Legal Times

10/15/03

Justices to Take Pledge While Scalia Sits Out

By Tony Mauro

WASHINGTON --The U.S. Supreme Court on Tuesday set the stage for a major First Amendment battle over the words "under God" in the Pledge of Allegiance.

Three years ago, Sacramento atheist Michael Newdow's pro se campaign to strike the words from the Pledge seemed merely quixotic. Now, the case is on the agenda for the nation's highest court, likely to be argued early next year amid an intense debate over issues of religion and patriotism in a time of war.

Many Supreme Court experts had predicted that the court would summarily reverse the ruling by the Ninth Circuit U.S. Court of Appeals last year that sided with Newdow and found that "under God" in the Pledge recited by public school students violated the First Amendment's establishment clause.

Instead, the high court agreed Tuesday to give full review of the case Elk Grove Unified School District v. Newdow , 02-1624, reframing the case in a way that worried Pledge supporters, asking whether the challenged school policy is constitutional in that it "requires teachers to lead willing students in reciting the Pledge."

Justice Antonin Scalia added an extra dose of unpredictability by recusing himself from the case Tuesday, depriving Pledge supporters of a near-certain vote and making it easier for Newdow to win; he now needs only four votes, not five, to prevail. Scalia was apparently responding to Newdow's unconventional Sept. 9 "suggestion for recusal" based on a speech Scalia gave in January in which he suggested that the words "under God" could be excised from the Pledge only through legislative action by Congress, which first inserted the phrase in 1954.

"It's a real challenge now. There are a whole lot of ways it could turn out," said Jay Sekulow, director of American Center for Law and Justice, which is urging the high court to retain the words "under God" in the Pledge. "We're surprised by Scalia's back-out, and anytime the court uses the word 'required' in a case like this, that makes you a little nervous."

The Supreme Court left itself a possible escape hatch Tuesday, indicating that in addition to the First Amendment issue, it wanted to hear arguments on whether Newdow had standing to bring the suit on behalf of his 9-year-old daughter. If the court finds Newdow has no standing, the justices could conceivably avoid the contentious Pledge issue.

The standing issue arose because from February 2002 until last month, Newdow did not have legal custody over his daughter, and the girl's mother, Sandra Banning, engaged Kenneth Starr of Kirkland & Ellis to contest Newdow's standing on the Pledge issue and to tell the court that she had no objection to her daughter saying the Pledge. In a California Superior Court proceeding last month, Newdow regained partial legal custody, though Banning's lawyers still contest his standing.

"It would be a shame to see this opportunity to straighten out the establishment clause go by the boards because of the standing issue or Scalia's recusal," says Kevin Hasson of the Becket Fund for Religious Liberty, which filed a brief against Newdow for the Knights of Columbus, a Roman Catholic organization. "Scalia's recusal shifts the center of the court to the left." Persuading the justices to overturn the Ninth Circuit will become a "much harder sell."

In another unusual twist, Newdow indicated Tuesday he will continue with his plan to argue the case himself, in spite of concerns expressed by First Amendment advocates who are his natural allies. Newdow, who has been a licensed California lawyer only since July, says he will file a motion to argue pro hac vice -- which is rarely denied. Such a motion is needed for lawyers who have been licensed for less than three years.

Kenneth Geller of Mayer, Brown, Rowe & Maw, an expert on Supreme Court procedure, says the justices are likely to allow Newdow to argue. "He's a lawyer, and he's handled this case up until now. He's not yet eligible to become a member of the Supreme Court Bar, so granting a motion pro hac vice makes sense."

In past interviews, Newdow has indicated his eagerness to expose what he calls the "egregious" family law system in California that deprived him of custody. The high court's inclusion of the standing issue in its grant of review on Tuesday gives Newdow an opening to bring at least some aspects of that issue to the high court.

Barry Lynn of Americans United for Separation of Church and State, who supports Newdow, says he has not tried to persuade Newdow to turn over the case to another advocate. "He certainly has been successful so far. But there are other, more seasoned advocates who would make a compelling case and know the Supreme Court and its procedures more than he does."

Newdow first filed suit in March 2000 against the United States and Congress, as well as school officials. The suit was dismissed. But on appeal, a Ninth Circuit panel in June 2002 ruled for Newdow, though it dismissed the United States and Congress as parties. The panel found that the Pledge, even if students are not required to recite it, has a "coercive effect." Reviewing the history of the law that placed the words in the Pledge, the panel also found that it had the purpose of advancing religion and had the effect of endorsing the existence of a "monotheistic God."

After a national uproar, the panel in February amended its ruling to confine it to the school context -- not the wording of the Pledge in general.

The school district, Newdow and the Bush administration all appealed the decision, but on Tuesday the court granted review in only the school district case, rejecting the others. It did, however, invite the solicitor general to give his views on the issue, making it likely that the Bush administration will also participate in oral arguments.

Though several justices in dicta over recent years have appeared to endorse the words "under God" in the Pledge, the school setting might make it a closer call because of peer pressure, the impressionability of students and the fact that teachers -- who might otherwise object -- are required to lead the recitation of the Pledge.

"Students are effectively forced to be part of a religious observance, and they are expected to stay while it is going on," says Lynn. "Requiring a religious loyalty test for school children is simply wrong."