnbc.com
updated 3/23/2004 3:01:19 PM ET 2004-03-23T20:01:19

In 1988, the first President Bush made the Pledge of Allegiance a centerpiece of his campaign against Democratic candidate Michael Dukakis, who as Massachusetts governor had vetoed a law requiring public school teachers to lead students in reciting the Pledge.

On Wednesday, the U.S. Supreme Court hears arguments in a case that could bring the Pledge of Allegiance back to center stage in the 2004 campaign.

Ban 'under God'?
At issue in Wednesday’s oral argument is whether the words “under God” in the Pledge can be spoken in the nation’s public school classrooms.

The crucial points in the case are:

  • Whether the phrase "under God" in the Pledge amounts to a government endorsement of religion.
  • Whether requiring teachers to lead the Pledge coerces students into professing a religious belief, even when students are given the option to remain silent.

Two years ago, the U.S. Court of Appeals for the Ninth Circuit, which covers nine Western states, ruled in favor of Michael Newdow who had contended that the Elk Grove, Calif., school district violated the First Amendment’s command that “Congress shall make no law respecting an establishment of religion” by requiring teachers to lead students in the Pledge.

The ruling clashed with a 1992 decision by the Seventh Circuit, which covers Illinois, Indiana and Wisconsin, that an Illinois statute requiring recitation of the Pledge by students did not violate the Establishment Clause of the First Amendment because the reference to God in the Pledge was ceremonial and not a state "establishment" of religion.

In 2000, Newdow filed suit to stop his daughter hearing the words “under God” when her second-grade classmates recited the Pledge. The school district’s policy does not require students to recite the pledge, only that the teacher lead the class in a unison recitation.

Daughter does not oppose Pledge
A California court has given Sandra Banning, the mother of Newdow’s daughter, final decision-making authority over the girl’s education.

According to court records, the girl believes in God and does not object to reciting or hearing other students recite the Pledge, including its reference to God.

Once the justices absorb the oral arguments — including one from Newdow himself who is acting as his own attorney — they may decide later this spring that having students listen to the Pledge, even if they are not required to recite it, is a form of coercion.

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A majority of justices on the court used the coercion standard in 1992 when they ruled that a rabbi could not recite a benediction, which included references to God, at Providence, R.I., public school graduation ceremony.

Ayesha Khan, legal director of Americans United for Separation of Church and State, a group that filed a friend-of-the-court brief supporting Newdow, said, “In the United States, the government can’t pressure you to have a point of view about God in order to be a good American. Does an opt-out (for students) cure that pressure? It is unrealistic to think that a child of five or six years old is going to feel comfortable opting out, particularly when what we are talking about is a patriotic exercise. Their peers are very likely to see that (opting out) as an anti-patriotic sentiment.”

Patriotism and religious belief
Khan called the pledge “a patriotic exercise into which religion has been injected. If a person objects to the religious aspects of the Pledge, they have no choice but also to object to the patriotic portion of the Pledge. That is the conundrum into which the Pledge puts children of minority religions who don’t ascribe to the beliefs that the pledge incorporates.”

With the phrase "under God" in it, Khan said, the recitation "is a government endorsement of monotheistic religion in the context of a pledge which, by definition, is the affirmation of a set of beliefs.”

But Doug Kmiec, who served as assistant attorney general in the Reagan administration and who now teaches constitutional law at Pepperdine University law school, said the court “has twice written approvingly of the Pledge of Allegiance in opinions dealing with public religious displays. The pledge ‘does not establish a religion or religious faith’ or ‘communicate an endorsement of religious belief,’ reasoned the Court. It is quite simply not a prayer; it is a pledge of loyalty and a statement of patriotic unity."

According to Kmiec, “What Newdow ultimately wants is to censor what his daughter can learn of the religious origin of the nation. But here he misconstrues his own unquestioned parental right to express his ideology to also include a right to suppress the teaching of her mother, her school, and indeed, the larger society. There is no such unilateral right of censorship.”

Will justices agree with Newdow?
Based on Establishment Clause cases over past several years, it appears that the only near-certain votes to overrule the Ninth Circuit ruling in the Newdow case would be Chief Justice William Rehnquist and Justice Clarence Thomas.

If the court does agree to erase the words “under God” from the Pledge, it will fulfill the prediction of Justice Antonin Scalia made in the 1992 Providence case, Lee vs. Weisman, when he dissented, rejecting the coercion theory of the majority of justices.

“Recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction” at a public school graduation, Scalia wrote in 1992.

“If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court's view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)?” he wondered.

Scalia answered his own question by saying, “Logically, that ought to be the next project for the Court's bulldozer.”

Scalia’s view was that the court’s majority was using “the bulldozer of its social engineering” to destroy “the historic practices of our people,” which include nonsectarian prayers at public events and references to God in the Declaration of Independence and in the opening prayer of every session of the House and Senate.

Scalia on the sidelines
But Scalia won’t take part in deciding the Newdow case. He has recused himself, apparently because he gave a speech last year in which he suggested that "under God" could be removed from the Pledge only by Congress.

It was Congress that codified the Pledge in 1942, then added the phrase "under God" in 1954.

One odd aspect of the case is the uncertainty over whether Newdow has legal standing to file suit since it is Banning and not Newdow who has the court-authorized power to supervise their daughter's education. The justices could avoid deciding the First Amendment issue by ruling that Newdow lacks standing.

“There is doubt about standing, and it has been brought to the Court's attention. I doubt they will take the exit, however,” said Kmiec. “The challenge is worthy of answer. It is an important federal question, there is a circuit split, and in truth, while Ms. Banning disagrees with Newdow's atheism, she did not try to stop the litigation, which she could have done through the Family Court by asserting her right to represent the child.”

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