- The Washington Times - Thursday, May 1, 2003

The Bush administration and a California school district yesterday asked the Supreme Court to reverse the federal appeals court ruling that banned the reciting in schools of the Pledge of Allegiance with the phrase "one nation under God."

Attorney General John Ashcroft, who vowed to "spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag," said the appeal filed yesterday afternoon defends centuries of tradition.

"Our government and people can acknowledge the important role religion has played in America's foundation [and] history," as reflected by the national motto "In God We Trust," Mr. Ashcroft said.

Solicitor General Theodore Olson told the high court the reference to God that Congress added to the Pledge in 1954 does not amount to government promotion, or "establishment," of religion forbidden by the Constitution.

"Whatever else the Establishment Clause may prohibit, this court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation and character of this nation," Mr. Olson wrote in a petition asking the court to hear the government's appeal of a 2-1 decision by the 9th U.S. Court of Appeals.

"That is what the Pledge of Allegiance does. The Pledge is, therefore, constitutional," he said in papers filed in the names of federal officials and the Elk Grove, Calif., school district.

The 9th Circuit court set off a nationwide furor when it ruled on June 26, 2002, that the Pledge itself was unconstitutional because it included the reference to God.

That opinion was amended Feb. 28 to declare unconstitutional a California law requiring daily patriotic observances that may include the Pledge of Allegiance.

But both opinions contain the same conclusion: "The statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism."

Sacramento atheist Michael Newdow sued on grounds that his daughter, who was 8 at the time, should not have to hear the words "under God" in the teacher's recitation of the Pledge.

The girl's mother and legal custodian, Sandra Banning, objected to involving the child in the lawsuit and said the girl does not oppose God or the Pledge. The court did not let the mother withdraw the lawsuit, however.

The California policy requiring teacher-led recitation every day with a reference to God "violates the Establishment Clause," the 9th Circuit said.

Efforts to have an expanded "en banc" review of that decision by an 11-judge panel of the 9th Circuit Court failed, but six of the nine judges who favored rehearing declared the original ruling "wrong, very wrong."

Their lengthy dissent in February said the judgment's flawed reasoning also would consign "to the chopping block" the Gettysburg Address, the Constitution, the Declaration of Independence, and the fourth verse of "The Star-Spangled Banner."

Mr. Ashcroft listed those references yesterday and predicted the Supreme Court will see it his way.

"Two decisions of the Supreme Court have said without qualification that the Pledge is constitutional. No justice has expressed any other view," Mr. Ashcroft said.

One of those decisions lets children who disagree with the Pledge stand silently while it is recited. Mr. Newdow said his daughter's religious liberty was violated simply by hearing the Pledge recited in school, by an authority figure with the stamp of government approval.

The 9th Circuit agreed with that argument but enforcement of its ruling was put on hold pending Supreme Court action. A decision on whether to accept the case could come before the court's summer recess in June, but a decision would not be likely before next winter.

In rare cases, the high court summarily decides some cases without hearing them, which resolves matters more quickly. Mr. Olson suggested the court use that option in this case, because the ruling is so far out of bounds.

If the court refused to take the case, the 9th Circuit decision would take effect and block 9.6 million public school students in nine Western states from reciting the Pledge.

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