High Court to Consider `Under God' in Pledge

Oct 16, 2003 04:01 PM EDT

WASHINGTON -- Wading into another emotional controversy over religious expression in public schools, the U.S. Supreme Court agreed Tuesday to decide whether the Pledge of Allegiance should be stripped of the phrase "one nation, under God."

The case, involving a California atheist who challenged the Pledge on behalf of his 9-year-old daughter, sparked a nationwide uproar last year when a federal appeals court ruled that the phrase was an unconstitutional merging of church and state.

At issue is the meaning of the First Amendment, which prohibits the government from "establishing" or promoting religion, but also prohibits the government from interfering with the "free exercise" of religion.

In recent years, religious and social conservatives have pushed to include more references to God and religion in public schools and other government institutions, while advocates of church-state separation have sued to eliminate such references.

The Supreme Court has already ruled that public school students cannot be forced to recite the Pledge, which reads: "I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all."

The court also has banned school-sponsored prayer in the classroom and at other school events. In July 2000 it used a case from Santa Fe, south of Houston, to bar student-led prayers over the public address system at public high school football games.

When the San Francisco-based 9th U.S. Circuit Court of Appeals issued its decision in the Pledge case last year, lawmakers in Washington responded by gathering before television cameras on the steps of the U.S. Capitol to recite the Pledge. They also recited the Pledge in their chambers and sang, "God Bless America."

On Tuesday, White House spokesman Scott McClellan hinted the Bush administration might take the court up on its offer to allow the administration's lawyers to weigh in.

"Keep in mind that you have a Declaration of Independence that refers to God or the Creator four different times," McClellan said. "You have sessions of Congress each day that begin with prayer. And, of course, if you look on our own currency, it says, `In God We Trust.' So we believe the Pledge of Allegiance is an important right that ought to be upheld by the Supreme Court."

Activists on both sides of the issue also praised the court for agreeing to hear the case.

"This case has touched a nerve across America," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a law firm founded by the Rev. Pat Robertson. Sekulow said he plans to file a "friend-of-the-court" brief urging the court to uphold the Pledge as it is currently recited.

"This case represents an important opportunity to put a halt to a national effort aimed at removing any religious phrase or reference from our culture," Sekulow said. " `One nation, under God,' is a constitutionally protected patriotic expression -- not a blatant affirmation of a particular faith."

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, predicted the case would be the most controversial religion-in-schools case in decades.

"No one should feel coerced to take part in a religious exercise to express patriotism," Lynn said. "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. Requiring a daily religious loyalty test of school children is simply wrong."

Texas Gov. Rick Perry recently signed into law a bill requiring all Texas public school students to recite the U.S. and Texas pledges of allegiance each day at the start of classes.

Will Harrell, spokesman for the Texas chapter of the American Civil Liberties Union, said he hopes the high court will use the California Pledge case to strike down all such laws. "It has a direct impact on Texas," he said. "This law now stands under review."

Harrell said the court's previous rulings indicate the justices support keeping government and religion separate.

"We think it might be a ruling in favor of children who either have a religious reason not to pledge allegiance to a God or to a country," he said. "That remains to be seen."

The Pledge, written by a clergyman, has been recited in U.S. public schools since 1892. It was adopted by Congress as a patriotic oath in 1942.

For decades, it was recited as originally written, without any religious references. In 1954, Congress, in the height of the Cold War, added the phrase "under God" in an effort to to set Americans apart from "godless Communists."

The Bush administration, the California school and the atheist parent, Michael Newdow, all asked the Supreme Court to decide the case, but the court agreed to hear only the appeal from the school district.

Besides the constitutional question, the court also will consider whether Newdow, who has been fighting the child's mother for custody, had the legal authority to bring the lawsuit in the first place. The girl's mother does not object to the pledge.

Justice Antonin Scalia, who made public remarks earlier this year criticizing the 9th Circuit's ruling in the Pledge case and saying the issue should be decided by lawmakers instead of the courts, is not taking part in the case. That means it is possible that the other eight justices could deadlock 4-4.

If that happens, the 9th Circuit's ruling would stand and the Pledge recited by 9.6 million schoolchildren in that circuit would no longer contain the phrase "under God." Nine states -- California, Oregon, Nevada, Montana, Washington, Idaho, Arizona, Hawaii and Alaska -- plus Guam, are included in that circuit.

Public school students elsewhere would still be allowed to recite the "under God" version of the Pledge.

The court will hear arguments in the case next spring. A decision is expected by July.

Chronicle reporter Melissa Drosjack contributed to this story.