High Court to rule on the Pledge

Sometimes its seems "God" is everywhere - with the full sanction of the US government.

The national motto, "In God We Trust," is on every US coin and dollar bill. Thanksgiving has been a national day of thankful prayer since Abraham Lincoln declared it so in 1863. For two centuries, the US Supreme Court has opened its sessions with the same proclamation: "God save the United States and this honorable court." And since 1954, the Pledge of Allegiance to the US flag - the nation's ultimate expression of patriotism - has included the phrase "one nation under God."

But how does one reconcile this seeming ubiquitous government recognition of deity with the constitutional mandate of separation of church and state? That's the question the Supreme Court agreed to answer Tuesday when it took up a potential landmark case to examine the constitutionality of the Pledge of Allegiance.

At issue is a ruling by a federal appeals court panel in California that teacher-led recitation of the phrase "one nation under God" in the Pledge is an unconstitutional attempt by the government to indoctrinate public school children with religious dogma.

"We're headed into a massively controversial case," says the Rev. Barry Lynn of the group Americans United for Separation of Church and State.

Supporters of the Pledge, say that the inclusion of "God" is a permissible public acknowledgement of America's religious heritage, not an attempt by the government to proselytize.

Critics say it is a clear violation of the principle of government neutrality toward all things religious and amounts to discrimination against the nonreligious. "Those who deny the existence of a supreme being have been turned into second-class citizens by a government that continuously sends messages that 'real Americans' believe in God," says Michael Newdow, a California atheist, in a brief to the court urging the removal of "God" from the Pledge.

In a surprise move, Justice Antonin Scalia has recused himself from the case. The move comes after a formal request by Mr. Newdow for him to do so. Newdow said Justice Scalia has made public remarks about the case that raised questions about his impartiality.

The Pledge case is important because it will help establish whether government references to religion and to "God" amount to impermissible entanglement of religion and government. Excessive entanglement would violate the First Amendment's prohibition on government actions that respect "an establishment of religion." The difficulty in this area of First Amendment law, legal analysts say, is determining what is excessive and what is permissible.

In the past, Supreme Court justices have treated ceremonial references to God with a more lenient standard than the strict neutrality applied to school prayer and Ten Commandments cases. But some analysts question the vitality of this reasoning.

Indeed, the Supreme Court has never directly confronted the issue - until now. The case arises from a lawsuit filed by Newdow, father of an elementary school student in Elk Grove, Calif.

Newdow objects to his daughter being subjected to teacher-led recitation of the Pledge of Allegiance every morning under a statewide policy. He argues that the 1954 federal law that added the words "under God" to the Pledge converted it into an impermissible state endorsement of religion.

In June 2002, a panel of the Ninth US Circuit Court of Appeals in San Francisco agreed with him. By a 2-1 vote it ruled that the modified pledge was an endorsement of religion.

Eight months later, the panel dropped its endorsement finding and narrowed its ruling by focusing on California's policy of teacher-led recitation of the Pledge. It ruled that, requiring teachers to lead students in reciting the words "under God" as part of the Pledge, converted a daily profession of patriotism into a coerced religious act.

"A profession that we are a nation 'under God' is identical, for establishment clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion," wrote the court panel in its 2-1 decision.

If upheld by the nation's highest court, the panel's ruling would make it unconstitutional for teachers in California and 43 other states with similar policies to lead their students in reciting the Pledge as long as the words "under God" are included in it.

Under an earlier Supreme Court ruling, public school students who object to the pledge may not be required to participate. The appeals court expanded that ruling, saying that just the act of performing the Pledge in the presence of any objecting students amounts to impermissible coercion to participate in a government-authorized religious act.

At the heart of the appeals court decision was the neutrality reasoning used by the US Supreme Court in a 1992 case to strike down the offering of a prayer at public high school graduation ceremonies.

The resulting appeals court decision in the California case was in direct opposition to a 1992 decision of a federal appeals court in Chicago. In that case the appeals panel dismissed a lawsuit seeking to declare the Pledge unconstitutional.

"So long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises," the Chicago appeals court ruled. "Objection by the few does not reduce to silence the many who want to pledge allegiance to the flag."

An additional issue in the case before the high court is whether Newdow, who is not married to his daughter's mother and who does not live with his daughter, has legal standing to object to the Pledge policy at his daughter's school.

The mother, Sandra Banning, says neither she nor her daughter objects to participating in the Pledge of Allegiance.

Ms. Banning "believes that the Pledge is an important patriotic expression of American ideals, and she wishes for her daughter to be able to recite the Pledge at school," says a brief to the court filed on Banning's behalf by Washington lawyer Kenneth Starr.

"Ms. Banning is particularly concerned by the undemocratic nature of the court of appeals' decision, which, if permitted to stand, would allow Newdow to impose his own agenda and particular sensibilities on everyone else," the Starr brief says.

The Ninth Circuit panel ruled that a noncustodial parent, like Newdow, has the right to challenge government policies that affect his or her child.

• Linda Feldmann contributed to this report from Washington.