- The Washington Times - Monday, August 23, 2004

The U.S. Supreme Court yesterday refused an atheist father’s request to reopen a case challenging the constitutionality of the phrase “under God” in the Pledge of Allegiance.

Michael Newdow of California wants the phrase removed because he says his 10-year-old daughter’s school uses the Pledge as a form of religious indoctrination.

Last month, Mr. Newdow asked the court to overturn its June 14 decision, which held that Mr. Newdow could not represent his daughter in his legal challenge of the Pledge because he does not have standing to sue on her behalf. Five justices held that Mr. Newdow’s rights do not trump those of his daughter’s mother, Sandra Banning, who has legal custody of the child.

Three other justices argued that Mr. Newdow had the legal right to bring the case. But they said his premise — that the Pledge of Allegiance is unconstitutional — is wrong.

Yesterday, the court refused Mr. Newdow’s request for reconsideration of the ruling without comment.

Justice Antonin Scalia recused himself, as he did when the court made its ruling in the case, Elk Grove Unified School District vs. Newdow, because he made some off-the-bench comments indicating that he thinks the Pledge is constitutional.

“The message that comes with this dismissal (of the latest Newdow petition), as well as the ruling in June, signifies that the majority of the Supreme Court will not overturn the Pledge of Allegiance,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, a group that specializes in constitutional law.

Those on both sides of the fight were disappointed that the high court struck down a 2002 9th Circuit Court of Appeals ruling — which found the words “under God” are unconstitutional — on a technicality.

“Many people had expected the Supreme Court to decide the case on its merits. But the court punted the core issue,” said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.

Because the Supreme Court settled the Newdow case without addressing the broader question of separation of church and state, other parents could pursue a case similar to Mr. Newdow’s. And he could renew his lawsuit if he is awarded full custody of his child.

In other action yesterday, the court declined to revisit another ruling that it made in June that said state sentencing guidelines cannot lengthen a convict’s prison term, if they are not based on facts either decided by a jury or admitted by a defendant.

Washington state had filed a petition for an expedited rehearing, as well as a petition for rehearing, after the Supreme Court’s 5-4 decision two months ago in the case, Blakely vs. Washington.

Both petitions were denied yesterday in one-sentence orders.

The case involved Ralph Howard Blakely Jr., a Washington man who had pleaded guilty to kidnapping his wife. Under the state kidnapping statute, he faced 53 months in prison.

However, a state judge ruled that Blakely acted with “deliberate cruelty” in the kidnapping. Under state guidelines, that allowed the judge to increase the man’s sentence.

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