- The Washington Times - Friday, December 19, 2003

The Bush administration and a public interest law firm representing 260,000 Americans — 68 of them members of Congress — yesterday asked the Supreme Court to overturn an appellate ruling that found the Pledge of Allegiance unconstitutional because of the phrase “under God.”

Justice Department lawyers argued in a brief filed yesterday that the recitation of the pledge in public schools “is a patriotic exercise, not a religious testimonial.”

“The reference to a ‘nation under God’ in the Pledge of Allegiance is an official and patriotic acknowledgment of what all students — Jewish, Christian, Muslim or atheist — may properly be taught in the public schools,” the administration argued in its 63-page brief.

The American Center for Law and Justice (ACLJ) in a separate friend-of-the-court brief filed yesterday said Congress added “one nation, under God” to the pledge in 1954 to reaffirm that the nation’s Founding Fathers believed “freedoms come from God” and “to distinguish America from atheistic nations who recognize no higher authority than the state.”

“The recitation of the pledge in public schools does not violate the Establishment Clause of the First Amendment and is part of an American tapestry of patriotic and historical references that date back to the founding of our nation,” ACLJ’s chief counsel Jay Sekulow said in an interview.

The Supreme Court announced in October that it would hear an appeal to the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco, which said a pledge that included references to God should not be recited in the public schools.

In declaring the Pledge’s reference to God unconstitutional, the 9th Circuit said it violated the First Amendment as well as Supreme Court precedents. The Supreme Court has already ruled that schoolchildren cannot be required to recite the Pledge.

Both briefs also contend that Michael Newdow, the California atheist who brought suit challenging the Pledge, did not have legal standing because he is a noncustodial parent with no decision-making authority over his 9-year-old daughter’s education.

“The right to control the education of a child is invested in the mother,” who in this case has legal custody of the child, Mr. Sekulow said in a telephone interview yesterday.

The mother has said she and her daughter are Christians and do not share Mr. Newdow’s antagonistic view of the Pledge of Allegiance.

Lawyers for ACLJ, which specializes in defending religious freedom and other constitutional law, filed the brief on behalf of a bipartisan group of 68 lawmakers — six senators and 62 House members — and 260,300 citizens, including 2,600 children.

Gene Kapp, a spokesman for ACLJ, said the six senators involved included one Democrat, Zell Miller of Georgia, and five Republicans: George Allen of Virginia, Sam Brownback of Kansas, James M. Inhofe of Oklahoma, Trent Lott of Mississippi and Ted Stevens of Alaska. Of the 62 House members who joined in the filing, 59 were Republicans.

In the brief, the ACLJ also contends that if the 9th Circuit’s decision stands, it will put at risk the teaching of many historical documents, as well as the performance of choral music that includes religious references and that the court “prefers atheism over religion even to the extent of censoring the historical fact that the United States was founded upon a belief in God.”

Mr. Sekulow said the ACLJ and those they represent in the legal petition hope the “high court will reject the flawed legal reasoning of the appeals court and uphold the constitutionality of the pledge, including the words ‘under God.’”

The appeals court decision was roundly criticized by federal officials at the time. Attorney General John Ashcroft pledged to “spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag,” and the House of Representatives voted 400-7, with 15 members voting present, to condemn the decision.

Justice Antonin Scalia recused himself from the Supreme Court’s consideration of the issue after he told a religious group that courts went too far to keep religion out of public schools and other forums, and that lawmakers rather than judges were better suited to decide the Pledge question.

The Supreme Court is expected to hear oral arguments on the case in early 2004.

This story is based in part on wire service reports.

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