- The Washington Times - Tuesday, October 14, 2003

The Supreme Court yesterday agreed to decide if the words “under God” in the Pledge of Allegiance will bar a school district from requiring teachers to lead pupils who wish to recite it, 50 years after the words were added.

Chief Justice William H. Rehnquist released the order accepting that case for review just seconds after the court marshal opened the session with the routine declaration, “God save the United States and this honorable court.”

The high court also accepted a Justice Department appeal to reinstate the Child Online Protection Act (COPA) — intended to shelter children from sexually explicit Internet material that is not legally obscene — and rejected the government’s challenge to a decision allowing doctors in nine states to prescribe marijuana to sick patients.

A decision in the Pledge case, due by June, could fall short of resolving the question. Justices agreed to consider first if Dr. Michael Newdow, an atheist, had legal standing to sue on behalf of a daughter when she was not in his legal custody.

The oft-reversed 9th U.S. Circuit Court of Appeals last year declared the Pledge itself unconstitutional because of its reference to God. The 9th Circuit, based in San Francisco, handles cases in nine Western states, Guam and the Northern Mariana Islands.

After a national outcry from the White House on down, that 2-1 opinion was revised Feb. 27 to apply only to a school board policy in Elk Grove, Calif., requiring teachers to lead willing students in reciting the Pledge.

“The Pledge is a symbol of national pride. … [It] is not a religious act nor does it convey a religious belief,” attorneys for the four-school district said.

The Education Commission of the States has tallied 35 states that require the Pledge, and five that encourage it.

“Clarity on this issue that will let everybody know what the ground rules are and prevent future lawsuits on this issue would be very welcome,” said Tom Hutton, staff attorney for the National School Boards Association.

In accepting the Elk Grove appeal, the justices did not agree to hear a more sweeping attack on the decision by the Bush administration, supported by all 50 states. Solicitor General Theodore Olson has been invited to file a friend of the court brief and likely will be given time to argue.

The closely watched case may wind up closely voted as well. Justice Antonin Scalia took no part, leaving Pledge supporters needing five of the remaining eight votes. A 4-4 tie would affirm the ruling that the practice is unconstitutional and uphold the lower court ban on reciting the Pledge in other schools.

As is the custom, no explanation was given for Justice Scalia’s recusal from the case. Dr. Newdow had formally asked him to step aside on the basis of a response Jan. 12 at the Religious Freedom Day rally in Fredericksburg to a protester advocating government’s removal of all religious references.

“If the gentleman holding the sign would persuade all of you of that, then we could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done,” Justice Scalia was quoted as saying.

“I think it makes it more of a challenge for our side, for those who want to defend the constitutionality of the Pledge,” Jay Sekulow, general counsel of the American Center for Law & Justice, said yesterday upon learning that a staunch ally had sidelined himself.

“It should be an easy case. The words ‘under God’ in the Pledge is not an establishment of religion any more than is ‘God save the United States and this honorable court,’” Mr. Sekulow said.

“Requiring a daily religious loyalty test for schoolchildren is simply wrong,” countered the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. He said coercion and conscience are at stake.

“A country founded on religious freedom should not be afraid to recognize that love of God and love of country are not the same for some people,” Mr. Lynn said.

Congress adopted the Pledge in 1942. A year later, the Supreme Court ruled that Americans could not be compelled to recite it. Congress added the words “under God” in June 1954 as a statement against communism.

The Elk Grove case tests whether requiring the words “under God” for those willing to recite the Pledge violates the First Amendment.

In other court business, the justices decided to review a 3rd U.S. Circuit Court ruling striking down the statute against pornography.

COPA was enacted in response to a 1997 Supreme Court decision striking down the Communications Decency Act of 1996. That law barred transmission of “indecent” messages to children, or displaying “patently offensive” messages where children might see them.

The court held that the 1996 law unconstitutionally blocked access for adults to sexual material that was not illegal. But it also acknowledged the government’s “compelling interest” in protecting children physically and psychologically.

The court’s rejection of the Justice Department’s appeal in the medical marijuana case left a 9th Circuit ruling in force only in states within that judicial circuit. It does not create binding precedent and leaves the prospect for review of conflicting opinions.

The 9th Circuit barred federal officials from punishing or investigating a physician’s recommendation of marijuana to patients. Both the Clinton and Bush administrations threatened to lift licenses of doctors who prescribe the controlled substance, which the government says has “no currently accepted medical use.”

Advocates of medicinal marijuana say it relieves pain, nausea, wasting syndrome and other symptoms of life-threatening diseases.

In 1996, California voters adopted Proposition 215, legalizing marijuana cultivation and possession by seriously ill patients with a doctor’s recommendation. Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington adopted similar laws.

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