Tuesday, March 23, 2004

The Supreme Court today takes up one of its most-watched cases in years when justices hear arguments on Elk Grove Unified School District v. Newdow on whether the words “under God” in the Pledge of Allegiance constitute an establishment of religion.

The case pits the atheist father of a 9-year-old girl against a 50-year-old American tradition of incorporating God into a statement of patriotism made daily by schoolchildren.

“The religious center in America is low-intensity theism,” said Doug Laycock, a University of Texas law professor who filed a “friend of the court” brief with the Supreme Court on behalf of 32 Christian and Jewish clergy who support the father, Michael Newdow, 50.

Speaking Friday at a Pew Forum-sponsored discussion of the case at the National Press Club, Mr. Laycock said the “unique feature” of the Pledge is that children are requested to affirm personally a belief in God. Mr. Newdow’s position is that his daughter suffers “injury” by having to do so.

References to God are sprinkled throughout other American public utterances, from “God Bless America” to the Declaration of Independence and even the presidential Thanksgiving proclamation. But only the Pledge, he said, requires a daily profession of faith.

The June 26, 2002, decision by the 9th U.S. Circuit Court of Appeals banning “under God” caused a chorus of condemnation. Members of Congress defiantly stood on the steps of the Capitol and recited the Pledge and senators cast a symbolic, 99-0 vote in support of “under God.”

Lawyer Jay Sekulow of the American Center for Law and Justice, who also spoke Friday, said the Pledge is “not a theological statement.”

“It reflects what our Founding Fathers believed in,” he said. “However, five justices thought it constituted enough of a constitutional crisis to review it.”

Several facts are unusual about the case. Mr. Newdow, a physician as well as a lawyer, will represent himself before the justices. His biggest regret is that his daughter will not be there to see him in front of the court because her mother, Sandra Banning, has refused.

“She said no,” Mr. Newdow said mournfully Friday. “She always says no.” A Sacramento, Calif., Superior Court judge backed the mother, saying the daughter should not have to undergo a public trial during which her custody issues will be discussed.

Mr. Newdow never married Miss Banning, who says that she has become a Christian since her daughter’s birth and that the girl leads other fourth-grade students in the Pledge in her school south of Sacramento.

“She does not object to Mr. Newdow as an individual bringing this case,” said her attorney, Paul Sullivan of Foley and Lardner in the District. “She does object to the daughter being included in this litigation without being consulted. The daughter is a Christian, is being raised in a Christian family and goes to church weekly. She enjoys saying the Pledge of Allegiance, so there is no injury being caused.”

Only one federal appellate court had ruled on its constitutionality — the 7th U.S. Circuit Court of Appeals in 1992 said the use of “under God” in the Pledge does not violate the First Amendment, which forbids an establishment of religion.

Another quirk about the case is that Justice Antonin Scalia, who in a speech criticized the 9th Circuit’s decision, has recused himself from the case. Thus the court could split 4-4, in which case the 9th Circuit’s decision to strike the words “under God” will stand in the nine Western states it oversees.

Proponents argue that the Pledge is recited by rote, is not a prayer and is not mandatory.

Shortly after Congress approved the words “under God” in 1954, Mr. Sekulow said, he remembered Jehovah’s Witness children leaving his classroom because the Pledge violated their religious beliefs. Children in public schools have long been allowed to opt out of saying the Pledge, he said.

A third quirk is the standing of the father in the case. The school district has argued unsuccessfully to this point that a father who only recently got joint custody of his daughter should not be dictating the circumstances of her education.

“Three-quarters of this argument [in front of the justices] may be on this ‘standing’ issue,” Mr. Sekulow said. “If the court were to decide ‘We don’t want to decide the merits of this,’ it will play a major role.”

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